High Court of Australia|1968-03-08

The application of s. 3 (3) in a case where a publication was said to be obscene as unduly emphasizing gross cruelty or horror seems to me difficult. Is it to be assumed that descriptions of gross cruelty would make men cruel, that descriptions of horror deprave the mind? It seems to me that some difficult questions could arise as a result of the corruption of language and the jumbling of ideas in s. 3 (2). In the present case, however, these need not trouble us, for the only part of the definition which has any bearing is the statement that a publication is obscene if it "unduly emphasizes sex". These words can be made to create a logical difficulty if one asks what is a due and what is an undue emphasis of sex. But the phrase, although it may be ill-chosen, does not, I think, really add to the common law meaning of the word obscene. The question still is - Does the publication, by reason of the extent to which and the manner in which it deals with sexual matters, transgress the generally accepted bounds of decency? That is a question of fact to be decided by the tribunal of fact. It is to be answered by reading the publication. Common sense and a sense of decency must supply the answer. Only within very narrow limits is evidence beyond the publication itself necessary or admissible. Evidence of what has been published in other books or writings is not admissible. The court has to determine whether the publication before it is obscene having regard to the persons, classes of persons and age groups to whom or amongst whom the matter was published. The answer to that question is not to be had by a process of literary comparison. Nor is it to be had by calling witnesses - whether writers, publishers or psychologists - and asking them to give their opinion on the matter. I respectfully agree with what Martin J. said in the Supreme Court of Victoria on this aspect in Wavish v. Associated Newspapers Ltd. [1959] VicRp 10; (1959) VR 57 . As Dixon C.J., Kitto J. and Taylor J. said in this Court:

"Once the court permits the boundaries to be transgressed

which the law places upon proof of the opinion of others in

such a matter, it is very likely to be drawn from the issue by

a flood of controversial argument as to the effect and

desirability

of the publications which will be advanced in the guise

of expert testimony": Transport Publishing Co. Pty. Ltd. v.

The Literature Board of Review

[1956] HCA 73; (1956) 99 CLR 111, at p 120 . (at p396)

14. It is not necessary to decide in this case whether or not a publication could be said to be indecent within the meaning of the Act if it had no sexual implications. That question is complicated because of the enlarged meaning given by the Act to the companion word, obscene. In the present case the magistrate found the publication indecent because it was lewd. No other kind of indecency was suggested. (at p396)

15. It is, I think, a mistake to regard cases under s. 16 of the Act as depending on two entirely separate questions: one, was the matter in question obscene or indecent? the other, was it published? The offences described in the section consist in the publication, in one way or another, of obscene or indecent matter. But whether or not matter published answers that description can depend upon the manner and circumstances of its publication. In relation to obscenity that is shewn by s. 3 (3). In relation to indecency, other than indecent advertisements as defined, separately considered, it arises from the very nature of indecent conduct as understood by the common law. It is an act in its setting and circumstances which constitutes the offence. To publish or exhibit a particular picture or print might amount to a publication of indecent matter in one set of circumstances although in other circumstances this would not be so. When it is said that a print or picture is indecent because it is "an affront to modesty" what is meant is that it is of such a character that its publication in the way alleged is an affront to modesty. (at p397)

16. The publication "Censor" No. 2 is, it seems, the second number of a magazine copies of which are sold for thirty cents. I need not describe its contents further than is necessary to explain why I think the Supreme Court was mistaken. It consists of sixteen pages containing material much of which is in different degrees salacious and nearly all of which is in one way or another concerned with sexual behaviour. There is an extract from the eighteenth-century novel generally called "Fanny Hill", which is described as "The Sex Novel". There is a column described as "Playboy's Party Jokes". These "jokes" depend on sexual allusions. Some of them are coarse and crude. There are some cartoons, pointless except in suggestiveness. The illustrations, apart from the cartoons, are photographs of naked, or nearly naked, young women of alluring appearance. Mixed with all this are passages and quotations advocating or condoning lack of restraint in language and behaviour in sexual matters. These are assembled professedly in the name of law reform, as protests against literary censorship, and in support of freedom of expression and of individual liberty. The respondent Graham, the editor and publisher, is described as a member of the council of civil liberties. But an avowal of a lofty moral purpose could well, when the whole is read, be seen as only a specious justification for seeking profit from pruriency. We however do not have to consider whether the professions of the publisher be sincere but whether there was evidence to support the charge of publishing indecent matter. (at p397)

