Solicitors for respondent: Crown Solicitors Office

JUDGE2 DEBELLE J The appellant was convicted by a magistrate of two offences of being in possession of child pornography, namely, some video tape films, contrary to s.33(3) of the Summary Offences Act, 1953 ("the Act"). He appealed to a judge of this Court who dismissed the appeal. From that decision, he appeals by leave to this Court.

The only question is whether the video tapes found in the appellant's possession are child pornography as that expression is defined in s.33 of the Summary Offences Act, 1953 ("the Act"). Whatever other fault there may be in his conduct, the only issue is whether the films are child pornography.

The matters the subject of these charges came to the notice of the police in this way. A member of the public had informed police officers that the appellant had been seen inside a block of public lavatories at Brighton beach taking a video tape film of boys while they were urinating. The lavatory is adjacent to the Brighton Surf Club and a lifesaving carnival for children under thirteen years of age was then being conducted. Police officers took possession of the appellant's video camera and the video cassette contained in it. They then went to the appellant's house where they seized a further six video tapes. For convenience I will call the video tapes "the films". The films were all made in public changing sheds or in public lavatories. They predominantly show men and boys of all ages dressing or undressing in public changing sheds or urinating at public urinals. The films are of several hours' duration. The first count relates to the possession of the video cassette which was found in the camera, which is later identified as Tape 5, and the second is concerned with the films found at the appellant's house.

Section 33(3) of the Act makes it an offence for a person to be found in possession of child pornography. There was no issue whether the appellant was in possession of the films. The only issue was whether the films were child pornography. "Child pornography" is defined by s.33(1) in these terms: "Indecent or offensive material in which a child (whether engaged in sexual activity or not) is depicted or described in a way that is likely to cause offence to reasonable adult members of the community."

The word "material" is also defined. The definition includes films and video tapes and it is common ground that the films in this case are material as defined. The Act defines "indecent material" and "offensive material" as separate expressions. It is convenient to deal first with the definition of "offensive material" which is: "material -

(a) of which the subject matter is or includes - (i) violence or cruelty; (ii) the manufacture, acquisition, supply or use of instruments of violence or cruelty; (iii) the manufacture, acquisition, supply, administration or use of drugs; (iv) instruction in crime; or (v) revolting or abhorrent phenomena; and (b) which, if generally disseminated, would cause serious and general offence amongst reasonable adult members of the community."

There are two limbs of the definition which must both be satisfied. Whatever else the appellant's films might be, they satisfy none of the criteria in paragraph (a) of the definition. The films are not, therefore, "offensive material" as that expression is defined in the Act.

Thus, the question whether the films were child pornography is reduced to the question whether they were indecent material and whether the other ingredients of the offence of child pornography as spelled out in s.33(3) were established. Those ingredients, as they apply in this case, are (1) that there is indecent material. As already noted, it is common ground that the films are material as defined so that the issue then is whether the films are indecent material. The Act defines "indecent material" to mean: "Material of which the subject matter is, in whole or in part, of an indecent, immoral or obscene nature." I will return to the question of what constitutes indecent material.

(2) that the films depict or describe a child or children (whether engaged in sexual activity or not). Plainly this element is satisfied; and

(3) that the child or children are depicted or described in a way that is likely to cause offence to reasonable adult members of the community. For reasons which appear later, given the definition in the Act of "indecent material" and the common law meaning of "indecent", there is an element of circularity in requiring that the material should depict a child or children in a way that is likely to cause offence to reasonable adult members of the community.

It is essential also to note s.33(4) which has an important bearing on what constitutes indecent or offensive material. It provides: "(4) In proceedings for an offence against this section, the circumstances of the production, sale, exhibition, delivery or possession of material to which the charge relates will be regarded as irrelevant to the question of whether or not the material is indecent or offensive material."

The manifest purpose of s.33(4) is to require the Court to have regard only to the nature of the material the subject of the charge. The circumstances of production, display, possession or other dealing in the films are irrelevant. Section 33(4) therefore prevents the Court from having regard to the fact that the appellant had resorted to public lavatories and changing facilities in order to make the films. Similarly, it matters not who filmed the scenes or how the appellant came to have possession of them or what was the appellant's motive or purpose in making the films or having them in his possession. As noted later in these reasons, the requirements of s33(4) might lead to difficulty.

Are the films indecent material as defined? At the outset the question arises whether the words "indecent, immoral or obscene" in the definition have different meanings or are synonymous. The words are not synonymous either in ordinary parlance nor, generally speaking, in their usage at common law and, for the reasons which follow, I do not think that they are intended to have the same meaning.

The Macquarie Dictionary defines "indecent" to mean: "1. Offending against recognised standards of propriety or good taste; vulgar: hence indecent language. 2. Not decent; unbecoming or unseemly: hence indecent conduct."

