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

HIGH COURT OF AUSTRALIA

CROWE v. GRAHAM [1968] HCA 6; (1968) 121 CLR 375

Police Offences (N.S.W.)

High Court of Australia
Barwick C.J.(1), McTiernan(2), Kitto(3), Windeyer(4) and Owen(5) JJ.

CATCHWORDS

Police Offences (N.S.W.) - Obscene and indecent material - "Indecent" - What constitutes publication - Obscene and Indecent Publications Act, 1901-1955 (N.S.W.), s. 16 (d).*

HEARING

Sydney, 1967, August 16, 17; 1968, March 8. 8:3:1968
APPEALS from the Court of Appeal Division of the Supreme Court of New South Wales.

DECISION

1968, March 8.
The following written judgments were delivered:-
BARWICK C.J. Each of the respondents before this Court was convicted by a Indecent Publications Act, 1901-1955 (N.S.W.) (the Act) and fined $20. From the magistrate's decisions, they applied under s. 112 of the Justices Act, 1902-1965 (N.S.W.) to a judge of the Supreme Court of New South Wales for rules nisi for writs of prohibition directed to the magistrate and to the informant, the now appellant, calling upon them to show cause why they should not be restrained from enforcing the fines. The rules nisi were granted and on their return before the Full Court were made absolute (1967) 85 WN (Pt 1) (NSW) 438 . From that decision, which was by majority, the informant by its special leave appeals to this Court. (at p377)

2. The prosecutions arose out of the publication of issues of two magazines respectively called "Censor" and "Obscenity", the prosecutions being directed against a single issue of each. The respondent Graham was, according to his oral admission to a police officer, the "editor, publisher and distributor" of "Censor" including the issue, No. 2, in question. This admission was the basis of the charge against Graham of "publishing" the issue of "Censor". The respondent Rogers was a newsvendor who conducted a stall in the street and there had for sale copies of this issue of "Censor". A detective sergeant of police bought a copy, paying Rogers its price and receiving from him the magazine. It was this sale and the delivery which it involved which was the publication upon which the informant relied to support the charge against Rogers of publishing the issue of "Censor". (at p378)

3. The respondent Duncan was the editor, the printer and the distributor of "Obscenity" No. 2 - copies of the issue in question having been proved to have been delivered by him to the respondent McKay for sale. (at p378)

4. The respondent McKay was a newsagent in whose shop a copy of the magazine "Obscenity" was displayed and from whom a copy was purchased by another detective sergeant who gave evidence of having uplifted the copy from a rack open to the public and thereafter paying that respondent therefor. Again, it was this sale and delivery which formed the basis of the charge of publishing laid against McKay. (at p378)

5. The charge in each case was for publishing written matter alleged to be indecent. The magistrate had had before him other informations against the respondents which charged that the said issues of the respective magazines were obscene but he refused to hold that they were obscene and had dismissed these charges. (at p378)

6. However, in considered judgments the magistrate came to the conclusion that the issue of each of the magazines was as a whole indecent. As the matter came before the Supreme Court and comes before this Court on applications for writs of prohibition, the question is whether or not there was any material before the magistrate upon which he could reasonably come to the conclusion that the appellants had published indecent matter within the meaning of s. 16 (d). The correctness of the magistrate's decision in point of fact was not submitted to the Supreme Court as upon an appeal nor is it so submitted to this Court. Thus, if his self-direction as to the construction of the section, particularly as to the meaning of the words "publish" and "indecent", was not erroneous, prohibition can only issue to restrain proceedings on his orders if he lacked material to support his ultimate conclusion. (at p379)

7. In the appeals of Duncan and McKay in connexion with the issue of the magazine "Obscenity", no challenge is made to the magistrate's finding that the issue was indecent within the meaning of the section. Thus, as to those cases, the only question is whether there was a relevant publication. (at p379)

8. The magistrate took that to be indecent which offends the ordinary modesty of the average man. Whilst he found understandable difficulty in identifying in this connexion the average man and even greater difficulty in feeling satisfied as to what the reactions of such a man would be to the issue of the magazine, in the end he came to a firm conclusion that the whole of the issue was offensive to the modesty of the ordinary man. As the aspects of the issue of "Censor" of which complaint was made and to which the magistrate referred were sexual, it was the modesty of the average man in such matters which was the criterion used by the magistrate in deciding the issue of indecency. (at p379)

