DPP v Eades [2009] NSWSC 1352

New South Wales Supreme Court

CITATION : DPP v Eades [2009] NSWSC 1352

HEARING DATE(S) : 3 December 2009

JUDGMENT DATE : 17 December 2009

JUDGMENT OF : James J

I make orders and a declaration in accordance with pars 2, 3 and 4 of the summons, namely:- DECISION : 2. An order pursuant to section 59(2) of the Crimes Appeal and Review) Act 2001 that the order of the magistrate made on 4 March 2009 at Penrith Local Court dismissing proceedings against the defendant for the offence of inciting a person under 16 years to an act of indecency towards Damien Eades, section 61N(1) Crimes Act 1900, be set aside. 3. A declaration that the magistrate erred in law in failing to consider the surrounding circumstances, including the sexual nature of the text messages, the intention and purpose of the defendant and the ages of the complainant and the defendant in determining whether the act of sending the nude photograph, was an act of indecency. 4. An order that the matter be remitted to the Local Court to be dealt with according to law.

CATCHWORDS : CRIMINAL LAW — appeal from magistrate — inciting to an act of indecency — whether evidence of surrounding circumstances can be taken into account in determining whether act was indecent — act of indecency "towards" the defendant

LEGISLATION CITED : Crimes (Appeal and Review) Act Crimes Act

Crampton v The Queen (2000) 206 CLR 161 Director of Public Prosecutions v Annetts [2009] NSWCCA 86 R v Barrass [2005] NSWCCA 131 CASES CITED : R v Chonka [2000] NSWCCA 466 R v McIntosh (unreported 26 September 1994) R v Orsos (1997) 95 A Crim R 457 R v Page (Court of Criminal Appeal 25 November 1991 R v PL [2009] NSWCCA 256