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A Magistrate in Downing Centre Local Court described the conduct of police officers during the arrest of beloved Sydney icon Danny Lim as “awful”, finding that the words on the sandwich board he was wearing were “cheeky” but did not amount to offensive conduct under the criminal law.

The case

Mr Lim, aged in his mid-70s, was issued with a $500 criminal infringement notice for offensive behavior in January for wearing a sign saying “SMILE CVN’T! WHY CVN’T?”

Police alleged that a person described only as “as woman” called them to say she was offended by the sign.

They arrested Mr Lim and issued him with a $500 criminal infringement notice, which the elderly man decided to challenge in court.

The crime of offensive conduct

Section 4 of the Summary Offences Act 1988 (NSW) provides that “a person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.”

The offence is different to ‘offensive language’ which is a crime under section 4A of the same Act – indeed, the legislation makes it clear that a person cannot be found guilty of offensive conduct merely by using offensive language.

It is a defence to a charge of offensive conduct where a person has a “reasonable excuse for conducting himself or herself in the manner.”

The maximum penalty for offensive conduct is 3 months in prison or a fine of $660. A conviction for the offence results in a criminal record.

The Summary Offences Act doesn’t list or define what is considered “offensive.” So we must turn to the common law to gain an understanding the word in the context of criminal law.

In the classic 1951 Victorian Supreme Court (VSC) case of Worcester v Smith, Justice O’Bryan found that something is offensive if it is “… calculated to wound the feelings, arouse anger or resentment or disgust in the mind of a reasonable person.”

Under the law, conduct can be “hurtful or blameworthy or improper” and offend “against standards of good taste or good manners,” but may still not be enough to amount to offensive under the criminal law.

The hypothetical ‘reasonable person’ is the measure by which a court determines whether something is criminally offensive. This ‘person’ is said to exercise average care, skill and judgement in conducting themselves, is reasonably contemporary and not thin-skinned.

Under these rules, a person’s behaviour may seem to be offensive to some but insufficient to pass the threshold of criminally offensive.

The hearing of Mr Lim

It is under these rules that Mr Lim’s case proceeded to a Local Court hearing.

During the hearing, Her Honour Magistrate Milledge was highly critical of the attitude and conduct of police, pointing out that the “overwhelming opinion” of people in the public square was that Mr Lim is harmless and that they took no offence to the sign.

Bodycam footage of the arrest captured the officers officers telling the large crowd “a number of complaints” had been received about the sign, although there was no evidence of this before the court.

After a number of bystanders tried to intervene by saying Mr Lim’s sign was not offensive, one officer called bystanders “pathetic” and labelled them as “social justice warriors”.

Indeed after the footage was posted online, more than 150 people surrounded a Sydney police station to protest against the treatment meted out to the elderly Mr Lim by our ‘boys in blue’.

Mr Lim takes the stand

Mr Lim testified in court that his intention was never to offend, but to make people smile and think.

“When you go to Barangaroo on Monday, Tuesday or Saturday they don’t smile,” he told the court. “We need Australia to smile again.”

He said his various “CVN’T” signs had become his trademark after a fine was overturned in court for a similar board about Tony Abbott in 2015.

Mr Lim disagreed that, in a roundabout way, he was using the c-word, saying that only a few people out of thousands that would come across his sign would think it was offensive.

On this point, Mr Lim’s lawyer pointed to the play on words offered by popular fashion label FCUK.

Police Prosecutor, Rick Manslley, told the court that the c-word was objectively offensive. “How can the court say the standards of society have sunk so low?” he submitted.

The law prevails

Magistrate Milledge ultimately found that the view of the person who called the police was not enough to prove the case against Mr Lim beyond reasonable doubt, as required under the law.

She accurately applied the law, noting the test is that of the “hypothetical reasonable person.”

“It’s not someone who is thin-skinned, who is easily offended,” she remarked.  “It’s someone who can ride out some of the crudities of life. [The sign is] provocative and cheeky but it is not offensive.”

Police conduct

Magistrate Milledge, a former police prosecutor herself, admonished senior constable Ashley Hans for describing “a gathering of ordinary citizens” as “pathetic” and “social justice warriors.”

Her Honour described the conduct of police as “awful” adding, “That attitude has no place in the modern constabulary.”

She noted that Mr Lim was compliant at all times, and that the use handcuffs used and ripping his sign off, which caused bruising and bleeding to the elderly man’s wrists, was “unnecessary and heavy handed” and that officer Hans’ statement that Mr Lim was “bullshitting” when he yelped in pain as he was lifted off the ground in handcuffs was inappropriate.

Child neglect

By Sonia Hickey and Ugur Nedim

A Sydney couple who inadequately nourished their baby for the first 19 months of her life have avoided prison time, despite the girl facing life-long health issues as a result.

