Holland v The Queen - [2005] WASCA 140

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 Bartlam [1937] AC 473
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 National Gallery [1998] 2 VR 391
R v Sharpe (1999) 169 DLR (4th) 536

MALCOLM CJ: This is an appeal against conviction. The appellant was not represented and appeared in person. He had been represented at his trial. On 16 October 2003, the appellant was convicted in the District Court on two counts under the Customs Act 1901 (Cth). The offences of which he was convicted were the subject of counts 1 and 4 on an indictment, namely, that:
"1.On or about the 17^th day of July 2000 at Perth in the State of Western Australia HARRY HOLLAND knowingly imported goods which were tier 2 goods, namely a book titled 'Street Boy Dreams', the importation of which was prohibited under the Customs Act 1901 without approval, and at the time of the importation approval had not been obtained, contrary to section 233BAB(5) read with sub‑sections (1) and (3) of section 233BAB of the said Act, and further read with Regulation 179AA(3) of the Customs Regulations.
…
4.… on or about the 17^th day of July 2000 at Perth in the said State HARRY HOLLAND recklessly imported goods which were tier 2 goods, namely a book titled 'Koinos 26 2^nd Quarter 2000', the importation of which was prohibited under the Customs Act 1901 without approval, and at the time of importation approval had not been obtained, contrary to section 233BAB(5) read with sub‑sections (1) and (3) of section 233BAB of the said Act, and further read with Regulation 179AA(3) of the Customs Regulations."
The appellant was fined the sum of $1000 in respect of the conviction on count 1. The appellant was acquitted of count 2, which was an alternative to count 1.
In respect of the second offence the subject of count 4, the appellant was fined the sum of $500. The appellant was acquitted of count 3 which was an alternative to count 4.
As will appear, the grounds of appeal involve a matter arising under the Commonwealth Constitution (the "Constitution") or its interpretation in the context of s 78B(1) of the Judiciary Act 1903 (Cth) in that it is contended by the appellant that the provisions of s 233BAB and Reg 179AA(3) of the Customs Regulations contravene ss 7 and 24 of the Constitution. A Notice of Constitutional Matter under s 78B of the Judiciary Act was filed on 17 December 2003 and served on all the Attorneys General. None wished to intervene.
The grounds on which the appellant appeals against his conviction are as follows:
"1.The Customs Act 1901 section 233 BAB(5) read with subsections (1) and (3) of section 233BAB, and further read with Regulation 179AA(3) of the Customs Regulations, contravenes sections 7 and 24 of the Commonwealth Constitution, or in its effect contravenes section 7 and 24 of the Commonwealth Constitution.
Section 7 and 24 of the Commonwealth Constitution guarantees a freedom of political discussion, which includes the right to import and read the items which were the subject of the charges against the Appellant.
2.The learned judge erred in deciding the definition of the words 'depict' and 'person' as used in the Customs Act 1901.
The learned judge defined the words too broadly, in a way that was not intended by the legislation, or that contravenes sections 7 and 24 of the Commonwealth Constitution.
3.The learned judge misdirected the jury as to the meaning of the Appellant's statement in evidence about whether he knew his mail was under surveillance, to the effect that the jury would not have understood the Appellant was denying his guilt.
4.No jury, properly directed, could have reasonably found the Appellant guilty of 'knowingly' or 'recklessly' importing the items in question.
In directing the jury to decide the Appellant's guilt as to 'knowingly' importing the items, the learned judge was expecting the jury to make a decision of law as well as of fact. The jury's decision was unreasonable as to the fact, and was not valid as to the law."
Leave to amend the grounds by addition of ground 5 was granted by Miller J on 30 June 2004. Ground 5 contends that:
"The documents and items seized by Customs from the Appellant's mail and residence were unlawfully seized or held and should not have been allowed as evidence at trial."

