Outraging public decency is a common law offence that originated in England. Given this offence has not been expressly legislated, it is, in theory, an offence which does not have an identified maximum penalty.
In a controversial Victorian high-profile case DPP v Pusey, the offence of outraging public decency was charged against Richard Pusey, a 42-year-old Melbourne mortgage broker. In the history of Australia, there have only been 6 reported examples of an offence that includes the concept of outraging public decency between 1899 and 1978. The most recent Victorian example was reported in 1963, involving the offender exposing themselves to others. As a matter of fact, all six cases involving such offence is related to ‘wilful exposure’ or ‘indecent exposure’.
In NSW, Outraging public decency is mostly associated with obscene exposure under Section 5 of the Summary Offences Act 1988 (NSW). Where a person shall not, in or within view from a public place or a school, wilfully and obscenely expose his or her person. This offence carries a maximum penalty of 10 penalty units and/or imprisonment for six months.
For more information on the Act of Indecency, please refer to our website.
FACTS OF DPP V PUSEY
On 21 March 2020, Richard Pusey was in his 2016 Porsche 911 driving on the Eastern Freeway in Melbourne at an extremely dangerous speed. He was detected by a calibrated police speedometer to be travelling at 149km/h in a 100km/h zone, later analysis of his seized mobile phone revealed that he may of reached a speed of 300km/h on the same day along a stretch of the Eastern Freeway.
After being pulled over, police determined that Pusey’s vehicle registration had an ‘outstanding whereabouts’, and a preliminary oral fluid test later showed that he was driving under the influence of MDMA and cannabis.
Approximately 30 minutes after the roadside stop, while Pusey was urinating behind the Armco railing, a truck towing a double axel trailer driven by Mohinder Singh swerved into the emergency lane and collided with attending police officers.
It was at this time, Pusey filmed the carnage while taunting a dying police officer who was pinned under the truck with commentary such as ‘’I think everyone got cleaned up, there are four people, four people! There you go, amazing, absolutely amazing’’.
What must be made clear at the outset is that Pusey was charged for causing or contributing to the death of the four police officers. Despite the overwhelming media coverage, which some reports in the community suggested that Pusey somehow caused the death of the police officers, Pusey was charged primarily for filming and mocking police officers as they lay dying at a crash scene.
THE LAW
The subject matter of DPP v Pusey was far more horrifying than any of the previous Australian cases. The only example of the offence that was able to be found that is not an indecent exposure case and has some relevance to this case is the English decision of The Queen v Anderson. In Anderson, the appellant came upon a woman helpless and dying on the street. He was unable to rouse her and believed that she was drunk. He then proceeded to throw water over her and urinated on her body as his friend filmed the event. He also sprayed a can of shaving cream over her and covered her with a pack of flooring. He then took a photo of her. The conduct occurred over a 30-minute period.
ARGUMENTS PRESENTED BY PUSEY’S LAWYER
The argument submitted by Pusey’s lawyer was put on two fronts. Firstly, that the charge does not validly exist in Australia. And secondly, that if the charge does exist in Australia, the facts in this instance simply do not fit the charge.
Regarding the first assertion that the charge does not validly exist in Australia, the prosecution provided a brief history of the common law in Australia and its organic development from the law of England. The Magistrate came to a decision that the offence continues to exist in Australia.
In respect of the second argument, where Pusey’s lawyer stated that the facts in this instance simply do not fit the charge, the case of The Queen v Hamilton was presented to explain the elements of the offence.
The first element is one that constitutes the nature of the act, which has to be proven. It has to be proved that the act is of such a lewd, obscene or disgusting character that it outrages public decency.
- An obscene act is an act which offends against recognised standards of propriety and which is at a higher level of impropriety than indecency. A disgusting act is one ‘‘which fills the onlooker with loathing or extreme distaste or causes annoyance’’…
- It is not enough that the act is lewd, obscene or disgusting and that it might shock people; it must, be of such a character that it outrages minimum standards of public decency as judged by the jury in contemporary society. As was pointed out, ‘‘outrages’’ is a strong word. It is not necessary to establish that any particular member of the public is outraged and it must follow that this requirement does not mean that anyone has to see the act whilst it is being carried out.
Pusey’s behaviour after the crash can only be described as extremely insensitive and heartless. It outrages the minimum standards of public decency in a contemporary society. The community in general have formed an extremely negative opinion about Pusey and his conduct, in the vast media coverage Pusey was deemed “The most hated man in Australia” during his trial. Although Pusey’s complex personality disorder may go some way in explaining his behaviour, it is nonetheless a behaviour correctly identified as conduct which would outrage public decency.
SENTENCE
Considering the defence raised by Pusey’s lawyer regarding his mental illness; plea of guilty and asserted remorse; the extra curial punishment he received from the community; and the COVID-19 custody difficulties, Pusey was sentenced to jail for a total sentence of 10 months imprisonment. He was also placed under compulsory psychological treatment in the community to address his core personality issues that manifested through his approach to the accident in the form of his emotional, cognitive and behavioural problems.
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