Can a Streaker Be Considered a Sex Offender Under the Law in NSW?

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By Sahar Adatia and Jimmy Singh

In November 2017, two streakers invaded the pitch at the Big Bash Sydney, bolting across the Sydney Cricket Ground to the cheers of a record 39,756 spectators.

The Central Coast cousins and carpenters Chad Sharp, 28, and Josh ‘a bit of a lunatic’ Hudson, 25, thought they would “light the joint up a bit” during the Big Bash game between Sydney Thunder and Sydney Sixers, which one of the streakers deemed so boring that the naked run “had to be done.”

The young tattooed pair evaded up to 20 security guards, running in opposite directions on the field before being crash-tackled. One even managed to pull a stump out of the ground prior to being apprehended.

The two flashers were found guilty of wilful and obscene exposure following their arrest at the game and initially fined $5,500 each for entering the field without authorisation. This was later successfully appealed with the conviction overturned.

Table Of Contents

Obscene exposure or indecent exposure?
Spent Convictions
The offence of obscene exposure
The Penalties and Law on Obscene Exposure
The Penalties and Law on Offensive Conduct

Obscene exposure or indecent exposure?

On August 6, 2018, after facing court for entering the cricket field nude, the two men had their fines reduced and their convictions overturned.

This came down to a decision from Judge Christopher Armitage who overturned their convictions for wilful and obscene exposure, clearing their names upon determining that while the Aussie larrikin pastime was “indecent,” it did not fit the definition of obscene.

“It gets down, I think, to a question of whether it can be said that the behaviour of the appellants was obscene in the sense of which the authorities have spoken of it… as opposed to simply indecent,” the judge said.

Reluctantly, Judge Armitage concluded that the demeanour did not fall under the classification of obscene. In drawing a comparison, the judge stated that a man who flashes a woman and child in broad daylight would better fit an obscene description and charge.

“By contrast, here the young men in question indulged in what was undoubtedly a foolish act running onto a cricket pitch in a state of nakedness in order to retrieve a cricket stump – no doubt as some kind of misguided trophy,” he said.

Defence lawyers argued that if convicted, it would put the two men in the same category as sex offenders under the Criminal Records Act. This would stay on a person’s record for their lifetime and impact their future job prospects.

In spite of the overturned conviction, the fine remains in place to act as a deterrent.

Judge Armitage also warned the pair that there would be serious consequences if they engaged in similar behaviour in the future and their outcome was lucky.

Following the court appearance, Hudson apologised for his misbehaviour and said the fine was fair.

Spent Convictions

Under s12 of the Criminal Records Act you’re not required to disclose your criminal conviction if the “crime-free period” has passed.

If you have a previous criminal record i.e. drink driving, drugs, assault etc, you can answer “no” to a question, “do you have a criminal record?” if:

The previous offence you were convicted of was NOT:
- A sexual offence. A sexual offence includes an offence under s5 of the Summary Offences Act 1988 of obscene exposure; and
- A conviction for an offence you had received a prison sentence of over 6 months; and

At least 10 years have passed since your last conviction. Where during that 10-year period, you were not convicted of any offence that carries a term of imprisonment as a penalty.

For more details on “spent convictions”, it’s important to have a close look at the Criminal Records Act for any particular case or contact our criminal lawyers Sydney, Parramatta or Liverpool offices.

A conviction for obscene exposure under section 5 of the Summary Offences Act will therefore mean you will be treated as a sex offender. This has far reaching consequences that you may not be aware of, including:

The conviction will never be “spent”. As a consequence, it will stay on your record for your entire life as a criminal conviction. You will always be required to disclosure it when asked if you have a prior conviction.
You are not allowed to work in a job that involves contact with children unless you have a working with children check clearance in NSW from the Children’s Guardian. The Children’s Guardian can refuse your working with children’s check clearance if you have a prior sexual offence such as obscene exposure under s23 of the Child Protection (Working with Children) Act 2012 (NSW).

The offence of obscene exposure however is not a “registrable offence”. This means that a conviction for obscene exposure under s5 of the Summary Offences Act will not generally place you on the Child Protection Register.

The offence of obscene exposure

The offence of obscene exposure is found in s5 of the Summary Offences Act 1988 (NSW). It states that ‘a person shall not, in or within view from a public place or a school, wilfully and obscenely expose his or her person.’

While the Act does not provide the meaning of the word ‘person,’ exposure in this context is taken to mean the revealing of your genitalia in a public place. This can include exhibitionism or public nudity. There is no requirement for a sexual act to be performed.

According to the Act, it is not necessary for someone to have witnessed the exposure.

The basis of this law is the belief that obscene exposure goes against acceptable community standards. Of significance also is the accused having the requisite intent to commit the offence.

As in the case of the cricket flashers, examples include streaking at a public sporting event to flashing genitalia to a person in a public place.

It is important to note that accidental exposure resulting from a wardrobe malfunction does not fall under the Act as the public display was not done on purpose.

The Penalties and Law on Obscene Exposure

Obscene exposure carries penalties of up to six months imprisonment and/or fine of up to $1,100 under s5 of the Summary Offences Act 1988 (NSW). Charged for this offence will require you to attend court and face a Magistrate where you can plead guilty or not guilty.

A finding of guilty or plea of guilty will result in a criminal record unless the Magistrate gives you a conditional release order (also known as a section 10 non-conviction).

Obscene exposure is the more serious type of offence from that of “offensive conduct”.

Conduct will be considered “obscene” under the law if you expose a part of your body such as genital’s either within view or in a public place or school if that exposure will violate the contemporary standards of decency judged by the current standards of the community.

The Penalties and Law on Offensive Conduct

Offensive conduct carries penalties of up to three months gaol and/or a fine of up to $660 under s4 of the Summary Offences Act 1988 (NSW). This only applies if you court elect and face a Magistrate in court.

Offensive conduct is a penalty notice offence- this means that if you’re alleged to have committed this offence, the police can simply give you a penalty notice with an on-the-spot fine of $500.

Payment of this on-the-spot fine will mean you won’t attend court. It also means, you won’t be liable to further proceedings for the alleged offence, and you won’t be regarded as having made admissions of liability regarding civil claim, action or proceeding arising out of it.

Alternatively, by not paying the on-the-spot fine, you can court elect requiring you to appear before a Magistrate in court who have the power to impose a conviction against your name and the harsher maximum penalties, unless you get a conditional release order (also known as a section 10 non-conviction).

Conduct will only be considered “offensive” under the law if a hypothetical reasonable person was there to view the conduct, and he or she would’ve been offended according to the current community standards.

Certain behaviour many years ago in Australia may not be considered offensive by the community standards in today’s day of age.

The cases on how to determine if conduct is “offensive” under the law assumes that the reasonable hypothetical person is no thin-skinned. For someone’s behaviour to be “offensive” so as to attract these harsh penalties, the behaviour is required to “wound the feelings, arouse anger or resentment or disgust or outrage to a hypothetical reasonable person.

The circumstances and location of the alleged “offensive conduct” are highly relevant to a court determining if it falls under the legal definition of “offensive”.

Streaking naked in a McDonalds restaurant during the day where there are children is likely to fit the legal definition of “offensive” and “obscene”.

For an outline of the legal defences to obscene exposure and offensive conduct, see our earlier blog on this and click here, defences to offensive conduct and obscene exposure.

Published on 26/08/2018