Eades v Director of Public Prosecutions

CATCHWORDS: CRIMINAL LAW - incitement to commit indecency - elements of offence - whether characterisation of the act incited as indecent depends on the purpose of the person committing the act, or the purpose or understanding of the person who incites - Crimes Act 1900 (NSW), s 61N(1) - CRIMINAL LAW - incitement to commit indecency - evidence - the scope of circumstances permissible to consider in determining whether an act was an act of indecency - Crimes (Appeal and Review) Act 2001 (NSW), s 56(1) - CRIMINAL LAW - incitement to commit indecency - significance of the act incited by the applicant being an act engaged in by the complainant - Crimes Act 1900 (NSW), s 61N(1) - APPEAL - appeal from Local Court to Supreme Court - powers of Supreme Court - WORDS AND PHRASES - "act of indecency" - Crimes Act 1900 (NSW), s 61N(1)

Crimes (Appeal and Review) Act 2001 LEGISLATION CITED: Crimes Act 1900 Supreme Court Act 1970 Supreme Court Rules 2005

Director of Public Prosecutions v Annetts [2009] NSWCCA 86 Director of Public Prosecutions v Eades [2009] NSWSC 1352 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 R v Court [1989] 1 AC 28 CASES CITED: R v Gillard & Gillard (1999) 105 A Crim R 479 R v Manson (NSWCCA, 17 February 1993, unreported) R v Massie [1998] VSCA 82; [1999] 1 VR 542 R v McIntosh (NSWCCA, 26 September 1994, unreported) R v Stevens (NSWCCA, 26 September 1994, unreported)

PARTIES: Damien Eades (Appellant) Director of Public Prosecutions (Respondent)

COUNSEL: T Molomby SC; B Vasic (Appellant) D Arnott SC (Respondent)

SOLICITORS: Marando Solicitors, Fairfield (Appellant) S Kavanagh (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT DATE OF DECISION: 17 December 2009

LOWER COURT MEDIUM NEUTRAL CITATION: DPP v Eades [2009] NSWSC 1352

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/295142

BEAZLEY JA BASTEN JA CAMPBELL JA

17 SEPTEMBER 2010 DAMIEN EADES v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) Judgment 1 BEAZLEY JA: I agree with Campbell JA. 2 BASTEN JA: On 4 March 2009 the applicant (Damien Eades) was charged in the Local Court with an offence involving incitement of a person under 16 years of age to commit an act of indecency towards him, contrary to s 61N(1) of the Crimes Act 1900 (NSW). The act of indecency was particularised as the complainant's act of sending to the applicant a photograph of herself naked, as an attachment to a text message. The question on which the prosecution turned was whether that constituted an act "of indecency". The Magistrate considered, in the course of determining that question, whether the context in which the act took place, including the motivation and desires of the respondent, the ages of the respective parties and the sexual references contained in the text messages, could be taken into account. His Honour held that they could not. Because he was not satisfied that the photograph viewed in isolation was indecent, he dismissed the charge. 3 The Director of Public Prosecutions, as a prosecutor, appealed against the dismissal of the charge to the Supreme Court, pursuant to s 56(1)(c), in Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act"). Such an appeal is limited to a ground "that involves a question of law alone". A judge in the Common Law Division (James J) upheld the appeal, set aside the order of the magistrate dismissing the charge and declared that the magistrate had erred in law in failing to consider the surrounding circumstances: Director of Public Prosecutions v Eades [2009] NSWSC 1352. His Honour remitted the matter to the Local Court to be dealt with according to law.

Issue on appeal 4 The applicant seeks leave to appeal against the judgment and orders in the Common Law Division, the leave requirement arising under s 101(2)(h) of the Supreme Court Act 1970 (NSW), the appeal to the Court below being brought pursuant to Pt 5 of the Appeal and Review Act. 5 The sole ground of appeal was that his Honour erred in law "in determining that evidence of surrounding circumstances was admissible on the question of whether the act charged, as particularised, was indecent". This statement of the ground of appeal was misconceived. His Honour did not rule on the admissibility of evidence: rather, he upheld a ground of appeal that involved a question of law alone, for the purposes of s 56(1) of the Appeal and Review Act. A ruling on the admissibility of evidence could involve such a question, but will often involve mixed questions of law and fact. The ground upheld by his Honour was reflected in the following conclusion at [30]: "The magistrate held that, as a matter of principle, evidence of surrounding circumstances could not be taken into account by him in determining whether an act was an act of indecency."

Question of law alone 6 What matters may or may not be taken into account in resolving a legal question depends on the proper construction of the statutory provision and hence involves a question of law. It would be erroneous in law to refuse to take into account a mandatory consideration, as it would be to take into account a prohibited consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 (Mason J). Equally, it is an error of law to refuse to take into account (thus treating as prohibited) considerations which are permissible. Accordingly, the error identified as having been committed by the magistrate (if it were erroneous) was an error of law alone.