The parents were charged with failing to provide the necessities of life last year, after their daughter had a seizure and was admitted to Sydney Children’s Hospital.

The couple, who cannot be named for legal reasons, pleaded guilty to the charge.

Failing to provide the necessities of life

Failing to provide the necessities of life is an offence under section 44 of the Crimes Act 1900 (NSW) which carries a maximum penalty of 5 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. The defendant was under a legal duty to provide another with the ‘necessities of life’
  2. He or she intentionally or recklessly failed to provide the person with those necessities,
  3. The failure caused serious injury to, or created the likelihood of serious injury to, or endangered the life of, the person to a legal duty was owed, and
  4. The defendant did not have a ‘reasonable excuse’ for the conduct.

Necessities of life include sufficient nutrition, shelter, and required medical care.

Failure of parent to care for child

A similar offence titled failure of parent to care for child is contained in section 43A of the Crimes Act, which prescribes a maximum penalty of 5 years in prison where the prosecution is able to prove that:

  1. The defendant had parental responsibility for a child
  2. He or she intentionally or recklessly failed to provide the child with the necessities of life, and
  3. He or she did not have a ‘reasonable excuse’ for the conduct.

A ‘child’ is defined as a person under the age of 16 for the purposes of the section.

A person cannot be charged with an offence under both section 44 and 43A for the same act or omission.

Defences to the either offence include duress and necessity.

Sentencing hearing

During the sentencing proceedings in Downing Centre District Court, Judge Sarah Hugget remarked:

“It is the responsibility of every parent to ensure the diet they choose to provide to their children … is one that is balanced and contains sufficient essential nutrients for optimal growth. This child was severely malnourished, underweight and undersized, and delayed as far as age-appropriate milestones were concerned.”

She sentenced each parent to an 18 month intensive correction order.

The court heard that for the first 19 months of her life, the child was fed a conservative vegan diet, which ultimately consisted of oats with olive oil, rice milk, vegetables, rice, potatoes and tofu, and her snacks consisted of a mouthful of fruit or two sultanas.

Hospital tests revealed the baby had multiple severe nutritional deficiencies and Osteopenia, or thin bones. Medical staff testified that her bones had not developed since birth.

Through a victim impact statement, the child’s foster carer, who met the toddler when she was just 19 months old, said was shocked to see how far behind her growth milestones she had fallen. In her statement, she said the girl looked like a three-month-old baby, weighing only 4.89 kilograms and had no teeth.

While the carer said the girl became more interactive with play and cuddles, her height and weight remained disproportionate, and she is traumatised by routine medical procedures such as blood tests, which she must now undergo regularly to ensure that her health is monitored carefully.

In an investigation into the girl’s medical history, doctors found an absence of immunisations, no follow-up check-ups after she was born and no birth certificate or Medicare number.

Health experts also testified that the mother was suffering depression since the baby was born, and while the judge accepted this may suggest that she had diminished culpability, she was critical of the child’s father who, she said, could have taken the child to a doctor much sooner, and should have realised that the baby was not developing at the same rate as other babies the same age.

The toddler’s two older brothers, aged six and four, are also in government care and were also on vegan diets. The three have since been united and are in the care of a relative. Both parents have supervised access to the children.

Downing Centre building

68-year old Sydney Magistrate Graeme Curran is currently on trial in Downing Centre District Court for nine counts of indecent assault, arising from allegations he sexually abused a teenage boy nearly four decades ago.

In his opening statement to the jury, Crown Prosecutor Mark Hobart SC submitted that between 1981 and 1983, Mr Curran performed a number of sexual acts upon the boy, who was aged 13 to 15 at the time.

These acts, it is alleged, included performing a ‘ritual’ of running his hands up and down the boy’s body with ‘extra time’ on the genital area while the pair were in bed naked together, attempting to put his tongue down the boy’s throat, masturbating the boy on a beach and performing oral sex upon him.

The prosecution alleges Mr Curran, a solicitor at the time, groomed the boy by spending lavishly on sailing trips, hotel rooms and even buying his parents a car and paying their bills.

Mr Curran’s criminal defence barrister, Peter Boulten SC, admitted the pair often slept together but said they were always fully clothed.

He made clear that his client vehemently denies the allegations of improper conduct, telling the jury:

“Graeme Curran was a very close friend of the family and he became almost unconsciously a father figure”.

“He had a very affectionate relationship with [the parents] and all of their children, and he was a very generous and kind and caring part of the family.”

The barrister suggested the complainant had become ‘mixed up’ over the years, noting that the allegations became ‘bigger and better’ over time.

He foreshadowed the defendant testifying in his own defence.

The trial continues before Judge Anthony Rafter and a jury of twelve.

Indecent assault

Indecent assault is an offence under section 61L of the Crimes Act 1900 (NSW) which comes with a maximum penalty five years’ imprisonment if tried in a higher court such as the district court, or two years if the case remains in the local court.