Relevant provisions of the Customs Act

Section 233BAB(5) of the Customs Act was significantly amended on 15 December 2001 after the events the subject of the present case. At the material times in July 2000, s 233BAB(5) of the Customs Act provided that:
"A person is guilty of an offence against this subsection if:
(a)the person knowingly or recklessly imported goods; and
(b)the goods were tier 2 goods; and
(c)their importation:
(i) was prohibited under this Act absolutely; or
(ii)was prohibited under this Act unless approval of a particular person had been obtained and, at the time of the importation that approval had not been obtained."
The maximum penalty for contravention of s 233BAB(5) at the material time was a fine not exceeding $250,000 or imprisonment for 10 years or both. The elements of the offence are that a person imports goods knowingly or recklessly; the goods are tier 2 goods; the importation of the goods was prohibited either absolutely, or prohibited unless approval of a particular person had been obtained; and that at the time of the importation approval had not been obtained.
Section 233BAB of the Customs Act also relevantly provided that:
"(1)The regulations may provide that:
…
(h)items of child pornography or of child abuse material …
constitute tier 2 goods.
(2)The regulations must not specify an item for the purposes of subsection (1) unless:
(a)its importation is prohibited, either absolutely or on condition, by the Customs (Prohibited Imports) Regulations; or
(b)its exportation is prohibited, either absolutely or on condition, by the Customs (Prohibited Imports) Regulations;
(3)For the purposes of subsection (1) an item is to be taken to be an item of child pornography if it is a document or other goods:
(a)that depicts a person:
(i)who is, or who appears to be, under 16 years of age; and
(ii)who is involved in a sexual pose or in sexual activity, whether or not in the presence of other persons; and
(b)that is likely to cause offence to a reasonable adult.
(4)For the purposes of subsection (1), an item is taken to be an item of child abuse material if it is a document or other goods:
(a) that depicts a person, or a representation of a person:
(i)who is, or appears to be, under 16 years of age; and
(ii)who is a victim of torture, cruelty or physical abuse;
(b) that is likely to cause offence to a reasonable adult."
Section 233BAB was incorporated in the Customs Act by an amendment which came into force on 3 April 2000 by the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000 (Cth). When introducing the Bill, the Commonwealth Attorney General said:
"Shielding the community from injury and protecting children from exploitation are two essential responsibilities of a just society. While each member of society should uphold public safety and protect children from harm, governments and parliaments have a unique role in establishing laws which can ensure the protection of the community and deter crime and antisocial behaviour.
Last year the Minister for Justice and Customs, Senator Vanstone, launched a landmark report that explored several causes of crime in young lives and suggested some pathways to prevention. The government is continuing to support this important research, which emphasises the need to provide stable and safe environments to nurture the young people who will contribute so much to Australia's future.
Prevention of harm is crucial. Deterrents for those who would cause damage to our community are equally vital. This Bill will provide for increased penalties for a range of import and export offences under the Customs Act 1901 … By any standard, these are serious penalties to address serious offences."
The policy behind this legislation was fully considered in R v Assheton (2002) 132 A Crim R 237 at [34] – [36] in my judgment with which Murray and Steytler JJ agreed. It includes shielding the community from injury and children from exploitation and the prevention of harm and the imposition of increased penalties by way of general deterrence as the paramount consideration. I am indebted to Roberts‑Smith JA for his exposition of the relevant legislative history of the relevant statutory provisions and the regulations. I agree with his Honour's analysis of the relevant regulations and their legislative history as well as his comments on the report of the Office of the Film and Literature Censorship Board to the Customs Service dated 3 November 2000.

Ground 2: meaning of "depict" and "person"