9. I do not think this case calls for a full examination of the difficulties which are undoubtedly associated with any endeavour fully to explore the meaning of the words "indecent" or "indecency", and, in any case, I doubt the wisdom of endeavouring to do so. Nor do I see any need to traverse the ground sought to be covered by the majority judgment of the Supreme Court. To some extent, their Honours of the majority examined the propriety of the magistrate's decision rather than confine themselves to the question whether it was warranted upon the material before him. In my opinion, a picture, printed or written matter which, on being seen or read by him or her, 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 is indecent within the meaning of s. 16 (d) of the Act. It seems to me therefore sufficient in the case at this stage to say that the magistrate did not misdirect himself in holding that matter offensive to the sexual modesty of the average man is indecent within the meaning of s. 16 (d). 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 magazines 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. (at p379)

10. The next question is whether upon the material before him the magistrate could reasonably come to the conclusion that the issue of the magazine as a whole constituted indecent matter. After carefully considering the portions of the issue of "Censor" which are said to infringe the sub-section and the full discussion of this aspect of the case contained in the judgment of the Supreme Court, I have come to the conclusion that there was material on which the magistrate could find that several prominent parts of the magazine were indecent. I think that it could reasonably be said that in print in this magazine they are offensive to the sexual modesty of the ordinary man. However, there remains the question whether there was material on which the magistrate could hold that the issue as a whole was indecent. With this aspect of the case I have had greater difficulty. But, crediting the authors with a genuine desire to lampoon the procedures and results of censorship and not treating the issue as a whole as a mere cloak for the purveying of indecent matter (matters about which I have no need to express a firm opinion), I have yet reached the conclusion that I could not hold that there was no material on which the magistrate could find that the issue as a whole was indecent. This aspect of the case involved, I think, a question of balance and of deciding how the issue as a whole would affect the average man, considering his proper modesty in sexual matters. Though as to the publication as a whole, the balance may in this instance be marginal, there was, in my opinion, sufficient material to warrant the magistrate's conclusion. (at p380)

11. Consequently, in my opinion, the Supreme Court on this aspect of the case should have held that the magistrate had before him material upon which he could reasonably conclude that the issues of the respective magazines constituted indecent printed matter within the meaning of s. 16 (d). (at p380)

12. There remains the question whether the respondents relevantly published the respective issues of "Censor" and "Obscenity". I have not found this question at all easy of resolution. It is not unimportant to recall the evidence said to establish the publication. In one case, a defendant in substance says he was the editor, publisher and distributor of the particular issue of "Censor" but otherwise no act with respect to that issue is proved against him. In two cases, a sale and consequential delivery of a copy of the issue of a magazine is proved. In each case a copy, or at least the first page of a copy of the magazine, is publicly displayed with a view to sale to the public, or, at any rate, the adult public. In the remaining case, the defendant admitting that he was the editor and publisher of the issue was proved to have delivered copies of the issue in question of the magazine to a newsvendor with a view to their sale to the public, which may be taken as in the other cases to mean the adult public. (at p381)

13. The Act maintains a distinction between matter that is obscene and matter which is indecent. The legislature has paid particular attention to obscene matter. The provisions of the Act with respect to it are more extensive than is the case with respect to indecent matter. As well, the legislature has twice amended the definition of "obscene publication" in s. 3 : see the Amendment Acts No. 36 of 1946, s. 2 (a) and No. 10 of 1955, s. 2 (a). In some respects, however, the Act treats the obscene and the indecent publication alike, as for example, in the operation of s. 4 and in the terms of s. 16 (b), 16 (c), perhaps in s. 16 (e) if upon its proper construction "such" in that sub-section is not limited because of its context to those pictures, printed or written matter which fall within s. 16 (d), 16 (f). (at p381)

14. Section 4 provides a limited exclusion from the operation of the Act in the case of literary and artistic works and medical and scientific publications. The reasons therefor are clearly applicable to both obscene and indecent publications whatever the relevant relationship of obscenity and indecency. Section 16 (b) with its ancillary provision in s. 16 (c) seems also to be founded on reasons likewise applicable to each type of matter. The same is true I think of s. 16 (e) even if it be not limited to matters falling within s. 16 (d). The prohibition on postal communication of obscene and indecent matter seems to me to be founded on considerations which could be appropriate to the use of the indecent as well as of the obscene, however narrowly one were to treat indecency and whatever denotation one gave to the word "publish" in its context in s. 16 taken as a whole. (at p381)