The Oxford English Dictionary's definition is: "1. Unbecoming; highly unsuitable or inappropriate; contrary to the fitness of things; in extremely bad taste; unseemly. 2. Uncomely, inelegant in form. 3. Offending against the recognized standards of propriety and delicacy; highly indelicate, immodest; suggesting or tending to obscenity. 4. Special collocations: hence indecent assault: an assault of a sexual nature, but not involving rape or attempted rape; used colloq. as a euphemism for rape (Webster, 1934); hence indecent exposure."

As will be seen the denotation that "indecent" describes that which offends against recognised standards of propriety or good taste is the meaning which the word bears at common law, when used in the context of publications.

The epithet "obscene" denotes that which is more offensive to good taste or standards of decency. The Macquarie Dictionary gives two meanings to "obscene": "1. Offensive to modesty or decency; indecent; inciting to lust or sexual depravity; lewd: hence obscene pictures. 2. Abominable; disgusting; repulsive."

The Oxford definitions are similar: "1. Adverse, inauspicious, ill-omened; transf. abominable, disgusting, filthy, indecent: of doubtful etymology. Perh. immed. after F. Offensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome. 2. Offensive to modesty or decency; expressing or suggesting unchaste or lustful ideas; impure, indecent, lewd."

The meaning of obscene as denoting that which is disgusting, repulsive, or abominable indicates a higher degree of offensiveness. That the word "obscene" denotes something worse than "indecent" is also conveyed by the Oxford Dictionary's third sense of "indecent".

The word "immoral" refers to that which does not conform to moral law or to accepted patterns of conduct: see Macquarie and Oxford Dictionaries. Its place in this trio of epithets is a little curious. In ordinary parlance, that which is immoral might not necessarily be indecent but it will, in all likelihood, be obscene.

The words are used disjunctively in the expression "material of which the subject matter is, in whole or in part, of an indecent, immoral, or obscene nature". The ordinary use of language and the use of the disjunctive suggest that the epithets have their usual meaning and are not intended to be synonymous. Further, there is no commonly used adjectival phrase "indecent, immoral or obscene". Is there anything, then, which displaces the usual meaning of these words?

It must be acknowledged that at common law the precise meaning or colour of the words "indecent" and "obscene" might vary according to the context in which each is used. In Crowe v Graham [1968] HCA 6; (1968) 121 CLR 375 the High Court was required to determine whether a publication was indecent or obscene. Windeyer J said (at 390): "Let us turn to the words 'obscene', 'indecent'. Each is a well-known word. Each has been long used in law. Apart from any definitions given them by statutes, they are both to be understood with the meanings they have for common law; and for present purposes each must be understood with any colour it takes by their collocation. I say this because the adjective 'indecent' has long been used in law to describe multifarious forms of offensive or objectionable conduct. In this general sense it sometimes denotes lewd forms of misbehaviour, but not always. Indecent exposure, indecent assaults involve lewdness. Indecent language does not: see e.g. Norley v Malthouse [1924] SAStRp 38; (1924) SASR 268. Brawling in church, maltreating corpses, grave-snatching have all been punished as indecent. Sometimes indecent conduct was punished at common law because it created a public nuisance. Sometimes simply as, in Lord Mansfield's words, 'against public decency and good manners'. The House of Lords has said that for the common law the list is not closed."

Indecency is not confined to sexual indecency. As Lord Reid observed in Knuller (Publishing, Printing and Promotions) Ltd v D.P.P. (1973) AC 435 at 458: "Indecency is not confined to sexual indecency: Indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting."

Examples of different statutory contexts which colour or vary the meaning of "indecent" are noted by Nicholson J in Drago v The Queen (1992) 8 WAR 488. Statutory provisions of a like nature to those referred by both Windeyer J and Nicholson J are to be found in the Summary Offences Act and Criminal Law Consolidation Act in this State. When determining which of the possible meanings "indecent" might have, it is proper to look to the purpose and context of the statute: Reg v Bryant (1984) 2 Qd R 545, per Sheahan J at 550 and per McPherson J at 551.

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

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 and Gotch (A/sia) Ltd [1959] VicRp 60; (1959) VR 420, at p426; in Re Lolita [1961] NZPoliceLawRp 2; (1961) NZLR 542, at p553."

Thus, all four Justices used the same criterion, namely, contemporary standards of the Australian community but that test was used by Windeyer J to determine both what is indecent and what is obscene.