To be found guilty, the prosecution must prove each of the following ‘elements’ beyond reasonable doubt:

  1. The defendant assaulted the complainant

In the context of the section, an assault is the deliberate and unlawful touching of another person. The slightest touch is sufficient to amount to an assault and it does not have to be a hostile or aggressive act or one that caused the complainant fear or pain.

  1. The assault was indecent

Indecent means contrary to the ordinary standards of respectable people in the community, and it must have a sexual connotation or overtone.

  1. The assault was committed without the complainant’s consent

Consent involves the conscious and voluntary permission by the complainant to the defendant to touch the complainant’s body in the manner that the defendant did.

Consent or the absence of consent can be communicated by the words or acts of the complainant.

  1. The defendant knew the complainant was not consenting

The defendant must have known was not consenting. This is not a question of what a reasonable person would have realised, thought or believed, but what the defendant knew.

It is important to note that a person under the age of 16 cannot provide consent, and an indecent act will be regarded as an indecent assault in the absence of consent.

Aggravated indecent assault is an offence under section 61M of the Crimes Act.

To be found guilty, the prosecution must prove the above four ‘elements’ beyond reasonable doubt as well as at least one of the following ‘aggravating circumstances’.

  1. the defendant was the company of another person/s,
  2. the complainant is under the authority of the defendant,
  3. the complainant has a serious physical disability, or
  4. the complainant has a cognitive impairment.

The maximum penalty is seven years’ imprisonment, or ten years if the complainant is under the age of 16.

Sexual touching

In December 2018, the offence of indecent assault was replaced by ‘sexual touching’ in New South Wales.

The offence of sexual touching is now contained in section 61KC of the Crimes Act 1900.

The section states that a person is guilty of sexual touching if he or she, without the consent of the complainant and knowing that consent is absent, intentionally:

  • sexually touches the complainant, or
  • incites the complainant to sexually touch him or her, or
  • incites a third person to sexually touch the complainant, or
  • incites the complainant to sexually touch a third person.

‘Sexual touching’ is defined by section 61HB of the Act as touching another person with any part of the body or with anything else, or through anything, including anything worn by either person, in circumstances where a reasonable person would consider the touching to be sexual.

The section provides that the matters to be taken into account when deciding if touching is sexual include whether:

  • the area of the body touched or doing the touching is the person’s genital area, anal area or – in the case of a female person, or a transgender or intersex person identifying as female – the person’s breasts, or
  • the defendant’s actions are for sexual arousal or sexual gratification, or
  • any other aspect of the touching, or the circumstances surrounding the touching, make it sexual.

Touching is not sexual if it was carried out for genuine medical or hygienic purposes.

What are the penalties for sexual touching?

The maximum penalty for sexual touching is 5 years in prison if the case is dealt with in the District Court, or 2 years if it remains in the Local Court.

The maximum penalty increases to 10 years if the offence was committed against a child who was at least 10 years of age but under 16.

The maximum penalty is 16 years if the child was under the age of 10.

What does the prosecution have to prove?

For a person to be guilty of sexual touching, the prosecution must establish each of the following matters:

  • That the defendant touched the complainant or incited another to do so,
  • That the touching was sexual,
  • That consent was not given to the touching, and
  • That the defendant knew consent was not given, or was reckless as to whether consent was given.

The prosecution will fail if it cannot prove each of these elements beyond reasonable doubt.

What are the defence to sexual touching?

In addition to the requirement that the prosecution must prove each element (or ingredient) of the offence, it must also disprove any of the following defences if properly raised:

  • Duress, which is where you were threatened or coerced,
  • Necessity, where the act was necessary to avert danger, and
  • Self-defence, where you engaged in the act to defend yourself or another, and
  • Lawful correction of a minor.

It is important to bear in mind that, like everyone else, Mr Curran is presumed innocent until and unless he is proven to be guilty in a court of law.

Criminal court for obscene exposure

As previously reported, Canterbury-Bankstown Rugby League players Adam Elliot and Asipeli Fine were charged with obscene exposure after allegedly being filmed engaging in simulated sex acts while naked and intoxicated in view of the public at the Harbour View Hotel in The Rocks during ‘Mad Monday’ celebrations on 3 September 2018.

Pleas of guilty

Each of the players pleaded guilty to the charge and came before her Honour, Deputy Chief Magistrate Mottley in Downing Centre Local Court earlier this week.

It has been reported that agreed facts handed-up to the court outlined that the pair were seen on CCTV footage removing their shirts, after which ‘Fine can be seen tensing and slapping himself on the back of his shoulder with friends cheering him on’.

‘About 5.25pm, Fine removes his pants and underwear and walks around the terrace area fully naked. At one point Fine picks up a stool and places it over his right shoulder before moving it over his left shoulder whilst at the same time placing his hand on and off his penis.’

