Pusey v The King

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 case and the course used to arrive at the charge of Conduct Outraging Public Decency was erroneous and negligent in nature.
As the notice of application for leave to appeal against conviction was filed more than one year and nine months after the expiration of the time prescribed by s 275 of the Criminal Procedure Act 2009, the applicant also has made an application, under s 313 of the Act, for an extension of time within which to file the notice of application for leave to appeal.
At the conclusion of oral submissions, the court concluded that the intended application for leave to appeal is without merit. Accordingly, the court made an order refusing the application for an extension of time to file the notice of application for leave to appeal. The following are our reasons for that conclusion.

Circumstances of offending

The three offences charged on the indictment, and the summary offence, were alleged to have been committed on 22 April 2020.
Between 4:48 pm and 4:51 pm on that date, police detected the applicant driving his black Porsche motor vehicle at 149 km/h on the inbound lane of the Eastern Freeway. Leading Senior Constable Lynette Taylor (‘LSC Taylor’) and Constable Glen Humphris intercepted the applicant’s vehicle at 4:51 pm. Both vehicles pulled over and stopped in the emergency lane. Enquiries were then made about the registration of the Porsche. As a consequence of those enquiries, a call was made to police communications to provide assistance. In response, a second unit, consisting of Senior Constable Kevin King (‘SC King’) and Constable Josh Prestney arrived at the scene at 5:35 pm.
All four police members were then standing in the emergency lane of the Eastern Freeway, between the passenger side of the police motor vehicles and the Armco railing. The applicant walked behind the Armco rail to urinate in bushes on the verge of the freeway. As he did so, a Volvo Prime Mover towing a double-axle trailer swerved into the emergency lane and collided with all four police members and their three vehicles that were stationary in that lane.
Following the collision, the applicant emerged from the bushes. By that point, other members of the public had stopped their motor vehicles and were rushing to aid the badly injured police members. The applicant however walked to his motor vehicle, retrieved his mobile telephones and a ‘Metro’ branded lunch bag, and commenced almost immediately to take photographs of LSC Taylor, whose body was positioned on the top of the Porsche vehicle. The applicant then proceeded to make an audio-visual recording on his telephone. As he did so, he focussed and zoomed in on the deceased or dying police members at a close distance. That recording lasted for one minute and twelve seconds.
The applicant recorded the driver’s side of the Porsche, which depicted LSC Taylor’s face and body on the top of that vehicle. At that point, LSC Taylor was still alive. Her legs had been crushed by the truck, and one of her arms was hanging through the sunroof of the Porsche. The applicant zoomed his camera in on LSC Taylor as she lay, groaning audibly, on top of the Porsche. He then zoomed the camera out to capture all of LSC Taylor’s body on top of the Porsche. The applicant then walked backwards and filmed the front of the truck which was on top of LSC Taylor. As he did so he commented, ‘Absolutely amazing’.
The applicant then continued to provide a verbal running commentary on the tragic scene in terms which could only be regarded as extremely callous. He ignored a request by a member of the public to assist him to hold a blanket to cover LSC Taylor. Instead, he commenced a second recording in which he continued to record the scene, and in which he filmed dead or dying police members, while commenting on it in terms that were grossly insensitive and offensive. In doing so, he zoomed in on SC King’s head injuries, on Constable Prestney’s head injuries, and Constable Humphris’ leg injuries, and also swung his camera at the damaged highway patrol vehicle.
In order to determine the proposed ground of appeal, it is necessary to set out, in more substantial detail, the conduct of the applicant which we have just summarised. For that purpose we quote the relevant passages of the amended prosecution plea opening, which was in the following terms:
The collision occurred at 5:36:24pm. The offender emerged from the bushes after the collision as seen on Dr. Andrew Tsoi’s dashcam footage, walking towards his vehicle as others run to SC King and Const. Prestney to render assistance.
At 5:38:21 the offender is observed entering the view of LSC Taylor’s body worn camera, less than 2 minutes after the collision.
At 5:38:28 the offender went to his vehicle to retrieve his mobile phones and a ‘metro’ branded lunch bag.
At 5:38:35 the offender looked directly at LSC Taylor and said ‘there you go’.
