Drago v The Queen

This application for special leave to appeal concerned the definition of "indecency" under section 22 of the Queensland Criminal Code, as applied in a Western Australian court. The applicant, Drago, argued that the trial judge's direction to the jury on the meaning of "indecency" was erroneous. The dispute centred on whether the correct definition involved "conduct unbecoming or offensive to common propriety," as adopted by Queensland courts, or a narrower test requiring "moral turpitude" or acting in a "base and shameful manner."

The legal issue before the High Court was whether the trial judge's definition of "indecency" was appropriate. The applicant contended that the definition provided by the judge, which incorporated "conduct unbecoming or offensive to common propriety," was too broad and did not adequately capture the nature of the conduct envisaged by section 22 of the Code, particularly in cases involving bodily conduct and sexual matters. The applicant argued for a definition that included an element of moral turpitude or base and shameful behaviour.

The High Court considered the trial judge's direction, which invited the jury to assess the conduct in light of all circumstances, including time and place. While acknowledging that the broader definition could potentially encompass conduct outside the scope of the section, the Court found it difficult to see how the jury would have misunderstood the issue, given the evidence and the judge's specific framing of the question as whether the accused's explanation for his conduct was a fair one. The applicant maintained that a definition involving moral turpitude would have narrowed the jury's consideration and potentially led to a different outcome, especially if the jury viewed the conduct as unbecoming irrespective of the explanation provided. The Court also touched upon the potential for "indecency" to import an element of mens rea.