15. But s. 16 (a) deals only with obscene publications and s. 16 (d) with indecent publications. Of course, the principal offences in each case depend fundamentally upon the obscene or indecent matter obtaining currency. Ancillary offences, such as those for which s. 16 (c) and s. 16 (e) provide, relate to steps antecedent to the matter being launched, though in the case of obscene matter the initial act of bringing the matter into existence is included in the principal offences - e.g. prints, draws, makes : see s. 16 (a). But, though so included, the offence depends upon there being not "matter" as in s. 16 (d), but a "publication". This seems to involve the obscene production in having to some extent obtained currency with the public before the act of creating it becomes an offence. I do not think the definition of obscene publication in s. 3 tells against such a view. It is evident that the legislature has regarded obscene matter as being different from and requiring different treatment from indecent matter and the treatment accorded indecent matter. I do not think it is really profitable for present purposes to seek to explicate the reasons the legislature may have had for this course, or which the history of the legislation may suggest. Counsel has assisted us with the legislative history of the sub-sections of s. 16 and we have the advantage of the analysis made by the majority of the Supreme Court. But for my part I derive no real assistance in the construction of s. 16 (d) from this history and its analysis. Suffice it that obscene matter and indecent matter are treated differently by the Act in the creation of offences under s. 16 (a) and s. 16 (d). The differences between the sub-sections are very notable. Selling of obscene publications is an offence but selling indecent matter is not, unless to sell is to publish within the meaning of s. 16 (d). I think that sale is regarded in some of the sub-sections as a form of publication, for in s. 6 (c) the collocation is "sold distributed exhibited lent or otherwise published for the purpose of gain" : but in that context sale is treated as a separate and distinct act not comprehended in the operation of the expression "otherwise published". Although each described act is not necessarily mutually exclusive of each other such act, that expression "otherwise published" refers in that sub-section, in my opinion, to some act which is not sale, distribution etc. Again, in s. 16 (a) the collocation is "prints, photographs lithographs draws makes sells . . . publishes distributes or exhibits". Here again, sale and publication are regarded as different acts though no doubt some overlap is possible. Consequently, I regard the inclusion of sale in the prohibition of s. 16 (a) and its absence in s. 16 (d) as particularly significant. I am unable to construe "otherwise publishes" in the latter section as including "sale". I conclude, therefore, that selling indecent matter is not an offence under that sub-section. But is a delivery in the course of or in furtherance of a sale an offence? I have reached the conclusion that it is not. (at p382)

16. First of all, I do not think that "delivery" in s. 16 (d) refers to such a delivery. It is delivery of such a kind that an attempted delivery is an offence. I have difficulty in comprehending a situation where a sale is not an offence but an attempted delivery of the article sold is. It seems to me that both the delivery and attempted delivery of which s. 16 (d) speaks do not include a delivery or attempted delivery in pursuance of or as part of a sale of indecent matter. On the other hand, I would not be prepared to exclude from the operation of so much of s. 16 (d) as refers to delivery or attempted delivery of indecent matter a consensual delivery, in the sense that the recipient either sought or willingly accepted the delivery. There is probably a wide field of acts which in their circumstances would satisfy so much of the sub-section. It is sufficient for present purposes that delivery as part of or upon sale, in my opinion, would not. (at p383)

17. Consequently, in my opinion, the convictions of Rogers and McKay cannot be supported merely upon the act of delivering the copy of the magazine in pursuance of its sale. But it was suggested in argument that the display of the copies of the magazines on the news-stand was itself a relevant publication. Apart from the fact that none of the matter which would justify a conclusion that the issue as a whole was indecent, was thus presented to public view, the act of carrying a stock of the magazine with a view to sale was not, in my opinion, a publication of the issue within the meaning of the sub-section. Although, as will shortly appear, I do not accept the view that only a display against the wish of the member or members of the public to whom the display is made will amount to a relevant publication, I do not think that the newsvendor is a publisher of the stock he holds or displays for sale. Indeed, if, as I think, selling indecent matter is not an offence, it would be strange that holding or displaying a stock of copies of a magazine which amounted to indecent printed matter, were an offence, unless of course the indecent matter in the magazine was itself paraded to view. Therefore, in my opinion, the appeals in the cases of Rogers and McKay should have been dismissed. (at p383)

18. There remains the question whether the convictions of the respondents Graham and Duncan should stand. Each of them admitted being the publisher of the matter complained of : and in the case of Duncan actual distribution by him was established. I think the admissions made by each of them should be understood as establishing that each had made available to the public the issue of the respective magazines with which he was charged. The making of the admission, in my opinion, removes the need to ascertain and examine the precise manner in which each respondent did make the indecent matter available to the public. The question is whether to do so is to otherwise publish within the meaning of s. 16 (d). (at p383)

