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Pusey v The King

Pusey v The King

Case [2024] VSCA 110

Criminal Liability

Appeal

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Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0057

RICHARD PUSEY	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON ACJ, BEACH and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2024
DATE OF JUDGMENT: DATE OF REASONS:	28 May 2024 29 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 110
JUDGMENT APPEALED FROM:	[2021] VCC 478 (Judge Wraight)

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CRIMINAL LAW – Application for extension of time for leave to appeal against conviction – Applicant pleaded guilty to offence of committing act which outraged public decency –Applicant at scene of accident in which four police members fatally injured – Applicant engaged publicly in voyeuristic filming and callous commentary on condition and plight of severely incapacitated victims – Whether offence of outrage public decency part of common law of Victoria – Whether conduct of applicant constituted such offence – Application refused.

R v Madercine (1899) 20 LR (NSW) 36; R v Black (1921) 21 SR (NSW) 748; R v Udod [1951] SASR 176; R v Towe [1953] VLR 381; R v Fonyadi [1963] VR 86; R v Reinsch (1978) NSWLR 483; R v Gibson; R v Sylveire [1990] 2 QB 619; R v Hamilton [2008] 1 QB 224; Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435; R v Anderson [2008] EWCA Crim 12; R v Mayling [1963] 2 QB 717; R v Wellard (1884) 14 QBD 63, considered.

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Counsel
Applicant:		In person
Respondent:		Mr Prosecutor
Solicitors
Applicant:	In person
Respondent:	Solicitor for Public Prosecutions

EMERTON ACJ
BEACH JA
KAYE JA:

The applicant was charged on indictment with one charge of reckless conduct endangering persons (charge 1), one charge of committing an act that outrages public decency (charge 2), and one charge of possession of a drug of dependence (charge 3).
On 10 March 2021, the applicant was arraigned in short form and pleaded guilty to all three charges on that indictment. Subsequently, on 31 March 2021, he was again arraigned, and he again pleaded guilty to all three charges on the indictment. He also pleaded guilty to a charge for a related summary offence of exceeding the speed limit by more than 45 km/h, which had been transferred to the County Court after 10 March 2021.
Following a plea hearing, the applicant was sentenced, on 28 April 2021, on charges 1 and 2 to a total effective sentence of 10 months’ imprisonment, and on charge 3 he was released on an adjourned undertaking. He was fined $1,000 on the related summary offence.
By a notice dated 17 March 2023, the applicant applies for leave to appeal against the conviction on charge 2 on the indictment, of the offence of conduct outraging public decency. The appeal is based on one ground, which is expressed in the following terms:
I apply to the Court of Appeal on the grounds of a Question of law, that the use of common law was incorrectly and inapplicably applied to the facts of my…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pusey v The King

Details

AGLC: Pusey v The King [2024] VSCA 110
Case: [2024] VSCA 110
Decision Date: 28 May 2024 29 May 2024

CaseChat Overview and Summary

The applicant in this matter, Pusey, sought an extension of time for leave to appeal against his conviction for committing an act which outraged public decency. The conviction arose from an incident where Pusey was present at the scene of a fatal accident involving four police officers. While at the scene, Pusey engaged in voyeuristic filming and made callous commentary about the severely incapacitated victims. Pusey's application for an extension of time was heard in the relevant appellate court.

The primary legal issues before the court were whether the offence of committing an act which outrages public decency is part of the common law of Victoria, and if Pusey's conduct constituted such an offence. The court considered various precedents and dicta from other jurisdictions, including decisions from New South Wales, South Australia, and England, to determine the scope of the offence and whether it applied to Pusey's conduct.

In its reasoning, the court held that the offence of committing an act which outrages public decency is indeed part of the common law of Victoria. However, it found that Pusey's conduct did not meet the threshold for this offence. The court emphasised the need for conduct to be both outrageous and to offend against community standards of decency, and concluded that while Pusey's actions were deplorable, they did not reach the level of outrageousness required by the law. Consequently, the application for an extension of time was refused.

No final orders were made beyond the refusal of the extension of time application.

Orders