Mr Elliott is said to have then removed his pants before climbing onto a table and dancing, before he is helped back down.

“At the same time, Fine can be seen raising a bench stool above his head whilst thrusting his pelvis backwards and forwards, moving his penis up and down,”

“At 5.27pm Elliott removes his underwear and begins to climb up onto a stool in the nude.”

The pair are said to have then dressed themselves, before Mr Fine gets back on the table.

“Fine lowers his underwear and a club member begins to pour liquid, believed to be water, onto his penis, which pours down into a schooner glass, placed on a table underneath his penis,” the facts say.

“Fine does not discourage this action but continues chanting and cheering with the crowd.”

The judgment

Her Honour noted the pair had already received substantial fines and incurred damage to their reputations.

She described the conduct as “fuelled by alcohol, stoked along by the crowd” but nevertheless “disgraceful by any standard of decency.”

“The conduct that brings you before the court was clearly reckless,” her Honour remarked.

She ultimately placed each of the men on conditional release orders for a period of two years without recording criminal convictions against their names.

What is a conditional release order?

On 24 September 2018, conditional release orders replaced good behaviour bonds under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (now conditional release order without conviction).

Conditional release orders are a way for a person who pleads guilty or is found guilty of a criminal or major traffic offence to avoid a harsh penalty, or even a criminal conviction altogether, provided they comply with the conditions of the order.

How can I get a conditional release order?

The new law is contained in section 9 of the Act which states:

“9(1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if:

(a) the court proceeds to conviction, or

(b) the court does not proceed to conviction but makes an order under Section 10 bond (now conditional release order without conviction).

(2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors:

(a) the person’s character, antecedents, age, health and mental condition,

(b) whether the offence is of a trivial nature,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.”

This means a conditional release order is more likely where an offence less serious, there were reasons behind its commission and the defendant is otherwise a person of good character.

That said, conditional release orders are not restricted to specific categories of offences – rather, a court can order a CRO for any offence.

CROs cannot be made in the absence of the defendant.

What conditions can be placed on a conditional release order?

A CRO must contain the following conditions:

  • That the defendant not commit any further offences,
  • That the defendant must attend court if called upon to do so.

A person will only normally be called upon to attend court if he or she breaches the order.

Additional conditions that can be placed on a CRO are:

  • To participate in rehabilitation programs or receive treatments,
  • Abstain from alcohol, drugs or both,
  • Not associate with particular persons,
  • Not frequent or visit particular places,
  • Come under the supervision of community corrections officers or, in the case of young persons, juvenile justice officers.

A CRO cannot include:

  • A fine,
  • Home detention,
  • Electronic monitoring,
  • A curfew, or
  • Community service work.

Can conditions be changed?

The defendant or a community corrections officer can apply to a court to revoke, amend or add conditions to a CRO at any time after it is ordered.

However, the mandatory conditions must remain in place.

How long can a conditional release order last?

A CRO can last for up to two years.

What happens if I breach my conditional release order?

If it is suspected that a CRO condition has been breached, the defendant may be ordered to attend court to determine whether a breach has in fact occurred.

If a breach is established, the court may:

  • take no action
  • add, change or revoke conditions, or
  • revoke the CRO in its entirety.

If the CRO is revoked, the defendant will be resentenced for the original offence.

Downing Centre Court in Sydney

In October 2018, NSW Attorney General Mark Speakman announced a four year, $148 million funding boost designed to ease the pressure of the state’s District Courts by facilitating the appointment of seven new judges, more senior lawyers at Legal Aid NSW and upgrades to regional courts to enable them to accommodate for jury trials.

Five new Magistrates for NSW Local Courts

This week, Mr Speakman announced the appointment of five new Local Court Magistrates as part of a $4.1 million package aimed at dealing with an influx in sexual and indecent assault cases resulting from the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse.

The appointees have a combined experience exceeding a century. They comprise a criminal defence barrister, three solicitors with significant experience in criminal law and a former coroner.

“The Local Court deals with more cases than any other court in Australia and increasing its ranks on the bench will help ensure it continues to lead the nation in the delivery of timely justice,” Mr Speakman stated.

The appointees

Miranda Moody and Greg Elks will be the first to join the bench on 21 January, before Ian Rodgers Fiona McCarron in late February, and Stephen Olischlager in late March 2019.

Miranda Moody

Ms Moody was an associate to a number of judges in the District Court of NSW for several years before becoming a barrister in 2006.

She has represented clients in cases ranging from drink driving, common assault and drug possession in the Local Court up to jury trials for serious offences in the District Court.

She has also appeared for clients before the Independent Commission Against Corruption (ICAC) and is a member of the Legal Aid Commission’s General Criminal Law Panel.

Greg Elks

Mr Elks commenced his involvement in the criminal justice system as a police officer in 1979, before attaining the rank of sergeant and working as a police prosecutor from 1988.