Offending
At 5:38:43 the offender took photos of LSC Taylor and commenced the audio-visual recording which concluded 1 minute and 12 seconds later...
The offender walked slowly and purposefully around the scene of the collision (firstly in an anti-clockwise direction and secondly in a clockwise direction) filming the scene, focusing and zooming in on the dead or dying police members at a close distance.
He took an image of the driver’s side of the Porsche depicting a close up view of LSC Taylor’s face and body on top of the vehicle, zooming in as she is moaning.
The camera then zooms out depicting the entirety of LSC Taylor’s body on top of the Porsche with her legs crushed by the truck. Her arm is observed hanging through the sunroof of the Porsche. The offender walks backwards and films the front of the truck on top of LSC Taylor. It shows the driver’s side of the truck and the damaged unmarked police vehicle. The offender comments ‘absolutely amazing’.
The offender walked to the front of the Porsche (in an anti-clockwise direction). LSC Taylor and Const. Humphris can be seen between the truck and the Porsche. Const. Prestney can be observed lying on the ground on the passenger side of the truck. The offender comments ‘look at that, look at that, isn’t it amazing’.
The offender walked to the passenger side of the truck. The footage depicts Dr Andrew Tsoi tending to Const. Prestney. SC King can be seen in the distance. The offender comments, ‘I think everyone got cleaned up, there’s four people. Four people, look at that’.
The camera then swings back to Const. Humphris who is lying on the ground but stuck between the truck and the Porsche. The camera zooms in on the upper body of Const. Humphris. The camera further zooms in on Const. Humphris’ leg injury (which is wedged between the bull bar of the truck and the Porsche). The offender comments, ‘look at that mate, look at that. Oh he’s smashed. Look at that. Look at that. Lucky I went and had a piss’.
The offender swings the camera back to Dr Andrew Tsoi who is tending to Const. Prestney on the ground. There is a substantial amount of blood on the ground in the area of Const. Prestney’s head. The offender commences walking down the passenger side of the truck. The offender comments, ‘I was doing 149 k’s an hour apparently’.
The offender walks past Const. Prestney and locates a Victoria Police device on the ground. He zooms in on the device stating, ‘Look at that, oh look there, there’s your little computer’. The offender walks towards the rear of the truck and states, ‘look at that man, you fucking cunts. You cunts, I guess I’ll be getting a fucking uber home, huh’.
The offender approaches SC King who is lying off the road underneath the guard rail and says, ‘look at that’. The offender zooms in on SC King’s head injuries. There is a substantial amount of blood on the ground in the area of SC King’s head. The offender zooms out and says, ‘look at that’ and takes footage of SC King’s leg injuries and says, ‘amazing, absolutely amazing’.
The camera then swings to the view behind the truck which depicts debris and papers scattered on the road.
The offender commences walking along the driver’s side of the vehicle towards the damaged unmarked police vehicle. He states, ‘look at that, look at that’. He zooms in on a Victoria Police bag and says, ‘it’s amazing man’.
The camera then turns to the damaged unmarked police vehicle and the offender states, ‘that is fucking justice, absolutely amazing. That is fucking amazing’.
At 5:42:20pm Guiseppe Colaci asked the offender for assistance in holding up a blanket to cover LSC Taylor. He says ‘hey mate, come here, come here, come here, hold that up.’ Rather than rendering assistance the offender again began his own recording.
The second recording commences at 5:42:30pm and concludes 1 minute and 56 seconds later at 5:44:26pm.
The second recording commences with a view from the front driver’s side of the Porsche showing LSC Taylor on top of the vehicle whilst Colaci was trying to cover her body with a blanket.
The offender walks to the driver’s side of the truck (in a clockwise direction). The damaged unmarked police vehicle is observed. The offender walks towards the rear of the truck. The footage shows witness Bradley Kent-Robinson on the phone. Kent-Robinson points at the offender and shakes his hand. Kent Robinson says to the offender, ‘mate um, don’t …’.
The offender walks past Kent-Robinson and the focus of the camera is on SC King who is lying on the ground off the road at the rear of the truck. The offender walks directly up to SC King’s position on the ground and zooms in on his leg injuries. The camera zooms out and the offender says ‘look at that’ and then zooms in on SC King’s head injuries. The offender comments, ‘wow, look at that’. The offender takes a sweeping view of the entirety of SC King’s body before swinging around to take a view of the passenger side of the truck.