19. It is said for the respondents, and it was accepted by the majority of the Supreme Court, that to satisfy the terms of the sub-section the publication must be in invitum of the persons to whom the indecent matter thereby becomes known. This is said to be derived in part at least from the legislative history of the sub-section and in part from the association of the expression "otherwise publishes" with the antecedent descriptions of specific proscribed acts. In this connexion it was suggested that there was a genus in those described acts which controlled the meaning of the word "publishes", and that that genus was of acts done without the concurrence of the persons to whom the indecent matter became known by the proscribed act. (at p384)

20. I have already indicated that I have been unable to found anything upon the legislative history of the statutory provisions. The elements of the sub-section probably derived from Acts passed from time to time to deal with particular currently prevalent evils. But, in the end, the legislature having aggregated the various acts dealt with by the several statutes later added the words "otherwise publishes" to an earlier form of the sub-section. The question now is what meaning must be given to those words standing in the present sub-section. If the acts which the sub-section had already proscribed had truly been a family, the addition of the words "otherwise publishes" might have been limited to such an act as could fairly be called another member of it. But the only common element in the collocation of acts described in the sub-section is, in my opinion, that of making or attempting to make the offending matter known to a member or members of the public. It is not that the viewer is unwilling to look but that the producer of the indecent matter takes steps that he can or should see it which in each instance makes the offence and which is, in my opinion, the reason for creating it. That the scribbler on the wall does so in the presence of his companions and at their behest or with their encouragement would not, in my opinion, exclude him from the operation of the section, though no one else chanced upon the scribblings. Also the visibility of his scribbling would bring him within the sub-section though until the informant arrived none had seen it. Each of the specifically proscribed acts is, in my opinion, a means of making the indecent matter known or available to members of the public and, in my opinion, none of them of its nature involves the antipathy or hostility of those to whom the indecent matter is communicated or made available. After detailing these specific acts, the sub-section in adding the words "otherwise publishes", in my view employs a dragnet to bring in all other acts of making indecent matter known or available to the public or some member or members of it. This common element perhaps does not make a genus of the described acts : if it does, the general characteristic would not exclude a "consensual" or sympathetic reception of the indecent matter. But whether or not there is a genus, other ways of making the indecent matter known to or available to the public or some member or members of it are, in my opinion, comprised in the expression "otherwise publishes". But for what I regard as the deliberate exclusion of sale from the collocation of the particular proscribed acts, it may well be that sale itself of the indecent matter in given circumstances could fall within the expression "otherwise publishes". But as I have said, the clear distinction between ss. 16 (a) and 16 (d) makes it impossible to my mind to include sale in the expression as used in the latter sub-section. Accordingly, in my opinion, because on their own admissions they did make the respective issue available to the public, the writs of prohibition ought not to have been issued in the case of Graham and Duncan. (at p385)

21. In my opinion, the appeals in the case of Graham and Duncan ought to be allowed, in each case with costs, and those in the cases of Rogers and McKay ought to be dismissed with costs. (at p385)

McTIERNAN J. I would allow these appeals. I agree in general with the reasons of the learned President of the Court of Appeal of the Supreme Court of New South Wales. (at p385)

KITTO J. Each of the appellants was convicted under par. (d) of s. 16 of the Obscene and Indecent Publications Act, 1901-1955 (N.S.W.) of having published indecent printed matter, the printed matter being identified in the cases of Graham and Rogers as "a publication called 'Censor' No. 2" and in the cases of Duncan and McKay as "a publication called 'Obscenity' No. 2". (at p385)

2. Paragraph (d) makes a person punishable who does any of a variety of acts with respect to any indecent or obscene picture or printed or written matter, including a person who "otherwise publishes" it. The contrast indicated by the word "otherwise" is with acts of which some are acts of exhibition to the public, described either by reference to public visibility or public view or by reference to the public nature of the place. The others are acts in relation to a person not specifically described as a member of the public or a place not ordinarily accessible to the public. In this latter class of cases the mere likelihood or chance that the disposing of the indecent or obscene matter in any of the indicated ways will bring it to the notice of a person is evidently regarded as enough. (at p385)

3. The respondents contend that each of these acts is an act of exposing the indecent or obscene matter to the view or possible view of a person not antecedently willing to see it or read it, and that "otherwise publishes" should accordingly be construed as limited to the issuing of the matter to such a person. If this be so, the appellants should succeed, for in each case the only evidence of publishing related to an issuing of the printed matter to a person who deliberately set himself to receive it. I am unable to agree, however, that absence of antecedent willingness in the beholder or reader is an ingredient in or condition of any of the offences described in the words that precede "or otherwise publishes". No doubt it is true of each that in many cases of its commission the persons who will see or read the indecent or obscene matter will be persons who find themselves unexpectedly confronted by it ; but in this consideration there is insufficient ground, I think, for inferring that the element of unexpectedness or absence of willingness is made essential to all these offences and is therefore meant to be understood as essential to the offence of otherwise publishing. (at p386)

