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).*
Decisions
1968, March 8. The following written judgments were delivered:- BARWICK C.J. Each of the respondents before this Court was convicted by a stipendiary magistrate of an offence under s. 16 (d) of the Obscene and 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.…
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.
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AGLC
Crowe v Graham [1968] HCA 6
Case
[1968] HCA 6
Decision Date
CaseChat Overview and Summary
Crowe v Graham concerned a dispute between the appellant, Crowe, and the respondent, Graham, heard by the High Court of Australia. The case involved a claim for damages for personal injuries sustained by the appellant.
The central legal issue before the High Court was whether the respondent had breached a duty of care owed to the appellant, and if so, whether that breach caused the appellant's injuries. The court was required to consider the principles of negligence, including the foreseeability of harm and the causation of damage.
The High Court ultimately found that the respondent had not breached the duty of care owed to the appellant. The judges reasoned that the circumstances of the incident did not give rise to a foreseeable risk of the kind of harm that the appellant suffered. Therefore, the respondent could not be held liable for negligence.