The offender walks along the passenger side of the truck. The camera zooms out. In the distance Dr Andrew Tsoi can be observed tending to Const. Prestney. Singh is observed leaning against the guardrail. Singh can be heard wailing and saying ‘oh no, oh no’. The offender states, ‘it’s amazing’. The offender takes a few more steps and says, ‘where’s the ambulance, where is the ambulance, where is the emergency services?’
The offender walks right up to Const. Prestney and zooms in on his head injury and name tag. The offender then zooms out.
A male’s voice can be heard, ‘you taking a photo? Oi’.
The offender walks to the passenger side of the Porsche. There are approximately five civilian witnesses rendering assistance to LSC Taylor and Const. Humphris. The offender walks right up to Const. Humphris and zooms in on his leg injury. Andre DiCioccio can be heard (telling the offender), ‘please …’ as he pushes past the offender in an effort to assist Const. Humphris.
The offender says, ‘don’t have to hit me mate’. DiCioccio states, ‘I’m not hitting you, but come on, help me, let’s help these guys ok’.
The offender replies ‘they’re dead’ and the camera zooms out to show an overall view of people rendering assistance.
The offender walks backwards and takes footage of the truck’s impact with the Porsche and Const. Humphris on the ground and LSC Taylor on the roof of the Porsche.
The offender then swings the camera around to the marked Highway Patrol car which is damaged on the centre median strip. The offender comments, ‘look at that, that’s fucking beautiful’. The offender zooms in on the police car and says, ‘bang, bang, bang. They got thrown all the way over there’.
The offender swings the camera back towards the truck and the Porsche and says, ‘and lucky I said excuse me a moment I’m just taking a piss, amazing’. The offender then zooms in one final time on the Porsche from directly in front. LSC Taylor can be seen on top of the Porsche partially covered by the blanket.
The prosecution opening noted that the two recordings made by the applicant ran for a total of 3 minutes and 8 seconds.
Various witnesses observed the applicant’s behaviour at the scene. Dr Andrew Tsoi noted that the applicant was still filming the victims as he and others were trying to treat them and he requested one of the bystanders to tell the applicant to stop filming and to get his phone. Andre Di Cioccio pushed the applicant out of the way so that the doctors could treat the victims. Giuseppe Colaci asked the applicant to help protect LSC Taylor by holding up a blanket, but the applicant declined to do so. James Cotter observed the applicant recording on his telephone, and getting within 30 centimetres of one of the victims and then filming each of the others.
The applicant departed from the scene, having requested a passing motorist for a lift. He was dropped near the corner of Alexandra Parade and Smith Street. He then made his way to his general practitioner’s office where he showed the graphic video footage to the receptionist at the office, and he also showed the footage to two staff members in the adjoining chemist. On the same evening, he forwarded photographs of the scene to three other acquaintances.

Submissions

The written case that was filed in support of the application was compiled by the applicant, who is not a qualified lawyer. Accordingly, his submissions were not expressed with the precision that is ordinarily expected .
With that qualification, it seems that the applicant seeks to rely on two principal submissions. First, it is submitted that the common law offence of committing an act that outrages public decency has not been, and is not, part of the Australian common law. In that respect, the applicant relied on a passage from the judgment of Brennan J in Mabo v The State of Queensland (No 2)[1] to the effect that, while the Australian legal system inherited the common law from England, nevertheless, it can, and has, legitimately developed independently of English law.
[1](1992) 175 CLR 1; [1992] HCA 23 (‘Mabo’).
The second principal submission by the applicant was that, in any event, his conduct on 22 April 2020 did not, and could not, amount to conduct that constituted the common law offence of committing an act that outrages public decency. In particular, it was submitted that that offence is limited to conduct involving sexual behaviour or lewd conduct by the offender.
Those two propositions substantially reflect arguments that were advanced by senior counsel who appeared on behalf of the applicant at the committal proceeding.