In Attorney-General v Huber (1971) 2 SASR 142 at 167, 184 and 205-206 Bray CJ defined indecent behaviour as that which offends to a substantial degree against the recognised standards of common propriety. This test has been consistently applied in this Court: see, for example, Romeyko v Samuels (1972) 2 SASR 529 at 560-561; Robertson v Samuels (1973) 4 SASR 465 and at 470-471; Popow v Samuels (1973) 4 SASR 594 at 600, 611-612, 620-621; Hortin v Rowbottom (1993) 61 SASR 513. I do not understand the test as formulated by Bray CJ in Attorney-General v Huber to differ from the test in Crowe v Graham. The requirement in Bray CJ's test that the material should offend to a substantial degree is intended, I think, to convey the view that the standards to be applied are those which ordinary decent-minded, but not unduly sensitive, people accept. As Napier J observed in Norley v Malthouse [1924] SAStRp 38; (1924) SASR 268 at 269-270: "The section is not intended for the special protection of people who are easily shocked. It should be used to protect the public in their use of the public ways against 'nuisance' in the form of any substantial breach of decorum. As with other forms of nuisance, the standard ought not to be estimated according to any 'elegant or dainty modes or

habits' of thought, but according to the 'plain and sober and simple notions' among the community in question."

Notwithstanding that those words were uttered 70 years ago, they are still apposite. What has changed since, are the standards of the community.

When considering contemporary standards currently accepted in the Australian community, regard is had to the reasonable, ordinary, decent-minded, but not unduly sensitive, person. As Windeyer J noted in Crowe v Graham, contemporary standards are not the standards of those who peddle obscenities or indecencies nor that of the judge seeking to minimize what is indecent or obscene in order supposedly to show some judicial broadmindedness or tolerance. In Attorney-General v Huber (supra) at 168 Bray CJ expressed the same concept adopting words of Wickham J in Mackinlay v Wiley (1971) WAR 3: "In applying this test, it is the average contemporary Australian standard which must be applied, not the standard of the judge himself as a private individual, whether that standard is laxer or, as is perhaps more inherently probable, stricter than the average contemporary Australian standard.

The average member of the community was described, and I think, with respect, correctly described, by Wickham J in Mackinlay v Wiley (1971) WAR 3, at p.25 in the following words:- 'The man will be one with average attitudes to sexual matters in the context of a discussion about censorship with reference to those matters. He will not be a man given to thoughtless emotional reaction, but, on the other hand, he will not be one given to pedantic analysis, and in the relevant respects will be neither conservative nor radical, intelligent nor stupid, naive nor cynical, prim nor libertine, imaginative nor dull, and in short whatever

extremes may be mentioned he will be neither one side of the line nor the other, but right on it. This is a difficult

concept to grasp and is made no easier by the fact that half the time the man will turn out to be a woman, but the person

I do not know that the average Supreme Court Judge is more likely to reflect the views of this mythical creature than the average magistrate; I should think a jury of twelve persons of both sexes picked at random from the community might get nearer the mark than either."

Thus, the common law definition of "indecent" accords with its use in ordinary parlance.

As the common law test of what is indecent requires that the material offends to a substantial degree against the recognised contemporary standards of common propriety, the words "in a way that is likely to cause offence to reasonable adult members of the community" in the definition of child pornography are redundant. There is an element of circularity in the definition. This part of the definition does little more perhaps than emphasise by the use of the words "reasonable adult members of the community" that the standards to be applied are those of ordinary decent-minded people, not of the unduly sensitive.

I turn to the meaning of "obscene". It is not defined or given any extended meaning in this Act. It is, therefore, to be understood according to its usual meaning of offensive and disgusting and, in the absence of an extended meaning, it does not require that the material might corrupt or deprave susceptible people. As already noted, in Crowe v Graham Windeyer J held (at 390-396) that in the context of s16 of the Obscene and Indecent Provocations Act, the words "indecent" and "obscene" did not denote different things, except to the extent that the denotation of either had been extended for the purposes of the Act by statutory definition. In doing so, he expressly noted that the words have different meanings in ordinary usage and at common law, though on occasions they will be used as synonyms, for example, in the old indictments for "Offences against Morality and Decency". In the course of his reasons, he considered the meaning of the word "obscene". He adopted the judgment of Fullagar J in R v Close [1948] VicLawRp 79; (1948) VLR 445 at 463: "As soon as one reflects that the word 'obscene', as an ordinary English word, has nothing to do with corrupting or depraving susceptible people, and that it is used to describe things which are offensive to current standards of decency and not things which may induce to sinful thoughts, it becomes plain, I think, that Cockburn CJ, in the passage quoted from R. v. Hicklin (1868) LR 3 QB, at p 371 - was not propounding a logical definition of the word 'obscene', but was merely explaining that particular characteristic which was necessary to bring an obscene publication within the law relating to obscene libel. The tendency to deprave is not the characteristic which makes a publication obscene but is the characteristic which makes an obscene publication criminal."