He was admitted as a lawyer in New South Wales in 1991 and was employed for many years as a solicitor with Legal Aid NSW and then the Office of the Director of Public Prosecutions, before opening a law firm in Cronulla.

He became an Accredited Specialist in Criminal Law in 1999 and has serviced the community with integrity and commitment throughout his career.

Ian Rodgers

Mr Rodgers was admitted as a NSW lawyer in 1998 and has been employed as an Associate to a District Court Judge, a solicitor with the Aboriginal Legal Service (NSW/ACT) and a policy officer with the NSW Department of Justice.

For the past three years, Mr Rodgers has been in charge of Newcastle’s busy Legal Aid office, managing several lawyers and administrative staff.

Fiona McCarron

Ms McCarron was employed as a Judge’s Associate in 2000 before being admitted as a lawyer in NSW in 2002 and joining the Legal Aid Commission.

She was involved in the case of Sydney woman Christine Lee, who was charged with fraud after going on a spending spree when Westpac mistakenly deposited $4.6 million into her bank account.

Ms Lee spent large sums of money on penthouse apartments, designer shoes and handbags, and siphoned about $33,000 a week over a period of nine months into her other accounts.

The charges against Ms Lee were ultimately dropped when the Office of the Director of Public Prosecutions decided the essential element of ‘deception’ could not be proved.

Ms McCarron has worked as the solicitor in charge and managing solicitor of Legal Aid’s Inner City Local Courts office.

Stephen Olischlager

Mr Olischlager has had a lengthy and varied career in the criminal justice system – working as a registrar, a coroner, a developer of policy and a drafter of legislation including the Civil Procedure Act 2005, Coroners Act 2009 and Uniform Civil Procedure Rules.

Since 2009, he has been employed as an Assessor in the Small Claims Division of the NSW Local Court.

His involvement in the legal system spans 23 years.

It is hoped the newest appointments will help ease the pressure on some of the state’s busiest courts.


By Ugur Nedim and Sonia Hickey

32-year old Uber driver Nazrul Islam is facing up to 18 months in prison after a Magistrate in Downing Centre Local Court found him guilty of negligent driving occasioning death.

The court heard that Mr Islam had been working for 21 hours before the incident and, despite testifying he had seven hours of sleep, it was not continuous rest.

Magistrate Mary Ryan found that the circumstances of 30-year old Englishman Samuel Thomas’ death suggested that Islam was “much more fatigued thank he admitted”, and her Honour was not convinced the driver had slept during his breaks for as long as he claimed.

Mr Thomas had been drinking at a birthday party with colleagues in Strathfield, before he caught the Uber towards Pitt Street with friends Stephen Ronning and Greg Hensman.

When the car stopped at a red light, Thomas opened the door and got out, and was immediately hit by a bus.

Her Honour noted that the sound of the door opening could be heard in footage played in court, and that opening the door automatically switched the car’s internal light on, which woke the other intoxicated passengers. She found that these facts would have alerted a reasonably prudent driver to remain stationary.

Instead, Mr Islam accelerated when the light went green and Mr Thomas was half way out the door.

Negligent driving

Negligent driving is established where the prosecution is able to prove beyond reasonable doubt that a driver or rider of a motor vehicle departed from the standard of care for others that would be expected of a reasonably prudent driver or rider in the circumstances; R v Buttsworth (1983) 1 NSWLR 658.

This is known as an ‘objective test’ which looks at what a reasonable and practicable driver would have done in the given situation.

It requires an assessment of all relevant circumstances known to the driver or rider at the time, rather than a determination as to what, given the benefit of hindsight, would have been the best course of action.

Driving in the absence of ‘due care and attention’ can amount to negligent driving, provided the act was causing the inattention was deliberate or arose from an error of judgment; Sprigg v Police [2011] SASC 10.

The maximum penalty for negligent driving occasioning death where it is a motorist’s first major traffic offence in five years is 18 months’ imprisonment and/or a fine of $3,300, plus three years off the road which can be reduced by a court to a minimum of 12 months.

Fatigue on New South Wales Roads

Fatigue is one of the top three killers on New South Wales Roads, and collisions caused by fatigue are twice as likely to be fatal.

Being tired at the wheel can seriously impair the ability to drive, with research suggesting that being awake for about 17 hours has a similar effect on cognitive function as a blood alcohol content (BAC) of 0.05.

Calls for reform

There are calls for greater regulation of the ride-share industry, with critics of the current situation saying governments should step in and impose more rules rather than continue to essentially sit on their hands.

Shortly after Mr Islam was charged last year, Uber implemente a policy that would automatically log drivers off for six hours after they have been online and driving for 12 hours.

But there are concerns that drivers can still drive for up to 15 hours, despite the automatic log off feature within the app, because it stops calculating when a driver is stopped at traffic lights or for a passenger pickup.