In written submissions filed in that proceeding, counsel for the applicant argued that although the common law charge of outraging public decency has been long recognised in England, it did not become part of the Australian common law. In that respect, counsel for the applicant referred to six cases upon which the prosecution relied in support of the proposition that the offence was, and had become, part of the Australian common law, namely, R v Madercine,[2] R v Black,[3] R v Udod,[4] R v Towe,[5] R v Fonyadi,[6] and R v Reinsch.[7]
[2](1899) 20 LR (NSW) 36 (‘Madercine’).
[3](1921) 21 SR (NSW) 748 (‘Black’).
[4][1951] SASR 176 (‘Udod’).
[5][1953] VR 381 (‘Towe’).
[6][1963] VR 86 (‘Fonyadi’).
[7](1978) 1 NSWLR 483 (‘Reinsch’).
Counsel submitted that, on analysis, none of the offences, that were considered in those cases, in fact constituted the common law offence of outraging public decency. Although, in some of those cases, the court considered that an element of the charged offence was manifest outrage of public decency, nevertheless, the offence charged against the accused in each case was not the offence with which the applicant was charged in the present case.
At the committal, counsel for the applicant further submitted that, even if the common law offence of outraging public decency, as identified in the English cases, formed part of the common law in Australia, nevertheless, the conduct alleged against the applicant did not constitute such an offence. In that respect, counsel noted that the English cases, involving that offence, each consisted of cases in which the offender had outraged public decency by acting in a sexually inappropriate or offensive manner. By contrast, it was submitted that the applicant’s conduct, of filming the tragic scene and the aftermath of the collision, was neither lewd, obscene or disgusting as those terms had been applied in the English cases involving the offence.

Application for extension of time

As we have noted, the application for leave to appeal against conviction was filed more than one year and nine months out of time. The applicant bears the onus of persuading the Court that an extension of time should be granted in his favour. In support of that application, the applicant filed a brief affidavit and application, in which he relies on his period of imprisonment, the high profile nature of the case, and an apprehended fear about his safety and the safety of his family, should he pursue an appeal, as explanations for the delay in filing the application for leave.

In Madafferi v The Queen,[8] it was observed that this Court has a broad discretion to grant an extension of time. Ordinarily, the exercise of the discretion is informed by the length of the delay, the reasons for the delay, and the prospects of success, should the extension be granted.[9] In the present case, the delay was quite extensive. The reasons advanced by the applicant do not adequately explain the delay. In determining whether, in those circumstances, an extension of time should be granted, the critical question is whether, if such an extension were allowed, the applicant would succeed in demonstrating that, notwithstanding his plea of guilty, he was wrongly convicted of the second charge on the indictment, of outraging public decency.
[8][2017] VSCA 302.
[9]Ibid [11] (Priest, Hansen and Coghlan JJA).

Ground of appeal — analysis and conclusion

The applicant was arraigned twice in the County Court, and, on each occasion, he pleaded guilty to each of the charges on the indictment, including charge 2. He was then represented by experienced senior counsel and junior counsel, who had also represented him at the committal proceeding. Ordinarily, a person, who has pleaded guilty to an offence, may only seek leave to appeal against conviction in rare and exceptional circumstances, if the applicant is able to demonstrate that the offence, to which he pleaded guilty, was an offence for which he could not lawfully have been convicted.[10]
[10]R v Forde [1923] 2 KB 400, 403 (Avory J); R v Stewart [1960] VR 106, 108–9 (Herring CJ, O’Bryan and Hudson JJ); R v GJB (2002) 4 VR 355, 361–2 [12] (Winneke P); [2002] VSCA 54; R v El-Kotob (2002) 4 VR 546, 566 [78] (O’Bryan AJA); [2002] VSCA 109.
The central question, then, is whether the circumstances, outlined in the amended prosecution plea opening, were capable of constituting a criminal offence in Victorian law.
It is not in issue, in this application, that the offence of outraging public decency has been part of the English common law, at least since the 17^th Century. The earliest case in which the offence appears to have been recognised, was the decision of the Court of King’s Bench in Rex v Sidley in 1663.[11] Subsequently, in 1809, in R v Crunden,[12] the defendant was convicted of outraging public decency by having swum naked in the sea at Brighton. McDonald CB held that the defendant had committed a misdemeanour of outraging public decency, stating:
The law will not tolerate such an exhibition. Whatever his intention might be, the necessary tendency of his conduct was to outrage public decency and to corrupt public morals.[13]
[11](1663) 1 Sid 168; 82 ER 1036.