It is convenient at this point to deal with that part of ground 2 of the grounds of appeal which included a contention that the learned Judge erred in defining the words "depict" and "person" as used in the relevant provisions of the Customs Act. Ground 2 also contended that the trial Judge defined these words "too broadly, in a way not intended by the legislation, or that contravenes sections 7 and 24 of the Commonwealth Constitution".
At the trial, an issue of law was raised in respect of the interpretation of the statutory provisions and a question of fact whether the documents fell into the tier 2 category in s 233BAB(3) and the regulations.
The appellant raised a question whether the word "person" in this context meant a real person or whether it could also mean a fictitious person or, in the present case, a person who was a character in a literary work. It was submitted that if the word "person" only meant a "real" person, the legislation probably did not contravene the relevant provisions of ss 7 and 24 of the Constitution, but if the meaning also included a fictitious person, it was contended that this would contravene those provisions.
Section 22(1) of the Acts Interpretation Act 1901 (Cth) provides that:
"In any Act, unless the contrary intention appears:
(a)expressions used to denote persons generally (such as 'person', 'party', 'someone', 'anyone', 'no‑one', 'one', 'another' and 'whoever'), include a body politic or corporate as well as an individual;
(aa)individual means a natural person."
Reliance was placed by the appellant upon the primary meaning of the word "person" in the New Shorter Oxford English Dictionary Vol II at p 193, which relevantly defines a "person" as an individual human being and, specifically, a human being as opposed to a thing or an animal. It was submitted by the appellant that the meaning of the term did not extend to a fictitious or imaginary person, but only to an actual human being.
In my opinion, it is a notorious fact of which judicial notice could be taken that the word "person", as it is commonly used in every day speech and language, extends to both real and fictitious persons. As the New Shorter Oxford Dictionary itself makes clear, the word "person" includes a person who plays a part in a drama or a character in a play or story. It is clear that the word extends to real, imaginary and fictitious persons.
The appellant pointed out that the same dictionary also indicated that in a legal context, the term "person" meant:
"An individual (also natural person) or a group of individuals as a corporation (also artificial person), regarded as having rights and duties recognised by the law."
The appellant submitted that the meaning of a "person" as a character in a story was not actually in general use. It was contended that a character in a story is usually called just that.
Reference was also made to Osborne's Concise Law Dictionary 17^th Ed (1983) at p 197 which contains the following definition of "person":
"The object of rights and duties that is, capable of having rights and of being liable to duties. Persons are of two kinds, natural and artificial. A natural person is a human being; an artificial person is a collection or succession of natural persons forming a corporation. 'Individual' denotes a human being."
This definition is a legal definition. It is apparent that there are many senses in which the word "person" can be used. The point which the appellant was seeking to make was that, while he acknowledged that characters exist in literature, including fiction, in those instances they were not real people and they had no rights or duties at law. With respect, that is not to the point by reason of the references in s 233BAB to a document or other goods that "depicts a person" with the characteristics stipulated in a way that is likely to cause offence to a reasonable adult. In my view it makes no difference whether the person depicted is real, imaginary or fictitious. It was submitted, however, that if the word "person" was not limited to a real person, the legislation would contravene ss 7 and 24 of the Constitution because material such as that in Street Boy Dreams and the material in the magazine Koinos could not be disseminated which, in turn, would constitute suppression of political discussion. It was further submitted that the language in s 233BAB(3) and (4) the phrase:
"That depicts a person:
(i)who appears to be under 16 years of age; and
(ii)who is involved in a sexual pose or in sexual activity …"
must refer to a real being and that the provision does not extend to fictional characters.
The argument was that the relevant law was directed at prohibiting the importation of child pornography so as to protect children from abuse in the making of pornography, whereas in the case of fictional children, there was no interest to protect. It was, for example, to prevent taking photographs of real children who were being abused. Significantly, the appellant in his written submissions also contended that it was:
"(b)to protect real people from having to read or view unsolicited material that they would find offensive; and
(c)to maintain public policy."
It was contended that, so far as the protection of real people was concerned, in fiction or in literary articles, there was no real person who was being abused. There was no actual child there. Further, as the appellant put it in his submission, inasmuch as the magazine Koinos and the novel Street Boy Dreams comprise written material, there was no real person, apart from the author, involved in the writing and publication of the work.
According to the Oxford Dictionary, the word "depict" means represent in drawing or colours or portray in words. It is the latter meaning which was relied upon by the Commonwealth in this case.
According to The New Shorter Oxford Dictionary on Historical Principles Vol 1 at 637, "depict" is given the following meanings:
"1.Portray or represent (as if) in colours or in drawing, painting or sculpture …
2.Portray or represent in words; describe graphically."
In the same work "depiction" means:
"the action of depicting; painted representations; graphic description."
The word "describe" means "Portray in words" or "give a detailed or graphic account of [someone or something]. The word "description" means, among other things: "detailed account of a person … a verbal portrait" and "a verbal representation of portraiture".
In September 1999, Guidelines for the Classification of Publications (the "Guidelines") were published following their approval by Commonwealth, State and Territory Censorship Ministers in accordance with s 12(3) of the Classification (Publications, Films and Computer Games) Act 1995 (Cth) to take effect from 1 September 1999. The definition of "depiction" in the Guidelines is:
"Representation through image. Realistic depictions include photographs or illustrations which are close to real life; stylised depictions include cartoons and other unrealistic illustrations and images."
"Description" is defined as:
"Representation through text. Generally descriptions of classifiable elements may contain more detail than depictions."
According to Roget's Thesaurus of English Word and Phrases (Twelfth Impression, 1978) p 808, "depict" is a verb which means "represent" or "describe". In the same work at p 344, "representation" is a synonym for "depiction" or "portrayal". According to Roget's New Millenium Thesaurus First Edition 2005 at p 344, "depict" is a synonym of "describe" the meanings of which include delineate, draw, picture and represent. The word "represent" is defined at p 326 as a synonym for "imitate", "depict", "picture" or "portray". It follows that a written description of a person and the behaviour of that person is a depiction or portrayal of that person whether in terms of appearance or behaviour. For these reasons, ground 2 has not been made out to that extent.
In my opinion, the learned Judge did not define the meaning of the words "depict" and "person" too broadly. The meaning adopted was consistent with the generally accepted usage of those words. I will deal separately with the issue whether the words were defined in such a way that contravened ss 7 and 24 of the Constitution.

