Fraser v Walker
[2015] VCC 1911
•19 November 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
APPEALS
Case No. AP-14-1811
| MICHELLE FRASER | Appellant |
| v | |
| CONSTABLE BRENTON WALKER | Respondent |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 October 2015 | |
DATE OF JUDGMENT: | 19 November 2015 | |
CASE MAY BE CITED AS: | Fraser v Walker | |
MEDIUM NEUTRAL CITATION | [2015] VCC 1911 | |
REASONS FOR DECISION
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Subject:APPEAL
Catchwords: Appellant convicted in Magistrates’ Court of one charge of displaying obscene figure in a public place – appeal against conviction and sentence – amendment of charge – whether the figures displayed were “obscene” within the section of the Act charged – whether the section applied in all of the circumstances – viewed objectively, figures obscene – appellant argued certain human rights – interpretation of s17(1)(b) – proper application of provision – provision is enforceable
Legislation Cited: Criminal Procedure Act 2009, s254, s256(3); Summary Offences Act 1966, s17(1)(b); Charter of Human Rights and Responsibilities Act 2006, s32(1)
Cases Cited:Crowe v Graham (1968) 121 CLR 375; R v Hicklin (1868) LR 3 QB 360; Romeyko v Samuels (1972) 2 SASR 529; Monis v The Queen (2013) 249 CLR 92; Pell, Archbishop of Melbourne v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391; Baini v R (2012) 246 CLR 469; Regina (ProLife Alliance) v British Broadcasting Corporation [2002] EWCA Civ 297; [2003] UKHL 23; Slaveski v Smith [2012] VSCA 25; Coleman v Power (2004) 220 CLR 1; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Levy v State of Victoria (1997) 189 CLR 579; Lange v Australian Broadcasting Commission (1997) 189 CLR 520
Decision: Charge proven.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C Brohier | Khor & Burr |
| For the Respondent | Ms E H Ruddle (appeal) Mr A Castle (to hear judgment) | Solicitor for the Office of Public Prosecutions |
HIS HONOUR:
1 This an appeal by Michelle Fraser against Orders made in the Magistrates’ Court at Melbourne on 5 August 2014. On that day, the appellant was convicted of one charge of displaying an obscene figure in a public place, namely, the footpath outside the East Melbourne Fertility Clinic. She pleaded not guilty to the charge. She was convicted and fined $600 and the Magistrate allowed the fine to be paid by monthly instalments of $100, with the first payment due on 5 September 2014.
2 The appellant immediately lodged a Notice of Appeal against her conviction and sentence. The appeal is of right pursuant to s254 of the Criminal Procedure Act 2009. Any appeal brought pursuant to this provision is a rehearing in the nature of a hearing de novo.
3 I heard the appellant’s appeal on 7 October 2015. Mr Brohier of Counsel appeared on behalf of the appellant and Miss Ruddle appeared on behalf of the respondent. At the outset of the appeal, I allowed the prosecution to amend the wording of the charge by deleting the word “an” and permitting the word “figure” to read in the plural “figures” so that the charge was amended to read as follows:
“The accused at East Melbourne on 16 February 2013 did display obscene figures in a public place namely the footpath outside the East Melbourne fertility clinic.”
4 Before me, the appeal proceeded as a plea of not guilty.
5 The charge alleges an offence contrary to s17(1)(b) of the Summary Offences Act 1966 (“the Act”). Relevantly, that section provides as follows:
“Obscene, indecent, threatening language and behaviour etc. in public
(1)Any person who in or near a public place or within the view or hearing of any person being or passing therein or thereon—
(a) sings an obscene song or ballad;
(b) writes or draws exhibits or displays an indecent or obscene word figure or representation;
(c) uses profane indecent or obscene language or threatening abusive or insulting words; or
(d) behaves in a riotous indecent offensive or insulting manner—
shall be guilty of an offence.
Penalty: 10 penalty units or imprisonment for two months.”