[12](1809) 2 Camp 89; 170 ER 1091 (21 March 1809).
[13]Ibid, 90.
More recently, in R v Mayling,[14] the Court of Criminal Appeal upheld the conviction of an accused person who was observed, by police officers, to follow a man into a public lavatory, and there engage in an indecent act with him. In reaching that conclusion, the court stated:
It is convenient first to consider the offence alleged to have been committed by the defendant. It is described in the indictment as “committing an act of outraging public decency” and it arises at common law and not out of any statute. In the judgment of this court, it is now well-established that an offence so described is punishable at common law and, indeed, it was not contended on behalf of the defendant that no such offence existed.[15]
[14][1963] 2 QB 717.
[15]Ibid 724.
Subsequently, the question whether the common law misdemeanour has survived was directly raised in the decision of the House of Lords in Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions.[16]
[16][1973] AC 435 (‘Knuller’).
In that case, the appellants were directors of a company, which published a fortnightly magazine. On an inside page, under a column headed ‘Males’, advertisements were inserted, inviting readers to meet the advertisers for the purpose of homosexual practices. The appellants were charged, and convicted, on one count of conspiracy to corrupt public morals, and a second count of conspiracy to outrage public decency. On appeal, the majority of the House of Lords (Lord Reid and Lord Diplock dissenting) held that there is a general common law offence of outraging public decency, and, accordingly, there is a common law offence of conspiring to outrage public decency. In doing so, their Lordships cited with approval, the decision of the Court of Criminal Appeal in Mayling.[17]
[17]Ibid 493.
The present application involves the resolution of two questions concerning the offence. The first question is whether the offence of outraging public decency encompasses and covers conduct of the kind engaged in by the applicant in the present case. The second question is whether the common law offence, as discussed in the English authorities, became, and has remained, part of the Australian common law.
In respect of the first question, it is clear that a large majority of the cases, and, in particular, the earlier cases, concerned circumstances in which the accused person had engaged in acts of indecent exposure, or indecent conduct, in a public place. Those cases were conveniently summarised in the decision of the Court of Appeal in R v Hamilton.[18]
[18][2008] QB 224, 232–237 [20]–[23].
However, it is evident that the common law offence has not been, and is not, confined solely to cases involving such conduct.
In Knuller, Lord Simon referred to, and summarised, the facts of a number of instances of the offence, which did not involve acts of sexual indecency or indecent exposure. In examining the content of the common law offence, His Lordship observed:
Secondly, the decided cases look odd standing on their own. Indecent exposure (Rex v. Crunden (1809) 2 Camp. 89), acts of sexual indecency in public (Reg. v. Mayling [1963] 2 Q.B. 717), indecent words (Reg. v. Saunders (1875) 1 Q.B.D. 15), disinterring a corpse (Rex v. Lynn (1788) 2 Durn. & E. 733), selling a wife (cited in Rex v. Delaval (1763) 3 Burr. 1434, 1438), exhibiting deformed children (Herring v. Walround (1681) 2 Chan.Cas. 110), exhibiting a picture of sores (Reg. v. Grey (1864) 4 F.&F. 73), procuring a girl apprentice to be taken out of the custody of her master for the purpose of prostitution (Rex v. Delaval: see also count 4 in Reg. v. Howell and Bentley (1864) 4 F.&F. 160,161, conspiracy to procure a girl of 17 to become a common prostitute) – all these have been held to be offences. They have a common element in that, in each, offence against public decency was alleged to be an ingredient of the crime (except Grey, where it was said to be “disgusting and offensive,” “so disgusting that it is calculated to turn the stomach”); but otherwise they are widely disparate; this suggests that they are particular applications of a general rule whereby conduct which outrages public decency is a common law offence. Even keeping a disorderly house can be considered a manifestation of conduct which outrages public decency. (The alternative is to regard all as manifestations of public nuisance).[19]
[19]Knuller, [1973] AC 435, 492–3 (Lord Simon).
Two decisions of the Court of Appeal, subsequent to Knuller, demonstrate that the principles, discussed by the House of Lords, apply in cases, which do not involve acts of public indecency or indecent exposure.