A recent report suggests that many Uber drivers are working for less than the minimum wage, so may be pushing themselves beyond safe physical and mental limits to make ends meet..

Uber has not publicly commented on the death of Mr Thomas, except to say the company is committed to ‘driver and passenger safety.’

Downing Centre Courthouse view

Canterbury-Bankstown rugby league players Adam Elliot and Asipeli Fine were each fined $25,000 by the club and charged by police with the crime of obscene exposure after allegedly being naked on the balcony of the Harbour View Hotel at The Rocks during ‘Mad Monday’ Celebrations in early September this year.

Today, Mr Elliot appeared with his defence lawyer in Downing Centre Local Court where his case was adjourned until 21 November 2018.

Mr Fine’s lawyer appeared on his behalf and adjourned the case to the same date.

It is expected the defendants will formally enter their pleas at that time.

In the event of a not guilty plea, the case is likely to be set down for a defended hearing – which is when evidence including photographs of the alleged conduct is expected to be tendered before the magistrate makes a determination.

Before that time, the defendants’ lawyers can send written ‘representations’ to police requesting the withdrawal of the charges and setting out the reasons for that request.

In the event of a guilty plea, the matter will proceed to a sentencing hearing at which time the magistrate will determine the appropriate penalty, which in the case of an obscene exposure charge where the defendants have already been fined and shamed is likely to be:

The offence of obscene exposure in NSW

Section 5 of the Summary Offences Act 1988 (the Act) prescribes a maximum penalty of six months in prison and/or a fine of $1,100 for anyone who, ‘in or within view from a public place or school, wilfully and obscenely exposes his or her person’.


Wilful has been defined as having the requisite intent, which means the prosecution must prove beyond reasonable doubt that the exposure was on purpose rather than by accident, by the act of another person or through mere negligence.

So, if there is some evidence that any exposure of the genitalia of the rugby league players was unintentional, the prosecution would then need to exclude any reasonable possibility of this beyond a reasonable doubt.


Whether exposure is ‘obscene ‘is determined by contemporary standards of decency, although the courts have held that exposure of the penis and/or testicles amounts to obscene, and that section 5 is capable of applying to female genitalia as well.

However, there is commentary to suggest it is unlikely that exposure of the female breasts would suffice in the present day, and that the act of breastfeeding almost invariably would not.

Public place

Public place is defined by section 3 of the Act as, ‘a place (whether or not covered by water), or a part of premises, that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons’.

The definition certainly encompass licensed premises, regardless of whether they are only made available at the time to a certain class of persons.

In any event, the activity of the rugby league players – if they have been correctly identified – is said to have been captured from outside the hotel.

Case law

In that regard, the NSW Supreme Court in the case of R v Eyles [1977] NSWSC 452 found that the prosecution only needs to prove that the exposed area could have been seen by a person who was in a public place, not that the defendant was in a public place at the time of the exposure or that the exposure was actually seen by anyone.

That case involved a man who was alleged to have been masturbating behind a fence on his own property. There was no evidence the man’s penis was seen by anyone, although it could have been seen by someone who was in a public place and his act was established through evidence of his mannerisms and the fact he seen was naked from the waist up.

Legal defences

Apart from the requirement that the prosecution must prove each of the elements (or ingredients) of an obscene exposure charge beyond reasonable doubt, defendants may also seek to rely upon legal defences of duress or necessity.

Nude bathing

It should be noted that section 633(2) of the Local Government Act 1993 prescribes a maximum penalty of $1,100 for being ‘in public view in the nude in any place (other than a designated beach)’.

At present, the only ‘designated beaches’ in NSW (also known as ‘nudist beaches’) are:

  • Lady Bay (Lady Jane) Beach,
  • Cobblers Beach,
  • Obelisk Beach,
  • Werrong Beach, and
  • Samurai Beach.

Clothing is optional at those beaches.



Two Canterbury-Bankstown NRL players will face Downing Centre Local Court over their actions on ‘Mad Monday’, and a third has been given a criminal infringement notice (CIN) after allegedly being photographed and videoed naked, drunk and vomiting at the Harbour View Hotel at The Rocks in Sydney.

Criminal charges

Adam Elliott and teammate Asipeli Fine have been charged with obscene exposure, while the player who received the CIN has not been named.

The licensee of the hotel has also been issued with five penalty notices under the Liquor Act, including two for permitting indecent behaviour on licensed premises.

Hefty financial penalties

The club itself imposed fines on four players: Elliott and Fine have each been fined $25,000 (with $10,000 suspended), while Marcelo Montoya and Zac Woolford received fines of $10,000 (with $5000 suspended).

The incident has also resulted in a significant financial blow to the club, with the NRL imposing a record fine of $250,000 for bringing the game into disrepute. It has also lost major sponsor in Jaycar and a deal that’s reportedly worth around $500,000.

Too harsh?

