Lawyers for Porsche driver Richard Pusey, accused of filming a dying police officer, claim the "unrecognisable" charge of outraging public decency does not exist in Australia and should be dropped.
But, the charge was prosecuted in Warrnambool on the south west coast of Victoria during the late 1990s.
Mr Pusey, 42, was charged with a total of 15 offences following a crash on Melbourne's Eastern Freeway on April 22 which led to the death of four police officers - Leading Senior Constable Taylor, Senior Constable Kevin King and constables Glen Humphris and Josh Prestney.
The mortgage broker had been pulled over for allegedly speeding when a truck swerved into the emergency lane causing the fatal collision.
The charge of outraging public decency relates to Mr Pusey allegedly using his phone to film the scene, including the bodies of the officers, for several minutes while making commentary.
In the Melbourne Magistrates Court last week, prosecutor Robyn Harper said the offence had been dealt with once before in that court, in August 2014, when an offender was jailed for one month on the charge.
Ms Harper said the offence existed in Britain, dating back to 1663, when a man was found urinating from a balcony in Covent Garden in London.
"The Australian common law is, of course, inherited from England and survives till it is abolished or superseded ...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"This is a residual common law offence in the Australian jurisdiction, having not been abolished or superseded by statute."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 hadn't been used regularly, didn't mean it didn't exist.
What was not known to the court is that the offence was previously successfully prosecuted in Warrnambool Magistrates Court during the late 1990s.
A Terang man was jailed for a month after taking part in a sex act with a dog.
Former Warrnambool Detective Senior Constable Colin Ryan, the current Moyne shire councillor, investigated the case.
"In my 36 years in Victoria Police, most of which was a detective, I charged people with most offences under the Crimes Act, from murder to rape and arson," he said.
"I only ever charged a person with an act outraging public decency under common law once and that was the Terang dog man.
"The offender, who was a man in his 60s, pleaded guilty at Warrnambool court and was sentenced to serve a month in prison."
"The dog probably got over it, but I know the owner never did. It was a very strange case."
Lawyers for Mr Pusey have argued the charge of outraging public decency does not exist in Australia.
Ms Harper said there was enough evidence for a jury to convict Mr Pusey of outraging public decency.
As Leading Senior Constable Lynette 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."
"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," Ms Harper said.
The recording went for three minutes, eight seconds.
She said the offending happened in a public place and was witnessed by at least five other people, who had expressed "annoyance or distaste" at his actions.
Ms Harper told the court there were parallels with a British case from 2008, in which a man was charged with outraging public decency after he came across a dying, disabled woman on the street and urinated on her, covered her in shaving cream and filmed the scene for more than half an hour.
However, Mr Pusey's barrister, Dermot Dann, QC, said the case was in a "completely different league" to his client's case.
He argued that none of the material provided by the prosecution had satisfied his client's legal team that the offence - which he described as 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.
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.