Tier 2 Goods under the Customs Regulations

When s 233BAB(5) was introduced in May 2000, the Customs Regulations 1926 (Cth) were amended by inserting Reg 179AA which relevantly provides that:
"For subsection 233BAB(1) of the Act, the goods specified in column 2 of an item in Part 2 of Schedule 1AA constitute tier 2 goods."
Schedule 1AA, Pt 2 deals with tier 2 goods. Column 2 of item 3 in Pt 2 relevantly provides that the following are tier 2 goods:
"Goods to which regulation 4A of the Customs (Prohibited Imports) Regulations 1956 applies, being:
(a)items of child pornography within the meaning given by subsection 233BAB(3) of the Act; or
(b)items of child abuse material within the meaning given by subsection 233BAB(4) of the Act."
Regulation 4A of the Customs (Prohibited Imports) Regulations 1956 (Cth) deals with the "Importation of Objectionable Goods". Section 4A(1) relevantly provides that, "'Publication' means any book, paper, magazine, film, computer game or other written or pictorial matter". Regulation 4A further provides that:
"(1A)This regulation applies to publications and any other goods, that:
(a)describe, depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be imported; or
(b)describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or who looks like, a child under 16 (whether the person engages in sexual activity or not); or
(c)in relation to a computer game – are unsuitable for a person under 18 to see or play; or
(d)promote, incite or instruct in matters of crime or violence; or
(e)promote, to incite the misuse of a drug specified in Schedule 4."
Section 50 of the Customs Act relevantly provides that:
"(1)The Governor General may, by regulation, prohibit the importation of goods into Australia.
(2)The power conferred by the last preceding subsection may be exercised:
(a)by prohibiting the importation of goods absolutely;
(aa)by prohibiting the importation of goods in specified circumstances …"
Section 51 of the Customs Act provides that goods, the importation of which is prohibited under s 50, are prohibited imports. Reg 4A(2) of the Customs (Prohibited Imports) Regulations 1956 relevantly provides that:
"The importation of goods to which this regulation applies is prohibited unless permission, in writing, to import the goods has been granted by the Attorney‑General or a person authorised by the Attorney‑General for the purposes of this subregulation."
Subregulation 2AA lists factors to be considered when considering whether to grant approval.
The prosecution case was that the two publications the subject of the charges were tier 2 goods the importation of which was prohibited on condition, namely, unless approval had been obtained; and, at the time of the importation, approval to import the items had not been obtained from the Attorney General or a person authorised by him for the purposes of reg 4A(2) of the Customs (Prohibited Imports) Regulations 1956. It was admitted by the appellant that he had neither sought nor obtained approval under s 233(5)BAB.
The Commonwealth contended that both of the items in question were goods of a kind in item 3 in Part 2 of Schedule 1AA of the Customs Act, namely:
"Goods to which regulation 4A of the Customs (Prohibited Imports) Regulations 1956 applies, being:
(a)items of child pornography within the meaning given by subsection 233BAB(3) of the Act."
It was not disputed that no permission had been granted pursuant to reg 4A(2) of the Customs (Prohibited Imports) Regulations 1956 to cover the importation in this case of the book Street Boy Dreams or the magazine Koinos.
On 27 April 2000 the appellant departed Perth for overseas. He returned to Perth on 7 July 2000. While he was overseas, he went to Amsterdam, in the Netherlands. On 3 July 2000 while he was in Amsterdam, the appellant posted or caused to be posted two envelopes which he addressed to himself at PO Box 8066, Perth Business Centre, WA 6849. On 17 July 2000 the two envelopes arrived in Australia. The envelopes were intercepted by Customs officers at Postal Control, Welshpool. One envelope contained three books, including the book "Street Boy Dreams". The other envelope contained the book or magazine "Koinos 26 – 2^nd Quarter 2000" as well as a yellow hard‑covered journal (exercise book) and a number of loose pages within the journal. Fingerprint analysis established that the appellant's fingerprints were located on the envelopes, Koinos, pages of the yellow journal, loose pages found in the yellow journal and on a book imported with "Street Boy Dreams".
Against that background, the appellant made a number of formal admissions at the commencement of the trial pursuant to s 32 of the Evidence Act 1906 (WA). In the present context, it is sufficient to note that these included admissions that:
(a)approval for the importation of the two publications had not been obtained from the Attorney General or a person authorised by him;
(b)the appellant was out of Australia between 28 April and 6 July 2000;
(c)he travelled from the United Kingdom to the Netherlands about 29 June and returned from the Netherlands to the United Kingdom about 3 July 2000;
(d)the items were imported by post from the Netherlands to the appellant's postal address about 17 July 2000;
(e)the appellant had changed his name by deed poll on 13 August 1991 from his birth name of Colin Nugent (aka Emu Nugent) to Harry Holland;
(f)the fingerprints identified were in fact his.
The issues raised at the trial were those related to the interpretation and application of the statutory provisions, their constitutional validity and whether the two publications constituted tier 2 goods.

