Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241

Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241

The magistrate misconstrued s 61N(1) by asking whether the complainant's act, considered on its own, was indecent and by treating contextual matters as legally impermissible. In determining whether the applicant incited a person under 16 to an act of indecency, the trier of fact may consider surrounding circumstances that right-minded persons would take into account, including the terms and sequence of the requests, the parties' ages and roles, and the inciter's purpose. The primary judge was therefore right to set aside the Local Court dismissal and remit the matter, but the declaration made below was defective because it suggested mandatory consideration of specified matters and...

Jurisdiction
Australia
Judgment Date
17 September 2010
Procedural Posture
Application for Leave to Appeal and Appeal in Criminal Matter From Supreme Court Common Law Division Following Prosecutor's Appeal From Local Court Dismissal / Court of Appeal Determination of Application for Leave to Appeal and Appeal
Outcome
Leave to appeal granted; declaration deleted; appeal otherwise dismissed; applicant ordered to pay respondent's costs of the application for leave to appeal and the appeal.
Legal Topics
['incitement to Commit an Act of Indecency' 'meaning of Act of Indecency' 'surrounding Circumstances in Characterising Indecency' 'appeal From Local Court to Supreme Court on Question of Law Alone' 'crimes Act 1900 (nsw), S 61 N(1)']
['criminal Law' 'criminal Appeals'] ['incitement to Commit an Act of Indecency' 'meaning of Act of Indecency' 'surrounding Circumstances in Characterising Indecency' 'appeal From Local Court to Supreme Court on Question of Law Alone' 'crimes Act 1900 (nsw), S 61 N(1)']

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Procedural Posture

Application for Leave to Appeal and Appeal in Criminal Matter From Supreme Court Common Law Division Following Prosecutor's Appeal From Local Court Dismissal / Court of Appeal Determination of Application for Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the primary judge erred in holding that surrounding circumstances could be taken into account in deciding whether the act incited was an act of indecency under s 61N(1) of the Crimes Act 1900 (NSW).' 'Whether the characterisation of the act incited as indecent depends on the purpose of the person committing the act or the purpose or understanding of the inciter.' "Whether the magistrate's refusal to consider surrounding circumstances involved an error of law alone for the purposes of s 56(1) of the Crimes (Appeal and Review) Act 2001 (NSW)." 'Whether the declaration made by the primary judge should stand.']

Ratio Decidendi

The magistrate misconstrued s 61N(1) by asking whether the complainant's act, considered on its own, was indecent and by treating contextual matters as legally impermissible. In determining whether the applicant incited a person under 16 to an act of indecency, the trier of fact may consider surrounding circumstances that right-minded persons would take into account, including the terms and sequence of the requests, the parties' ages and roles, and the inciter's purpose. The primary judge was therefore right to set aside the Local Court dismissal and remit the matter, but the declaration made below was defective because it suggested mandatory consideration of specified matters and...

Court Disposition

Leave to appeal granted; declaration deleted; appeal otherwise dismissed; applicant ordered to pay respondent's costs of the application for leave to appeal and the appeal.

Orders

  • ['Grant leave to the Applicant to appeal from the judgment and orders of James J made in the Common Law Division on 17 December 2009.' 'Deem the draft Notice of Appeal contained in the white folder to stand as the Notice of Appeal in the proceedings and waive further requirements of the rules with respect to filing...