Taking photographs of a woman's clothed crotch in public is not an invasion of privacy under laws designed to prohibit voyeuristic behaviour, a judge has ruled in a decision on Monday.
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Jason Stroop was working at a Canberra childcare centre when he took three such photographs of a mother and a high school student.
Earlier this year a magistrate decided the photographs were indecent and an invasion of privacy, and she found the 44-year-old guilty.
But Mr Stroop appealed the findings of guilt.
In allowing the man's appeal, Justice David Mossop found while the images were indecent, they did not invade the women's privacy.
"Reasonable members of the community would most likely consider the taking of these photographs to be indecent, inappropriate, demeaning, unpleasant or offensive but not an invasion of privacy.
"It would deprive the concept of privacy of much of its meaning if it were permitted to extend to such relevantly public situations."
The photographs were taken in May 2016.
The mother was in activewear as she was collecting her child from the centre and had squatted down.
The 17-year-old student was at the childcare centre doing activities with the children. The girl was wearing a sports uniform of shorts and a collared T-shirt and was squatting on a tennis court.
Each photo was taken from ground level and directed upwards.
The laws under which Mr Stroop was charged were introduced in 2015 and designed to make criminal "indecent observations or recordings of other people in situations where that person should be afforded privacy", such as "up-skirting" or "down-blousing".
At a hearing for the appeal in August, Mr Stroop, represented by defence lawyer Paul Edmonds, argued there was no reasonable expectation of privacy in the circumstances.
He had also argued the photos were not indecent.
That second ground of appeal was not made out, Justice Mossop said, and the magistrate was correct to conclude the taking of the photograph was indecent.
To the judge's mind the more substantial question was whether or not the capturing of the photograph was an invasion of privacy.
He said the photographs were taken in a place where the victims were and would have expected to be observed by relative strangers.
They were dressed, and only exposing to the view of strangers those parts of the body they wished to, he said.
They were not doing activities reasonably expected to be private.
That left the question of whether the proximity and angle of the photo - from which the victims did not anticipate being observed but did not involve "up-skirting" or "down-blousing" - was an invasion of privacy.
The judge said the legislature had made a deliberate decision to not define privacy in any fixed sense, to allow for changes in technology and community values.
Notwithstanding that approach, the judge found the combination of indecency and lack of consent was not enough to amount to an invasion of privacy.
The judge also said: "So far as images are concerned, proximity per se does not involve a breach of privacy.
"The angle at which the photographs were taken means that an arrangement of the victims body not otherwise observable ... was captured in the images.
"However given that this does not avoid the concealing effects of clothing (in contrast to "upskirting" or "down-blousing") there is no invasion of privacy caused by the adoption of this angle.
"None of this is to suggest that proximity and angle are not significant for the issue of indecency, but that is a separate issue."
As of March, the man was no longer employed at the day care.
The costs of the appeal were reserved.
