Director of Public Prosecutions v Tomici
[2025] VSC 674
•31 October 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
| S ECI 2025 00056 | |
| BETWEEN: | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| SAVA TOMICI | Respondent |
| AND | |
| S ECI 2025 00058 | |
| BETWEEN: | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| SAVA TOMICI | First Respondent |
| MAGISTRATES’ COURT OF VICTORIA | Second Respondent |
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JUDGE: | Hannon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 September 2025 |
DATE OF JUDGMENT: | 31 October 2025 |
CASE MAY BE CITED AS: | DPP v Tomici |
MEDIUM NEUTRAL CITATION: | [2025] VSC 674 |
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JUDICIAL REVIEW – Appeal from Magistrates’ Court – Charge of ‘sexual activity directed at another person’ – Magistrate found unsolicited exposure of genitals via video did not constitute ‘sexual activity’ – Was Magistrate’s order a final order; is Appeal Proceeding competent – Issues on appeal: what material may Court have consideration to in determining whether there was an error of law; was respondent’s alleged conduct ‘sexual activity’; Did the Magistrate err in finding no ‘sexual activity’ – Appeal allowed – Order of Magistrate set aside – Proceeding remitted to Magistrates’ Court – Crimes Act 1958 (Vic) ss 35D, 37A, 37B, 48; Summary Offences Act 1966 (Vic) s 19; Criminal Procedure Act 2009 (Vic) s 272; Supreme Court (General Civil Procedure)Rules 2015 (Vic) r 56.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E H Ruddle KC | Office of Public Prosecutions |
| For Sava Tomici | Ms S Flynn KC, with Ms J Kretzenbacher | Victoria Legal Aid |
| No appearance for or by the Magistrates’ Court of Victoria, which adopted a Hardiman position. | ||
Contents
A.. Background facts and introduction to the issues on appeal
B.. The Order was a ‘final order’ for the purposes of s 272 of the Criminal Procedure Act
C.. The material this Court may have regard to in considering the alleged error of law
D.. The respondent’s alleged conduct constituted engaging in an ‘activity’, which was ‘sexual’, for the purposes of ss 48(1)(a) and (b) of the Crimes Act
D.1 Legislative framework
D.2 Relevant legislative history
D.3 Consideration
D.3.1 The proper approach to construction of the provisions
D.3.2 Application of relevant principles to the facts
E... The making of the Order constituted an error of law
HER HONOUR:
A Background facts and introduction to the issues on appeal
In February 2024, the complainant[1] met the respondent, Sava Tomici, at her property in Digby, Victoria. The respondent inspected the Digby property and gave the complainant a quote for the re-stumping of her house. At the time, the complainant mentioned to the respondent that she had another property in Numurkah, Victoria, that also required some work. The respondent telephoned the complainant a couple of days later, asking her to call him when she was next at the Numurkah property, so that she could show him on FaceTime the work to be completed. FaceTime is a proprietary video and audio calling application.
[1]It is not necessary to identify the complainant.
On 10 February 2024, the complainant attended the Nurmurkah property. At about 6pm, the respondent spoke to her by telephone and requested that she show him on FaceTime the work that she wanted done. During the video call that followed, the complainant showed the respondent a piece of concrete, and he asked her to move back further to enable him to see the whole thing. At the commencement of the video call, the respondent had appeared on the video showing his face, and wearing a blue shirt. However, during the course of the video call, when the complainant looked again at her telephone screen, she saw that the entire screen was occupied by an image of the respondent’s unclothed genitals. His penis was erect. Thinking there had been a mistake, the complainant said nothing, but looked down again at her telephone screen, observing the camera was still pointed at the respondent’s genitals, with grass behind him, as if he was standing in his backyard. The complainant became distressed at the sight and disconnected the FaceTime call. The respondent did not say anything to the complainant once he exposed himself, and did not make any reference to his genitals. The complainant told police that there was no warning of what the respondent was planning to do, there was no encouragement, and that anything like the respondent’s conduct was not acceptable or wanted. The complainant also told police that she felt degraded and disgusted.
On 8 May 2024, Victoria Police arrested and interviewed the respondent. On 2 August 2024, the respondent was charged with a single offence under s 48(1) of the Crimes Act 1958 (Vic). That provision creates an offence described as ‘sexual activity directed at another person’. The details of the charge were recorded on the Charge Sheet and Summons as follows:
The accused at Digby in Victoria on Saturday the 10th of February 2024 engaged in sexual activity that was seen by [the complainant] in circumstances where the accused knew that [the complainant] would see, or would probably see, the activity with either the intention that [the complainant] would or that the accused knew [the complainant] would probably experience fear or distress from seeing the activity.[2]
[2]Charge Sheet, exhibit ‘DPP-1’ to Affidavit of Blake Mitchell, affirmed 14 January 2025 (Mitchell Affidavit), Court Book (CB) 10.
