Nguyen v Director of Public Prosecutions (NSW) [2023] NSWCCA 42

Nguyen v Director of Public Prosecutions (NSW) [2023] NSWCCA 42 · Read the judgment on AustLII

Catchwords: Publish indecent article – indecency – proof of mens rea

The CCA has determined that, in proving indecency in the context of publishing an indecent article, there is no subjective element. That is, the question of indecency here (and, seemingly, in most other offence provisions) is determined wholly objectively.

The applicant was found guilty in the Local Court of publishing an indecent article, contrary to s 578C(2) of the Crimes Act 1900. Her flatmate hanged herself in the bathroom of the apartment they shared. The applicant took two videos of the body and posted them on her private Facebook account. Having been arrested for that conduct, she told police she had posted the videos to inform her friends of what had happened, that she was shocked, and that she did not know that posting such videos would be an offence, because such a thing had never happened to her before. In the Local Court she was sentenced to a 6 month Conditional Release Order. She appealed her conviction to the District Court, where a judge dismissed her appeal against conviction. Her counsel then contacted the judge by email, and asked that the judge state a case to the Court of Criminal Appeal. The question posed was

‘In proceedings against a person for publishing an indecent article contrary to s. 578C(2) of the Crimes Act 1900, is the prosecution required to prove that the person knew or believed that the article was indecent?’

The applicant’s position during the stated case was that proving the question of indecency required a mixed subjective and objective approach, which required proof of a particular knowledge or belief on the part of the accused. That is, that the article posted must not only be indecent by the standards of ordinary members of the community, but must also have been known or believed by the accused to be indecent.

The Court (Button J, with whom Garling and Adamson JJ agreed, each with some additional brief reasons) answered the stated question ‘No.’ Despite the general presumption that most offences include a mental element of some kind in addition to a physical element, that presumption was firmly rebutted in relation to this offence (at [43]). It has long been the law of England and Wales, New South Wales, and New Zealand that indecency is an element that is wholly objective, based on the contemporary standards of ordinary members of the community, not requiring a mental element of that attribute on the part of the accused (at [44]). It is impossible to accept that Parliament’s intention in creating this offence would be to allow eccentric or thoughtless people to publish profoundly indecent articles without any sanction if it could not be proven they were aware it was contrary to the standards of ordinary people (at [45]). In contrast to the strictly indictable offences – often carrying high maximum penalties – in the cases which speak about the presumption of a mental element in cases, this offence involves a comparatively low maximum of just 12 months imprisonment or a fine of $11,000. That differentiates this offence from those provisions (at [46]). Authority relating to a very similar earlier version of this offence also suggests that this offence is one of strict liability, featuring the ‘defence’ of honest and reasonable mistake of fact, including in relation to the element of indecency (at [53]). For those and other reasons the stated case was answered ‘No’.