Carl Murphy, 38, was charged with performing an act of indecency without consent and with indecent exposure.

Mr Murphy's defence lawyer Tom Taylor indicated his client would plead guilty to the lesser charge of indecent exposure but would fight the more serious act of indecency charge.

The incident occurred on a busy Friday night just before 6pm at the skate park on Cooyong Street. A woman, cycling home from work, called the police saying she had witnessed a man and woman having sex but held fears the woman was unconscious.

The officers reported when they arrived at the skate park they located Mr Murphy and the woman having sex. The woman was conscious and the alleged intercourse was consensual.

The act of indecency charge without consent applies to the witness viewing the alleged intercourse without giving her consent.

Asked in court to give a description of what she saw the woman said she could see Mr Murphy and the woman lying down in the skate park.

"He was on top of the woman, he was holding her legs in the air... his pants were down around his ankles," the witness said.

"I saw the male... going up and down on top of the woman."

Mr Taylor argued there was no evidence that definitively proved the woman had witnessed the couple engaging in sexual intercourse.

Magistrate Bernadette Boss accepted this but said it was at the very least, "highly sexualised conduct in a public place."

Prosecutor Sofia Janackovic also called the two officers that attended the scene and arrested the couple to give evidence.

Constable Matthew Brownlie said he witnessed the pair change position as he arrived at the scene with the woman laying half across Mr Murphy while he continued to thrust.

He said he could see both Mr Murphy's and the woman's genitals.

"They both appeared very intoxicated, there wasn't a whole lot of coordination," Constable Brownlie said.

Ms Janackovic said Mr Murphy had behaved recklessly as he knew it was a busy location during peak hour and had decided to engage in intercourse regardless.

Mr Taylor argued the charge brought against Mr Murphy meant he had to know the witness was there to have recklessly carried out the act without consent.

"It's not that the community doesn't consent, or the passing traffic doesn't consent, it's that [the witness] doesn't consent," Mr Taylor said.

He said Mr Murphy could not be convicted of the offence as he did not know the witness was there at the time.

Dr Boss rejected this contention saying, "if you're choosing not to look if there's someone there, you can hardly have the benefit that you didn't know they were there."

She also said the charge was used in instances of flashing and when members of the public may witness sexual acts, such as masturbation, in public places.

Mr Taylor contended his client had been subject to procedural unfairness as the case had been argued on the basis the woman who called police had witnessed Mr Murphy engaging in sexual intercourse.

However it was found, after evidence had been given, that there was nothing to definitely say the woman had witnessed intercourse and this changed the case after the fact.

Dr Boss said she wanted more time to give detailed consideration to the case and requested written submissions from both sides.

Mr Murphy has been in custody since his arrest and was remanded in custody pending an upcoming bail application.

The woman that participated in the alleged intercourse was also charged, but is currently being assessed whether she is in a fit state to enter pleas.

The matter will return to court in March.