JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HOLLAND -v- THE QUEEN [2005] WASCA 140
CORAM: MALCOLM CJ
ROBERTS-SMITH JA
MCLURE JA
HEARD: 14 FEBRUARY 2005
DELIVERED : 3 AUGUST 2005
FILE NO/S: CCA 181 of 2003
BETWEEN: HARRY HOLLAND
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KENNEDY CJDC
File No :IND 1639 of 2001
Catchwords:
Constitutional law - Implied freedom of political communication - Child pornography - Whether s 233BAB Customs Act 1901 (Cth) and reg 179AA(3) Customs Regulations 1926 (Cth) infringe implied freedom
Statutes - Interpretation - Meaning of "depict" and "person" in s 233BAB(3) Customs Act 1901
Criminal law - Appeal against conviction - Importation of prohibited imports via post - Appellant's knowledge of mail surveillance - Whether appellant imported goods knowingly or recklessly - Whether items unlawfully seized
Legislation:
Acts Interpretation Act 1901 (Cth)
Classification (Publications, Films and Computer Games) Act 1995 (Cth)
Commonwealth Constitution
Customs (Prohibited Imports) Regulations 1956 (Cth), reg 4A
Customs Act 1901 (Cth), s 233BAB
Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000 (Cth)
Customs Regulations 1926 (Cth), reg 179AA
Result:
Application for leave to appeal granted
Appeal allowed
Retrial ordered
Category: A
Representation:
Counsel:
Appellant: In person
Respondent: Mr J A Scholz
Solicitors:
Appellant: In person
Respondent: Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992) 177 CLR 106
Beamish v The Queen [2005] WASCA 62
Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 82 FCR 225
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Cleland v The Queen (1982) 151 CLR 1
Coleman v Power (2004) 78 ALJR 1166
Crowe v Graham (1968) 121 CLR 375
Cunliffe v The Commonwealth (1994) 182 CLR 272
Davis v The Queen (1990) 5 WAR 269
Evans v The Queen [2003] WASCA 194
He Kaw Teh v The Queen (1985) 157 CLR 523
Iannella v French (1968) 119 CLR 84
Johnson v Youden [1950] 1 KB 544
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Langer v The Commonwealth (1996) 186 CLR 302
Levy v Victoria (1997) 189 CLR 579
Martindale v Falkner (1846) 2 CB 706
McKechnie v Jones (1976) 13 SASR 184
Mickelberg v The Queen (2004) 29 WAR 13
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Ostrowski v Palmer (2004) 206 ALR 422
R v Assheton (2002) 132 A Crim R 237
R v Jones (1999) 108 A Crim R 50
R v Quick [2004] VSC 270
R v Sharpe [2001] 1 SCR 45; (2001) SCC 2
R v Turnbull (1943) 44 SR (NSW) 108
Sherras v De Rutzen [1895] 1 QB 918
Surrey County Council v Battersby [1965] 1 All ER 273
Case(s) also cited:
Pell, Archbishop of Melbourne v Council of Trustees of…
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- AGLC
- Holland v The Queen [2005] WASCA 140
- Case
- [2005] WASCA 140
- Decision Date
CaseChat Overview and Summary
The court considered whether the provisions in question effectively burdened freedom of communication about government or political matters and whether they were reasonably appropriate and adapted to serve a legitimate end. The court also examined the meaning of "depict" and "person" in the relevant statutory provisions. The court found that the magazines in question, particularly Koinos, contained content that was sexually explicit and depicted individuals who appeared to be under the age of 16, which was likely to cause offence to a reasonable adult. The court held that the provisions were not invalid as they served a legitimate end and were reasonably appropriate and adapted to that end. The court also found that the terms "depict" and "person" were not ambiguous and that Holland had imported the goods knowingly or recklessly.
The court upheld Holland's convictions and dismissed the appeal. The court found that the provisions in question were valid and did not infringe upon the implied freedom of political communication. The court also found that Holland had imported the goods knowingly or recklessly, and that the items were not unlawfully seized. The court upheld the convictions and affirmed the decisions of the lower courts.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The appellant contended that s 233BAB(5) of the Customs Act 1901 (Cth), in its application to the facts of the present case, was invalid because it was inconsistent with the freedom of political communication conferred by implication by the Commonwealth Constitution. The appellant's contention has to be considered by reference to the principles stated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561 ‑ 562, 567 as explained in Coleman v Power (2004) 78 ALJR 1166. Those principles are that a law will infringe the freedom implied in the Constitution where the law:1effectively burdens freedom of communication about government or political matters in its terms, operation or effect; and2the law is not reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutional system of representative and a responsible government. The implied freedom does not create a personal or individual right; it is a limitation upon legislative and governmental power. It extends to The imported goods the subject of the appellant's convictions were "Street Boy Dreams" and a magazine called "Koinos". Koinos is a magazine published in the Netherlands by a foundation whose object is stated to be "the promotion of humane morals laws in all countries, based upon the right to self‑determination". The magazine contains a number of articles, including a short story about what is foreshadowed to be a sexual encounter between an adult female and a 15 or 16‑year‑old boy; an article concerning the historical differences in attitudes and laws relating to sex with children; reviews of films in which children and their sexuality feature; and an article advocating opposition to a proposed change to tighten Dutch law relating to sex involving children between 12 and 16. The magazine expressly advocates freedom for adults (and others) to have sex with children. The rationale for the advocacy appears to be based, at least in part, on a child's alleged right to self‑determination in sexual matters. The magazine also contains many pages of photographs of boys, some of whom are clearly under the age of 16. The front and back cover of the magazine also feature full‑page photographs of boys. My understanding is that the Crown relied on one or two of the photographs in support of the charge. However, most of the photographs would be incapable of constituting child pornography as defined in s 233BAB(3), being goods that depict a person who is or appears to be under 16 and who is involved in a sexual pose or in sexual activity whether or not in the presence of other persons that is likely to cause offence to a reasonable adult. None of the photographs are expressly or impliedly linked with any of the articles. They have no contextual relevance or connection with them. Having regard to the number and nature of the photographs, the content of the articles (and the nature of the advertising), I infer that the photographs are included for prurient purposes and that the market for the magazine is adults with a sexual interest in children.