4. The learned judges who were in the majority in the Supreme Court were constrained to a contrary conclusion by the presence in par. (a) of the same section of a provision which makes it an offence to publish any obscene publication. They accepted a contention that as this provision extends to the case of the issuing to a consenting recipient of an obscene (as distinguished from a merely indecent) publication par. (d) should be construed as not covering the same ground in the case of an obscene publication and as therefore not covering that ground in the case of an indecent publication. Whatever force there might have been in this reasoning if s. 16 had been drafted originally as a whole there is none, in my opinion, when it is remembered that whereas par. (a) was taken from s. 2 of the Obscene Publications Prevention Act, 1880 (43 Vict. No. 24), par. (d) was taken from s. 1 (3) of the Indecent Publications Act, 1900 (No. 2 of 1900) which was described in its long title as an Act to suppress indecent and obscene publications. The latter Act did not show an intention merely to build upon the earlier, or to provide only for cases not covered by pre-existing legislation, and I think with respect that it is a mistake to infer from the fact that the two provisions are carried into the one consolidating Act that par. (d) in its application to the publishing of obscene matter extends only to acts not covered by par. (a). (at p386)

5. I shall not attempt an exhaustive definition of the expression "otherwise publishes". It is sufficient to say that reading the expression in the light of the nature and context of the whole Act, I would understand it to be satisfied whenever a person parts with indecent or obscene matter in such circumstances as to show an intention thereby to cause it to be available to be looked at (in the case of a picture) or read (in the case of printed or written matter) by a person or persons other than himself. (at p387)

6. The respondent Graham admitted he was the editor and publisher and distributor to newsvendors of the relevant issue of "Censor", so that he plainly published copies of it. The respondent Rogers was a street seller of copies of the same issue, and in fact sold and delivered some copies to members of the public ; so that he too published copies. The respondent Duncan was the editor, printer and distributor of the relevant issue of "Obscenity", and himself left some copies of it with news agents and street sellers for sale. That is enough in my opinion to constitute a publishing of the issue. The respondent McKay displayed copies of the same issue in his shop and a person bought one by picking it up himself from the rack and paying for it. This was in my opinion as surely a publication of the copy as if McKay not only had exhibited it for sale but had actually taken it from the rack and handed it to the purchaser. (at p387)

7. I am clearly of opinion that the magistrate was justified in finding that the printed matter in question was indecent. The printed matter which was the subject of the charge in each case was the entirety of a copy of the relevant issue of "Censor" or "Obscenity". Each copy contained much that was plainly not indecent, but there was enough in it that just as plainly was indecent to make it proper for the magistrate to conclude that the ordinary person in this community, picking up the copy and reading it as a whole, would regard it as a publication offensive to his or her modesty in regard to matters of sex, and that therefore the magistrate was justified in finding that the offence as charged was proved. (at p387)

8. I would allow the prosecutor's appeal in each of the four cases. (at p387)

WINDEYER J. The first question in each of these cases is whether what was done was "publishing" printed matter within the meaning of s. 16 (d) of the Obscene and Indecent Publications Act, 1901-1955 (N.S.W.). We must read par. (d) of s. 16 as it stands in the Act, recognizing its periphrasis ; and remembering too that the Act of 1901 was a consolidation of earlier Acts then in force in New South Wales, and that this explains some tautology, and a lack of linguistic harmony in its several parts. It is thus I think necessary to read each part of s. 16 as self-contained. I do not think that the scope of s. 16 (d) should be confined by a comparison of it with s. 16 (a). Therefore, although I recognize the force of what the Chief Justice has written, I am, with respect, unable to agree that in this case some of those charged are in a different position from the others. (at p388)