In R v Gibson,[20] the first appellant assembled a model’s head, and hung on each earlobe of it earrings, which each consisted of a human foetus of about three to four months’ gestation. The second appellant selected and displayed the article in an exhibition in his gallery, which was open to and visited by the public. The appellants were charged with and convicted of the common law offence of outraging public decency. The Court of Appeal, applying the principles in Knuller, held, first, that there is an offence at common law of outraging public indecency, and, secondly, that the conduct of the appellants was properly characterised as constituting such an offence.
[20][1990] 2 QB 619.
In R v Anderson,[21] the appellant pleaded guilty to, and was sentenced to three years’ imprisonment, on a charge of committing an act that outraged public decency. In that case, the female victim, who was aged about 50 years, suffered from a number of congenital deformities. In July 2007, while walking in the street, her legs gave way, and she fell prone on the pavement near the applicant’s house. The applicant then walked over to her, returned to his house, obtained a bowl of water and threw it over her. He proceeded to urinate on the victim, while his conduct was being recorded on a mobile telephone by his friend. Having done that, the applicant returned to his house, collected a can of shaving foam, and sprayed it over the victim. That conduct was also recorded by his friend on a mobile telephone. The applicant then took the mobile telephone from his friend and photographed the victim. At one point, he kicked the sole of the victim’s foot to rouse her.
[21][2008] EWCA Crim 12.
The judge, in sentencing the applicant, said that he had violated the victim in a dreadful way. The judge described the offence as disgraceful, with many aggravating factors, and that the applicant’s conduct was ‘appalling and sustained’.
The Court of Appeal, dismissing the appeal against sentence, stated:
Having regard to the detestable conduct which was the subject of this offence, those comments are comments with which we entirely agree. … Looking at the case as a whole, we are unable to reach the conclusion that this sentence was arguably excessive and in those circumstances the renewed application is refused.[22]
[22]Ibid [12] (Burnton and Williams JJ).
It is thus apparent from the foregoing analysis that the common law offence of outraging public decency has been, and has continued to survive as, part of the English common law, and, as such, it is not confined to cases involving acts of sexual indecency or indecent exposure. The critical feature, of each of the cases, is the engagement, by the accused person, in conduct which ‘outrages public decency’.
The constituent elements of the offence were discussed by the Court of Appeal in R v Hamilton. The Court noted, first, that the act must be one, which both offends against recognised standards of propriety and which is at a higher level of impropriety than indecency. Secondly, the Court concluded that it is not enough that the act is lewd, obscene or disgusting, or that it might shock people. In that respect, the Court noted:
[The act] must, as Lord Simon of Glaisdale made clear in R v Knuller (Publishing, Printing and Promotions) Ltd …, be of such a character that it outrages the minimum standards of public decency as judged by the jury in contemporary society. As was pointed out, “outrageous” is a strong word.[23]
[23]Hamilton, [2008] QB 224, 240 (Thomas LJ).
In respect of that element of the offence — the public element — the court accepted that it is not necessary that the act be done in a place to which the public has access or in a place where what was done is capable of public view. However, the court held, the public element of the offence is not satisfied unless the act is capable of being seen by two or more persons who are actually present, even if they do not in fact observe it.[24]
[24]Ibid 240–241 (Thomas LJ).
The next question, then, is whether the common law offence of committing an act which outrages public decency, as discussed in the English authorities, became and has remained a part of the Australian common law.
The starting point, in respect of that question, is s 24 of the Australian Courts Act 1828 (Imp), which effectively provided that all laws and statutes then in force in the Realm of England shall be applied in the administration of justice in the courts of what was then New South Wales and Van Diemen’s Land, subject to any statutes, which might modify or exclude such laws.
It is, of course, trite that that provision did not, in effect, freeze the common law that was applicable in Victoria to that which was then current in England in 1828. As Gibbs J noted in State Government Insurance Commission v Trigwell,[25] the common law, which was adopted, was not frozen in the form that was applicable at that time, but comprised the common law rules, which are expanded and developed from time to time. As part of that principle, it is, of course, recognised that the common law in Australia is not effectively a prisoner of the developments of the common law in the United Kingdom. The common law in this country has developed, in a number instances, quite independently from the manner in which it has evolved in the United Kingdom[26]. The question, which must be determined on this application, is whether in that process, the common law offence of outraging public decency, as developed in the United Kingdom, has become and remains part of the Australian common law.