It is common ground that the matter was listed for a plea hearing at the Magistrates’ Court at Dandenong on 12 December 2024, although, as matters transpired, a plea was not formally entered.[3] After a short preliminary exchange between the Magistrate and counsel retained for the respondent (during which counsel confirmed that the matter was ready to proceed, comprised a single brief and single charge and there was consent to summary jurisdiction), the Magistrate called on the police prosecutor to give the summary. The police prosecutor read out the summary, which generally reflected the Statement of Alleged Facts recorded in the Preliminary Brief that had previously been served on the respondent[4] (Summary). The Summary generally encapsulated the matters set out at [1] and [2], above, together with a short outline of substance of the respondent’s police interview.[5]
[3]Mitchell Affidavit, [8]–[15], CB 6.
[4]Preliminary Brief Sheet, exhibit ‘DPP-2’ to Mitchell Affidavit, CB 11; Transcript of Proceedings, The Police v Sava Tomici (Magistrates’ Court of Victoria at Dandenong, Q12314931, Magistrate Ayres, 12 December 2024) T1, line 20 – T3, line 8, exhibit ‘DPP-4’ to Mitchell Affidavit, CB 15-17.
[5]Transcript T1, line 20 – T3, line 8.
Having heard the Summary, the following exchange took place between the Magistrate, the police prosecutor and counsel for the respondent:
HIS HONOUR: What was the activity? I thought it was just exposure.
[PROSECUTOR]: It is just exposure, Your Honour.
HIS HONOUR: What's that - there's no activity? Charge is activity. Activity involves more than pure exposure, of course. Well, it does, [Counsel]. Of course you'd know that.
[COUNSEL]: Your Honour, I'm not the solicitor with conduct of this matter.
HIS HONOUR: You know that that's the law.
[COUNSEL]: I understand.
HIS HONOUR: Make some inquiries, because that's not the offence. Your client has not committed that offence, as I've heard the summary.
[COUNSEL]: I understand that, Your Honour (indistinct)
HIS HONOUR: Do whatever you need to, but that's not the offence. I can't find that offence proven on that summary. So I'll leave it with you, otherwise that charge will be struck out. The offence does not disclose that. The allegations do not disclose that charge.
[COUNSEL]: Sorry, Your Honour, I believe it - given that the matter has already been case conferenced, and the prosecution haven't identified that as being an issue, given Your Honour's comments, prosecutor at the Bar table isn't authorised to vary that charge - - -
HIS HONOUR: No.
[COUNSEL]: - - - obviously that charge should be struck out.
HIS HONOUR: No. But that's not the allegation there, [prosecutor].
[PROSECUTOR]: Yes, Your Honour. I understand the comments you're making.
HIS HONOUR: Well, it's the law.
[PROSECUTOR]: Your Honour, if I could have the matter stood down so I can have a prosecutor have a look through the statement. I'm trying to have a glance now and see if there's anything alleged in the statement in relation to identifying the charge.
HIS HONOUR: There's no sexual activity in that summary you read out.
[PROSECUTOR]: Understood, Your Honour. But if there's something that's stipulated in the statement it may be that the summary has been amended to add that part of it to be more in line with the charge and what's stated in the summary, but that would have to be (indistinct) Your Honour - - -
HIS HONOUR: The charge will be struck out. There's no offence disclosed. Your client's free to go. The police have completely failed (indistinct) obligations. This matter the charge has been on foot since August this year. All right, thank you.
[PROSECUTOR]: Your Honour, would the court entertain an amendment to the charge?
HIS HONOUR: No. It's a completely different charge you're talking about, not an amendment. Thank you. All right, everyone's free to go. Thanks so much. Police have to do their job properly, and they have not done so. Thank you very much. Go ahead, thank you. Thank you. That's all right, thank you.[6]
[6]Transcript, at T3, line 9 to T5, line 2.
The Certified Extract of the Magistrate’s order made 12 December 2024[7] records the following:
Dismissed
.
MERITS OF THE CASE
[7]Certified Extract of Magistrate J P Ayres, dated 12 December 2024, exhibit DPP-5 to Mitchell Affidavit, CB 20.
In proceeding S ECI 2025 00056, the Director of Public Prosecutions has appealed the order made 12 December 2024 dismissing Charge 1 (Order) pursuant to s 272 of the Criminal Procedure Act 2009 (Vic) (Appeal Proceeding). Further, in proceeding S ECI 2025 00058, the Director has made application for judicial review of the Order pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Judicial Review Proceeding). The Judicial Review Proceeding was commenced only to address the possibility that the Order was not a final order for the purposes of s 272 of the Criminal Procedure Act.
In each case, the Director seeks to quash the Order, with consequential orders, inter alia, remitting Charge 1 to the Magistrates’ Court at Dandenong for hearing and determination according to law. In each case, the Director contends that the Magistrate erred in his interpretation of s 48 of the Crimes Act by finding that ‘sexual activity’ did not include the activity engaged in by the respondent during the FaceTime call, and thereby that an offence contrary to s 48 of the Crimes Act was not established.