6 On appeal, in order to prove the charge beyond reasonable doubt, the prosecution is required to prove the following elements of the charge:
· first, that at the date and place of the alleged offence, the accused:
displayed obscene figures;
· in a public place.
7 The evidence called was brief. The prosecution called Janice Nugent, who was the practice manager at the Fertility Control Clinic conducted at 116 to 118 Wellington Street, East Melbourne. She gave evidence that a number of patients had complained about demonstrators on the footpath outside the clinic and she reported these complaints to the police. She said the appellant was holding posters with two photographs of what she described as “foetal material” up to 16 weeks’ gestation.
8 Senior Constable Brenton Walker gave evidence that on the day of the alleged offence, he attended the Melbourne Fertility Clinic in Wellington Street, East Melbourne where he saw the appellant displaying placards of photographs which he described as dead foetuses. He said they were size A3 and he said he took photographs of the placards. The photographs were size A4.
9 I marked as exhibit “A” on the appeal a hard copy of the photographs taken by Senior Constable Walker. On each placard is a photograph of what appears to be a small aborted foetus covered in blood and displayed in such a way as to give an indication of the size of the foetus by a comparison with other objects also displayed in the photograph. For example the photograph on the right-hand side of the exhibit displays the head of the aborted foetus lying on top of what appears to be a one dollar coin by way of comparative size. The photograph on the left also appears with some parts of a human finger included in the photograph giving some impression of the size of the aborted foetus.
10 In cross-examination, Senior Constable Walker agreed that the footpath outside the premises of the Melbourne Fertility Control Clinic in Wellington Street is regularly used as a place of protest by those who oppose the work conducted within the clinic and also by those who support the work conducted within the clinic. There is no issue between the parties that the plaintiff was displaying the figures in a public place. The issues were, whether the figures displayed were “obscene” within the section of the Act and, whether the section applied in all of the circumstances.
11 The legal representatives of both parties filed detailed submissions for which the Court is appreciative. It is common ground between the parties that the figures displayed by the appellant do not display content that could in any way be described as sexually explicit.
12 Mr Brohier, in his detailed written submission, traced the legislative history of what is now s17(1)(b) of the Act. He submitted that the burden of the authorities is that the meaning of “obscene” at common law is that in order for some act to be obscene, there must be some sexual connotation. Relevantly, in this case, Mr Brohier submits that the appellant’s conduct in displaying the figures produced as exhibits could not be regarded as displaying obscene material, because the material itself does not have any sexual connotation.
13 Mr Brohier relies, for the submission, principally upon the decision of the High Court in Crowe v Graham.[1] In particular, he relied upon a short passage from the judgment of Mr Justice Windeyer at page 395, where his Honour said:
“… 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? … .”
[1](1968) 121 CLR 375
14 Earlier in his judgement, Mr Justice Windeyer had set out a well-recognised passage from the judgement of Cockburn CJ, in R v Hicklin,[2] where his Honour said, inter alia:
“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.”
[2](1868) LR 3 QB 360
15 Mr Brohier also relied upon statements in the judgment of Chief Justice Bray in Romeyko v Samuels.[3]
[3](1972) 2 SASR 529
16 The High Court, in relatively recent times, discussed the use of the words “indecent” and “obscene”, but in a different context to what is here relevant in Monis v The Queen.[4]There, the plurality said, inter alia:
“… Both ‘indecent’ and ‘obscene’ are words which convey one idea, that of offending against recognised standards of propriety – indecent being at the lower end of the scale and obscene at the upper end. The word ‘offensive’ is apt to describe the content of communications which range from being indecent to obscene. It has been observed that criminal law provisions concerned with obscenity fall into a category of laws which must necessarily keep pace with prevailing views of society and changing circumstances. It is for that reason that concepts such as ‘obscenity’ ‘offensiveness’ are inevitably couched in vague terms. … .”