The appellant's evidence

The appellant gave evidence in his defence. He said that between 30 June and 2 July 2000, he attended a gay conference held outside Amsterdam. At the conference he picked up a free copy of Koinos and various letters, leaflets and papers. His intention was to give Koinos to someone in England. After the conference, he purchased Street Boy Dreams in Amsterdam, while shopping with his friend Peter, which he said was a gift for someone in England. The appellant said that Street Boy Dreams and Koinos were posted to Australia by mistake. His evidence was that, at the post office, Peter packed the two envelopes when the appellant left the room. The appellant said that he intended to post only his yellow journal, the papers from the conference and two books being the books that were imported together with Street Boy Dreams. Koinos was the subject of discussion at the Conference. As recorded in the minutes of the Conference:
"Koinos magazine. Koinos started in 1994. It's a magazine about the beauty of boys in their teens."
The appellant agreed at the trial that the minutes correctly recorded the conference proceedings. The appellant did not dispute that Koinos contained material about boys above the age of 12 and asserts that:
"From the age of 12, youngsters gradually have more rights. Boys of that age are usually able to give informed consent."
The appellant did not recall discussion at the conference about Koinos being banned overseas, but he did say that:
"… if it had been that's the sort of thing they would have talked about, yes. That's what the meeting was for."
It was put to the appellant that Koinos was "frowned upon at least in certain circles because of its themes". The appellant's answer was:
"No. I wasn't under that impression. I was under the impression that they were very careful to publish it so that it would be available in all countries."
The appellant said he did not know that Koinos had been banned on two occasions. The appellant clarified that when he referred to "inter‑generational relationships" he was saying:
"When I'm talking about it, I'm usually talking about a youth and an adult man but it's much more …"
The appellant acknowledged that some sections of the community would "more than frown" on such relationships, noting that the age of consent for boys was 16 in Western Australia. He went to the Conference because he was interested in doing support work with men who were sexually attracted to youths. In the past, he had done support work with boys who had worked as prostitutes. He had been writing about the topic all his adult life.
The appellant accepted responsibility for the posting of the two envelopes which contained Street Boy Dreams and the Koinos magazine. There was a green slip on the envelope which an expert testified was in the appellant's handwriting. The appellant acknowledged he paid for the posting. The articles were actually posted to Australia from England. In each case there was a green customs slip completed in handwriting which a handwriting expert testified was in the appellant's handwriting. An English return address was given.
The appellant also said that every time he comes through the airport from overseas, Customs officers "inspect everything". Consequently, he was aware that Customs would probably search his mail and search him personally on arrival in Australia. The appellant maintained that if he was concerned about the legality of books, he would not import them because Customs have been watching him for 20 years.
The appellant also said in evidence that he did not consider either Street Boy Dreams or Koinos to be child pornography. He maintained that there is literature in the western world and elsewhere dealing with men and boys who have a sexual relationship, and a huge genre of available books that contain material on the subject of men and male youths having sex. He says that "coming out" stories are very important to gay men.
The appellant's evidence was that he would have presumed that Street Boy Dreams was legal because he had purchased a copy of it from The Bookshop in Oxford Street, Sydney in or about 1997 – 1999. He does not consider that the book would be likely to cause offence to a reasonable adult.
The appellant also said that he had seen material similar to Koinos everywhere in Australia. He did not regard it as explicit or offensive. He said that the political discussion in Koinos is no different from other available material. He could not believe that it would be illegal. He thought Koinos editors were very careful to make sure that the magazine would not be offensive or illegal. A Mr Stuart Pekin, the former owner of a bookshop that sold gay books, gave evidence that the theme of men and youths is possibly a little more prevalent in gay literature than in the mainstream literature. He considered Street Boy Dreams particularly innocuous compared to autobiographies he has seen.
The editorial in the copy of Koinos states that Koinos "intends to capture in words and pictures the beauty of boys from the beginning of their puberty until they become adults" and:
"… to argue in a nuanced manner for a society in which boys in this phase of their lives are valued, and in which without the obstruction of prejudices they can have the possibility of experiencing intimate relationships and sexual contacts with other persons, including adults, on the basis of mutual respect."
The magazine includes photographs of persons who appear to be under 16 years of age and a short story, two articles, film reviews and advertisements dealing with the relationships between adults and persons aged under 16 years of age.
In Koinos 22 at p 5 there is a story about a relationship between a woman aged 32 and a paper boy aged about 16. At p 8, there is an account of her waiting for the boy wondering whether she would be able to have sex with the boy. The point made by the appellant in his evidence was that:
"… if the author thinks it is okay, or if the author thinks it's not okay, whichever, quite clearly that's the political point of the article, the story, and why Koinos would be publishing it."
The boy is still going to school and aged about 16. There is a descriptive passage about them having sex.
It was put to the appellant that throughout the magazine, there were photographs of "obviously young boys". His answer was that they were:
"Not obviously young boys at all. They're quite old boys as far as I …"
In response to it being put to him that they appeared to be under 16, the appellant said:
"You would have to be cleverer than me to guess their ages, Mr Dembo."
On 20 July 2000 the Australian Customs Service officers executed search and seizure warrants at the appellant's residence. Items seized from the residence were submitted for handwriting analysis. Such analysis concluded that the documents were written by the same person who addressed the two envelopes and wrote in the yellow journal intercepted at Postal Control.
The book Street Boy Dreams is a work of fiction centred on one Peter, a school teacher aged about 35 and his relationship with Gito, a 14‑year‑old boy. The Commonwealth contended that book contained depictions of Peter involved in sexual activity with Gito, his cousin Chico aged 13 years, a "local boy" Pablito, another "boy" Felipe and a "shoeshine boy" named Willie.

