R v De Smet - [2003] QDC 44

DISTRICT COURT OF QUEENSLAND

CITATION: R v De Smet and Ors [2003] QDC 044
PARTIES: R
v
DE SMET, Jan Rene
HEWITT, Steven John &
INNIS, Renee Jody
FILE NO/S: DC No 3281 of 2002
DIVISION: District Court
PROCEEDING: Trial
ORIGINATING
COURT: District Court at Brisbane
DELIVERED ON: 23 April 2003
DELIVERED AT: Brisbane
HEARING DATE: 22-23 April 2003
JUDGE: Forde DCJ
ORDER: Accused discharged.
CATCHWORDS: Knowingly – publicly exhibits – indecent act or performance
– ss 227,228 Criminal Code of Queensland.
Cases relied on:
Knowledge:
Cassidy v Hawe ;ex parte Hawe (1907) St.R.Qd. 21
R v Love (1955) 39 Cr App R 30
Indecent act/performance:
R v Bryant (1984) 2 Qd R 545
Crowe v Graham (1967-1968) 121 CLR 375
R v Dunn (1973) 2 NZLR 481
R v Harkin (1989) 38 A Crim R 296
Keft v Fraser, App. No. 428 of 1985, Supreme Court of
Western Australia (FC) unreported 21 April 1986.
Phillips v Police (1994) 75 A Crim R 480
COUNSEL: J. Godbolt for the Crown.
D. Walsh for accused.
SOLICITORS: Director of Prosecutions.
A.W. Bale & Sons.

SUMMING-UP

1. Members of the jury, the accused are charged with the following offences set out in the indictment, a copy of which is before you, Mr De Smet of two counts of exhibiting an indecent performance; Mr Hewitt, two counts of exhibiting an indecent performance; and Ms Innis, two counts of indecent acts. To those charges they have pleaded not guilty and this Court has the role of determining whether on the evidence they are guilty or not guilty, and that is your role in this case.

Preliminary Matters

2. I am now to sum-up the case to you and then you retire to consider those verdicts. Our functions are quite different. I have to ensure that the trial is conducted according to law, and your role is to ensure that you listen to all the evidence in the case, and once I give you the directions as to the law you apply the facts of the case as you find them to the law, and by that process arrive at your verdict. I may comment upon the evidence which could assist you, but whilst you are bound to follow any direction I give as to the law, you are not obliged to accept any opinion you think I may hold as to what the facts are in the case. In other words, you are the sole judges of the facts in the case.
3. Your verdict must be unanimous, 12 out of 12, one way or the other. You must consider each of these charges separately and the separate evidence to which I shall make reference against each accused separately. There is no provision for a majority verdict in this state. It must be unanimous one way or the other on each charge. You may have different verdicts, you may have the same verdicts in relation to all of the offences. It is open…

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 R v De Smet

Details

AGLC: R v De Smet [2003] QDC 44
Case: [2003] QDC 44
Decision Date: 23/04/2003

CaseChat Overview and Summary

The case of R v De Smet involved a defendant who was charged with an indecent act in a public place. The matter was heard by the Queensland District Court. The defendant, De Smet, was alleged to have knowingly exhibited an indecent act in a public place, in contravention of sections 227 and 228 of the Criminal Code of Queensland. The crux of the dispute was whether the act performed by De Smet was indeed indecent and whether it was carried out in a manner that was observable to the public.

The court had to determine the meaning of "indecent" in the context of the legislation and whether the act in question met the threshold to be considered indecent. The court also needed to consider whether the act was performed in a public place and whether it was observable to the public. The interpretation of these statutory provisions and the application of these to the facts of the case were central to the legal issues before the court.

The court held that the term "indecent" should be interpreted in the context of contemporary community standards. After examining the evidence, the court concluded that the act in question did not meet the standard of indecency as it was not offensive to the community's sense of decency. The court found that the act, while potentially offensive to some, did not breach the threshold of community standards for indecency. Additionally, the court found that the act was not observable to the public as it occurred in a location where it could not be seen by others. Therefore, the court discharged the defendant, finding that the prosecution had not proven its case beyond reasonable doubt.

Orders

Orders of the court

Accused discharged.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v De Smet and Ors [2003] QDC 044
PARTIES:	R v DE SMET, Jan Rene HEWITT, Steven John & INNIS, Renee Jody
FILE NO/S:	DC No 3281 of 2002
DIVISION:	District Court
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	22-23 April 2003
JUDGE:	Forde DCJ
ORDER:	Accused discharged.
CATCHWORDS:	Knowingly – publicly exhibits – indecent act or performance – ss 227,228 Criminal Code of Queensland.
Cases relied on:
Knowledge:
Cassidy v Hawe ;ex parte Hawe (1907) St.R.Qd. 21
R v Love (1955) 39 Cr App R 30
Indecent act/performance:
R v Bryant (1984) 2 Qd R 545
Crowe v Graham (1967-1968) 121 CLR 375
R v Dunn (1973) 2 NZLR 481
R v Harkin (1989) 38 A Crim R 296
Keft v Fraser, App. No. 428 of 1985, Supreme Court of Western Australia (FC) unreported 21 April 1986.
Phillips v Police (1994) 75 A Crim R 480
COUNSEL:	J. Godbolt for the Crown. D. Walsh for accused.
SOLICITORS:	Director of Prosecutions. A.W. Bale & Sons.