17. The magistrate held the publication was indecent. Their Honours who were in the majority in the Supreme Court said it was not open to him to reach this conclusion. I have read their Honours' judgment (1967) 85 WN (Pt 1) (NSW) 438 carefully. It seems to me that in several ways they misapprehended the question for their decision. (at p397)

18. First, they made what I have already said was a falsely sharp distinction between obscenity and indecency; and as a result mistakenly limited the meaning of the latter word. (at p397)

19. Secondly, I cannot help thinking that they gave rather more weight to certain views of their own, thus re-trying the case, instead of asking was there material on which the magistrate could find as he did. I fully appreciate that in cases of this sort, where a conclusion cannot be tested by any precise objective criteria, any judge must be influenced to some degree by his own views of where the bounds of decency lie or should be set. A normative inquiry where the norm is unsettled or variable can run into difficulties and debate. I realize too that in a series of cases in New South Wales, beginning with Bremner v. Walker (1885) 6 NSWLR 276 , judges in the Supreme Court have expressed strongly individual opinions in cases arising under this Act. Nevertheless the question is - Could the magistrate find as he did, he being the judge of the fact? The question is the same as it would be if a jury had found the publication indecent: would their verdict have to be set aside as against the evidence? (at p398)

20. I think too that the members of the Supreme Court went astray in the way they looked at the publication. They examined it page by page, picture by picture, to pass judgment on each. But the charge was that the publication was, as a whole, "indecent printed matter". The photographs are only a part of the publication. They are of the kind which might be found pinned up to decorate the wall of a barrack room or hut. They are no doubt voluptuous and would thus have some sensual attraction for some people. They are not works of art. But whether any one of them by itself, or all of them together, could properly be called indecent in some other context seems to me highly questionable. That however is not the point. The publication is to be considered as a whole, its several parts in the context of the whole. When the question is whether there has been a publication of indecent matter, the goodness of part does not necessarily redeem the whole. It is the whole that is on trial in the whole circumstances of its publication. If the Gospels were printed with indecent pictures interleaved, the indecency would be the greater. Conversely, in a publication such as that before us, photographs which might be acceptable in other settings merely point up indecency and help to demonstrate what the magistrate called "the obvious purpose of such miscellany of material". (at p398)

21. The majority in the Supreme Court thought that some question of the liberty of the individual was involved in the case. This their Honours related to the distinction they made between obscenity and indecency, which they found reflected in s. 16 (a) and s. 16 (d) of the Act. I have already dealt with that. On a wider aspect I think, with respect, that their Honours were wrong in invoking considerations of "private liberty as a basic right and need of modern man" as an aid for the interpretation of a statute of the Parliament of New South Wales dealing with obscenity and indecency. And I think too that their references in this connexion to judgments delivered in courts of the United States were only remotely relevant. I say that for three reasons. (at p399)

22. First, in America the courts were concerned either with the scope of the First Amendment that "Congress shall make no law abridging the freedom of speech, or of the press", or with the scope of the Due Process Clause of the Fourteenth Amendment. No such problem confronts those who must construe and apply the law of New South Wales. (at p399)