A number of sports commentators are shaking their heads at the severity of the consequences for the players themselves, pointing out that more serious acts have resulted in substantially lower fines.

One of those events involved NRL players and a dog, another of accusations of gang rape and yet another of wife-beating.

There are continual episodes of on-field violence as well as drug scandals and allegations of match fixing, all of which do reflect well upon players or the game as a whole.

Some might even suggest that players should be given some leeway after a high-pressured season, and that their antics aren’t much worse than some corporate Christmas Parties.

Nevertheless, Bulldogs chief Andrew Hill has acknowledged the conduct was a ‘poor reflection of both the club and the game’, adding that ‘these are good people who have acted in an immature and juvenile way. They have accepted responsibility for their actions and have apologised to the club for their behaviour’.

Mr Hill has pledged to ‘put steps in place to make sure that this situation never happens again.’

The NRL has issued a statement saying the fine of $250,000 sends a strong signal that such conduct will not be ‘tolerated on this occasion – or in the future.’

Is alcohol to blame?

Some might say that is rhetoric that we’ve heard before. Undoubtedly, excessive alcohol consumption played a role in the men’s misconduct on Mad Monday.

This is in spite of the NRL has implemented an alcohol management strategy with the help of the Australian Drug Foundation to ensure ‘a whole of game approach to responsible drinking, from the grassroots clubs through to the NRL.’

But the fact of the matter is that the NRL still attracts large sums of money from alcohol sponsorship, from ads during play and in the breaks in between, in signage and on the field – and by and large the community is increasingly uncomfortable, not just with alcohol sponsorship in sport, but seeing players adversely affected by the drug.

Serious consequences for players

For Adam Elliott and Asipeli Fine, the party might have been fun, but the hangover continues.

Both are due to appear in the Downing Centre Court in Sydney on 24 October, and many will be keeping a keen eye on the outcome.

Obscene Exposure in NSW

Section 5 of the Summary Offences Act 1988 (NSW) makes it an offence punishable by up to 6 months’ imprisonment and/or a fine of $1,100 for a person to ‘wilfully and obscenely expose his or her person… in or within view from a public place or school’.

To establish the offence, the prosecution must prove the players:

  • Exposed themselves in an obscene manner, and
  • Did so within view of a public place or school.

Bodily exposure is regarded as ‘obscene’ if it is offensive by the standard of a reasonable person at the time. The nature of exposure considered to be obscene can change over time – so whereas it might have extended to a thong bikini at the turn of the century, it would not do so in the present day.

Obscene exposure is not necessarily limited to the genitals, and the prosecution is not required to prove that a person actually saw the conduct.

A ‘public place’ is broadly defined by section 3 the Act to encompass premises open to or used by the public, regardless of whether they are:

  • ordinarily open to the public; or
  • payment is required to enter; or
  • open to only a class of persons.

The definition certainly extends to licensed premises.

Downing Centre Court Complex

By Sonia Hickey and Ugur Nedim

In the first case prosecuted under new provisions that make it a crime to act disrespectfully in court without necessarily going so far as to act in contempt of court, a devout Muslim woman has been found guilty of engaging in disrespectful behaviour after repeatedly refusing to stand for a judge.

Moutiaa El-Zahed’s prosecution was brought in the wake of legislation introduced in 2016 which makes it an offence to engage in conduct such as refusing to stand in court, yelling at judges and ignoring their directions.

The NSW law was the first of its kind in Australia. It comes with a maximum penalty of 14 days in prison and/or a $1,100 fine and is embodied in the following legislation:

The provisions were introduced after a number of Islamic defendants refused to stand for judges in court, on the basis of their beliefs that they are only required to stand before God.

Circumstances of the case

Ms El-Zahed is the wife of convicted Islamic State recruiter Hamdi Alqudsi, who is currently serving a prison sentence for arranging seven men to travel to Syria to fight for extremists.

She was charged last year with nine counts of engaging in disrespectful behaviour on the basis that she did not stand when District Court Judge Audrey Balla came in and out of court during a civil hearing in 2016.

Ms El-Zahed and her sons took civil proceedings against the Commonwealth and NSW governments for assault, false imprisonment and wrongful arrest after a high-profile terrorism raid on their home 2014. She reported punched in the head during the raid and that her teenage sons were jostled violently, restrained and handcuffed in their bedrooms.

Police defended the claim and, when the case went to court, Ms El-Zahed refused to remove her niqab (a full head covering) when entering the witness stand. Judge Audrey Balla offered her opportunity to give evidence by video-link from another room, but she refused as her face would still be seen by male lawyers in the courtroom.

The judge also offered to close the court, but Ms Elzahed declined the offer and then elected not to attend court at the time she was scheduled to give evidence.

Judge Bella also challenged Ms El-Zahed for failing to follow court protocol of standing when the judge enters and leaves the courtroom. At the time, her lawyer told the court that Ms Elzahed, “won’t stand for anyone except Allah, which I’m not particularly happy with, Your Honour.”