Were the publications tier 2 goods?

As has been seen, in the case of tier 2 goods, prior approval for the importation is required from either the Attorney General or a person being an officer of the Office of Film and Literature Classification ("OFLC") authorised by the Attorney General. The essence of the prosecution case was that both Street Boy Dreams and the magazine Koinos were tier 2 goods under the Customs Act because each contained pornographic material which were imported into Australia unlawfully.
In opening the case for the prosecution at the trial, counsel for the Commonwealth quoted a passage in Street Boy Dreams, which followed an account of what is often described as a "grooming" process by the 35‑year‑old Peter of a 14‑year‑old boy named Gito. It is important to put the passage in context.
Peter first met Gito in a bar where he was having a drink having completed a day in his work as a school teacher. What then happened is described as follows at pp 8 – 10:
[Explicit material not suitable for general publication has been omitted]
The next night Peter went to the same bar. The narrative then continues as follows:
[Explicit material not suitable for general publication has been omitted]
He met Gito again. Gito asked for a drink and Gito "nearly drained the glass". Peter gave Gito $5 for the candy bar. Gito said, "Are you rich, man, or just nuts?" Peter's response was, "I like kids." The following night was Saturday night. He went to the bar again because, "Perhaps the boy would be there." Peter had one drink and ordered another when Gito arrived.
The next day, Sunday, he went to the bar and sat in a booth and "downed three drinks rapidly". He wanted to see the boy again. When he left the bar, he met Gito and had a brief conversation. After work on the following Monday, he headed straight to the bar. He was drinking from a flask of vodka and met Gito again. They talked. Peter suggested that they go back to his apartment. Gito declined. On the following day after school, Peter went to the bar again where he found Gito waiting. After discussion, they went to Peter's apartment where they drank wine. Gito stayed the night sleeping on a sofa. There was no sexual contact. The grooming process continued.
One subsequent night at Peter's flat, towards the end of an extended drinking session at which a number of bottles of wine were consumed, Peter suggested that they both have showers. Peter showered first. He then watched as Gito stood up and stumbled into the bathroom taking off his clothes. Peter was able to watch him as described at 66‑67:
[Explicit material not suitable for general publication has been omitted]
An account is then given of Peter showing Gito an old issue of Playboy magazine. There is an account of Gito looking at the magazine. It was in this context in the book that, in opening the case to the jury, counsel for the Commonwealth read to them the following passage:
[Explicit material not suitable for general publication has been omitted]
The book contains a significant number of further similarly explicit accounts of sexual encounters, not only with Gito but with a significant number of other boys as well.
In my opinion, there is no material in Street Boy Dreams which could be characterised as communication necessary for the effective operation of the system of representative and responsible government provided for the Constitution. I have not been able to discern anywhere in the book material which could be described as advancing a political argument for the legitimisation of conduct by an adult grooming a boy under the age of consent with a view to establishing and maintaining a homosexual relationship with the boy and engaging in sexual activity with him. At their first meeting in Street Boy Dreams, the boy Gito tells Peter that he is aged 14. The book contains many passages describing in graphic detail the sexual encounters with boys in their early teens by the adult Peter, who is a school teacher. There is no hint or acknowledgement of the immorality or illegality of the conduct in question, having regard to the provisions of the Criminal Code (WA).
Part V Division XX1 of the Criminal Code (WA) deals with sexual offences. Section 320 creates a number of offences regarding children. A "child" is defined as a child under the age of 13 years. It is an offence to sexually penetrate such a child, to procure, incite or encourage a child to engage in sexual behaviour; to indecently deal with a child; to procure, incite or encourage a child to do an indecent act; or to indecently record a child.
Section 321A makes it an offence for a person to have a sexual relationship with a child under the age of 16 years. Such a relationship will be established if on three or more occasions, each of which on a different day, the person does an act in relation to a child which would constitute a prescribed offence, which includes the offences of sexual penetration under s 320(2); indecent dealing under s 320(4); sexual penetration under s 321(2); indecent dealing under s 321(4); or an offence under s 320(3) or 321B, where the child in fact engages in sexual behaviour.
In my view, the passage which I have quoted above depicts a boy who is under 16 years of age and who is involved in a sexual activity in a way which is likely to cause offence to a reasonable adult, as it would appear that the jury found at the appellant's trial.
The provisions of the Customs Act and regulations under which the prosecution was brought have as their purpose in the relevant context the prohibition of the importation of pornographic literature as defined in s 233BAB(3). The legislation is designed to prevent or control the importation into Australia of "child pornography" as a matter of public policy. As has been seen, an item is to be taken as an item of child pornography for the purposes of s 233BAB(3) if it is a document:
"(a)that depicts a person who:
(i)who is, or who appears to be, under 16 years of age; and
(ii)who is involved in a sexual pose or in sexual activity, whether or not in the presence of other persons; and
(b)that is likely to cause offence to a reasonable adult."
In addition, s 233BAB(4) also provides that, for the purposes of s 233BAB(1), an item is taken to be an item of child abuse material if it is a document that:
"(a)that depicts a person:
(i)who is or appears to be under 16 years of age; and
(ii)who is a victim of torture, cruelty or physical abuse."