[4](2013) 249 CLR 92
17 In the Victorian decision of Pell, Archbishop of Melbourne v Council of the Trustees of the National Gallery of Victoria,[5] Justice Harper (as he then was) thought that “obscene” was more associated with lewdness than with blasphemy.
[5][1998] 2 VR 391
18 The respondent concedes that at common law, one of the meanings of “obscene” is that it includes a sexual connotation. However, the respondent submits that there is nothing contained in the Act that confines the use of the word “obscene” to a sexual context in the way submitted by the appellant.
19 The respondent submits that the legislation must be construed according to its own terms rather than by reference to constructions placed on its statutory predecessor or by common law interpretation. See Baini v R.[6]
[6](2012) 246 CLR 469
20 The respondent submits, correctly in my view, that the word “obscene” is not defined as relating only to matters of sex. It is an ordinary word to be given its proper meaning in the context of the legislation. The respondent relies upon various dictionary meanings of the word “obscene” which include “relating to sex in an indecent or offensive way”, but also include “very offensive in usually a shocking way” or similar definition. I note, that in his judgment in Graham,[7] Justice Windeyer referred to what he called “the other sense” in which obscene can be used when he said, inter alia, at page 393-4 of the report:
“… 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.”
[7]Supra
21 There is no contest in this case that s17(1)(b) of the Act creates a criminal offence in certain circumstances. In my judgment, the use of the word “obscene” in s17(1)(b) of the Act is not confined or, to be read down so as to refer only to acts displaying figures of a sexual nature. The word “obscene” where used in the Act relevantly, also includes displays that are offensive or disgusting and that embraces the ordinary and natural meaning of the word. For these reasons, I reject the first argument advanced by Mr Brohier on behalf of the appellant.
22 The second argument advanced on behalf of the appellant was that even if the word “obscene” where used in the Act embraces other matters including common standards of propriety, the display of the figures by the appellant here and, in the circumstances here, was not obscene.
23 In this regard, the submissions of the appellant and, of the respondent, generally agree as to the legal principles. The difference lies in the application of those principles.
24 The test is what is obscene according to the common standards of propriety. It is the standard of the ordinary man or woman that is considered, not that of a susceptible person. Contemporary standards are to be decided by the judge alone but considering all views in the community. Obscene is more serious than is indecent so that everything that is obscene may be indecent but not everything that is indecent will be obscene. Contemporary standards are not to be judged by the evidence of individuals. The context of the publication must be considered so that what is obscene in one context may not be obscene in another.
25 There is no dispute that in the facts of this case, the display took place in the context of a demonstration by the appellant who was, with others, showing opposition to the presence of and, work of, the medical clinic located in Wellington Parade, East Melbourne and to the patients that attend the medical clinic.
26 Mr Brohier submits that in considering community standards or the characteristics of the reasonable person, I must consider that in the current Australian and Victorian community graphic, explicit images are routinely displayed. He calls in aid, by way of example, various explicit television commercials. He further submits the community standards must be accepted as being very broadminded, especially in relation to issues of serious political contest and, compared to the times of earlier cases in relation to obscenity.
27 In her submissions, Miss Ruddle conceded that in order to attract criminal sanction, the material displayed or, words used, must go beyond ordinary conduct which may cause offence. In this regard, she referred to the passage from Monis[8] which I have earlier referred to.
[8]Supra
28 Miss Ruddle submitted that the figures shown to have been displayed by the appellant are graphic, disturbing and designed to instil a sense of horror or disgust. Miss Ruddle submitted that unlike the decision in Pell,[9] the figures are objectionable or disturbing only to a certain segment of the population by reason of their specific sensitivities or beliefs. Miss Ruddle submits that the figures displayed here are not merely horrifying to women or women who have had abortions. She submits the figures displayed are, per se, horrifying and disgusting. I agree.
[9]Supra
29 In Monis, Justice Hayne pointed out that the context of how and when the material is displayed is relevant to the assessment of it. Miss Ruddle submits that to display the figures that the evidence shows were displayed by the appellant outside of a medical establishment in plain view of public passing by and, persons attending the clinic is obscene and clearly distinguishable from the shock advertisement examples used by the appellant in argument.