He added (at 393-394) that "obscene" still carried its primary sense as defined by Dr Johnson: "immodest; not agreeable to chastity of mind; causing lewd ideas"; and when used in the criminal law, it carries too the emphasis of the other sense, given by Dr Johnson as "offensive; disgusting". He thus concluded that the epithet "obscene" has not lost its historic meaning, namely that which is filthy, bawdy, lewd and disgusting and included that which is indecent or immodest. Thus, that which is obscene will also be indecent. None of the other Justices in Crowe v Graham found it necessary to deal with the meaning or concept or obscenity, it being sufficient for their purposes to hold that the magazines in that case were indecent. Barwick CJ did, however, emphasise that the legislation maintained a distinction between matter that is obscene and matter that is indecent (at 381). An interesting discussion of the concept of obscenity and the difficulties for courts in determining what is obscene is found in the judgment of Wickham J in Mackinley v Wiley (supra).

In Romeyko v Samuels, Bray CJ formulated a number of propositions which he said were established by the High Court in Crowe v Graham: "1. That the test of indecency is whether the matter in question is offensive to the sexual modesty of the average man (per Barwick CJ at p.526), or to the contemporary standards (i.e. as I understand it, the contemporary standards of decency) 'currently accepted by the Australian community' (per Windeyer J at p.540). I think, with some hesitation, that it is also necessary that they should offend to a substantial degree; see Norley v. Malthouse [1924] SAStRp 38; (1924) SASR 268.

2. That in applying that test it is the contemporary standard which must be applied, not the standard of some past age, and that all the circumstances and the setting of the publication have to be considered (see per Barwick CJ at p.526, per Windeyer J at p.538). In other words, something might be offensive to contemporary standards of decency in one context, but not in another.

3. That unless the context of the statute in question otherwise provides, the test of obscenity is the same as the test of indecency (see per Windeyer J at pp.535-537). The qualification is necessary because some statutes, such as s.33 of the South Australian Police Offences Act 1953-1967, make the tendency of the matter in question to deprave or corrupt an element in the offence of obscenity. But there is no such provision in the Post and Telegraph Act, and no argument that any such tendency did or could exist here.

4. That the words complained of must be looked at in the context of the publication as a whole (see per Windeyer J at p.539).

5. That 'only within very narrow limits is evidence beyond the publication itself necessary or admissible' (per Windeyer J at p.538). In particular, evidence of what has been published in other books or writings is not admissible, nor is the opinion of experts about the tendency of the matter in question or about the nature of contemporary standards (per Windeyer J at p.538)."

Some twelve months later in Popow v Samuels (supra) at 597-598 Bray CJ followed the reasoning of Windeyer J in Crowe v Graham and concluded that, while there may be cases of indecency in non-sexual contexts where obscenity cannot enter into the matter at all, it was nevertheless correct to say that Windeyer J's equation of obscenity with indecency in sexual contexts, apart from any particular statutory requirement, had won general acceptance in Australia. With respect, I cannot share that view. The decisions cited by Bray CJ do not support the conclusion. More recent decisions both in this country and in England, where I think contemporary community standards are similar to those in this country, suggest that the words are not to be equated but to have the meaning in ordinary parlance: R v Harkin (1989) 38 A Crim R 296; R v Court (1989) 1 AC 28; R v Manson (17 February 1993, unreported, Court of Criminal Appeal NSW).

There is other authority which suggests that "indecent" and "obscene" are not to be equated in the way which Bray CJ suggested. Just as the words do not have the same denotation in ordinary parlance, neither do they at common law. What is obscene will also be indecent but it does not follow that what is indecent is necessarily obscene. The line between what is indecent and what is obscene may on occasions be difficult to draw but, as in ordinary usage, the common law recognises that the word "obscene" is a stronger epithet than "indecent". It denotes a higher degree of offensiveness. Lord Parker CJ conveyed that notion in R v Stanley (1965) 2 QB 327 at 333: "The words 'indecent' or 'obscene' convey one idea, namely, offending against the recognised standards of propriety, indecent being at the lower end of the scale and obscene at the upper end of the scale."

This passage was followed and applied in R v Greater London Council; ex parte Blackburn (1976) 1 WLR 550, 562, 566. The distinction was illustrated in McGowan and Langmuir (1931) SC(J) 10, 13, cited in R v Stanley (supra) at 333. Lord Sands said: "I do not think that the two words 'indecent' and 'obscene' are synonymous. The one may shade into the other, but there is a difference of meaning. It is easier to illustrate than define, and I illustrate thus. For a male bather to enter the water nude in the presence of ladies would be indecent, but it would not necessarily be obscene. But if he directed the attention of a lady to a certain member of his body his conduct would certainly be obscene. The matter might perhaps be roughly expressed thus in the ascending scale - positive-immodest; comparative-indecent; superlative - obscene. These, however, are not rigid categories. The same conduct, which in certain circumstances may merit only the milder description, may in other circumstances deserve a harder one. 'Indecent' is a milder term than 'obscene,' and as it satisfies the purposes of this case if the prints in question are indecent, I shall apply that test."