The Commonwealth contended that the magazine Koinos included photographs of persons who appeared to be under 16 years of age and a short story, two articles, film reviews and advertisements dealing with relationships between adults and persons under 16 years of age in a manner which was pornographic from the standpoint of a reasonable person in that it appears to approve albeit in a "nuanced" manner, of conduct between adults and, in particular, adult males and boys under the age of consent. In my view, it was open to the jury to find, as they apparently did, that the magazine Koinos contained items of child pornography within the meaning of the relevant provisions.

Grounds 1 and 2: Freedom of political discussion

Ground 1 of the grounds of appeal contended that:
"1.The Customs Act 1901 section 233BAB(5) read with subsections (1) and (3) of section 233BAB, and further read with Regulation 179AA(3) of the Customs Regulations, contravenes sections 7 and 24 of the Commonwealth Constitution, or in its effect contravenes section[s] 7 and 24 of the Commonwealth Constitution.
Section[s] 7 and 24 of the Commonwealth Constitution guarantees a freedom of political discussion, which includes the right to import and read the items which were the subject of the charges against the Appellant."
In this context, it is also necessary to consider the second paragraph in ground 2 that contended that the learned Judge defined the words "depict" and "person" as used in the Customs Act1901 in such a way that contravened ss 7 and 24 of the Constitution.
I note that no objection was taken by the Commonwealth to reliance on the materials referred to in par 7 of the appellant's affidavit, namely, documents 1 – 26, to the extent that they were relied upon in support of the implied freedom of communication issue. If, however, the appellant sought to rely upon such materials as being evidence to which the jury ought to have had regard, the Commonwealth gave notice that it would be subject to objection.
In the result, the Court deferred any ruling unless and until the appellant sought to rely upon any particular document referred to in par 7 so as to be able to deal with such objection in context.
So far as ground 2 is concerned, annexures 27 to 37 to the appellant's affidavit were not objected to on the ground that they were concerned with the meaning of the words "depict" and "person" in relevant provisions. In relation to par 9 of the affidavit and annexures 38 to 42 in support of ground 4 of the appeal, the Commonwealth objected to the admissibility of the documents on which the appellant sought to rely because they were new, rather than fresh evidence and were available at the time of trial. In my opinion, this objection should be upheld, but that still left it open to the appellant to rely upon them to support an argument in the appeal, which he did.
In support of ground 1 and the relevant aspect of ground 2, the appellant contended that s 233BAB in its terms or effect outlawed a whole class of written material that discusses intergenerational gay sexual relationships. It was contended that the discussion of these sexual relationships constitutes a political discussion in Australia with the consequence that the discussion of gay intergenerational sexual relationships is protected by the Constitution.
Section 7 of the Constitution makes provision for the composition of the Senate in the Parliament of the Commonwealth and, on the face of it, does not appear to have any relevance to the question of freedom of expression. Section 24 of the Constitution is concerned with the composition of the House of Representatives and also appears to have no direct relevance to the issue of freedom of speech or expression. There is no express constitutional guarantee of freedom of expression in the Constitution, but there is an implied guarantee in the Constitution of freedom of communication on governmental and political issues, as held in Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992) 177 CLR 106; and Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ("Lange"). In Lange at 559, all seven Judges in a joint judgment said that:
"Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be "directly chosen by the people" of the Commonwealth and the States, respectively."
In this context, I agree with McLure JA that the principles to be applied as laid down in those cases, as further explained in Coleman v Power (2004) 78 ALJR 1166 are that a law will infringe the freedom implied in the Constitution where the law effectively burdens freedom of communication about government or political matters in its terms, operation or effect; and the 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 responsible government.
While ground 1 of the grounds of appeal contends that the relevant provisions of the Customs Act and the Customs Regulations are provisions "contravening" ss 7 and 24 of the Constitution, the issue raised by the appellant's contention is whether those provisions impermissibly restrict or burden the freedom implied in those sections of the Constitution. As Brennan CJ said in Cunliffe v The Commonwealth (1994) 182 CLR 272 at 327:
"The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control. The freedom of communication in political matters enjoyed by Australian citizens is a function of that immunity. It is fundamentally erroneous to regard the implication as a constitutional guarantee of a personal right to freedom of communication amenable to definition and expansion by judicial declaration, leaving the Parliament with only the remaining legislative power. There is simply no constitutional text which can legitimately found that approach."
See also Levy v Victoria (1997) 189 CLR 579 at 623 – 624 per McHugh J.