The proceeding is defended by the respondent. He agrees with the Director that the Order was a final order for the purposes of s 272 of the Criminal Procedure Act. However, he contends that the Magistrate’s decision contained no error. He also contends that in considering this question, the Court is limited to an examination of the Charge Sheet and Summons, the transcript of the proceedings below, and the certified extract of the Order.
The key issues for determination in the proceeding are:
(a)was the Order a ‘final order’ for the purposes of s 272 of the Criminal Procedure Act?;
(b)what material may the Court have regard to in considering whether there was a relevant error of law below?;
(c)was the respondent’s alleged conduct ‘sexual activity’ within the meaning of s 48(1) of the Crimes Act?; and
(d)if so, did the making of the Order constitute an error of law?
For the reasons which follow I have decided that:
(a)the Order was a ‘final order’ for the purposes of s 272 of the Criminal Procedure Act, and the Appeal Proceeding is therefore competent. The Judicial Review Proceeding will be dismissed;
(b)it is not necessary to have regard to any documents beyond the Charge Sheet and Summons and the transcript of hearing in considering whether an error of law was made. However, on the particular facts of this case, having regard to the course the hearing took, I cannot be satisfied any other materials contained on the Preliminary Brief were relevantly before the Magistrate at the time the Order was made;
(c)the respondent’s alleged conduct was capable of constituting ‘sexual activity’ for the purposes of the charge brought pursuant to s 48(1) of the Crimes Act; and
(d)the Magistrate’s Order was made in error and must be set aside, and Charge 1 is to be remitted to the Magistrates’ Court at Dandenong for hearing and determination according to law.
B The Order was a ‘final order’ for the purposes of s 272 of the Criminal Procedure Act
Section 272 of the Criminal Procedure Act provides for appeals to the Supreme Court on a question of law. Section 272(1) provides:
A party to a criminal proceeding (other than a committal proceeding) in the Magistrates' Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding.
Some tension arises between the form of words deployed by the Magistrate at the hearing below (where the charge was ‘struck out’)[8] and the certified extract of the Order, which provided for a ‘dismiss[al]’[9] based on ‘the merits of the case’.[10] The parties are in agreement that, having regard to the whole of the transcript below and the subsequent Order made, the Magistrate clearly evinced an intention to bring the proceeding below to an end.
[8]Transcript T4, line 21.
[9]Ibid.
[10]Ibid
I agree with that analysis. The Order was final, rather than interlocutory. It finally disposed of the rights of the parties in the proceeding below.[11] The Appeal Proceeding is competent.
[11]See, for example, Brereton v Sinclair (2000) 2 VR 424, 429-430 [15]-[18] (Chernov JA, Charles and Tadgell JJA agreeing at [4]); Director of Public Prosecutions v Fox (2021) 63 VR 602, 603-604 [7].
Further, the parties were in agreement that if I were to so find, the Judicial Review Proceeding should be dismissed. I agree.
C The material this Court may have regard to in considering the alleged error of law
There was agreement between the parties that an appeal pursuant to s 272 of the Criminal Procedure Act is an appeal stricto sensu. I agree. The question with which I am concerned is whether or not the Magistrate’s decision to dismiss Charge 1 gave rise to an error of law. This is to be considered and determined on the basis of the material before the Magistrate at the time of the hearing below.
In written submissions, a question arose between the parties as to precisely what material was ‘before the Magistrate’? The issue, in a practical sense, concerned two classes of documents:
(a)materials forming part of the Preliminary Brief filed with the Court, which included materials not tendered or otherwise referred to in the 12 December 2024 hearing. In particular, the respondent points to the statement of the complainant (although it is noted other materials, including telephone tracing records, also formed part of the Preliminary Brief);[12] and
(b)a chain of email correspondence between Victoria Legal Aid and the Victoria Police, Warrnambool Prosecutions Unit, which recorded the respondent’s intention that the matter proceed as a plea, and sought the adjournment of the plea hearing to a later date at the Magistrates’ Court at Dandenong.[13]
[12]Affidavit of Georgina Rebecca Tweedy, affirmed 30 May 2025 (Tweedy Affidavit), CB 21-41.
[13]Email Chain between Victoria Legal Aid and Victoria Police, Warrnambool Prosecutions Unit, exhibit ‘DPP-3’ to Mitchell Affidavit, CB 12.
At the hearing before me, Senior Counsel for the Director did not seek to rely on either class of materials, but also submitted that if I was assisted by any of those materials, I was entitled to rely on them to determine the appeal. On behalf of the respondent, it was submitted that the mere filing of materials, without something more, was insufficient to found a conclusion that the materials were relevantly ‘before the Magistrate’; accordingly, it was not open to me to draw the inference that the Magistrate had considered either class of materials.
Ultimately, it has been unnecessary for me to have regard to either class of materials to reach a conclusion on the substantive question before me.
However, for completeness, having carefully considered the manner in which the hearing before the Magistrate unfolded, I cannot be satisfied that the mere presence of the identified materials on the Court file was sufficient to bring them relevantly to the Magistrate’s attention for the purposes of the hearing below. In particular, I cannot be satisfied the statement of the complainant was relevantly before the Magistrate.