2. The words "or otherwise publishes" in s. 16 (d) mean "or in other wise publishes" that is to say "in some other manner or way publishes". To read "or otherwise" as meaning "likewise", "in some like manner or way", seems to me a departure from the ordinary meaning of the phrase. I do not think that the meaning and operation of s. 16 (d) are to be ascertained by asking what it would mean if the words "or otherwise publishes" were not there, and then treating them as something added. It is true that they did not appear in an enactment which can be regarded as the forerunner of s. 16 (d). And it is true that that enactment appears to have been designed to prevent indecent prints and pictures being in one way or another forced upon the notice of unwilling persons. The acts it prohibited were nuisances, conduct annoying to persons unwillingly subjected to it. It can thus be said that if s. 16 (d) did not include the words "or otherwise publish" it would create a number of particular offences having a common characteristic, being in that sense generic. But the words "or otherwise publish" are there. Their effect is not to enlarge an existing genus by adding new things of like kind. It is to demonstrate a different and wider genus to which the prohibited acts all belong, namely publishing. Those who like Latin tags as rules of construction should remember that the ejusdem generis doctrine should be understood with, and in a sense as an exception to, the rule generalia verba sunt generaliter intelligenda. I consider it is plain that if s. 16 (d) be read according to the ordinary rules of grammatical construction the earlier words state particular manners or ways in which obscene and indecent material can be published. A charge that an accused did publish specified indecent or obscene matter by delivering it to another person would, in my opinion, be good. But an information which alleges, as was the case here, that a person "did publish indecent printed matter" is also I think quite sufficient, although it might sometimes be necessary to furnish the accused with particulars of the manner of publication. The act of publishing could be proved by proving that the matter charged was offered or made available to members of the public - that is to say that it was distributed, circulated or offered, for sale or otherwise, to the public. The ordinary meaning of "publish" is simply to make public : Boucicault v. Chatterton (1876) 5 Ch D 267, at p 281 . A printed work is published when it is issued to the public. Delivering an indecent picture or print to one person would not necessarily be a publishing of it : but if that person was a member of the public, someone whose only connexion with the accused was that he was the purchaser or recipient of the article from him, a publishing of it could be inferred : cf. Scott and Martindale v. Kemp (1911) 31 NZLR 238 . Statutes prohibiting the publication of matter which the law deems nefarious have generally a wide operation : see e.g. Dew v. Director of Public Prosecutions (1920) 37 TLR 22 ; Ranson v. Burgess (1927) 43 TLR 561 . In my opinion the evidence supported the allegation of publishing the printed matter in each of the cases before us. (at p389)

3. The next question is whether the Supreme Court was correct in setting aside the finding of the magistrate that "Censor" No. 2 was an indecent publication. That decision, like the decision that there had not been a "publishing", was reached by a majority : Jacobs J.A. and Holmes J.A., Wallace P. dissenting. I think the judgment of the majority was mistaken. In my opinion there was evidence on which the magistrate could find the publication was indecent ; and, that being so, his decision ought not to have been disturbed. (at p389)

4. The sharp distinction which the majority judgment made between matter which is obscene and matter which is indecent is, in my opinion, invalid. I cannot accept their Honours' assumption that the two adjectives reflect different purposes of the law. They said (1967) 85 WN (Pt 1) (NSW), at p449 that the criminal law aims to suppress obscenity "to protect the private morality of the individual" ; "whereas the law relating to indecency", they said, "is not concerned with the individual's morals, but with his liberty to live free from interference by the presentation before him of what offends him, what is indecent to him as a member of the community". They said that the law relating to indecency, contrasted with the law relating to obscenity, "is not a law which impinges upon the liberty of the individual but rather is one which protects that liberty". If it were necessary to find the general principle on which since the early eighteenth century temporal courts have concerned themselves with the protection of "public morals", I would say only that I do not accept their Honours' remarks as an accurate, full and sufficient statement. And I do not think they are helpful for the construction of the New South Wales statute with which we are concerned. (at p389)

5. 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) 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. (at p390)

6. In the present case we are not concerned with indecency in the general sense in which the Court of King's Bench adopted the word when it first asserted a duty to be custos morum. We are concerned with a particular kind of indecency - that of publishing an "indecent or obscene picture or printed or written matter", made an offence by an Act relating to "the prevention and suppression of obscene and indecent publications". The phrase "obscene or indecent" does not here denote different things, except so far as by statutory definition the denotation of either term has been extended for the purposes of the Act - a matter to which I shall come later. An offence under s. 16 (d) can therefore be charged as a publishing of matter which is "indecent or obscene". Such a charge is not bad for duplicity. That has been decided in Scotland - rightly I think. A court in convicting an offender may prefer to describe a particular publication as indecent, which is said to be the milder term, or to condemn it more vigorously as obscene. The magistrate held "Censor" No. 2 to be indecent, and he held "Obscenity" No. 2 to have been indecent, but not obscene. If he could hold either indecent, I can see no reason why he should not, had he wished, have held it obscene. The decision in Reg. v. Stanley (1965) 2 QB 327 is based upon the view that the two words, when used in a statutory context like that which they have in the Act, describe the one offence, an offence long known to the common law before it was made punishable summarily. Ever since 1727 publishing an obscene libel has been an indictable offence : R. v. Curl (1727) 2 Str 788 (93 ER 849) . Libel there means only a writing, not necessarily one defamatory of an individual. The decision in Reg. v. Read [1748] EngR 280; (1708) Fort 98 (92 ER 777) has been overturned. Publishing an obscene libel is indictable in New South Wales : see s. 24 of the Act. It is also punishable summarily under s. 16 (a), (b) or (d). The common law thus provides the meaning of the word "obscene". I turn therefore to the old form of indictment for an obscene libel. (at p391)

