Eades v Director of Public Prosecutions (NSW)

The applicant, Eades, appealed to the Supreme Court of New South Wales against a decision of James J, which in turn concerned an appeal from the Local Court. The dispute centred on the interpretation of section 61N(1) of the *Crimes Act 1900* (NSW), which criminalises incitement to commit an act of indecency.

The primary legal issue before the Court of Appeal was whether the characterisation of an act as one of indecency, for the purposes of section 61N(1), depended on the purpose or understanding of the person committing the act, or the purpose or understanding of the person inciting it. A related issue concerned the scope of circumstances that could be considered when determining whether an act constituted indecency, and the significance of the act incited being one engaged in by the complainant.

The Court of Appeal held that the indecency of an act under section 61N(1) is determined by the objective characterisation of the act itself, rather than the subjective purpose or understanding of the inciter or the person incited. The Court reasoned that the focus of the offence is on the incitement to commit an act that is objectively indecent, and that the circumstances relevant to this determination include the context in which the act is performed and the understanding of a reasonable observer. The Court further clarified that the fact that the act incited was one that the complainant themselves engaged in did not alter the objective assessment of indecency.

The Court of Appeal granted leave to appeal, deemed a draft notice of appeal to stand as the formal notice, and deleted a declaration made by the primary judge. However, the appeal was otherwise dismissed, and the applicant was ordered to pay the respondent's costs.