D The respondent’s alleged conduct constituted engaging in an ‘activity’, which was ‘sexual’, for the purposes of ss 48(1)(a) and (b) of the Crimes Act
D.1 Legislative framework
The resolution of the key issue in this proceeding requires consideration of a number of provisions within Part I, Division 1 of the Crimes Act. It is helpful to record the following matters.
Subdivision (8) is entitled ‘Sexual offences (general provisions)’, and provides for a series of definitions and aids to interpretation.
Section 35, ‘Definitions’, relevantly provides as follows:
(1) In this Subdivision and Subdivisions (8A) to (8FA)—
…
sexual, in relation to an activity—see section 35D;
sexual, in relation to touching—see section 35B;
…[14]
The meaning of ‘activity’ is not separately defined.
[14]Crimes Act 1958 (Vic) s 35.
Sections 35A and 35B set out the meaning of ‘sexual penetration’ and ‘touching’ respectively. Section 35C is related, defining the circumstances in which a person ‘takes part in a sexual act’, which expressly contemplates certain forms of sexual penetration or sexual touching.
‘Taking part in a sexual act’ is a separate concept to that of ‘sexual activity’, which is addressed in s 35D:
Sexual Activity
An activity may be sexual due to—
(a)the area of the body that is involved in the activity, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or
(b)the fact that the person engaging in the activity seeks or gets sexual arousal or sexual gratification from the activity; or
(c)any other aspect of the activity, including the circumstances in which it is engaged in.
Example
A watches pornography in the presence of A's daughter (B) and her friend (C).[15]
[15]An example is not exhaustive, and may extend, but does not limit, the meaning of the provision: Interpretation of Legislation Act 1984 (Vic) s 36A (IL Act).
Sections 36, 36AA, 36A and 36B deal broadly with the issue of consent, and related matters.
Section 37A provides for the objectives of Subdivisions (8A) to (8G):
The objectives of Subdivisions (8A) to (8G) are—
(a) to uphold the fundamental right of every person to make decisions about their sexual behaviour and to choose whether or not to engage in sexual activity;
(ab)to promote the principle that consent to an act is not to be assumed—that consent involves ongoing and mutual communication and decision-making between each person involved (that is, each person should seek the consent of each other person in a way and at a time that makes it clear whether they consent);
(b)to protect children and persons with a cognitive impairment or mental illness from sexual exploitation.
Further, s 37B gives a specific guide to interpretation, in the form of guiding principles. It provides:
It is the intention of Parliament that in interpreting and applying Subdivisions (8A) to (8G), courts are to have regard to the fact that—
(a) there is a high incidence of sexual violence within society; and
(b) sexual offences are significantly under-reported; and
(c)a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment or mental illness; and
(d) sexual offenders are commonly known to their victims; and
(e)sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.
Subdivision (8A) details specific offences, including different forms of rape, sexual assault, and assault. It includes s 48, the provision the subject of this appeal, entitled ‘Sexual activity directed at another person’. Section 48 provides:
(1) A person (A) commits an offence if—
(a) A engages in an activity; and
(b) the activity is sexual; and
(c) another person (B) sees the activity or a part of the activity; and
(d)A knows that B will see, or will probably see, the activity or a part of the activity; and
(e) A—
(i)intends that B will experience fear or distress from seeing the activity or a part of the activity; or
(ii)knows that B will experience, or will probably experience, fear or distress from seeing the activity or a part of the activity.
(2)A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).
For completeness, s 48B expressly provides, inter alia, that a mistaken but honest and reasonable belief that the activity was not sexual is not a defence to an offence under s 48(1).
Finally, it is also helpful to identify s 19 of the Summary Offences Act 1966 (Vic), which creates the offence of sexual exposure. It relevantly provides:
(1) A person (A) commits an offence if—
(a) A exposes (to any extent) A's genitals; and
(b) A intends to expose (to any extent) A's genitals; and
(c) the exposure is sexual; and
(d) the exposure is in, or is within the view of, a public place.
(2) A person who commits an offence against subsection (1) is liable to level 7 imprisonment (2 years maximum).
…
(5)For the purposes of subsection (1), A's exposure of A's genitals may be sexual due to—
(a)the fact that A seeks or gets sexual arousal or sexual gratification from the exposure; or
(b) any other aspect of the exposure, including the circumstances in which it takes place and whether it is contrary to community standards of acceptable conduct.
(6)A's exposure of A's genitals is not sexual only because it is the genitals that are exposed.
D.2 Relevant legislative history
Section 48, and the related definitional provisions, were introduced into the Crimes Act by the Crimes Amendment (Sexual Offences) Act 2016 (Vic) (2016 Act). The amendments continued reforms to the State’s sexual offences laws that had initially been implemented by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic).