7. This commenced by referring to the accused in opprobrious and pejorative terms as, for example - "a person of most wicked, lewd, lascivious, depraved and abandoned mind and disposition and wholly lost to all sense of decency, chastity, morality and religion". It then went on to allege, in language of which the following is an illustration, that he "wickedly, devising, contriving and intending to vitiate and corrupt the morals as well of youth as of divers other liege subjects of our lord the King and to stir up and excite in their minds filthy, lewd and unchaste desires and inclinations did publish obscene, filthy and indecent prints". The adjectives were taken to be synonymous. Other epithets, such as "bawdy", were sometimes used to accompany "obscene". Examples may be found in the chapter, "Indictments for Offences against Morality and Decency" in Chitty's Criminal Law, 2nd ed. (1826), vol. ii, pp. 41-48. What was obscene was indecent. The two words when used in an indictment were used conjunctively not disjunctively. How then does it happen that in s. 16 (d) of the statute the phrase used is "indecent or obscene picture or printed or written matter"? The explanation is that the prototype of s. 16 (d) is to be found in the Indecent Advertisements Act, 1889 of the United Kingdom. This referred to "any picture, printed or written matter of an indecent or obscene nature". Certain advertisements relating to venereal diseases and other complaints "arising from or relating to sexual intercourse" were declared to be of "an indecent nature". This was because advertisements of that character would not necessarily have been obscene according to the meaning that word had for the common law. Section 16 (d) must, as I have said, be now read as it stands. Its prohibition is not now limited to conduct which was within the earlier legislation against indecent advertisements. But it still covers that field, because the words are still "indecent or obscene" : and the definition of an indecent advertisement etc. remains, being now in s. 3 (1). This disposes of the notion that, because the words, indecent or obscene, appear disjunctively in s. 16 (d), they are in their ordinary sense alternatives. They are not : a publication could be quite properly described as indecent because obscene. Obscenities are always indecent but all indecency is not obscene. (at p392)

8. Several things may be learnt from the counts in the old indictments which it is important to remember. The first is that the word "obscene" meant "lewd" or "bawdy". That lewd publications could have an evil influence on the minds of young people was an assumption of the law ; that they could also be attractive to them was accepted as a fact, as witness Shakespeare's reference to "lascivious metres to whose venom sound the open ear of youth doth always listen". But, although an intent to deprave, corrupt and injure morals was always alleged as an element in the common law offence, that intent was, so far as I am aware, always found from the nature of the publication and the fact of publication. If the matter of the publication was an offence against decency, it was assumed that its publication was subversive of the morals of the public or a section of the public and that it was with this intent that it was published. (at p392)

9. This is important when we come to modern times, because for the past hundred years the meaning of obscenity in criminal law has been said to depend upon the words which Cockburn C.J. used in Reg. v. Hicklin (1868) LR 3 QB 360, at p 371 : "I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." Despite the obvious unsuitability of this sentence as a legal deinition of obscenity, it, taken from its context, has had a great vogue. It has fostered much misunderstanding. But it has been too often repeated to be now discarded. And it is at the base of statutory definitions of obscenity, both in England and Australia. Yet it has only survived really because, although constantly mentioned, it and its implications have been ignored. Courts have not in fact asked first whether the tendency of a publication is to deprave and corrupt. They have asked simply whether it transgresses the bounds of decency and is properly called obscene. If so, its evil tendency and intent is taken to be apparent. As Professor Glanville Williams has put it, "The tendency is merely inferred by the court as a matter of law from the publication complained of. To put the matter in realistic terms, no such tendency is necessary, it being sufficient that the writing complained of goes so far beyond accepted standards as to shock the tribunal of fact" : Criminal Law, General Part, 2nd ed. (1961), p. 70. This, it may be noticed, was really how Cockburn C.J. himself applied his test : for his very next sentence reads (1868) LR 3 QB, at p 371 : "Now with regard to this work it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character." That is what he meant by "deprave and corrupt" ; and that is the sense in which the common law indictments spoke of corrupting men's morals or infecting their minds. His Lordship had earlier (1868) LR 3 QB, at p 370 described the book in question as "to a considerable extent an obscene publication and, by reason of the obscene matter in it, calculated to produce a pernicious effect in depraving and debauching the minds of the persons into whose hands it might come". (at p393)

