Guthrie v Herbert

[1970] HCA 13

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Owen and Walsh JJ.

GUTHRIE v. HERBERT

(1970) 122 CLR 527

29 May 1970

Police offences (Q.)

Police offences (Q.)—Obscene publication—"Obscene"—Statutory definition—Interpretation—The Vagrants, Gaming, and Other Offences Acts, 1931 to 1976 (Q.), s. 2*.

Decisions

BARWICK C.J. Two submissions were made to us by counsel for the applicant for special leave to appeal in this matter. (at p528)

2. The first was that the construction put upon the statutory definition of "obscene publication" in s. 2 of The Vagrants, Gaming and Other Offences Acts, 1931 to 1967 (Q.) by the Supreme Court of Queensland in the case of Humphries v. Smith; Ex parte Smith (1) was erroneous. (at p528)

3. The second was that no reasonable man could conclude that the Aubrey Beardsley print, "Lysistrata and the Three Ladies", of which a copy is in evidence, emphasizes matters of sex. (at p528)

4. As to the first of these submissions, the question it raises is no more than a matter of determining the meaning of the words chosen by the legislature in the definition it has enacted in the definition of "obscene publication". However put, the applicant's argument involves some modification or qualification of the statutory definition. That is something the Court is not authorized to do. I see no reason to question the conclusion that a publication which emphasizes matters of sex falls within the words of the statute. There must, of course, be emphasis which is not satisfied by a mere depiction of nudity. There would therefore, in my opinion, be no point in granting special leave to appeal in order to consider the decision of the Supreme Court of Queensland in Humphries v. Smith; Ex parte Smith (1963) Qd R 67 . (at p528)

5. As to the second submission, I am of the opinion it does not raise in this case a ground for the grant of special leave. As well, I do not think that it has been shown that the Full Court of the Supreme Court of Queensland was in error in concluding that there was material before the magistrate in this case on which he could reach the conclusion which he did. In my opinion, therefore, the application for special leave should be refused. (at p528)

McTIERNAN J. I agree. (at p528)

MENZIES J. I agree. (at p528)

OWEN J. I agree. (at p528)

WALSH J. I agree. (at p528)

Orders

Application for special leave to appeal refused with costs.