The judge responded with a warning that Ms El-Zahed could face criminal charges for refusing to comply.

Ms El-Zahed was later charged with nine charges of engaging in disrespectful behaviour.

Continuing refusal

When the proceedings came before Magistrate Carolyn Huntsman for a defended hearing in Downing Centre Local Court, Ms El-Zahed continued her refusal to stand – remaining seated when her Honour entered the courtroom, when she exited for the morning adjournment and  when she re-entered to deliver her judgment.

Found guilty

Ms El-Zahed was ultimately found guilty of all nine charges.

In delivering her judgement, Magistrate Huntsman remarked: “I am satisfied the defendant repeatedly and intentionally failed to stand for the judge in District Court proceedings and in doing so intended to communicate lack of respect to the court and judge”.

“El-Zahed’s son, George, stood for the judge when she was seated behind him and the defendant well knew the expected behaviour was to stand for the judge when they entered or left the courtroom.”

“There is no evidence before this court that she genuinely held any religious beliefs [and] there is no evidence that the teachings of Islam compelled this conduct,” her Honour remarked.

The Magistrate rejected defence submissions that the legislation is unconstitutional.

The matter returns to court in June for sentencing.

Downing Centre court steps

By Zeb Holmes and Ugur Nedim

Musician Kirin J Callinan has pleaded guilty to wilful and obscene exposure after ‘flashing’ photographers on the Aria red carpet.

The 32-year-old Australian singer lifted his kilt and exposed his penis after being encouraged to do so on the Arias Red Carpet.

The paparazzi recorded the moment outside Star Casino in Sydney, and Callinan subsequently received a notice to attend Downing Centre Local Court to answer the charge.


Callinan’s impulsive act had consequences over and above the criminal proceedings.

Brisbane rapper Sian Vandermuelen, who performs as Miss Blanks sought the singer’s removal from the summer Laneway festival.

Callinan was dropped from the lineup as a result, with Vandermuelen telling Triple J’s Hack program such conduct “shouldn’t be tolerated” and that the decision to remove his was “great”.

“For me to be the first trans woman of colour in a festival that’s been running for ten years, to be touring it nationally in all cities, it’s important to me that there’s safety, it’s important to my community that it’s safe,” she added.

Laneway’s triple j Unearthed competition winner for Melbourne, Angie McMahon, was not surprised by Laneway’s decision.

“I think it’s a pretty understandable move for festival organisers to take off somebody who is a bit of a risk in terms of offending a lot of people,” Ms McMahon said.

Music critic, Bernard Zuel, said the removal was “unprecedented” for a festival, calling it a “harsh” punishment.

“The behaviour that supposedly initiated this at the ARIAs was in effect non-threatening, certainly not directed at anyone in particular and was seen by very few people,” he remarked.

Sentencing submissions

Mr Callinan pleaded guilty to the charge and his criminal lawyer submitted that his client was remorseful for his actions – as evidenced by his early plea – that his reputation had been tarnished and that he had lost money as a result.

“He also lost the opportunity to travel through Russia [to play the FIFA World Cup] and he’s lost an opportunity with Amazon,” the lawyer added.

“He was wearing a kilt and there were some among the media group who were making light of the fact he was wearing a kilt and suggested he lift his kilt. It was momentary, it was up and down and at least one camera caught that,” he told the court.

“Why did he do it? He did it as an error of judgement, he did it in a jovial mood, he didn’t do it to shock anyone.”

The sentence

Deputy Chief Magistrate Chris O’Brien was ultimately persuaded to exercise his discretion under section 10 dismissal or conditional release order of the Crimes (Sentencing Procedure) Act 1999 and not impose a criminal conviction upon Callinan, provided he enter into a 12 month good behaviour bond.

Obscene exposure

Section 5 of the Summary Offences Act 1988 (NSW) contains the offence of obscene conduct, providing that:

“A person shall not, in or within view from a public place or a school, wilfully and obscenely expose his or her person.”

The maximum penalty is six months in prison and/or a fine of $1,100.

To be found guilty, the prosecution must prove all of the following ingredients beyond reasonable doubt:

  • You exposed yourself in an obscene way,
  • You had a requisite intention to do so, and
  • You did so within sight of the public place or a school.

For exposure to be obscene, it must relate to the anus or genitalia of a male or female, or in certain circumstances the breasts of a female. The context of the exposure is important when determining whether it is obscene.

For example, the exposure of breasts at a beach is unlikely in the present day and age to amount to an obscenity. The standards of a reasonable person are relevant when making the assessment.

Section 3 of the Act defines a public place as a place (whether or not covered by water), or a part of premises, “that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons”.

It is a broad definition which relates to a range of private properties including shopping centres, cinemas, religious buildings and the like.