Citation: Nguyen v Director of Public Prosecutions (NSW) [2023] NSWCCA 42
Court: Court of Criminal Appeal, NSW
Date: 10 March 2023
Judges: Garling J; Adamson J; Button J (with Garling J and Adamson J agreeing)
Background
The applicant was found guilty in the Local Court of publishing an indecent video contrary to s 578C(2) of the Crimes Act 1900 (NSW). The video depicted her deceased housemate, who had died by suicide, and was uploaded to the applicant's Facebook account. A Conditional Release Order of six months was imposed rather than a formal conviction.
The applicant appealed to the District Court, where Judge Noman SC DCJ dismissed the appeal. By the time the appeal was heard, the CRO had expired and no conviction had been formally recorded, meaning the appeal had little practical significance for the applicant.
The applicant then sought a stated case to the Court of Criminal Appeal, asking whether the prosecution was required to prove that she knew or believed the article was indecent. Three further questions she sought to have stated were declined by the District Court judge as not having been raised at the hearing, and the Court of Criminal Appeal confirmed it had no jurisdiction to answer those unstated questions.
Legal Issues
- Whether the prosecution must prove that a person charged with publishing an indecent article under s 578C(2) of the Crimes Act 1900 (NSW) knew or believed the article to be indecent.
- Whether the common law presumption of mens rea (guilty mind) applies to the mental element of indecency in this offence.
- Whether a mixed subjective/objective mental element, analogous to the concept of "dishonesty" in NSW, should be read into the offence.
Decision
The Court answered the stated question "No": the prosecution is not required to prove that the accused knew or believed the article was indecent. The Court held that indecency is a wholly objective element of the offence, assessed against community standards, and has long been understood that way without requiring any corresponding mental state in the accused.
Button J (with whom Garling J and Adamson J agreed) drew on the 1987 decision in R v Wampfler, which addressed the predecessor offence under the Indecent Articles and Classified Publications Act 1975 and characterised it as a strict liability offence with respect to indecency. That predecessor provision was re-enacted with only minor amendments when the offence was moved into the Crimes Act in 1996, indicating Parliament was aware of and comfortable with that judicial interpretation.
The Court rejected the applicant's oral submission that a mixed objective/subjective test should apply, by analogy to the statutory concept of dishonesty in NSW. The Court noted that the dishonesty formulation has explicit statutory foundations, which are absent here. The Court also observed that accepting the applicant's position would allow reckless or thoughtless publishers of indecent material to escape criminal sanction, which would be inconsistent with the purposes of the provision.
The Court also noted that even if all of its reasoning were wrong, the stated question was framed as a purely subjective test ("knew or believed"), whereas the applicant's actual submission advanced a mixed objective/subjective formulation. On a straightforward reading of the question as posed, the answer would still be "No."
Orders Made
• The question at the conclusion of the stated case should be answered "No"
Key Takeaways
- Under s 578C(2) of the Crimes Act 1900 (NSW), indecency is a wholly objective element of the offence of publishing an indecent article; the prosecution is not required to prove that the accused knew or believed the article to be indecent.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that strict liability with respect to the element of indecency has been the settled position since at least R v Wampfler (1987), and Parliament's decision to re-enact the offence without amendment in 1996 reinforces that position.
- A mixed subjective/objective mental element, analogous to the NSW statutory concept of dishonesty, cannot be implied into an offence-creating provision that lacks any corresponding statutory foundation for such a test.
- The Court of Criminal Appeal has no jurisdiction under s 5B of the Criminal Appeal Act 1912 to determine questions that the District Court judge declined to state in a stated case; the court's jurisdiction is confined to questions actually submitted to it.
- Allowing ignorance of indecency to defeat prosecution would undermine purposes of sentencing beyond personal deterrence, including general deterrence, denunciation, and incapacitation.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 578C(2)
- Criminal Appeal Act 1912 (NSW), ss 5B(1), 5B(2)
- Indecent Articles and Classified Publications Act 1975 (NSW), s 6(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9(1)(b)
Cases
- R v Wampfler (1987) 11 NSWLR 541
- He Kaw Teh v The Queen (1985) 157 CLR 523
- Environment Protection Authority v N (1992) 26 NSWLR 352
- Munda v Western Australia (2013) 249 CLR 600
- Bazouni v R [2021] NSWCCA 256
- Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173
- R v Stringer (2000) 116 A Crim R 198
- R v Harkin (1989) 38 A Crim R 296
- Crowe v Graham (1968) 121 CLR 375
- R v Court (1988) 87 Cr App R 144
- Purves v Inglis (1915) 34 NZLR 1051