Damien 'Ezzy' Eades is caught up in legal history but perhaps not in the way he would have liked.We might perhaps start by asking whether there's a need to refer to Mr Eades - apparently guilty of the crime of residing in the western suburbs - as 'Ezzy'.
The 20-year-old from Sydney's western suburbs is at the centre of Australia's first 'sexting' case, after a schoolgirl sent a nude photo of herself to his mobile phone. The maximum penalty he faces is a two-year jail term.
As an 18-year old Mr Eades, in 2008, worked at a KFC outlet. He exchanged text messages, including "a hot steamy one" with a 13-year-old girl with whom he had become friends. Eades sent a photo of himself naked from the waist up, duly reproduced on the front page of the online SMH. The child expressed a liking for that snap, explaining "I do like so I only got to send one of top half sorry for the slow reply but I'm in the shower." Eades reportedly responded "Send whatever you want bottom even better." Ouch! By now the sound of ringing alarms should have been knocking the chicken out of the deep-fryer. The girl, with just a dash of common sense, indicated that "Well I will take it now but none will be sexy after all it is a picture of me."
The SMH reports that -
The girl then says she has taken about four and doesn't know what to send.Things were now looking bad for Mr Eades, charged under ss 61N(1) and 91H(3) of the Crimes Act (NSW).
Eades says to send the best. ''Your choice," he texts.
Girl: "OK I'm about to send one so don't laugh even though you probably want."
She then sent a full frontal photograph of herself naked which she had taken holding her mobile in her hand.
When the girl's father checked her mobile phone, he went to the police. Eades was charged with incitement of a person under 16 to commit an act of indecency towards him. He was also charged with possession of child pornography.
When the matter came before Magistrate Daniel Reiss at Penrith Local Court in March last year, the magistrate dismissed both charges. Mr Reiss said that the photo itself was not indecent and that he was not able to take into account the background context of the text messages which he noted did suggest "a sexual aspect behind his request".Magistrate Reiss also said there was no evidence that the relationship progressed beyond friendship, a consideration evident in R v Murray Colin Stubbs [2009] ACTSC 63, an ACT online grooming case cited by several Information Law students regarding questions of evidence and intention. In considering s 91H the magistrate held that "the sexual context" had to be determined from the photograph itself, finding that there was no sexual activity depicted in the photograph - 'simply a photograph of the complainant standing naked in a bedroom "and there is no posing, no objects, no additional aspects of the photograph which are sexual in nature or suggestion".
The Director of Public Prosecutions appealed, under the Crimes (Appeal and Review) Act 2001 (NSW), over the "act of indecency" charge, with James J of the Supreme Court ruling that the magistrate had erred. Mr Reiss should have taken into account the sexual nature of the text messages, Mr Eades's intention, and the age difference between Eades and the girl.
The matter was referred back to the Local Court to be heard again, with leave for an appeal by Mr Eades being granted in Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241. The NSW Court of Appeal has dismissed that appeal, ordering him to pay costs. We might infer that NSW Legal Aid has picked up the tab. Onwards to the Local Court for a fresh hearing.
A perspective on vexed questions regarding child poronography is provided by the decision in DPP (Cth) v Ison [2010] VSCA 286 and DPP v Smith [2010] VSCA 215.