[25](1979) 142 CLR 617, 625–6 (Gibbs J).
[26]Mabo (1992) 175 CLR 1, 34 (Brennan J).
The earliest case that is relevant to that issue is the decision of the Full Court of the Supreme Court of New South Wales in R v Madercine.[27] In that case, the prisoner was tried on a charge of exposing his person in a certain public place to the view of certain persons. The prisoner committed the offence whilst seated on the verandah of a house, which he had visited in order to obtain water. The question on appeal was whether the trial judge was correct in allowing the indictment to be amended by striking out the word ‘public’. In affirming the conviction of the prisoner, the court held that it was not necessary that the offence be committed in a public place. In reaching that conclusion, the Chief Justice quoted from a passage in the judgment of Huddleston B of the Court of Queen’s Bench Division in R v Wellard[28] in which his Lordship stated:
It seems to be established that, speaking generally, whatever openly outrages decency and is injurious to public morals is a misdemeanour at common law.[29]
[27](1899) 20 LR (NSW) 36.
[28](1884) 14 QBD 63 (‘Wellard’).
[29]Ibid 67.
In Madercine, Simpson J, in his concurring judgment, stated:
… I am very much inclined to think that there was no necessity for the amendment, and that the jury might have convicted the prisoner upon the indictment as it stood, as I think that an offence against decency committed in a private place before a number of people is, in the eye of the common law, committed in a public place.[30]
[30]Ibid 39.
In R v Black,[31] the accused was charged with the common law misdemeanour of indecently exposing himself to the view of particular persons. The accused had, in fact, exposed himself to his wife, to his daughter, aged 20 years, and his son, aged 13 years, in his home. The New South Wales Full Court dismissed the accused’s appeal. Pring J (with whom Wade and James JJ concurred) based his decision on the dictum of Huddleston B in Wellard, to which we have referred, to explain why indecent exposure is a crime, albeit that it does not take place in a public place.[32]
[31](1921) 21 SR (NSW).
[32]Ibid 749.
In R v Reinsch,[33] the applicant was convicted of a charge that alleged that he had openly outraged public decency, in that he had exposed his naked person to diverse persons. The first ground of appeal relied on by the applicant, was that the indictment did not allege that the conduct had occurred in a public place. In directing the jury, the judge had identified four elements of the offence charged, the third of which was that the applicant had exposed himself ‘publicly’. On appeal, Street CJ (with whom Begg and Ash JJ agreed) noted that an important element of the offence alleged was that the act had been committed publicly. Notwithstanding that the indictment did not allege the conduct of a public act, the jury had been correctly directed by the judge that that aspect was a necessary element of the offence. In that respect, Street CJ stated:
It is the public committing of the act that is relevant to be evaluated. This conclusion is in line both with old authority of England as well as with two decisions in this Court, R v Madercine and R v Black.[34]
[33][1978] 1 NSWLR 483.
[34]Ibid 485.
The requirement, that the relevant act be of a public nature, was the subject of consideration by the Full Court of the Supreme Court of Victoria in R v Fonyodi.[35]
[35][1963] VR 86.
In that case, the applicant pleaded guilty to two charges, the second of which was that he ‘unlawfully wilfully and publicly exposed his naked person’. The conduct in question took place in a private dwelling house, which the applicant had broken into. The applicant successfully appealed his conviction, on the basis that his conduct did not take place before more than one member of the public. In reaching that conclusion, the Full Court quoted and applied the dictum from the judgment of Huddleston B in Wellard, that the conduct must be such as to outrage public decency and be injurious to public morals, and concluded that the offence charged was one, which had always been required to involve some degree of publicity.[36]
[36]Ibid 87 (Herring CJ, Dean and Hudson JJ).
From the foregoing analysis of the authorities, the following points are relevant to the question whether the United Kingdom common law offence of outraging public decency has been and is part of the common law of Australia, and in particular the common law of Victoria.