As the Explanatory Memorandum circulated with the Bill for the 2016 Act makes plain, its objectives were to ‘modernise and simplify numerous sexual offences including sexual offences against children, incest offences and offences against persons with a mental illness or cognitive impairment’.[16] Additionally, the 2016 Act aimed to improve jury directions relating to consent in sexual offence trials.[17] Those objectives were reflected in the purposes of the 2016 Act, including the amendment of the Crimes Act in relation to sexual and certain other offences,[18] together with the amendment of the Summary Offences Act in relation to sexual exposure and indecent, offensive and insulting behaviour.[19]
[16]Explanatory Memorandum, Criminal Amendments (Sexual Offences) Bill 2016 (Vic), 1.
[17]Ibid.
[18]Crimes Amendment (Sexual Offences) Act 2016 (Vic) s 1(a).
[19]Ibid s 1(b).
Importantly, by s 5 of the 2016 Act, the existing s 35 of the Crimes Act was substituted for a new s 35, providing for definitions to apply to all sexual offences contained in Part 1, Division 1, Subdivisions (8A) to (8F). Section 35D, extracted at [25] above, was new. It was described in the Explanatory Memorandum as ‘an inclusive definition of what may make an activity sexual’,[20] where the concept of ‘sexual activity’ was relevant to a number of offences, including: sexual activity directed at another person (new s 48); sexual activity in the presence of a child under 16 (new s 49F); and causing a child under 16 to be present during sexual activity (new s 49H).[21]
[20]Explanatory Memorandum, Criminal Amendments (Sexual Offences) Bill 2016 (Vic), 8.
[21]Ibid 9.
The 2016 Act also inserted new sexual offences into Subdivision (8A) of Division 1 of Part I of the Crimes Act. Section 48, set out at [29] above, was described in the Explanatory Memorandum as follows:
New section 48 is a new offence designed to target sexually intimidating behaviour that causes fear or distress. This offence differs from the summary offence of sexual exposure, which involves exposure of genitals. In contrast, the new offence applies to sexual activity seen by another person where the accused intends that or knows that the person will, or will probably, experience fear or distress from seeing that activity. For example, this offence may apply where someone jumps out in front of a lone jogger and masturbates or simulates a sexual activity while fully clothed, to cause that person fear or distress.[22]
[22]Ibid 18
Further, the Attorney General’s second reading speech to the Legislative Assembly provided the following explanation of the new offence created by s 48(1):
New offence of sexual activity directed at another person
The bill introduces a new offence of ‘sexual activity directed at another person’, which will apply where a person engages in a sexual activity intending that another person will see it and experience fear or distress. For instance, the offence may apply where a man jumps out and engages in a sexual activity, such as masturbation, in front of a lone female jogger in an isolated location. This offence is broader than the current summary offence of sexual exposure, as it applies to ‘sexual activity’, rather than exposure of genitals alone. The offence also covers sexually intimidating behaviour occurring both in public and private. However, a person must intend that the sexual activity cause fear or distress, or be reckless as to that result. The offence does not apply to sexual activity that does not meet this threshold. The offence reflects advice from Victoria Police that the current offences relating to wilful and obscene exposure do not cover the spectrum of behaviour that is seen in practice.[23]
[23]Victoria, Parliamentary Debates, Legislative Assembly, 9 June 2016, 2442 (Martin Pakula, Attorney-General), Combined Book of Authorities (CBA) B34.
D.3 Consideration
The principal issue in this case is whether the alleged conduct was a relevant ‘activity’ engaged in by the respondent,[24] being a ‘sexual activity’[25] for the purposes of the offence created by s 48 of the Crimes Act.
[24]Crimes Act 1958 (Vic) s 48(1)(a).
[25]Ibid s 48(1)(b).
Naturally, proof of the offence also requires satisfaction of all of the elements of the offence, including the matters set out in ss 48(1)(c), (d) and (e). However, the parties were in agreement that I should confine myself to the question of whether or not it was open to the Magistrate to dismiss the charge on the basis that there was ‘no activity’, his Honour having made no findings at all in respect of the remaining elements of the offence.
In this respect, it appeared to be common ground that whilst the meaning of ‘sexual activity’ must be considered in the context of the provision, and the statute, as a whole, the question of whether the conduct was capable of constituting sexual activity was a threshold issue that did not require consideration of the other elements of the offence, including the important elements of the respondent’s knowledge and/or intention.[26]
[26]For the avoidance of doubt, I am satisfied that the conduct disclosed by the Summary was at least capable of satisfying the remaining elements of the offence, even though those elements were not ultimately considered or determined by the Magistrate.
D.3.1 The proper approach to construction of the provisions
The parties were generally in agreement as to the approach that should be taken in construing the relevant provisions of the Crimes Act in their application to the facts before me, an approach consistent with well settled authority. In particular:
(a)the text of the relevant provisions is both the start and the end point of the construction process, the object being to construe the provisions so that their legal meaning is consistent with both the language used and the legislative purpose of the statute;[27]
(b)legislative purpose is determined by considering that text in the context of the entire statute,[28] together with: the existing state of the law; the mischief the statute was intended to remedy; the history of the legislative scheme; and the extrinsic materials;[29]
(c)context is to be considered at the first stage of construction. It should be regarded in its widest sense, recognising that a word, properly understood in its context, may take on different meanings;[30] and
(d)where there is a choice to be made between possible meanings of a provision, a meaning that promotes the purpose or object underlying the statute is to be preferred over one that does not.[31]
[27]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).
