In this Part obscene (without limiting the generality of the meaning thereof) includes-(a) tending to deprave and corrupt persons whose minds are open to immoral influences; and (b) unduly emphasizing matters of sex, crimes of violence, gross cruelty or horror. (2) In determining for the purposes of this Part whether any article is obscene the court shall have regard to (a) the nature of the article and (b) the persons, classes of persons and age groups to or amongst whom it was or was intended or was likely to be pub- lished, distributed, sold, exhibited, given or delivered and (c) the tendency of the article to deprave or corrupt any such persons class of persons or age group-to the intent that an article should be held to be obscene when it tends or is likely in any manner to deprave or corrupt any such persons or the persons in any such class or age group, notwithstanding that persons in other classes or age groups may not be similarly affected."

Held (1) that sub-s. (1) means that an article is obscene if the conditions of either par. (a) or par. (b) are fulfilled; (2) in determining whether an article falls within either par. (a) or (b) of sub-s. (1) regard must be had to each of the matters enumerated in pars. (a), (b) and (c) of sub-s. (2).

Special leave to appeal from the decision of the Supreme Court of Victoria (Martin J.), refused.

APPLICATION for special leave to appeal from the Supreme Court of Victoria.

On 6th June 1956, James Ben Wavish, Senior-Detective of Police, as informant, laid an information against Associated Newspapers Limited, a company incorporated in the State of New South Wales and registered in the State of Victoria, as defendant, alleging that the defendant on or about 31st May 1956, at Melbourne, contrary to S. 171 (c) of the Police Offences Act 1928, as amended, distributed obscene articles, to wit, copies of a magazine called "People' dated 30th May 1956.

The information was heard before the Court of Petty Sessions at Melbourne constituted by H. R. Pyvis, Esq., Stipendiary Magistrate, who, on 18th July 1956, dismissed the information, holding that the article in question 'Love in the South Seas was not obscene

96 CLR 527

because it did not tend to deprave or corrupt persons whose minds were open to immoral influences.

The informant obtained from the Supreme Court of Victoria an order nisi to review the decision of the magistrate. The order nisi was heard before Martin J. who, in a written judgment delivered on 26th September 1956, held that the order nisi should be made absolute and the information remitted to the court of petty sessions for further consideration…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Associated Newspapers Ltd v Wavish

Details

AGLC: Associated Newspapers Ltd v Wavish [1956] HCA 69
Case: [1956] HCA 69
Decision Date: 25 October 1956

CaseChat Overview and Summary

This case concerned an application for special leave to appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The dispute arose from an information laid by Senior-Detective James Ben Wavish against Associated Newspapers Limited, alleging the distribution of obscene articles, specifically copies of a magazine titled "People". The magistrate who initially heard the case dismissed the information, finding the article in question, "Love in the South Seas," not to be obscene. The informant obtained an order nisi to review this decision, which was made absolute by Martin J. of the Supreme Court, who remitted the matter for further consideration on the basis that the magistrate had failed to properly assess the article's obscenity concerning sexual matters and community standards.

The legal issues before the High Court were primarily concerned with the interpretation of section 169 of the Police Offences Act 1928-1954 (Vict.). Specifically, the court was required to determine the meaning of "obscene" as defined in subsection (1), particularly whether the conditions in paragraphs (a) and (b) were cumulative or alternative, and how subsection (2), which outlines matters to which the court must have regard, applied in the determination of obscenity. The court also considered the scope of "articles" to which section 171 of the Act applied, in light of the inclusive definition in section 169.

The High Court held that subsection (1) of section 169 defines an article as obscene if it satisfies the condition in either paragraph (a) (tending to deprave and corrupt) or paragraph (b) (unduly emphasizing matters of sex, crimes of violence, gross cruelty or horror), rather than requiring both conditions to be met. Furthermore, the court determined that in assessing whether an article falls within either of these paragraphs, regard must be had to all the matters enumerated in paragraphs (a), (b), and (c) of subsection (2). These considerations are to be taken into account when determining the issue of obscenity under either limb of the definition. The court also affirmed that section 171 applies to publications and representational objects ejusdem generis with those described in the definition of "articles" in section 169.

The application for special leave to appeal was refused. The Court found that, based on its construction of section 169, an appeal could not succeed. The majority of the Court had read the article and were of the opinion that it clearly fell within the definition of "obscene," with the Chief Justice concurring based on sufficient exposure to the material.

Orders