(ii)
it must be proved that the act complained of was
committed in public, which means that it must be
committed in a place, public or private, where there
exists a real possibility that members of the general
public might witness it (see: R v Walker (S) [1996] 1 Cr
App R 111);
(iii)
the prosecution also has to prove that the act complained
of was of such a lewd, obscene or disgusting character as
constitutes an outrage on public decency, which is a
question of fact to be decided by the trial judge, or in the
case of a jury trial, by the jury;
(iv)
it is not necessary for the prosecution further to prove
that the act in fact disgusted or annoyed the persons
within whose purview it was committed (see: Knuller
(Publishing, Printing and Promotions) Ltd v DPP, ibid.).
Although it is free for the prosecution to adduce
evidence to that effect, ultimately it is a question for the
trial judge or the jury to decide whether an act is one
outraging public decency; and
(v)
for the mens rea, it is not necessary for the prosecution
to prove an intention to outrage or recklessness. The
prosecution merely has to prove that the defendant had
the intention to do the act which outrages public decency,
whatever the defendant himself might think its likely
effect might be (see: R v Gibson and Sylveire, ibid.).
10
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