Nov 09, 2021

Aged care worker accused of performing indecent act on resident found not guilty

Elderly woman in bed indecent act

The aged care worker appeared before the ACT Magistrates’ Court on Monday to face one charge, to which he pleaded not guilty, The Canberra Times has reported.

The prosecution alleged that in May 2020, while putting the 91-year-old resident to bed, the 42-year-old aged care worker lifted the woman’s top, exposing her right breast, and sucked her nipple.

The complainant is a high-care resident with restricted mobility and she is living with dementia.

An aged care worker colleague had been in the room, but had left momentarily. When she returned, she saw the resident’s breast uncovered and the defendant’s head rising from her chest.

The accused told police he was trying to make the resident more comfortable.

Prosecutor Sam Bargwanna conceded it was a circumstantial case, and there was “no direct evidence” of the allegation.

Defence lawyer AJ Karim said the alleged offence “simply didn’t occur”.

Karim said the patient’s breast was exposed in the context of the aged care worker “performing his lawful duties”.

The witness account was speculative and the alleged incident could not have occurred in the time frame given, Karim declared.

“By seeing the erect nipple, she has come to the conclusion that the defendant must’ve kissed it,” Karim said. However, “she simply didn’t know,” he said.

In recorded evidence, the complainant said, “Nothing happened … he managed to pinch me on the back,” when asked about the alleged incident.

She said there was “nothing to talk about”.

Jennifer Stone, a forensic biologist with the Australian Federal Police, said her DNA analysis “strongly supports that [the accused] is the source of the DNA profile obtained,” The Canberra Times reported.

Saliva tests from two swabbed areas gave strong positive results that they were from the accused. However, she admitted they could have been false positives.

Stone also said the test method did not identify saliva, only the alpha-amylase enzyme in saliva, and therefore was not conclusive. The same enzyme could have come from the resident’s breast due to medication she was taking, the court heard.

The DNA deposits could also have occurred when the accused was talking near the resident, and did not necessarily indicate touching, the court also heard.

Theakston said he did not understand what the aged care worker was doing at the time, however, there was insufficient evidence to hand down a guilty verdict.

“The events observed [by the fellow carer] were events she did not fully understand,” the magistrate said.

“In the process of caring for the complainant, the defendant did briefly expose her breast, but there was nothing untoward about that.

“His DNA located on her breast could have been placed there simply by his proximity,” he said.

The accused had no criminal history and had been working at the aged care home without incident. His father attended court with him.

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