Outraging public decency an ‘ill-fitting’ charge for Pusey, court told

The "unusual" charge of outraging public decency does not exist in Australia and should be dropped in the case of a Porsche driver accused of filming a dying police officer, the man's lawyer has told a court.

Richard Pusey, 42, has been charged with a total of 15 offences following a crash on the Eastern Freeway on April 22 in which a truck driver allegedly swerved into the emergency lane, killing four police officers.

Richard Pusey, right.Credit:Nine News

The charge of outraging public decency relates to Mr Pusey's alleged behaviour in the aftermath of incident. He is accused of using his phone to film the scene, including the bodies of the officers, for several minutes while making commentary.

As Leading Senior Constable Taylor lay dying, her body camera captured Mr Pusey saying to her: "There you go. Amazing, absolutely amazing. All I wanted to do was go home and have my sushi."

Lawyers for Mr Pusey have argued that the charge of outraging public decency does not exist in Australia, and there is not enough evidence to support a conviction on the charge if it does proceed to trial.

However, in the Melbourne Magistrates Court on Wednesday, prosecutor Robyn Harper said the offence had been dealt with once before in the Melbourne Magistrates Court, and also had formed part of six cases which had come before Australian courts.

Senior Constable Kevin King, Constable Josh Prestney, Leading Senior Constable Lynette Taylor and Constable Glen Humphris were killed in the Eastern Freeway collision.

Ms Harper said the offence existed in the UK, and dates back to 1663, when a man was found urinating from a balcony in Covent Garden in London.

"The Australian common law if of course inherited from England and survives till it is abolished or superseded… neither of those things happened here," she said.

"This is a residual common law offence in the Australian jurisdiction having not been abolished or superseded by statute."

She said that just because it hasn't been regularly used didn't mean it didn't exist.

Ms Harper said there was enough evidence for a jury to convict Mr Pusey of outraging public decency.

"He activated his video function on his camera, walked slowly around the scene, filming, focusing on the victims, zooming in and made two recordings. He was commentating, not taunting, but commentating and making comments to those around him," she said.

The total length of the recording was 3 minutes and 8 seconds.

She said the offending happened in a public place and was witnessed by at least five other people.

However, Mr Pusey’s barrister Dermot Dann, QC, said none of the material provided by the prosecution had satisfied them that the offence – which he described and unusual and unrecognisable – was valid in Australia.

He said that even if the court found the charge did exist, there was not enough evidence to support a conviction.

“The facts and circumstances and evidence mean that such a charge is ill-fitting and inappropriate in these particular circumstances," he said.

Mr Pusey’s actions in filming the scene had to be viewed in light of contemporary standards, he said, in which people are “readily exposed to disturbing and distressing images”, such as the filming by witnesses of the 2018 Bourke Street stabbing attack carried out by Hassan Khalif Shire Ali.

“Rightly or wrongly that is the environment we are now in, people are exposed to that type of material," he said.

Mr Dann also told the court that when Mr Pusey was filming and making commentary in the aftermath of the crash he had undergone as “close to a near-death experience as you could possibly imagine” and was in a distressed and shocked state.

But Magistrate Donna Bakos said Mr Pusey had filmed close-up "horrific injuries to people that he presumed were dead", and regardless of what was going through his mind, he had filmed the scene.

"I'm asking your honour to consider or take into account his particular circumstances," said Mr Dann.

He added that while Mr Pusey’s actions could be criticised as inhumane, or showing a level of self-absorption and a lack of sympathy, the elements of the charge did not fit Mr Pusey's conduct.

“You can make all sorts of criticisms of Mr Pusey in terms of how his actions may be viewed but the question we are asking your honour to consider is whether there is sufficient evidence in terms of this particular charge, as rare as it is," he said.

"The circumstances are ill-fitting for this particular charge. They may be worthy of all sorts of comments, criticisms and judgments but it's not suitable for this particular charge as it's been applied."

Ms Bakos will publish her decision on the matter when it returns to court on October 7.

Mr Pusey remains behind bars after being arrested the day after the crash. He appeared via video link from prison for the hearing and did not speak except to offer some advice to the magistrate while they were trying to sort out technical difficulties.

Leading Senior Constable Lynette Taylor, Senior Constable Kevin King and constables Glen Humphris and Josh Prestney all died in the crash.

Mohinder Singh.Credit:Nine News

The truck driver, Mohinder Singh, 47, was charged with culpable driving causing the deaths of the four officers, and was last week charged with another 33 offences, including drug trafficking, dangerous driving causing death and driving under the influence.

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