It will be noticed that, in R v Stanley, the court adopted the same test of what is indecent and obscene as had the High Court in Crowe v Graham, namely, that which offends against the recognised standards of common propriety.

Before examining whether the meaning of "indecent" and "obscene" can be equated when used in the definition in s33(1), it is necessary to consider also the meaning of "immoral". It is often used to describe conduct. Thus one might speak of immoral conduct or immoral purposes."Immoral" is not to be equated with illegality: cf R v Ford (1977) 1 WLR 1083. Immoral conduct might not necessarily be indecent conduct: ex parte Fergusson (1966) 84 WN (Pt 1) NSW 446. When used in the context of a magazine, book or film, it is difficult to discern what the word "immoral" adds to either indecent or obscene. As Windeyer J noted in Crowe v Graham (at 394): "It is assumed incontrovertibly by the common law that obscene writings do deprave and corrupt morals, by causing dirty-mindedness, by creating or pandering to a taste for the obscene."

Further, the test of indecent material as formulated in Crowe v Graham will also determine what is immoral. Morality in a sexual context refers to the system of morals prevailing in the community and in this definition of "indecent material" serves to emphasise that in determining what is indecent, immoral or obscene, regard should be had to contemporary standards. In the result, I think "immoral", when used in this context, adds little to either "indecent" or "obscene". The word is being used so that the definition of "indecent material" will be all embracing.

Having carefully considered the judgments of Windeyer J and Bray CJ, I do not think the words "indecent, immoral or obscene" are intended to have the same meaning in s33(1). I think that, if it were held that the words have the same meaning, there is a real risk of debasing the meaning of "obscene" with the consequence that material might be classified as obscene which was plainly not so. It is, I think, necessary to avoid a slide which equates obscenity with indecency. The words are being used in their usual sense in the definition and indicate degrees of offensiveness against contemporary community standards of decency. There is a degree of tautology in that if material is obscene, it will also be indecent. But what is indecent might not be obscene. The intent of the definition is to bring within the purview of the section all that offends recognised standards of common propriety, from the lower to the higher end of the scale of offensiveness. It will be easier to demonstrate indecency than obscenity. As what will be obscene will also be indecent, it may be sufficient in the cases of obscene material for the prosecution to establish that the material is indecent. Material which is indecent but not obscene will also be caught by the definition. It must be recognised that the utility of seeking to grade indecency and obscenity is open to serious question. At the end of the day, the difference between them is one of degree. But, when applying this definition, it is necessary to determine only two grades of that which offends common propriety judged by contemporary standards, namely, what is at either the higher or lower end of the scale of offensiveness. In adopting this approach there is no problem of duplicity. The offence is having child pornography in one's possession and the definition of indecent material will be satisfied if the material is either indecent or obscene.

This Act has in s33 discarded the usual dichotomy between indecency and obscenity and instead prohibits material which is either indecent or offensive. It includes within the definition of indecent material what is both indecent and obscene and includes under the heading of offensive material all those matters listed in the definition. Section 33 prohibits, inter alia, the sale of indecent or offensive material as well as display of such material in a public place. The intention of the Act is to bring within its purview all that offends contemporary standards of decency. That intention would, I think, be defeated if that which is indecent as opposed to that which is obscene was excluded from the operation of s33. Given the terms of s33(4), I am concerned that there might be scope to prosecute, for example, the legitimate sale or display of material which might not be indecent in one context but is in another. However, that is an argument for amending the terms of subss(4) and (5) of s33, not for confining the meaning of indecency in s33 to that which is obscene.

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.

Generally speaking, at common law, when considering whether material is either indecent or obscene, all the circumstances and the setting in which the material is published are considered: Romeyko v Samuels at 560. Barwick CJ expressed the requirement in these terms in Crowe v Graham (supra) at 379: "In resolving such a question the manner and occasion of placing the matter before others as well as the significance of the matter itself must be considered and might in some circumstances be critical in resolving the question. Here, for example, sexual matters were referred to in the issues of the magazine in a way which might pass muster in a tap room or smoke concert but which, displayed in print to the reader of the magazine, could, in my opinion, be held to offend the modesty of the ordinary man."

Windeyer J expressed the same concept in these terms at 396-397: "It is an act in its setting and circumstances which constitute 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."

However, the terms of s.33(4) require the Court when determining whether material is indecent to disregard the circumstances of the production, sale, exhibition, delivery or possession of the material to which the charge relates. Subsection (4) must be read with subs(5) of s33 which preserves two well established defences. It provides: "(5) Notwithstanding the foregoing provisions of this section - (a) no offence is committed by reason of the production, sale, exhibition, delivery or possession of material in good faith and for the advancement or dissemination of legal, medical or scientific knowledge; and (b) no offence is committed by reason of the production, sale exhibition, delivery or possession of material that constitutes, or forms part of, a work of artistic merit if, having regard to the artistic nature and purposes of the work as a whole, there is no undue emphasis on its indecent or offensive aspects."

