By Zeb Holmes and Ugur Nedim
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.
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.”
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.
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.