Nature of offence: inciting act of indecency 7 Whether or not the course taken by the magistrate was erroneous depended upon the proper construction of s 61N(1) of the Crimes Act. It is well-established that identification of an act as indecent is an objective question determined by reference to the standards of decency held by right-thinking members of the community: see Regina v Manson (unrep, NSWCCA, 17 February 1993), (Gleeson CJ, Clarke JA and Sully J), esp at p 3, where Gleeson CJ identified the test by reference to established authority. 8 The only additional issue which arises in this case is whether the characterisation of an act as indecent depends on the purpose of the person committing the act, or the purpose or understanding of the other person. In Manson, the purpose in question was that of the photographers of a girl under 16 years. That their purpose was artistic or political did not prevent the act being an act of indecency, however it was not irrelevant. In R v McIntosh (unrep, NSWCCA, 26 September 1994), in circumstances broadly similar to Manson involving the photographing of two young girls, the offender was charged with "inciting a person under the age of 16 years to commit an act of indecency with him". Loveday AJ (Badgery-Parker and Bruce JJ agreeing) held that the surrounding circumstances, relevant to characterising the act, included the intention or purpose of the offender, which he admitted to be later sexual gratification. 9 The act of indecency in that case appears to have been the photographing of the girls: it is not entirely clear why the charge was one of incitement. In the present case the applicant was properly charged with incitement, as the act of photographing and communicating the photograph was that of the victim, not of the applicant. However, the purpose of the inciter can be relevant, and may be critical, in characterising the act as indecent or otherwise. For example, an adult male who asks a girl to undress may not be involved in any act of indecency if he is a medical practitioner and she is a patient. On the other hand, even in that circumstance, it would be possible for him to incite an act of indecency if his real motive were not professional, but personal, involving sexual gratification. 10 Counsel for the applicant submitted that whatever might be true in other cases, the principles identified in Manson and McIntosh did not apply to the present case. That was because, as the matter was conducted before the magistrate, the act of incitement on the part of the applicant was the act engaged in by the complainant, namely the sending to him of a photograph of herself naked. Further, because the magistrate found that the sending of the photograph was not, of itself, an act of indecency, no occasion arose to look beyond that fact, to the surrounding circumstances of the incitement. 11 That submission fails for a number of reasons. First, the characterisation of the act of potential indecency does not depend upon whether the act occurred as incited, in varied form, or not at all. Secondly, his Honour had not (or should not be understood to have) concluded that the act of sending the photograph, taken in isolation, was not an act of indecency. Thirdly, and most importantly, to formulate the question in that way is to subvert the proper inquiry. The issue at the heart of the inquiry was the scope of the circumstances which it was permissible to consider in determining whether the act of sending the photograph was an act of indecency. If context is properly taken into account, it is irrelevant that the act might not be so characterised absent that context. Nor does the answer given by reference to part only of the circumstances assist in any respect in identifying the scope of the relevant circumstances.

Contention 12 The primary judge was also asked to consider a contention that, even if the magistrate had erred on a point of law, the appeal should nevertheless have been dismissed because the act of indecency relied upon was not directed "towards" the offender, as the charge alleged. The contention was dismissed and there is no appeal against that aspect of his Honour's judgment.

Orders 13 The conclusion reached by the primary judge was correct. The issue raised is one which warrants a grant of leave, but the appeal should be dismissed. 14 One of the orders made below, however, requires attention. The primary judge made a declaration in the following terms "A declaration that the magistrate erred in law in failing to consider the surrounding circumstances, including the sexual nature of the text messages, the intention and purpose of the defendant and the ages of the complainant and the defendant in determining whether the act of sending the nude photograph, was an act of indecency." 15 First, describing the error as "failing to consider" certain matters is ambiguous: it may suggest that those matters were mandatory considerations. In fact they were not; they were permissible considerations. The error was in dismissing them as impermissible considerations. 16 Secondly, the "surrounding circumstances" were not at large: the case was run on the basis that certain specific matters had not been addressed. Accordingly, the word "including" was inapt. 17 Thirdly, the nature and context of the text messages was a permissible consideration: to limit the consideration to the "sexual nature" of the messages may either be treated as inappropriately limiting the extent of the material to be considered, or as drawing a factual inference about their nature, which was not a matter for the Court. 18 Fourthly, counsel for the applicant criticised the separate reference to the intention and purpose of the defendant, whereas, on the case run, those matters were to be inferred from the content of the text messages. He contended, fairly, that the relationship should have been made express. 19 Finally, counsel for the applicant argued that the ages of the complainant and the defendant had been taken into account. In this respect, the purpose of the declaration should be understood as being not merely to identify the specific error on the part of the magistrate, but give guidance as to the matters which were permissible considerations. 20 It follows that the declaration cannot stand in its present form. These issues were not referred to in the draft notice of appeal and it is neither necessary, in the light of the reasons of this Court, nor appropriate to seek to reformulate it. Its removal should not affect the order as to costs. 21 With respect to the costs of the proceedings in this Court, the applicant sought in the draft notice of appeal an order for payment of his costs. In relation to the application for leave to appeal, the applicant said there was no reason why a costs order should not be made in favour of the respondent if the application were refused. The respondent sought an order for costs in his written submissions in response. It thus follows that each of the parties anticipated that costs would follow the event. Accordingly, the applicant should pay the costs of the respondent in this Court. 22 Part 5 of the Appeal and Review Act empowers the Court to make an order for costs against an unsuccessful applicant for leave to appeal, whether the application is made by an offender or the prosecutor: ss 54(3) and 58(3). This was not such a case; further the prosecutor's appeal was successful. There is no indication that any order for costs was made in the Common Law Division nor that this Court should interfere, if any order were made. 23 I would propose the following orders:

(1) Grant leave to the applicant to appeal from the judgment and orders of James J made in the Common Law Division on 17 December 2009.

(2) Deem the draft notice of appeal contained in the white folder to stand as the notice of appeal in the proceedings and waive further requirements of the rules with respect to filing and service of the notice of appeal.

(3) Set aside the declaration made below but otherwise dismiss the appeal.

(4) Order the applicant to pay the respondent's costs of the appeal. 24 CAMPBELL JA: The Applicant was charged summarily in a Local Court with an offence under section 61N(1) Crimes Act 1900 of inciting a person under the age of 16 years to act with indecency towards him. The Applicant was acquitted, but the Director of Public Prosecutions appealed against that acquittal to the Supreme Court. 25 The appeal was pursuant to section 56(1)(c) Crimes (Appeal and Review) Act 2001, which (relevantly) permits an appeal to the Supreme Court against an order made by the Local Court dismissing a matter the subject of any summary proceedings, but only on a ground that involves a question of law alone. 26 James J in effect upheld the appeal: DPP v Eades [2009] NSWSC 1352. The orders his Honour made included an order setting aside the magistrate's dismissal of the proceedings, and an order remitting the matter to the Local Court to be dealt with according to law. The primary judge also made a declaration more specifically related to the facts of the charge. The precise terms of that declaration are considered below. 27 The Applicant now seeks leave to appeal against the orders and declaration of James J. The matter has been argued on the basis that any arguments that any party would wish to put if leave were to be granted were put concurrently with those relating to leave to appeal. 28 In my view, the matters involved are of sufficient importance to warrant the grant of leave to appeal. I will henceforth refer to the Applicant as the Appellant.

Factual Circumstances 29 The Appellant is a young man, who at the time of the events giving rise to the charge was aged 18. The Complainant is a girl who was aged 13 at the time of those events. The act of indecency allegedly incited was for the Complainant to send to the Appellant, by means of a mobile phone, a picture of herself in the nude. 30 The primary judge (at [9]-[10]) set out the circumstances from which the charge arose: "The defendant and the complainant had become friends. On 4 March 2008 and 5 March 2008 the defendant and the complainant, using their mobile telephones, exchanged a series of text messages. In the messages the defendant and the complainant used abbreviations and simplified spellings of the kind customarily used in sending text messages. However, when I quote or summarise a message in this judgment I will use conventional spelling. The text messages between the defendant and the complainant included the following, in the following order:- The defendant to the complainant - "when am I going to get a picture I send you one if you send me one a hot steamy one". The complainant to the defendant - "ok well when I get home I take one Hey did you get the one I sent the other day". The complainant to the defendant, saying that she was finally out of school and asking whether work had got any better for the defendant. The defendant to the complainant, answering "No, its still heaps dead but it's all good paid for nothing". The complainant to the defendant, saying that she was in the shower. The defendant to the complainant, sending a photograph of himself from the waist upwards, naked, and asking "you like?". The complainant to the defendant - "Yes, yes I do like so I only got to send one of top half sorry for the slow reply but I'm in the shower". The defendant to the complainant - "send whatever you want bottom even better". The complainant to the defendant - "but do I get one?". The defendant to the complainant - "Yes not while I'm at work though". The complainant to the defendant - "well I will take it now but none will be sexy after all it is a picture of me". The next message is indecipherable in the document in the court papers. The defendant to the complainant - "send both or the best your choice". The complainant to the defendant - "there's not two there's four and I don't know what one is the best". The complainant to the defendant - "ok I'm about to send one so don't laugh even though you probably want". The complainant then sent a photograph of herself. The photograph was a full frontal photograph of the complainant standing, nude, from the top of her head to about her knees. She was holding a mobile telephone in one hand and her other arm was by her side."