10. It is not to the point for a court, having to decide whether or not some matter is obscene, to ask, with or without the aid of psychiatric learning, whether or not obscene publications can lead from unchaste thoughts to evil actions. Opinions of weight have been expressed one way and the other on that. The question may be of interest for persons who, from good motives or selfish motives, wish to promote some view of what the law on this topic should be. It matters not to those concerned only to know and apply it as it is, who in asking whether any publication is obscene must consider only the subject dealt with and the way in which it is treated. Fullager J. discussed the so-called Hicklin test in his judgment in R. v. Close (1948) VLR 445 - a judgment which I take the liberty of describing respectfully as a most notable contribution. I shall quote only one passage, about which I wish to make some observations. His Honour said (1948) VLR, at p 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 C.J., in the passage quoted from
R. v. Hicklin (1) 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."

Of this I would say only that the word "obscene", as an ordinary English word, does, I think, still carry the meaning which Doctor Johnson gave as its primary sense : "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 Doctor Johnson as "offensive ; disgusting". Writings are obscene by reason of what they describe, express or bring to mind, and the way and the words by which they do it. 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. (at p394)

11. Are we then to understand the words "obscene" and "indecent" in the Obscene and Indecent Publications Act in any different sense from that which at common law and in ordinary speech they have long had? The Act does not directly or exhaustively define either word. I have said the definition in s. 3 (1) of "indecent" in relation to certain advertisements etc. is merely to bring them within the prohibition of the Act although they would not necessarily be so. Neither is "obscene" defined except in so far as s. 3 (2) and s. 3 (3) give it a denotation which is expressly said to be "without prejudice to the generality of the meaning of the word 'obscene'". In the result then, whatever secondary or additional meanings have been laid upon the word obscene, it has not lost the meaning of filthy, bawdy, lewd and disgusting ; and any tribunal which has to say whether a thing is obscene has only to say whether the word reasonably describes the thing. In Reg. v. Reiter (1954) 2 QB 16 the Court of Criminal Appeal in England, in a judgement given by Lord Goddard C.J., adopted a passage from the judgment of Lord Justice-General Cooper in Galletly v. Laird (1953) SC (J) 16 as stating the law of England as well as the law of Scotland. And I have no doubt that it applies equally to the law of New South Wales. I quote one passage (1953) SC (J), at p 26 :

"The book or picture itself provides the best evidence of its
own indecency or obscenity or of the absence of such qualities ;
and if in any case the magistrate's decision is challenged, the
only method by which an appellate tribunal could determine
whether the magistrate was entitled to reach the conclusion
which he did would be by examining the book or picture, not
with a view to re-trying the case but solely with a view to
discovering whether they revealed evidence on which a
reasonable magistrate would be entitled to dondemn them as
indecent or obscene." (at p394)

12. The case in England was decided before the amendments of the New South Wales statute made in 1955. These require a magistrate, dealing with a charge that a publication is obscene, to have regard to the matters referred to in s. 3 (3). The result seems to be an adoption in a modified form of the Hicklin test. The consequences which amendments of the common law on these lines can have is exemplified in the United Kingdom by some surprising effects of the Obscene Publications Act 1959 which are mentioned in a note in the Law Quarterly Review (1962), vol. 78, pp. 477-480. When the test of obscenity is by statute made simply a tendency to deprave and corrupt, a publication which deals with drugs and drug addiction can be condemned as obscene: John Calder (Publications) Ltd. v. Powell (1965) 1 QB 509 . But, except in so far as it directs attention to readers of a particular class or age group, s. 3 (3) does not I think alter the meaning of the words deprave, corrupt or injure morals when used in connexion with obscenity in the sense of lewdness; and that is the sense in question in the present case. (at p395)

13. However, it is useful to mention in passing that the legislature in 1955 did not only direct attention to matters which were to be considered in determining whether a publication was obscene. Being desirous of suppressing publications of a kind which were considered objectionable on other grounds, it adopted the clumsy expedient of deeming then to be obscene. Section 3 (2) reads as follows:

"Without prejudice to the generality of the meaning of
the word 'obscene', any publication or advertisement shall
be deemed to be obscene if it unduly emphasizes matters of
sex, crimes of violence, gross cruelty or horror."

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) 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) 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."

And Owen J. said (1902) 2 SR (NSW), at p 224 :

"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) 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) 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)

10. I would allow each of the appeals. (at p405)

ORDER

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.