Section 33(4) seems to have been drawn on the footing that there is material which is either inherently indecent or obscene. The proposition is, I think, fallacious and the requirements of s33(4) might lead to future difficulty. It is not difficult to postulate that certain material might be indecent in some circumstances but not in others. For example, the question whether the photograph of a boy or man urinating is indecent may depend on the circumstances in which the photograph is published. It might not be indecent if a photograph is exhibited in a men's lavatory for the purpose of conveying some message concerning public health. However, if enlarged and displayed in a busy public street, it might well be indecent. Section 33(2) makes it an offence to exhibit indecent material in a public place. A public lavatory and a public street are both public places. Words spoken on a busy street corner might be indecent but not if spoken on stage. It is an interesting question why something offends standards of decency in one context but not in another. The offending words, article, and material retain the same attributes. All that has changed is the context. However, this is neither the occasion to explore that issue, the occasion to explore the potential for difficulty which s.33(4) might be capable of producing. The issues in this appeal are to be determined by considering whether the appellant's films were inherently indecent.

The definition of "indecent material" will be satisfied if either part or the whole of the material is indecent, immoral or obscene. The magistrate considered the material as a whole, a test which is often applied: see for example Crowe v Graham. There is no criticism of his approach on this ground.

The question this Court must consider is whether the magistrate has correctly directed himself and, if so, whether as the judge of fact he could reasonably have concluded that the material was indecent: Crowe v Graham at 380; Bradbury v Staines (1970) Qd R 76, at 79, 86, and, on the application in that case for special leave to appeal in the High Court, (1970) Qd R at 90-92.

The learned magistrate directed himself first by noting the relevant provisions of s.33 and in particular s.33(4) which, as he correctly stated, required him to consider "only the images on the video tapes, not ... the circumstances of how or why the images on the tapes were made". Turning to the question of indecency he said: "There is also no dispute that the video tapes depict scenes of male children under the age of 16 years, dressing, undressing in public changing sheds or urinating in public urinals and thereby exposing their genitals.

The real issue then is whether this material is: (1) 'in whole or in part of an indecent, immoral or obscene nature,' and (2) 'likely to cause offence to reasonable adult members of the community'.

On the question of the definition of indecency, I was referred to the cases of Crowe v Graham [1968] HCA 6; (1968) 121 CLR 375, Romeyko v Samuels (1972) 2 SASR 429; Robertson v Samuels (1973) 4 SASR 465, and Popow v Samuels (1973) 4 SASR 594. It appears from the above authorities that the Court should consider the contemporary community standards, and any matter is indecent which in its setting and circumstances offends 'the modesty of the average man or woman in sexual matters' (c.f. Crowe v Graham).

Norley v Malthouse [1924] SAStRp 38; (1924) SASR 268 stands for the proposition that when viewing the tapes I am not to be considering someone with unusual sensibility, but rather what would be acceptable to reasonable members of the public."

The fact that the magistrate has not distinguished between "indecent" and "obscene" is of no consequence as he has applied the test adopted by the High Court in Crowe v Graham. He then concluded that, although urinating in a public toilet was not inherently offensive or indecent as the films depicted what a person might see on walking into a public lavatory, the accumulation of scene after scene of boys dressing, undressing and urinating would offend the reasonable adult members of the community and so offend generally against accepted community standards. He expressed his reasons in these terms: "I agree that urinating in the context of a public toilet is not offensive or indecent and if one is to walk into a male public toilet or a changing shed at any beach, one would be confronted with exactly the same sort of images as depicted on the videos. In that context, environment and circumstance, there is no question that such activity would

not be offensive to the sexual modesty of the average person or to the contemporary standards currently accepted by the

wider Australian community. I accept that the standards of decency accepted by the wider Australian community have come

a long way from the days of Norley v Malthouse and in fact the action of a young child at the beach dropping his bathers and urinating on the sand might even be shown on national television on Australia's Funniest Home Video Show without any suggestion that such a scene would be regarded as offensive by the general community. But in my opinion, it is one thing to walk into a public toilet for the purpose of an ordinary everyday activity, where one is normally expected to be observed and to observe other males doing the same thing without offence, or even to see a short extract of a young child on national television urinating on a public beach in the context of a humourous (sic) show, and another to have scene after scene extending to several hours of video tape images of young boys dressing, undressing and urinating and thereby exposing their genitals. In my opinion, even in today's so-called 'permissive' society, the general community would draw a line at that sort of material and regard it as offensive."

It was submitted on behalf of the appellant that, in concluding that the indecency consisted of the accumulation of one scene after another of incidents of men or boys urinating or of the genitalia of young boys undressing, the magistrate offended the injunction in s33(4). I do not agree. The circumstances of production in s33(4) refer to how the films were made not to the form in which the film is viewed. Section 33(4) is not directed to the nature and form of the indecent material but to the circumstances in which the material is either produced, sold, exhibited, delivered or possessed.