23. Secondly, the Hicklin test of obscenity has been generally rejected in the United States. The generally accepted formulation there is now, as I understand it, the Roth test: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest": Roth v. United States [1957] USSC 100; (1957) 354 US 476, at p 489 (1 Law Ed 2d 1498, at p 1509) . But in Australia the Hicklin test has not been discarded. It has become, with some modification, part of the statute law. I may add that if the Roth test were the test here, a magistrate could certainly find "Censor" No. 2 obscene. No one would question that, however obscenity and indecency be understood as grounds for the condemnation of a publication, the question is to be related to contemporary standards, community standards. But of that the appointed tribunal of fact must be the judge. Evidence is neither needed nor permitted. Contemporary standards are those currently accepted by the Australian community. Decisions in other countries, one way or the other, about particular publications, whether magazines or novels, cannot be used to decide the issue of obscenity here. And community standards are those which ordinary decent-minded people accept. They are not what those who peddle obscenities and indecencies urge should be accepted. I agree with the remark of Sholl J. in the Supreme Court of Victoria, repeated by North J. in the Supreme Court of New Zealand, that "the court is not called upon to overlook or minimize what is really obscenity, merely in order supposedly to show its own judicial broadmindedness or tolerance or imperturbability or even cynicism": Mackay v. Gordon & Gotch (A/sia) Ltd. [1959] VicRp 60; (1959) VR 420, at p 426 ; In re Lolita (1961) NZLR 542, at p 553 . (at p399)

24. Thirdly, in relation to American cases: judgments in courts of the United States are very often of the greatest value for us as expositions of common law doctrine and principle. But they are not pronouncements for us uncritically to accept. A judgment of a State court in the United States may for us have as much weight as has an opinion of the Supreme Court of the United States; and a dissenting judgment may offer as much guidance as that of a majority. (at p400)

25. Finally, their Honours in the Supreme Court thought that the magistrate had misapprehended the rule that he must be satisfied beyond reasonable doubt that the offence was committed. But a statutory prohibition under the Justices Act (N.S.W.) does not lie because of insufficiency of evidence to support a particular degree of persuasion. Moreover I do not think that it appears from anything that the magistrate said that he was under any misapprehension. He made some remarks which shew that he appreciated, quite rightly, that there is a distinction between deciding whether or not something happened or was done, and deciding whether or not a thing has a particular quality, the existence or non-existence of which does not depend upon precise and objective criteria. He did express some doubts whether some parts of the publication, taken by themselves, could be called indecent. That is quite understandable. But his conclusion was definite, and in no way suggestive of doubt: "I have come to the conclusion that the publication, considered as a whole . . . may properly be defined as indecent." (at p400)

26. There was evidence to support that conclusion. In my opinion these appeals should be allowed, the judgment of the Supreme Court set aside and the orders of the magistrate restored. (at p400)

OWEN J. These four appeals are brought by special leave against orders of the New South Wales Court of Appeal which, by a majority (Jacobs and Holmes JJ.A., Wallace P. dissenting) (1967) 85 WN (Pt 1) (NSW) 438 , made absolute four rules nisi for statutory prohibition under s. 112 of the Justices Act. (at p400)

2. The appellant Crowe, an officer of the Chief Secretary's Department, was the informant in proceedings taken against each of the respondents before a Court of Petty Sessions. The respondent Graham was the editor, publisher and distributor of a paper called "Censor". He was charged with an offence under s. 16 (d) of the Obscene and Indecent Publications Act, 1901-1955 in that he had "published" indecent printed matter, to wit, a publication called "Censor" No. 2. A similar charge was made against the respondent Rogers who was a street newspaper vendor. Each of them was convicted and fined and in each case the majority of the Court of Appeal was of opinion that there was no evidence that the respondent had published "Censor" No. 2 within the meaning of s. 16 (d). Jacobs and Holmes JJ.A. held also that the finding of the learned magistrate that "Censor" No. 2 contained indecent matter could not be sustained. Wallace P. was of the contrary opinion. (at p401)

3. The respondents Duncan and McKay were also charged with "publishing" indecent printed matter, the matter in question being contained in a paper called "Obscenity" No. 2. Each of them was convicted and fined. Duncan was the editor and producer of "Obscenity" No. 2 and had distributed it to various newspaper vendors. McKay was one of these vendors and he had sold and delivered copies of the paper to members of the public at his newsagency where the paper was on display. In each of these two cases the majority of the Court of Appeal was of opinion that there was no evidence of publication of the matter of which complaint was made but all the members of the Court held that the learned magistrate's finding that "Obscenity" No. 2 contained indecent matter was one which could properly be made. (at p401)

4. In the cases which are concerned with "Censor" No. 2, two questions arise. First, whether there was evidence that the persons charged had published "Censor" No. 2 within the meaning of s. 16 (d) of the Act, and next whether, if there was such evidence, the matter published was capable of being regarded as indecent by the learned magistrate who heard the cases. In the cases which are concerned with "Obscenity" No. 2, the only question is whether there was evidence that the paper was, within the meaning of s. 16 (d), published by the respondents. (at p401)

5. It is convenient to deal first with the question of publishing which arises in all the cases. Section 16 (d) of the Obscene and Indecent Publications Act provides that:

"Whosoever -

. . . . .