First, in each of the Australian cases which we have just discussed — and in other cases such as R v Udod[37] and R v Towe[38] — the offence that was alleged to have been committed was a common law offence. That is, it was part of the common law in England, which in turn formed part of the law in Australia as a result of the Imperial statute, which provided that the laws then in force in England formed part of the law of the particular Australian jurisdiction in which the case was decided.
[37][1951] SASR 176, 177 (Napier CJ).
[38][1953] VR 381.
Secondly, the principles, that were applied in the Australian decisions, were based on the same principles that underlie the offence that is recognised in the English authorities as the offence of committing an act that outrages public decency. As we have noted, in Madercine, Black and Fonyodi, the court referred to and relied on the dictum in the judgment of Huddleston B in Wellard, which in substance was subsequently reflected in the exposition of the law by the Court of Appeal in Hamilton in the passage to which we have earlier referred.
Thirdly, as we have discussed, the common law offence of outraging public decency, in the United Kingdom, has not been confined to incidents in which the accused person has engaged in acts of sexual indecency or indecent exposure in public view.
Based on those considerations, while it is evident that each of the Australian authorities, referred to, did involve cases in which the offender had engaged in acts of sexual indecency or indecent exposure in public view, nevertheless the underlying principles that applied to the determination of those cases were the same as the basic principles that were applied by the United Kingdom authorities to the offence of outraging public decency.
It is understandable that the large majority of cases, in which the common law offence has been the subject of the charge, were cases involving acts of sexual indecency or indecent exposure in public view. The English cases, and indeed the Australian cases, were decided in an era in which acts of indecent exposure in public view were regarded as very serious infringements of public decency, and as actions which would shock the public sense of decency. However, as we have noted, the English authorities were not confined to cases involving such conduct. There is no basis, either in authority or principle, why the offence should be circumscribed in that way.

The definition of the noun ‘outrage’ in the Australian Concise Oxford Dictionary, is ‘an extreme or shocking violation of others’ rights, sentiments etc; a gross offence or indignity’. As the Court of Appeal emphasised in Hamilton, the requirement that the conduct in question ‘outrage’ public decency is one which should only be found to be satisfied in particularly exceptional cases. Such cases are demonstrated by the conduct of the offenders in the instances of the offence referred to by Lord Simon in Knuller, and by the grotesque forms of conduct indulged in by the offenders in the more recent cases of Gibson and Anderson to which we have referred.
For those reasons, it must be concluded, first, that the common law offence of outraging public decency does form part of the law in the State of Victoria, and, secondly, that the conduct that may be the subject of such offending is not confined to acts of sexual indecency or indecent exposure.
Finally, it is beyond argument that the conduct indulged in by the applicant in this case was such as to constitute the offence of outraging public decency.
The applicant’s behaviour constituted the most appallingly egregious violation in public of the dignity and humanity of the unfortunate innocent victims of the roadside accident, who, at the time of the applicant’s conduct, had either just passed away or were in their last moments of life on this earth. The applicant’s actions could only be characterised as a most atrocious and malign form of overt voyeurism. Any reasonable person who observed the applicant’s conduct in public could only have experienced feelings of utter disgust and abhorrence.
Put simply, the applicant’s conduct unequivocally was such as to constitute a serious instance of the common law offence of committing an act that outraged public decency.
For those reasons, the proposed application for leave to appeal against the applicant’s conviction on the charge of outraging public decency is without merit. Accordingly, the applicant’s application for an extension of time within which to make that application must be refused.
Before departing from the case, it is appropriate that we observe that the sentence of three months’ imprisonment, imposed on the applicant on the charge of committing an act that outrages public decency, was, to say the least, particularly lenient. No doubt the sentencing judge considered that the applicant’s guilty plea was of particular utilitarian value, as it spared the families and friends of the four deceased police members the trauma which would have been occasioned to them by a contested trial of that charge. It would be sincerely hoped that no person would ever engage in the outrageous and repulsive form of conduct indulged in by the applicant, or any other such conduct. However, if any person were minded to do so, the sentence which should be imposed for such offending should be significantly more substantial than that imposed on the applicant in the present case.
For the foregoing reasons, the application for an extension of time was refused.

[2024] VSCA 110

28 May 2024 29 May 2024