The next question is whether on the material before him the learned magistrate could reasonably have come to the conclusion that the films, when viewed as a whole, constituted indecent matter. For the purpose of determining that question, I have undertaken the unpleasant and unedifying task of viewing the four films agreed to be relevant. Counsel had made a detailed examination of the films. The films taken from the appellant had been reproduced on five video tape films for the purpose of these proceedings. A summary prepared by counsel for the appellant describes each of those five tapes. The relevant parts of the summary are: 1. Tape 1 mainly shows men urinating. It also shows boys urinating and on approximately twelve or thirteen occasions for a total of approximately two to three minutes is a boy's penis visible. The tape lasts three hours.

3. Tape 3 repeatedly shows men and boys urinating. The penis of boys urinating is visible for a total of approximately seven to twelve minutes on a tape lasting three hours.

4. Tape 4 shows many incidents of boys and men urinating. In a tape lasting approximately three hours the penis of boys under the age of sixteen are visible on not less than sixty occasions.

5. Tape 5 showed many instances of boys and men urinating. On only seven or eight occasions was a boy's penis visible, at least in part, and then only for a total time of approximately one minute in a tape lasting two hours.

Counsel for the respondent could not identify any inaccuracy in that summary.

The learned magistrate adopted a summary of the films which had been agreed, namely, that the films depicted scenes of boys under the age of sixteen years dressing or undressing in public changing sheds or urinating in public urinals and thereby exposing their genitals. Having viewed all of the relevant films, I cannot agree that the summary accurately conveys the subject matter of the films. In my view the summary has led the magistrate into error. It has, I think, also caused the Judge who heard the appeal from the magistrate to have a misunderstanding of the content of the film. The Judge expressed his reasons for upholding the decision of the learned magistrate in these terms: "According to the argument advanced on behalf of the appellant the portrayals of children urinating or changing were quite innocuous and not such as to be an affront to an average person's sense of decency. However it is in this respect that the manner and the extent to which the subject is portrayed in the films becomes important. According to the descriptions of the contents of the films there was a concentration on the genitalia of children as well as adults. The tapes appear to be devoted to that subject. The continuous and concentrated emphasis in the material on

genitalia and naked or partly naked children and the manner in which this lends itself to catering for persons with prurient interests (whatever might have been the purpose of its production) places it in the category of indecent material. In my view the learned magistrate had reasonable grounds for reaching the conclusion that the material offends contemporary community standards of decency and that, in the words of the section, it is material 'in which a child is depicted or described in a way that is likely to cause offence to reasonable adult members of the community'."

The Judge was not asked to view all of the films. I note in passing that, in the part of his reasons that I have underlined, the learned judge seems to have fallen into error in failing to give effect to the terms of s33(4). The learned judge expressly referred to s33(4) earlier in his reasons but the underlined passage refers to the motives or purposes of those viewing the films, something which s33(4) requires to be put to one side.

The first and fifth tapes include many scenes of men and boys undressing or dressing in public changing rooms at a beach. There are a number of scenes of naked men which depict their genitalia. But, while there are many scenes of boys dressing or undressing, in all but three or four instances they do not strip naked. On those occasions, the camera is some distance away. The whole of each boy's body is seen and there is no emphasis upon the genitalia of any boy. Those scenes occupy a very short time in the whole film. The boys are engaging in a perfectly natural act. They are entirely oblivious to the fact that they are being filmed. It is difficult to fix the age of the boys but they would be between eight and ten years. It cannot be said that there is anything inherently decent in these scenes other than the fact that the appellant has invaded their privacy. There is nothing inherently indecent in the body of a young boy. It has long been a subject for the artist and the sculptor. Had the boys changed on the beach instead of in the changing rooms, I do not think anyone would have been offended. The parts of the film showing naked boys in the act of changing do not constitute indecent material. In the fifth tape, there are three scenes of naked toddlers playing on the beach. They are not in any respect indecent.

The rest of the films show men and boys urinating. The films indicate that it is the appellant's practice to go to public events where men and boys are likely to be present. There are scenes which have obviously been taken at the Formula One Grand Prix, the Schutzenfest and the Christmas Pageant. The films show men and boys of all ages urinating. While in some instances the filming of boys under sixteen years engaged in the act of urinating is continuous, generally speaking, incidents of boys urinating are interspersed between the scenes of men urinating. Often both men and boys are at the one urinal. The films show that it was the appellant's practice to stand at a urinal and film all those who used it, while he stood there. In some cases, the genitalia are relatively close only because the subject is standing close to the appellant. It is difficult to separate the scenes of men urinating from scenes of boys urinating. Viewed as a whole, the films might be classified as indecent material. But the appellant is not charged with being in possession of indecent material simpliciter: he is charged with being in possession of child pornography.