The Magistrate's Decision 31 The Appellant had also been charged in the Local Court with an offence under section 91H(3) Crimes Act 1900, as then in force, of having child pornography in his possession. The alleged pornography was the nude photograph that the Complainant had sent him. The magistrate dismissed that charge, and the DPP did not appeal against that dismissal. However, some of the findings of the magistrate concerning that charge were relevant to his reasoning on the charge under section 61N Crimes Act. 32 Section 91H(1) Crimes Act defined "child pornography" as meaning: "Material that depicts or describes (or appears to depict or describe), in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be) a child: … (b) in a sexual context …" 33 The magistrate held that under section 91H the "sexual context" had to be determined from the photograph itself. That finding is consistent with the later decision of the Court of Criminal Appeal in Director of Public Prosecutions v Annetts [2009] NSWCCA 86 at [10]. He found that there was no sexual activity depicted in the photograph. Rather, it was a photograph of the Complainant standing naked in a bedroom "and there is no posing, no objects, no additional aspects of the photograph which are sexual in nature or suggestion". Thus, he found that the photograph was not "child pornography" as defined. 34 There can be cases of incitement to do a particular type of action, where the person incited did not act on the incitement at all, or acted on the incitement by performing an action that fell short of the full extent of the act that the inciter had urged should be performed. For example, a conviction can be obtained for incitement to murder if the accused, believing he is making arrangements with a hitman for a particular murder to be carried out, was in fact directing his urging to an undercover policeman: R v Massie [1998] VSCA 82; [1999] 1 VR 542. However in the present case, it was not put to the magistrate that the photograph that the Complainant sent was in any way less suggestive or exciting than the Appellant had requested. Rather, the way that the case was presented to the magistrate was that the act of indecency that the Appellant had incited was the sending of the actual nude photograph that the Complainant sent. 35 The magistrate proceeded in his judgment by considering, seriatim, what he evidently regarded as elements of the offence charged. First he held that, notwithstanding that the Appellant and the Complainant were not in each other's physical presence, "the action in this case is relevantly being carried out towards" the Appellant. 36 Then he held that he was satisfied "that there is more than sufficient evidence as to the action by the accused inciting [the Complainant] in the relevant sense". He referred to the detail of the exchange of SMS messages and characterised it as: "a series of actions by the accused in trying to elicit a response of a fairly clear kind from [the Complainant], a very clear inference to incite her to send a photograph of herself, a clear inference of that to be naked, and a suggestion of that being of a sexual content". 37 He noted that there was no evidence, such as a record of interview with the Appellant, or evidence in court from him, to the contrary of "the inference that naturally arises from this material". Thus he held he was satisfied "that there was relevant inciting of that kind". 38 He then turned to a question of whether "the act itself is an act of indecency, the act of sending a nude photograph of herself." Concerning that question, he referred to his own previous finding that "the photograph itself does not disclose a clear sexual component". He then identified an issue of "to what extent the context which I have been referring to partly can be relied upon by the prosecution to colour the interpretation of that act by [the Complainant]". 39 The magistrate directed himself by reference to R v Manson (NSWCCA, 17 February 1993, unreported), in which Gleeson CJ (with whom Clarke JA and Sully J agreed) said that: "An indecent act is one which right-minded persons would consider to be contrary to community standards of decency." 40 That test invokes right-minded persons, in the plural. It requires that, if they were to consider the matter, they would be of the view that the act in question is contrary to community standards of decency - not be in a state of vacillation or doubt about whether the act in question is contrary to those community standards. The community standards are those of the time, and might possibly change over the years. 41 The magistrate posed the question he then had to decide as being: "to what extent, what would on its own not be seen or held to be an act of indecency can become one because of the broader context of the action of the accused". The matters of "broader context" to which he was there referring were: the respective ages of the Appellant and the Complainant; that they were friends (but that there was no evidence that their relationship went beyond being friends); the terms of the exchanges of SMS messages that preceded the sending of the photograph; that there was no question of political or artistic motivation for requesting the photograph; that there was an "overall slightly sexual context" to the messages; and an inference "that from the accused's point of view that there was a sexual aspect behind his request and interest". The magistrate's conclusion was: "I am not persuaded that … the prosecution can rely upon those additional matters to change the nature of the incident or act itself being carried out by [the complainant]." 42 It was for that reason that he dismissed the charge under section 61N. In fairness to him, I note that he lamented that the prosecution had not referred him to any case that could assist him in deciding whether such contextual matters could legitimately be taken into account.