(d) affixes to or inscribes on any house building wall

hoarding

gate fence pillar board tree or any other thing

whatsoever so as to be visible to a person being in or

passing along any street public highway or footpath

or affixes to or inscribes on any public urinal or delivers

or attempts to deliver or exhibits to any person or

throws down the area of any house or into the garden

or curtilage of any house or exhibits to public view in

the window of any house or shop or otherwise publishes

any indecent or obscene picture or printed or written

matter

. . . . .

shall be liable . . . to a penalty. . . ."

The charge against each respondent was, as I have said, that he had "published" indecent printed matter. In the case of Graham the publication relied upon consisted of the delivery by him of copies of "Censor" No. 2 to newsvendors, and in the case of Duncan the publication relied upon was the delivery by him of copies of "Obscenity" No. 2, to newsvendors. In the cases of Rogers and McKay, reliance was placed upon the fact that each of them had sold and delivered copies to purchasers. It was not questioned that each of the respondents had delivered copies of the paper with which he was charged with publishing and it was submitted for the appellant that the use of the words "or otherwise publishes" which I have put in italics in quoting s. 16 (d) shows that each of the acts which precede those words is to be treated as a method of publishing the matter said to be indecent and that proof of publication was satisfied by showing that the person charged had delivered it to another. (at p402)

6. I agree with this submission and I did not understand counsel for the respondents to argue to the contrary. What was submitted on their behalf was that s. 16 (d) should be confined in its operation to cases in which indecent matter is thrust upon or exposed to the view of members of the public against their will or at least without their consent and that in each of the cases under appeal the evidence established that the person to whom the delivery was made had agreed to accept delivery of it. I agree that some of the acts which s. 16 (d) treats as methods of publishing relate to cases in which the offending matter is brought to the notice of members of the public whether they wish to see it or not, but the provisions of s. 16 (d) do not appear to me to be limited in the way suggested and I can see no good reason why the word "delivers" should not be given its ordinary meaning and thus cover a case in which delivery is made with the assent of the recipient. The interpretation for which the respondents contend is precisely the same as that which was put to the Full Supreme Court of New South Wales in Potter v. Smith (1902) 2 SR (NSW) 220, at p 222 and which was rejected by that Court. Stephen J. said of this contention (1902) 2 SR (NSW), at p 223 :

"But I do not think that effect can be given to that

argument,

because it appears to me that the object of the Act is

to prevent the circulation of literature of an indecent nature

in every possible way."

"The Act is in the widest possible terms, and makes it an

offence to deliver to another person any written or printed

matter of an indecent nature under any circumstances."

It is true that the Court was there concerned with s. 1 (3) of the Indecent Publications Act, No. 2 of 1900, but that sub-section, which was repealed by the Obscene and Indecent Publications Act, was re-enacted by s. 16 (d) of that Act in terms which for present purposes are identical with the repealed sub-section. (at p403)

7. Reliance was also placed by the respondents upon the fact that s. 16 (a) of the Act makes it an offence (inter alia) to sell or distribute any obscene publication but makes no mention of the sale or distribution of indecent publications whereas s. 16 (d) deals with both obscene and indecent matter. This is was submitted, lent force to the argument that the operation of s. 16 (d) was intended to be limited to cases in which indecent or obscene matter is forced upon the notice of members of the public and has no application where the matter is delivered or otherwise published to a person with his assent. But this argument seems to me to lose its force when it is realized that the Obscene and Indecent Publications Act of 1901 is an Act which consolidates a number of provisions going back to the New South Wales Vagrancy Act 15 Vict. No. 24 and that the provisions thus consolidated have behind them a long history of earlier English legislation dealing with the publication of obscene and indecent matter and beginning with the Vagrancy Act of 1804, 5 Geo. IV c. 83. In these circumstances it is not surprising to find a certain amount of overlapping in the provisions of the consolidating Act and the respondents' submission based upon a comparison of s. 16 (d) with s. 16 (a) fails to convince me that the operation of s. 16 (d) should be given the limited construction which is suggested. (at p403)