30 Miss Ruddle submits, and I agree, that the conduct of the appellant in displaying the images exhibited is comparable to the issue considered in Regina (ProLife Alliance) v British Broadcasting Corporation,[10] where the Court upheld the decision of the BBC refusing to transmit images of aborted foetus’ by a political party opposed to abortion.
[10][2002] EWCA Civ 297; [2003] UKHL 23
31 I find that the figures displayed by the appellant in the context of a protest outside a medical clinic when viewed objectively are obscene because they might properly be described as disgusting.
32 I reject the appellant’s second submission.
33 The appellant’s next arguments are contained in what is described in the written outline as “The Human Rights Issues”. In turn, there are five general principles raised and, as I understand the argument of the appellant, I should find that the provision in the Act setting up the charge alleged against the appellant should be struck down because the section offends one or other of these principles.
34 For its part, the respondent generally accepts the principles contended for but denies that those principles have been offended in the circumstances of this case. It submits that the relevant section of the Act in the circumstances of this case continues to have application.
35 The appellant argues that where there is an ambiguity, legislation should be interpreted consistently with Australia’s international obligations. In summary form, the appellant argues that there is an ambiguity between the section of the Act, which the appellant is alleged to have breached and, the International Covenant on Civil and Political Rights, to which Australia is a signatory. That treaty provides that everyone shall have the right to hold opinions without interference. Mr Brohier submits that there is ambiguity in the use of the word “obscene” in s17(1)(b) of the Act and so the principle of consistency should be called in aid.
36 Next, the appellant argues that if a statute which infringes a right may, in its limiting effect, operate consistently with the right, there is a question as to whether that was what Parliament intended to occur and it is here that the principle of legality is said to apply. He submits that in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities. Mr Brohier submits that the International Covenant on Civil and Political Rights preserves freedom of expression (article 19) and freedom of conscience, religion and belief (article 18). Mr Brohier submits that s17 of the Act offends the principle of legality because it may operate contrary to rights which the appellant has preserved by treaty.
37 The appellant next argues that the Charter of Human Rights and Responsibilities Act 2006 (“the Charter”) protects and promotes human rights, including civil and political rights which are derived from the International Covenant on Civil and Political Rights. Section 32(1) of the Charter provides that so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. If the words of a statute are capable of more than one meaning, the Court should give them whichever of those meanings best accords with the human right in question. See Slaveski v Smith.[11]
[11][2012] VSCA 25 at paragraph [24]
38 The appellant argues that the human rights relevant to her in this case are firstly, the right to freedom of expression (s15(2)) and, secondly, the right to freedom of conscience and religion (s14). In this way, the appellant argues that s17(1)(b) of the Act should be interpreted in such a way that preserves the right of the appellant to display the figures exhibited as part of her right to freedom of expression and/or her right to freedom of conscience and religion.
39 The appellant also argues that what she was doing in displaying the figures exhibited on the footpath outside the medical clinic in Wellington Parade, East Melbourne was in exercise of her implied constitutional right of freedom of political communication. The appellant argues that over time, the place where this offence allegedly occurred was a known place of political protest by groups of persons both supporting and opposing abortion. Mr Brohier submits that a finding that the figures displayed by the appellant are “obscene” will deprive the appellant of “her most potent weapon in her political debate in relation to the appropriateness of terminations of human foetuses”.
40 The respondent does not take issue with the legal principles raised by the appellant relating to consistency and legality. Further, it agrees that the relevant provision in the Act must be read consistently with the Charter.
41 The respondent submits however that in the circumstances of this case, the relevant provision in the Act is not rendered inapplicable and, nor is the conduct of the appellant rendered lawful. The respondent submits the principles contended for by the appellant have no application in the circumstances of this case.