The Appeal to the Supreme Court 43 The ground of appeal to the Supreme Court was that the magistrate had erred in law in: "Failing to consider the surrounding circumstances, including the sexual nature of the text messages, the intention and purpose of the accused and the age of the complainant and the accused, in determining whether the act of sending the nude photograph, was an act of indecency." 44 The primary judge held (at [28]) that the decision in R v McIntosh (NSWCCA, 26 September 1994, unreported): "…establishes conclusively that, in determining whether an act which another person is incited by the defendant to perform is an act of indecency, it is permissible to take into account the surrounding circumstances, including the intent or purpose of the defendant and in the present case the ages of the defendant and the complainant and the sexual inferences that can be drawn from the text messages."

No doubt the language that the primary judge here used is closely influenced by the language of the ground of appeal. 45 Thus, the primary judge held (at [29]) that the magistrate erred: "…in holding that, in determining whether the act which the complainant was incited by the defendant to perform, was an act of indecency, he should not have regard to the context of the act, that is the surrounding circumstances." 46 The declaration that the primary judge made was: "A declaration that the magistrate erred in law in failing to consider the surrounding circumstances, including the sexual nature of the text messages, the intention and purpose of the defendant and the ages of the complainant and the defendant in determining whether the act of sending the nude photograph, was an act of indecency." 47 The primary judge also held that the magistrate's error was an error of law and (on a Notice of Contention) that the relevant act of indecency was "towards" the Appellant. The Appellant does not appeal to this Court concerning either of those findings.

The Appellant's Contention 48 The sole ground of appeal that the Appellant sought to agitate, was that the primary judge erred "in determining that evidence of surrounding circumstances was admissible on the question of whether the act charged, as particularised, was indecent." Mr Molomby, counsel for the Appellant, accepted in argument that the question at issue was not one of admissibility of evidence - so far as I can see there had been no argument about the admissibility of any evidence before either the magistrate or the primary judge. Rather, the question at issue was what circumstances could legitimately bear on a question of characterisation, namely whether the act incited was, or was not, an indecent act. Without objection from the Crown, the argument proceeded on the basis that that was the question at issue. 49 Mr Molomby correctly pointed out that the charges involved in McIntosh involved a different way of breaching section 61N Crimes Act to the charge in the present case - in McIntosh, the charges were of inciting a person under the age of 16 years to commit an act of indecency with the defendant. The charges there arose when the defendant obtained permission from two girls who were wearing swimming costumes at a swimming pool to take their picture. He then requested them, on two separate occasions, to separate their legs, and then took photographs of their crotch area, from a distance of two to three feet away. On one occasion he actually moved a leg of one of the girls to a different position. He later admitted to a police officer that he took the photographs for his own later sexual gratification. 50 Loveday AJ (with whom Badgery-Parker and Bruce JJ agreed) rejected a submission that the act that the girls were invited to commit "was merely to sit with their legs open for the purpose of being photographed and that this act was incapable of being an act of indecency". Having earlier held that the test of indecency in a charge pursuant to section 61N Crimes Act is to be determined by an objective standard, he continued: "To say that the test is an objective one does not mean that the alleged act of indecency must be considered divorced from its surrounding circumstances. These circumstances may show that what otherwise would be indecent was not - for example, an examination of a woman's vagina, ordinarily an indecent act when conducted by a stranger, would not be indecent if conducted by the woman's medical practitioner for medical purposes. The 'surrounding circumstances' include the intention or purpose of the alleged wrongdoer. If the medical practitioner in the example given was conducting the examination not to treat his patient but for his own sexual gratification the examination would be an indecent act (see Manson page 3). The act of indecency relied upon in the present case is the photographing of the girls, the alleged incitement being the requests made by the appellant to participate. The circumstances of the photographing, the clothing of the girls, the pose they were asked to assume, the position of the photographer, the direction the camera was pointed and the purpose of the photographing are all relevant in considering whether or not the photographing was an act of indecency." 51 This reasoning is not dependent on the charge being one of incitement to commit an act of indecency with the accused, rather than towards the accused. In my view the difference between the present case and McIntosh that Mr Molomby has identified is not a relevant ground of distinction. 52 As the primary judge correctly pointed out in the judgment appealed from, the reference to the alleged act of indecency as being "the photographing of the girls" is not apt: as the charge in question was one of inciting another person to an act of indecency, the relevant act for the purpose of determining whether there was an act of indecency was the act of each of the girls, and not the act of the appellant. The judgment in McIntosh was an ex tempore one, and the submission that I have recorded at the start of [50] above showed clearly that Loveday AJ had in mind that the act alleged to be indecent was one that the girls had performed. I agree with the primary judge's statement at [28] that "… his Honour should be taken as having used the expression 'the photographing of the girls' as a convenient shorthand expression for referring to the acts of the girls in posing so as to be photographed." 53 There are many cases concerning an allegation that the accused person has committed an act of indecency, or an indecent assault, that have held that an act that is not inherently indecent when considered in isolation can be seen to be indecent when considered in the context of its surrounding circumstances. Examples are:

R v Court [1989] 1 AC 28 concerned a charge of indecent assault, arising from a man spanking a 12 year old girl several times on the part of her shorts that covered her buttocks. Lord Griffiths (with whom Lord Keith of Kinkell and Lord Fraser of Tullybelton agreed, making a majority of those of their Lordships deciding the case) said, at 35, "whether or not right thinking people will consider an action indecent will sometimes depend upon the purpose with which the action is carried out" . He there also held that spanking a girl's bottom is equivocal in that sometimes it could be done in circumstances in which, even if it was an assault, it would not be indecent, but that when (as in Court the accused admitted that he had done) the action was carried out with an intention to obtain sexual gratification, the action could be classified as indecent.

R v Manson (NSWCCA, 17 February 1993, unreported) concerned a charge of committing an act of indecency with a person under the age of 16 years. The charge arose from two people taking photographs of a young girl for a purpose that they said was political or artistic, namely making a protest against abuse of females. They were convicted by the jury, and appealed against that conviction. Gleeson CJ (with whom Clarke JA and Sully J agreed) dismissed the appeal. He said, at 2: "I am of the view that the jury might well have accepted the sincerity of the appellants and the explanation they gave of their purposes in taking these photographs, whilst at the same time convicting them of the offences in question. The fact that conduct is engaged in for political or artistic purposes does not throw around such conduct a kind of cordon sanitaire, producing the result that it cannot be found to be illegal. It is entirely possible that a person might, for political or artistic purposes, take a photograph of an act that a jury regards as an act of indecency."

Gleeson CJ also said, at 3: "If, as in the present case, the act in question has an unequivocally sexual connotation the Crown does not have to prove that the act was done for the purposes of providing sexual gratification. On the other hand, the purpose for which an act is done may well be regarded by right-minded people as relevant to the question whether it is decent or indecent, depending upon the circumstances of the particular case. The fact that an act was done for artistic or political purposes may lead a jury to conclude that it was not indecent. On the other hand, it would certainly not require such a conclusion."

R v Stevens (NSWCCA, 26 September 1994, unreported) concerned a charge of committing an act of indecency upon V. The accused was male, V was female. Both were adults. Newman J (with whom James J and Barr AJ agreed) accepted, at [5], that the act the accused had performed, namely touching V's thigh midway between the hip and knee, and placing his arm around her shoulder and pulling her towards him, was not inherently indecent. He said that if it had been done "in a public place in broad daylight, such as a beach, then there may well be force in the submissions" that it was not indecent. However, surrounding circumstances - that the appellant entered V's bedroom in the early hours of the morning, at a time she was asleep, that he entered by opening a closed door, that he pulled back the doona cover on V's bed and sat on the bed, and at the time he was wearing only a pair of Speedos and she was wearing a tracksuit top and underpants - enabled the trier of fact to hold that there was evidence of an intention in the appellant to obtain sexual gratification, and thus that the act was an act of indecency.