[28]Ibid [69]–[70]; R v A2 (2019) 93 ALJR 1106, 1117 [33] (Kiefel CJ and Keane J); IL Act s 35(a).
[29]Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39].
[30]SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ); see also Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531, 556–557 [65]–[66] (Gageler and Keane JJ).
[31]See, eg, Thiess v Collector of Customs (2014) 250 CLR 664, 672 [23].
In undertaking the task of construing ss 48(1) and 35D specifically, both the Director and the respondent also invited me to have regard to the careful analysis of Croucher J in AB v Paulet.[32] That case concerned an application for judicial review of a decision of the County Court (on appeal from the Magistrates’ Court). The applicant had been found guilty of two charges of sexual assault and one charge of stalking. A key question was whether an essential element of the sexual assault charges under s 40(1) of the Crimes Act – that of ‘sexual touching’ – was established on the evidence. In considering that question, his Honour considered the use that could be made of s 35B(2) of the Crimes Act, which provides statutory guidance on the circumstances in which an instance of ‘touching’ may be ‘sexual’.
[32][2022] VSC 414.
Section 35B(2) is substantially identical in structure to s 35D, relying on the same three indicators of circumstances which may lead to the conclusion that the identified conduct – ‘touching’ – is ‘sexual’.[33] Thus, it is useful to borrow from the analysis undertaken in Paulet in that related, but different, context to identify some relevant features of the relationship between ss 35D and 48(1). Adapting that analysis to the present task, I note the following:
(a)notwithstanding the description in the Explanatory Memorandum, s 35D does not strictly provide a definition of when an activity is a ‘sexual’ activity; it does not codify the meaning of ‘sexual’ vis-à-vis ‘activity’;[34]
(b)the use of the word ‘may’ in the chapeau means that the presence of one or more of the factors listed in s 35D(a)-(c) does not compel a finding that the activity is ‘sexual’;[35]
(c)however, in the circumstances of a particular case, proof of only one of the matters identified in s 35D(a)-(c) may be sufficient to render an activity ‘sexual’;[36]
(d)the question of whether an activity is ‘sexual’ will be clear in some cases, but not so clear in others, particularly in those at the margins.[37] In addition to the matters identified in s 35D(a)-(c), common understandings of social behaviour may inform whether a particular activity is ‘sexual’;[38] and
(e)the question of whether a particular activity is ‘sexual’ for the purposes of s 48(1)(b) is to be assessed objectively, although in some circumstances an accused’s knowledge, belief, intention, purpose or motive may be relevant to that assessment.[39]
[33]Section 35B(2)(a), (b) and (c), cf s 35D(a)-(c).
[34]Ibid [217], [229].
[35]Ibid [219], [228].
[36]Ibid [234].
[37]Ibid [247].
[38]Ibid [248].
[39]Ibid [250]-[252], [256].
These general observations are reinforced by the fact that ‘sexual activity’ is an element not only of the offence created by s 48(1) (sexual activity directed at another person), but of other offences falling within Part 1, Division 1 of the Crimes Act.
A number of offences created by Subdivision (8B) (Sexual offences against children) also rely on the general provisions contained in Subdivision (8), including ss 35 and 35D. Specifically, I note the offences created by: s 49F(1) (Sexual activity in the presence of a child under the age of 16); s 49H(1) (Causing a child under the age of 16 to be present during sexual activity), s 49I (Causing a child aged 16 or 17 under care, supervision or authority to be present during sexual activity); s 49K (Encouraging a child under the age of 16 to engage in, or be involved in, sexual activity); and s 49L (Encouraging a child aged 16 or 17 under care, supervision or authority to engage in, or be involved in, sexual activity). Proof of an activity that is sexual is a core element of each offence. However, some of these provisions create offences in circumstances where the identified sexual activity is not, of itself, a criminal offence. The question of whether there is a relevant activity that is sexual for the purposes of offences falling within Subdivisions (8A) and (8B) thus, necessarily, depends on the particular circumstances of the case at hand.
D.3.2 Application of relevant principles to the facts
The respondent submitted that, having regard to the ordinary meaning of ‘activity’ and the matters set out in the extrinsic materials, particularly the Explanatory Memorandum:
(a)the meaning of ‘sexual activity’ is differentiated from the summary offence of ‘sexual exposure’;
(b)‘mere’ exposure of genitals is not the type of activity referenced in the examples, which encompass ‘something more’. Further, the concept of an ‘act’ is broader than that of an ‘activity’. The exposure of genitals may be an ‘act’, but it is not an ‘activity’ for the purposes of the statute; and
(c)the examples given contemplate activity occurring in the physical presence of the victim.