8. In my opinion therefore there was evidence that the respondents Graham and Rogers published "Censor" No. 2 and that the respondents Duncan and McKay published "Obscenity" No. 2. (at p403)

9. There remains the question whether it was open to the learned magistrate to find that "Censor" No. 2 contained indecent matter. I have no doubt that some of the material in the paper was capable of being found to be indecent by a tribunal of fact. For example, some of the matter printed under the headings "Playboy Advisor" and "Playboy's Party Jokes" could, in my opinion, be regarded by the learned magistrate, in the circumstances of the case, as offending the standards of decency which he might properly think were generally accepted in the community. In this connexion reference may be made to some passages from the judgment of Fullagar J. sitting as a member of the Full Supreme Court of Victoria in R. v. Close [1948] VicLawRp 79; (1948) VLR 445 , passages with which I respectfully agree. In that case the defendant had been charged with and convicted of publishing an obscene libel in a book, but some of his Honour's remarks are, to my mind, equally applicable to a case in which the charge is one of publishing indecent matter. His Honour said (1948) VLR, at p 465 :

"But I do think that, in considering whether any given

matter is indecent or offensive or disgusting, it must often be

of vital importance to consider the character of the artistic or

literary or scientific context in which the matter is found. . . .

There does exist in any community at all times - however the

standard may vary from time to time - a general instinctive

sense of what is decent and what is indecent, of what is clean

and what is dirty. . . ."

The learned judge went on to indicate the kind of direction that might be given to a jury which is called upon to decide whether a publication is obscene and his Honour's remarks apply with equal force to a case in which the question of fact to be determined is whether published material is indecent. The matters to which he referred should be borne in mind by any tribunal of fact, be it a magistrate or a jury, whose duty it is to decide such a question. His Honour said (1948) VLR, at p 465 :

"It would not be true to say that any publication dealing

with sexual relations is obscene. The relations of the sexes

are, of course, legitimate matters for discussion everywhere.

They must be dealt with in scientific works, and they may be

legitimately dealt with - even very frankly and directly - in

literary works. But they can be dealt with cleanly, and they

can be dealt with dirtily. There are certain standards of

decency which prevail in the community, and you are really

called upon to try this case because you are regarded as

representing,

and capable of justly applying, those standards.

What is obscene is something which offends against those

standards. Do you think that the publication now before

you is one in which these matters are dealt with artistically

and, with whatever frankness cleanly? Or do you think

that there are passages in it which are just plain dirt and

nothing else, introduced for the sake of dirtiness and from the

sure knowledge that notoriety earned by dirtiness will command

for the book a ready sale?"

In quoting this passage I do not wish it to be thought that I hold the view that to constitute an indecent publication the matter published must necessarily have some association with sex or that it must be something that offends "sexual modesty" as was the opinion of the majority of the Court of Appeal in the present cases. The obscene matter in Close's Case [1948] VicLawRp 79; (1948) VLR 445 related to sexual matters and it was with that aspect of obscenity that the learned judge was dealing. In the cases before us it is unnecessary to form an opinion as to the correctness or otherwise of the statements on this subject which appear in the reasons of the majority of the Court of Appeal since the matters which the learned magistrate found to be indecent do relate to matters of sex. (at p405)

In each case appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside. In lieu thereof order that Rule Nisi for Writ of Prohibition be discharged with costs.

Obscene Publications Act 1959

Crowe v Graham [1968] HCA 6; (1968) 121 CLR 375 (8 March 1968)

Crowe v Graham [1968] HCA 6;

At a glance

Court

Decision date

Source

Judgment (35 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)

Crowe v Graham [1968] HCA 6; (1968) 121 CLR 375 (8 March 1968)