R v Gillard & Gillard (1999) 105 A Crim R 479 concerned a charge of committing an act of indecency towards a child under 16. The act of indecency involved consensual sexual intercourse between adults, an activity held specifically not to be indecent in itself. However it was held to be indecent when considered in the context that it was accompanied by an invitation to, and encouragement of, a young person to watch and/or join in (at 487). 54 These examples show the considerable variety of matters of context that courts, in particular fact situations, have regarded as bearing on whether a particular act is indecent. What particular matters of context assist in deciding, in any particular fact situation, whether an act is indecent is to a large extent a matter of judgment about the particular fact situation. 55 Mr Molomby submits that such cases, where the accused is alleged to have committed the act of indecency, are to be distinguished from the charge of incitement to commit an act of indecency, where the relevant act of indecency is, necessarily, not one committed or to be committed by the person who does the inciting. While he does not go so far as to submit that R v McIntosh was wrongly decided, he seeks to distinguish it on the basis that in McIntosh the perpetrator and the girls were in close physical proximity to one another, and there was a rapid interchange of request and response between the perpetrator and the girls concerning the positions that they should adopt, including actual movement by the perpetrator of the legs of one of the girls. He submits that in the present case the Appellant was not present, either physically or through electronic communication, at the time the photograph was taken, and had no control over its contents. Indeed, he submits, the Complainant had a considerable discretion as to exactly what was to be done. He submits that while an initial request of the Appellant was for a photograph that was "a hot steamy one", and the Appellant expressed a preference concerning its contents, namely "bottom even better", he still left the choice to the Complainant - "send whatever you want" - and made no complaint when told that "none will be sexy" and reiterated that the photo to send was "your choice". 56 This submission appears to proceed on the basis that some aspects of the context in which the photograph were sent (namely, the terms of the messages that led to the photograph being sent) could be relevant to whether the act incited was indecent, but that those contextual matters were so different from those involved in McIntosh that it should be concluded that the act incited was not an indecent one. That does not address the real question at issue here, namely whether the magistrate was right in saying he was precluded as a matter of principle from taking matters of context into account in deciding whether the act of taking and sending the photograph was indecent. 57 Mr Molomby also submits that in the present case, where the case was conducted on the basis that the act incited was the sending of the particular photograph that was in fact sent, the state of mind of the Appellant can have no role in deciding whether the sending of the photograph, as performed by the Complainant, was an indecent act. Further, he submits that when the magistrate, proceeding on a basis that he was leaving surrounding circumstances out of account, dismissed the charge under section 61N, that inevitably involved a conclusion that the taking and sending of the photograph, considered by itself, was not an indecent act. 58 In my view, the assumptions implicit in that way of proceeding, namely that the act of incitement and the act of indecency should be considered in isolation from each other, and the alleged act of indecency should be considered in isolation from its context, involve a mistaken construction of section 61N(1). So far as presently relevant, the text of section 61N(1) states: "Any person who … incites a person under [the age of 16 years] to an act of indecency with or towards that … person, is liable to imprisonment for 2 years." 59 The expression "incites a person … to an act of indecency … towards that … person" is a compound expression. The act that is prohibited is a particular type of inciting. It is for the purpose of deciding whether the prohibited type of inciting has occurred that one enquires whether the act incited is an act of indecency. It is the accused who must be found to have carried out the action that is described by the compound expression "inciting an act of indecency". The intention of the accused can be relevant to whether the accused has engaged in that type of inciting. 60 Further, it is as a prospective act (ie, an act that the accused is seeking to have the other person perform), that one assesses whether the act in question is an act of indecency. Even if, as seems to have been assumed in the way the present case was presented, the inciting is acted on, and the performance does not fall short of the act that the Appellant incited, the act is still considered prospectively - ie as the act that the accused was seeking to have performed. Had the complainants in McIntosh spread their legs in precisely the way they did, unprompted, with the aim of getting a better suntan, there may not have been held to have been an indecent act. But that is not what happened - they adopted the pose at the urging of the accused. The intention of the accused in that case was specifically held to be a permissible matter to take into account in deciding whether he had incited an indecent act. The intention of the Appellant can be relevant to whether he incited an indecent act in just the same way as the intention of the accused in McIntosh was relevant. 61 There is justification in principle for it being permissible to take matters of context into account in deciding whether an act that is incited is one of indecency. It arises from the test, stated in Manson and set out at [39] above, for what is an indecent act. The law does not proceed on the basis that right-minded persons make a decision about whether an act is contrary to community standards of decency by an artificial exercise of abstracting an action performed from the context in which it is performed. That is so whether the act in question is one actually performed, or one that one person is urging another to perform. Any of the surrounding circumstances that right-minded persons would take into account in deciding whether a particular action was contrary to community standards of decency can be taken into account in deciding whether the offence under section 61N(1) has been committed. 62 For any action, it is likely that there will be many aspects of the context in which it occurs that right-minded persons would find are of no help in deciding whether the action is contrary to community standards of decency. In a charge under section 61N(1) it is the task of the trier of fact to identify in the evidence those matters of the context of the particular action that is incited that right-minded persons would take into account in deciding whether the action is one that right-minded persons would consider to be contrary to community standards of decency, and then himself take those matters into account. 63 In particular, without trying to identify all the matters of context that could be relevant where the act is performed in response to a request, the terms of the request can sometimes properly be taken into account in deciding whether right-minded persons would consider that act to be contrary to community standards of decency. Likewise, facts about the identity of the person making the request and the person to whom the request is addressed, such as their respective ages, or the social roles they occupy (such as doctor-patient, or teacher-student) can sometimes be relevant to whether right-minded persons would consider the act incited to be contrary to community standards of decency. The variety of contextual matters that can assist in deciding whether some particular act being considered is indecent, makes it difficult to give any general guidance as to the type of contextual matter that can properly be taken into account. 64 For these reasons, when the magistrate enquired whether the act of the Complainant considered on its own would be held to be an act of indecency, the magistrate was asking a question that did not arise, on the true construction of section 61N(1), and that distracted him from correctly applying the section. In this respect section 61N(1) is significantly different to section 91H(1). 65 The primary judge was right in holding that the magistrate erred in law when the magistrate held that, in deciding whether the act the Appellant incited the Complainant to perform was an act of indecency, he should not have regard to the surrounding circumstances in which the photograph was taken and sent. Thus, the primary judge was right in ordering that the dismissal of the proceedings be set aside, and in ordering that the matter be remitted to the Local Court.

