Associated Newspapers Ltd v Wavish

The question before the magistrate was whether, within the definition of the word obscene contained in s. 169 as it now stands, a publication was obscene. His Honour in a sense substituted his view of the article published for that of the magistrate. In so far as that involved some displacement of a finding of fact, under Victorian law his Honour was entitled to take such a course provided he was of opinion that the magistrate was clearly wrong.

The question, however, is not free from matter of law and I propose to state what, in the view of the Court, is the construction to be placed upon s. 169 in its application to s. 171. Section 171 relates to what are called "articles". The word "articles" is the subject of what may be described as an inclusive definition contained in s. 169. It has been held in Victoria that, although the definition is inclusive, the word in s. 171 does not extend beyond what is ejusdem generis with what is stated in the inclusive definition in s. 169.

It therefore follows that s. 171 relates to the kind of publications and representational objects, and to things ejusdem generis therewith, which are described in the definition of "articles" and would not extend to matters and physical objects having no relation to representation.

In relation to the definition of the word obscene in s. 169 (1), we are of opinion that the word "and" does not mean that what is stated in pars. (a) and (b) provides cumulative conditions which must be both fulfilled before an "article" can fall within that definition. It is enough if the article has the tendency described in (a) or has the undue emphasis described in (b). But at the same time we are of opinion that sub-s. (2) applies in every case and that in arriving at a conclusion as to the character of a particular article which is the subject of a prosecution, the tribunal must, in determining that question, have regard to the matters which are stated in pars. (a), (b) and (c) of sub-s. (2). That is to say, those are considerations which must be taken into account in determining the issue which arises under par. (a) or par. (b) of the definition of the word "obscene", as the case may be.

What the effect of those considerations may be in any given case depends upon the circumstances of that case and the matters which are raised in the course of ascertaining or determining whether the condition stated in par. (a) or the condition stated in par. (b) is satisfied. It is evident that there will be cases in which the assistance obtained by having regard to the considerations mentioned in sub-s. (2) will be small and others in which it will be decisive. It is true that the last portion of sub-s. (2), following the words "to the intent", has the purpose of ensuring that the tendency to deprave or corrupt may be sufficiently made out although it affects a particular class or classes of person and not other classes of persons. But it still remains true that "in determining for the purposes of this Part" of the Act whether any article is obscene, the tribunal must have regard to the considerations which are enumerated in sub-s. (2).

In this particular case four members of the Court have read the article carefully and are of opinion that it is clearly within the definition of "obscene". For myself, I have not read the article through but I have seen sufficient of it to leave me with no doubt that their Honours are entirely right in the view they have taken.

We think that it is enough to express the view of the law which we have stated and to dismiss the application for special leave on the ground that an appeal could not succeed.