Having regard to those matters, the respondent contended that the facts identified in the Summary read to the Magistrate were not sufficient to constitute sexual activity within the meaning of s 48(1), in that:
(a)the respondent was not alleged to have touched his genitals in any way in the image that appeared on the complainant’s phone. Indeed, there was no allegation of any movement or masturbation;
(b)the respondent did not make any sexualised comments and was silent during the course of the exposure;
(c)the fact the respondent’s genitals were exposed and erect did not, by itself, constitute sexual activity, as the respondent did not otherwise say or do anything to draw attention to his genitals; and
(d)although the Summary alleged the respondent’s genitals were exposed and erect, this did not, of itself, constitute sexual activity.
I do not accept these contentions. For the reasons that follow, I am satisfied the alleged conduct disclosed by the Summary was capable of constituting ‘sexual activity’ for the purposes of ss 48(1)(a) and (b) of the Crimes Act. There is nothing in the text, object or purpose of the statute that warrants adopting a narrow construction of the meaning of ‘sexual activity’ in the manner contended for by the respondent. The view that I have come to is consistent with the ordinary meaning of the statutory text, considered in its context. It is also consistent with the legislative purpose, paying particular regard to the statutory objectives recorded in s 37A, and the guiding principles for the interpretation and application provided for in s 37B.
I agree that the conduct identified in the Summary was likely capable of grounding a charge of sexual exposure pursuant to s 19 of the Summary Offences Act. However, this does not preclude it from constituting sexual activity for the purposes of s 48(1)(a) and (b) of the Crimes Act. Again, there is nothing in the text, object or purpose of the statute that requires such a conclusion.
Evidently, the two statutes create separate offences that are capable of application to the same, or similar, conduct. Both are subject to a requirement that the exposure or activity be ‘sexual’. However, the meaning of sexual activity for the purposes of s 48(1) necessarily captures a broader range of conduct than that proscribed by the summary offence of sexual exposure. This is because the latter is expressly limited to the act of exposing genitals in, or within view of, a public place,[40] subject to establishing the other elements identified in ss 19(1)(b) and (c).
[40]Summary Offences Act 1966 (Vic) s 19(1)(a), s 19(1)(d).
The feature that principally differentiates the two offences is the mens rea. In the case of sexual exposure under the Summary Offences Act, it is necessary to prove the defendant’s intention to expose the genitals.[41] By contrast, proof of the offence created by s 48(1) of the Crimes Act requires the satisfaction of a more elaborate mens rea. First, the defendant must know that another person will see, or will probably see, the relevant sexual activity or a part of the activity.[42] Second, the defendant must also intend that the other person will experience fear or distress as a result,[43] or at least know the other person will experience, or will probably experience, fear or distress as a result.[44]
[41]Ibid s 19(1)(b).
[42]Crimes Act 1958 (Vic) s 48(1)(d).
[43]Ibid s 48(1)(e)(i).
[44]Ibid.
It is in this context the passages extracted above from the Explanatory Memorandum and second reading speech must be understood. The offence created by s 48(1) of the Crimes Act does contain different, and additional, elements to the offence of sexual exposure created by s 19 of the Summary Offences Act. The indictable offence necessarily differs from the summary offence. However, those differences lie in the breadth of the conduct proscribed by each statute, the location where the conduct occurs (the summary offence being limited to exposure in or within view of a public place), and the mental element necessary to establish each offence.
In the present case, the Summary alleged that the FaceTime call between the respondent and the complainant began with the screen camera focussed on the respondent’s face. Then, in the context of a discussion about the concrete the subject of the proposed works, the screen camera was focussed onto the respondent’s unclothed, erect penis, which was taking up the entire screen. He was apparently standing outside, alone, and in control of the direction of the screen camera.
This description of the respondent’s conduct satisfied the elemental requirement that the respondent ‘engaged in an activity’ within the meaning of s 48(1)(a). To the extent that it is necessary to have recourse to the ordinary meaning of the word ‘activity’, a broad concept, I am satisfied the respondent’s alleged conduct fell comfortably within its ordinary meaning.[45] I do not consider that there is any relevant difference between an ’act’ and an ‘activity’ in this context, nor do I consider that there is any statutory support for a conclusion that the ‘activity’ must occur in the physical presence of the victim.
[45]Both parties relied on the Macquarie Dictionary definition of the noun ‘activity’. Relevantly, it included:
I am also satisfied that the activity disclosed by the Summary was properly characterised as ‘sexual’ for the purposes of s 48(1)(b). In particular, each of the following features of the activity fall squarely within those matters expressly contemplated by s 35D of the Crimes Act as indicia, or circumstances, which may lead to the conclusion that an activity is sexual:
(a)the area of the body filmed by the respondent was his exposed genital region;[46]
(b)the respondent’s exposed penis was erect at the time of filming, facilitating an inference that the respondent sought or got, sexual arousal or sexual gratification, from the activity;[47] and
(c)the respondent filmed and transmitted video of his exposed, erect penis during the course of an otherwise commercial interaction with a female client, quoting on a concreting job. This is an aspect of the activity, or the circumstances in which it was engaged that also supports a conclusion that the activity was sexual.[48]
Whether considered separately, or taken together, those matters lead me to conclude that the respondent’s alleged conduct was, objectively, ‘sexual activity’.