The Declaration Made Below 66 The terms of the declaration that the primary judge made are more problematic. Section 59(2) Crimes (Appeal and Review) Act 2001 provides: "The Supreme Court may determine an appeal against an order referred to in section 56(1) … (c)…: (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal." 67 There is no dispute (and, in my view, no doubt) that the power of "making such other order as it thinks just" enables the Supreme Court, when it sets aside an order of the Local Court, also to make an order remitting the matter to the Local Court for determination according to law. Section 61 Crimes (Appeal and Review) Act enables rules of court to be made under the Supreme Court Act 1970 with respect to the Supreme Court's jurisdiction to hear appeals concerning criminal matters heard in the Local Court. Such rules have been made in Part 51B Supreme Court Rules, but those rules cast no light on the making of declarations in such proceedings. I shall assume, without deciding, that the making of a declaration could fall within the scope of "such other order as it thinks just." 68 The declaration that was made was in the precise terms claimed in the summons, and does not appear to have been the subject of dispute before the primary judge. However its terms arose for consideration in argument in this Court. It seems to me that the declaration made has several deficiencies. 69 One is that it does not address the question in dispute between the DPP and the Appellant. The error of law that the primary judge held the magistrate had committed, was deciding that he was precluded from considering the surrounding circumstances to the act of indecency. That much emerges clearly from the terms of the primary judge's judgment. However, the terms of the declaration do not capture that holding. To declare that the magistrate "erred in law in failing to consider [certain matters]" might be taken to be a declaration that the magistrate was legally obliged to consider those matters. The declaration does not deal with the real issue, namely that the magistrate was wrong in deciding he was legally obliged not to consider contextual matters. 70 Further, if one were considering redrafting the declaration to cure the defect just mentioned, one would need to bear in mind that a declaration is supposed to be a clear statement of rights or obligations or (as is here relevant) of a particular type of decision maker being legally free to take certain types of matters into account. It could be misleading for a declaration to give only a partial list of the surrounding circumstances that the magistrate could have considered in deciding whether the appellant had incited an act of indecency. The surrounding circumstances that are included on the list in the declaration made are not necessarily all the surrounding circumstances that it was open to the magistrate to consider. The list does not deal with all of the contextual matters that the magistrate himself identified (para [41] above). Talking of "the sexual nature" of the text messages draws attention to one aspect of them, but by drawing an inference concerning them that is more properly the province of the trier of fact, and that the magistrate did not express in quite those terms. As well, any sexual aspect of the messages is not necessarily the only relevant aspect - the precise terms of the messages, and the sequence in which they were sent, might also appropriately be taken into account. Further, concentration on the intention and purpose of the defendant leaves out of account that the intention that the Complainant would have, if she were to act on the Appellant's request, might also be regarded as being a relevant surrounding circumstance. If the fact-finder drew from the exchange of text messages an inference that the Appellant was urging the Complainant to take a photograph specifically for the purpose of sending it to the Appellant, and as part of what was foreshadowed to be an exchange of naked photos between the Appellant and the Complainant, that might be regarded as being relevant to whether inciting the taking and sending of such photograph was inciting an act of indecency. 71 To make a declaration that is, or includes, a statement that the magistrate was at liberty to take into account relevant matters of context, without saying what they are, does not declare rights (or, here freedoms) in any way that is not achieved by reading and understanding the reasons for judgment. 72 In these circumstances, the preferable exercise of discretion is, in my view, to make no declaration at all.

Costs 73 It is not clear from the papers before us what, if any, order for costs was made by the primary judge. The deletion of the declaration provides no basis for altering any costs order made in the court below. 74 The Respondent claimed costs of the appeal in the event that it was successful. No opposition was voiced to that course. In that circumstance it is appropriate for costs to follow the event.

(1) Grant leave to the Applicant to appeal from the judgment and orders of James J made in the Common Law Division on 17 December 2009.

(2) Deem the draft Notice of Appeal contained in the white folder to stand as the Notice of Appeal in the proceedings and waive further requirements of the rules with respect to filing and service of the Notice of Appeal.

(5) Order the Applicant to pay the Respondent's costs of the application for leave to appeal and the appeal. **********

21/12/2010 - Hearing date corrected. - Paragraph(s) Coversheet

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