The ordinary use of language suggests that, whatever else the films made by the appellant of men and boys urinating might be called, they are not child pornography. Pornography is the explicit description or depiction of sexual activity intended to stimulate erotic rather than aesthetic feelings: see Oxford English Dictionary. However, the ordinary meaning of child pornography has been extended and includes indecent material "in which a child (whether engaged in sexual activity or not) is depicted or described in a way that is likely to cause offence to reasonable adult members of the community" It is necessary, therefore, to put the scenes of men urinating from one's mind and consider whether the balance of the films falls within the statutory definition of child pornography.

It is necessary also to heed the injunction in s33(4) to disregard the circumstances in which the films were made when determining whether they are indecent material. The filming constituted an appalling invasion of the privacy of the individuals filmed for no purpose other than to satisfy the prurient interests of the appellant. Whatever might be said of his conduct in making the films and even allowing for the fact that it may be highly offensive, if not an outrage, to the sense of decency of any decent-minded citizen that the appellant should have made those films, s33(4) requires that those matters be put to one side as irrelevant considerations. Scenes such as those of toddlers playing on the beach or small boys changing are a reminder that what is offensive is the appellant's conduct and not his films.

There is nothing inherently indecent in scenes of boys urinating. As the learned magistrate observed, the depiction of boys urinating is not an uncommon topic on film. Those parts of the film which show boys urinating and do not show the penis do not, I think, offend contemporary community standards in this country. In the case of those scenes which show either part or the whole of the penis of boys who are urinating, the filming does not specifically focus on the genitalia of those boys. In some instances, the manner in which young boys have conducted themselves while urinating is amusing. I am unable to recall one incident in which a boy over twelve years old is shown urinating where the whole of his penis is shown. In most cases in which the whole or a substantial part of the penis is shown the boys are younger than twelve years and in some instances less than six years. A young boy urinating is the subject of a well-known manikin displayed in public streets in at least two Western European cities, pieces of statuary which cause amusement, not offence, to reasonable decent-minded citizens. In this respect, I do not think there is any discernible difference between the accepted community standards in Western Europe and Australia. I do not think that the depiction in these films of boys urinating offends contemporary community standards of decency in this country.

As I read the reasons of the learned magistrate, he has taken a like view of each of the incidents in these films in which the genitalia of the boys is shown. What he has regarded as offensive is the accumulation or repetition of each such incident in these films. It is not for this Court to impose its own standard and determine whether the films are indecent material. The issue is whether it was reasonably open to the magistrate to come to that conclusion. I think the learned magistrate has erred in his description of the films and that error has coloured his decision. It is not, I think, correct to describe the films as "scene after scene extending to several hours of video tape images of young boys dressing, undressing and urinating and thereby exposing their genitals." That description misrepresents the content of these films. Instead, as the analysis by counsel shows, the time in each film during which genitalia of boys is shown is a very small percentage of each film. It would be more correct to hold that there are hours of film showing men urinating or changing in public change rooms and thereby exposing their genitalia - but as I have said that is irrelevant for the purpose of this offence. I do not think it relevant to calculate the time occupied in each film by scenes of boys urinating whether genitalia is shown or not. The act of a boy urinating where the penis is not shown is not offensive to decent-minded members of the community. Neither is repetition of scenes of boys urinating where the penis is shown offensive by contemporary Australian standards. I respectfully agree with the learned magistrate that the films must be viewed as a whole. There may be occasions when that which is not offensive, when viewed alone, becomes offensive by dint of repetition. I do not think this is such an occasion.

However offensive might be the manner in which these films were made, the repetition of scenes of boys urinating, dressing and undressing is not, I think, offensive to contemporary standards in the Australian community. Other epithets might readily come to mind - "boring", "tedious" and "unedifying" are three. But it would, I think, be wrong to classify the films as indecent material.

JUDGE3 NYLAND J The appellant was convicted of two offences of being in possession of child pornography contrary to the provisions of s33(3) of the Summary Offences Act 1953 (the Act). I have had the advantage of reading the draft reasons of Debelle J. I wish to add my concurrence to his remarks and the conclusion he has reached as to the use of the words "indecent, immoral or obscene" in s33(1) of the Act. I should mention that I too have endured the tedium of viewing these films. I am of the opinion that the summary which was agreed before the learned magistrate does not accurately reflect the content of those films. As a result the magistrate, and subsequently the judge on the appeal, was led into error. The description of those films set out by Debelle J in his reasons accords with my assessment of them. I abhor the invasion of privacy and obvious prurient motive for the making of those films but I am enjoined by s33(4) to disregard those matters. The films are tiresomely iterative but I do not think they can be considered offensive to contemporary standards operating in the Australian community. I would not describe them as indecent material. For the reasons expressed by Debelle J I would allow the appeal and quash the convictions.