[46]Crimes Act 1958 (Vic) s 35D(a).
[47]Ibid s 35D(b).
[48]Ibid s 35D(c).
As recorded above, the respondent emphasised that he did not, during the course of the video call: touch his exposed, erect genitals, or otherwise move; say anything sexualised, or anything at all; or otherwise draw attention to his exposed, erect genitals. I agree that these matters are relevant to an objective assessment of whether the respondent engaged in a sexual activity for the purposes of s 48(1). However, these features of the alleged conduct do not displace the conclusions I have reached in all of the circumstances of this case.
It also follows that I do not accept the submission advanced by the respondent that the act of filming and transmitting a video of his genitals to the complainant pertains only to that element of the offence which requires that another person sees the activity.[49] The relevant sexual activity for the purposes of s 48(1)(a) and (b) was not limited to the fact that the respondent’s exposed, erect genitals were alleged to have appeared in view on the complainant’s screen. The respondent’s alleged conduct in filming and transmitting those video images to the complainant during the course of a call to discuss proposed repair works to the complainant’s property is directly relevant to establishing the necessary sexual activity in two ways:
(a)first, in defining the scope of activity for the purposes of s 48(1)(a); and
(b)second, in assessing whether or not that activity was ‘sexual’ for the purposes of s 48(1)(b) having regard, in particular, to s 35D(c).
[49]Ibid s 48(1)(c); Transcript of Proceedings, DPP v Tomici (Supreme Cout of Victoria at Melbourne, S ECI 2025 00056 and S ECI 2025 00058, Justice Hannon, 9 September 2025) T45, line 11 – T46, line 8.
Finally, the respondent submitted his alleged prior interactions with the complainant (recorded in the complainant’s statement included with the Preliminary Brief) were not matters before the Court below, and could not be taken into account in determining whether or not the conduct in question constituted sexual activity. For the reasons set out in section C, I accept that submission. The matters alleged to have preceded the conduct identified for the Magistrate in the Summary do not form any part of my conclusion that the alleged conduct constituted sexual activity.
E The making of the Order constituted an error of law
I am satisfied the Magistrate erred at law in concluding, on the basis of the material in the Summary, that the respondent did not engage in a relevant sexual activity within the meaning of s 48(1), and thereafter dismissing the charge. That determines the first question of law raised by the Director.
The Director’s Notice of Appeal raises a second question of law: ‘Did the Magistrate err in finding that an offence contrary to section 48 of the Crimes Act 1958 was not established by the admitted and agreed facts in the matter before him’.[50] The relevance of this question as an additional question for determination evolved during the course of the hearing before me. First, it was common ground that although the matter proceeded before the Magistrate as the hearing of a plea, a plea had not been entered. Moreover, it could not be said the facts before the Magistrate were admitted or agreed. Second, it was also common ground, as is evident from the transcript below, that the Magistrate dismissed the charge because he was not satisfied the Summary disclosed ‘sexual activity’. Third, the parties agreed the Magistrate did not consider or determine any element of the charge other than the question of ‘sexual activity’ in order to find the offence not established. It is unnecessary for me to further consider the Director’s second question of law.
[50]Director’s Notice of Appeal dated 9 January 2025, 1, CB 1.
Having determined that an error of law was made, s 272(9) of the Criminal Procedure Act permits me to make any order I think appropriate, including an order remitting the case for rehearing to the Magistrates’ Court, with or without any direction in law.
In this case, I consider it is appropriate to set aside the order dismissing Charge 1 and to remit the proceeding to the Magistrates’ Court of Victoria at Dandenong for hearing and determination according to law. There is nothing on the material before me that discloses good reason why Magistrate Ayers could not hear and determine the charge, if the matter returned before him. However, I do not propose to direct that the further hearing proceed before him. There is no particular reason of efficiency or fairness that appears to compel a direction of that nature.
I will make the following orders:
(a)The appeal in proceeding S ECI 2025 00056 is allowed.
(b)The order of Magistrate JR Ayres in the Magistrates’ Court of Victoria at Dandenong on 12 December 2024, in Case No. Q12314931, dismissing Charge 1, is set aside.
(c)The proceeding is remitted to the Magistrates’ Court of Victoria at Dandenong for further hearing and determination according to law.
(d)Proceeding S ECI 2025 00058 is dismissed.
I will hear the parties as to the costs of the Appeal Proceeding and the Judicial Review Proceeding.
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1. the state of action; doing.
2. the quality of acting promptly; energy.
3. a specific deed or action; sphere of action: social activities.
4. an exercise of energy or force; an active movement or operation.
5. liveliness; agility.
…
Macquarie Dictionary (online at 30 June 2025) ‘activity’.
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