42 Miss Ruddle submits that s17(1)(b) of the Act must be read so as to go no further than is reasonably necessary to achieve the legitimate aims of the legislation – namely, the good order and protection of the community from the display of obscene figures. She submits, and I agree, that the legislation must be interpreted in such a way so as to limit its scope to figures that are obscene so as to warrant the interference of the criminal law. Not every figure which may be distasteful or unpleasant could or, should, be considered as obscene in the criminal sense. In this regard, Miss Ruddle relies upon Coleman v Power.[12]
[12](2004) 220 CLR 1 at paragraph [1]
43 Such an approach requires a consideration of the degree to which a figure displayed might be regarded as obscene in all the factual circumstances in which the display takes place. Miss Ruddle submits that the role of s17(1)(b) in the Act is not to prevent the display of any figure that some may dislike, nor is it to criminalise figures which the majority of persons would prefer were not displayed. She submits, and I agree, that the role of the relevant legislation is to prevent the display of figures of such horror or such a disgusting nature as to be inconsistent with good public order. Here, the figures displayed, which I have described above, in my opinion, are so far beyond what should appropriately be displayed in public as to render them obscene within the meaning of the section.
44 Miss Ruddle concedes that there is an implied constitutional right of freedom of political communication. But she submits that the right is not unfettered and, nor is it absolute. See Nationwide News Pty Ltd v Wills.[13] The implied freedom may be taken to prohibit legislative or executive infringement of freedom to discuss political matters, except to the extent necessary to protect other legitimate interests. Here, s17(1)(b) has, as its purpose, to protect public order from the display of obscene figures.
[13](1992) 177 CLR 1 at 76
45 In Nationwide News,[14] Justices Deane and Toohey said:
“ The Constitution’s implication of freedom of communication with and about the government of the Commonwealth is not an implication of an absolute or uncontrolled licence to say or write anything at all about matters relating to the government of the Commonwealth. It is an implication of freedom under the law of an ordered society.”
[14]Supra
46 Miss Ruddle also relied upon similar statements by the High Court in Levy v State of Victoria[15] and Lange v Australian Broadcasting Commission.[16]
[15](1997) 189 CLR 579
[16](1997) 189 CLR 520
47 Miss Ruddle submitted that restriction of the display of obscene figures in public places is an appropriate restriction upon the appellant’s right to protest outside the clinic in Wellington Street. There was some evidence that groups of people both for and against abortion regularly protest at the place where the appellant is alleged to have offended. I am not satisfied that evidence in any way affects the fact that the footpath outside the relevant premises in Wellington Street is, and remains, a public place and subject to the operation of s17 of the Act. The evidence does not show this part of Wellington Street, East Melbourne to be a place where political views are expressed.
48 I am not satisfied on the facts of this case that what the appellant was displaying could properly be characterised as political communication. That which was displayed by the appellant was not directed at government or those charged with legislative responsibility. In my view, it was nothing more than a communication directed squarely at those who operate the clinic in Wellington Street and those who attended as patients. Section 17 of the Act exists for the purpose of ensuring, where possible, good order in public places such as the footpath in Wellington Street. In the circumstances here, proper application of the provision does not, in my view, burden in an inappropriate way the appellant’s right to political communication and is thus enforceable.
49 I accept Miss Ruddle’s submission that the appellant’s right to religious freedom does not provide a legal immunity permitting her to breach the provision of the Act in question. Assuming the appellant’s stance on abortion comes from her religious belief, the display of obscene figures is not part of religion nor can it be said the display is done in furtherance of religion.
50 For these reasons, I reject the submissions advanced by Mr Brohier on behalf of the appellant. I find the charge proved on the evidence beyond reasonable doubt.
51 I will hear the appellant on the question of sentence. I remind the appellant of what I said at the outset of the appeal in compliance with s256(3) of the Criminal Procedure Act 2009 namely, that I have the power to impose a sentence that is more severe than that imposed by the Magistrates’ Court.
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