RICHARD GWYNNE PHILLIPS v SA POLICE No. SCGRG 94/187 Judgment No. 4848 Number of pages - 19 Criminal law - child pornography - [1994] SASC 4848 - SASC 1994 case summary — Zoe

RICHARD GWYNNE PHILLIPS v SA POLICE No. SCGRG 94/187 Judgment No. 4848 Number of pages - 19 Criminal law - child pornography - [1994] SASC 4848 - SASC 1994 case summary — Zoe

[29]

In the context of publications, the common law test of what is indecent is well settled. In Crowe v Graham (supra) Barwick CJ (at 379) defined indecent matter as that which on being read or seen, in the circumstances in which, and having regard to the manner in which, it is presented to him or her to be seen or read, would offend the modesty of the average man or woman in sexual matters. The issue in that case was whether magazines which had an emphasis on sexual matters and which had been published by the defendants were "indecent or obscene" printed matter, contrary to the Obscene and Indecent Publications Act 1901 (NSW). The test adopted by Kitto J was whether the ordinary person in the community, picking up a copy of the material and reading it as a whole, would regard it as offensive to his or her modesty in regard to matters of sex. Owen J said (at 403) that indecent matter was that which offended the standards of decency which were generally accepted in the community. All three judges were concerned only to determine whether the magazines were indecent printed matter. I do not think that there is any difference of substance in these tests. In the same decision, Windeyer J examined the meaning of the words "indecent" and "obscene", holding that, in the context of the Obscene and Indecent Publication Act, the words had the same meaning. He then went on to hold that, however obscenity and indecency are understood when condemning a publication, the test was the same, namely, contemporary standards currently accepted in the Australian community. He said at 399: "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

[60]

There is room for a legitimate concern that, if "indecent" is defined to mean what is at the lower end of the scale of offensiveness, there is a risk of an unsatisfactory degree of censorship. That is, I think, answered in part by noting that what is indecent is to be determined by contemporary community standards and those standards change. Community standards of decency are now substantially more liberal than they were when, say, Crowe v Graham was decided. What was once, for example, signified in a book by a dash is now explicitly stated and what is now stated is often less shocking than hitherto. (An interesting note on the utility of the dash was made by Wickham J in Mackinlay v Wiley (supra) at 24.) An example of current acceptance of what was commonly accepted as indecent but a relatively short time ago is Hortin v Rowbottom (supra). But, as noted earlier, there is a real difficulty in determining contemporary community standards so that the risk of unnecessary censorship remains. The Court here is charged with interpreting a statutory definition. If that definition is used to achieve an undesirable level of censorship, it might be appropriate to amend the definition. It is for Parliament to determine the standards which the community seeks to enforce in connection with printed matter, films, video tapes and the like as well as in other areas. It is for the Court to apply the standards enacted by Parliament. Putting offensive material as defined to one side, if Parliament intends only to prohibit, say, the public display of obscene material, it should say so and not resort to expressions such as "indecent, immoral or obscene" which have a wider connotation than "obscene". While the expression "indecent, immoral, or obscene" remains in the Act, the Court has little alternative but to give those words their proper meaning. It is not the legitimate function of the Court to depart from the true meaning of those words to achieve what the Court perceives to be the standards which the community might wish to enforce.