In this context, the basis of ground 1 is that the relevant statutory provisions in the Customs Act and in the Customs Regulations intrude into the area of immunity from legal control referred to by Brennan CJ. In Lange at 560 ‑ 561, all seven Judges of the High Court said:
"Communications concerning political or government matters between the electors and the elected representatives, between the electors and the candidates for election and between the electors themselves were central to the system of representative government as it was understood at Federation [(R v Smithers; Ex parte Benson (1912) 16 CLR 99 at 108, 109 – 110; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 73; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 232)]. While the system of representative government for which the Constitution provides does not expressly mention freedom of communication, it can hardly be doubted, given the history of representative government and the holding of elections under that system in Australia prior to federation, that the elections for which the Constitution provides were intended to be free elections in the sense explained by Birch. Furthermore, because the choice given by ss 7 and 24 must be a true choice with 'an opportunity to gain an appreciation of the available alternatives', as Dawson J pointed out in Australian Capital Television Pty Ltd v The Commonwealth [(1992) 177 CLR 106 at 187], legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election.
That being so, ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power. As Deane J said in Theophanous [(1994) 182 CLR 104 at 168], they are 'a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a "right" in the strict sense'. In Cunliffe v The Commonwealth [(1994) 182 CLR 272 at 326], Brennan J pointed out that the freedom confers no rights on individuals and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom. His Honour said (249):
'The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control.'
If the freedom is to effectively serve the purpose of ss 7 and 24 and related sections, it cannot be confined to the election period. Most of the matters necessary to enable 'the people' to make an informed choice will occur during the period between the holding of one, and the calling of the next, election. If the freedom to receive and disseminate information were confined to election periods, the electors would be deprived of the greater part of the information necessary to make an effective choice at the election.
In addition, the presence of s 128, and of ss 6, 49, 62, 64 and 83, of the Constitution makes it impossible to confine the receipt and dissemination of information concerning government and political matters to an election period."
Their Honours went on to say at 561 – 562:
"However, the freedom of communication which the Constitution protects is not absolute [(Nationwide at 51, 76 – 77, 94 – 95; ACTV at 142 – 144, 159, 169, 217 – 218; Theophanous at 126; Stephens v Western Australian Newspapers Ltd (1994) 182 CLR 211 at 235; Cunliffe at 336 – 337; Langer v The Commonwealth (1996) 186 CLR 302 at 333 – 334)]. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end. Different formulae have been used by members of this Court in other cases to express the test whether the freedom provided by the Constitution has been infringed. Some judges have expressed the test as to whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality. In the context of the questions raised by the case stated, there is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted."
Later in the judgment at 567 – 568, their Honours formulated the test for determining whether a law infringed the constitutional right of freedom of speech as follows:
"When a law of a State or Federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect [cf Cunliffe at 337]? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people [Cunliffe, at 300, 324, 339, 387 – 338]. In this context, there is little difference between the test of 'reasonably appropriate and adapted' and the test of proportionality: see at 377, 396) (hereafter collectively 'the system of government prescribed by the Constitution'). If the first question is answered 'yes' and the second is answered 'no', the law is invalid. In ACTV, for example, a majority of this Court held that a law seriously impeding discussion during the course of a federal election was invalid because there were other less drastic means by which the objectives of the law could be achieved. And the common law rules, as they have traditionally been understood, must be examined by a reference to the same considerations. If it is necessary, they must be developed to ensure that the protection given to personal reputation does not unnecessarily or unreasonably impair the freedom of communication about government and political matters which the Constitution requires."
It follows that in order to come within the "area of implied immunity" referred to by Brennan CJ in Cunliffe and by the Court in Lange, the communication which is said to be burdened must relate to a political or governmental matter.

Do the publications relate to a political or governmental matter?

The first of the two items is a novel entitled Street Boy Dreams by one Kevin Esser. The novel tells the story of a young man falling in love with a teenage boy. The appellant submitted that the book is sexually explicit and deals with the moral rights and wrongs of sex between a man and under‑aged boys and youths. It was contended by the appellant that the book was:
"… a serious attempt to discuss the issues surrounding gay intergenerational relationships. As such, the book cannot be read as offensive by any 'reasonable' person. It is my submission that there is nothing in law that allows for its prohibition."
As to the second item, the magazine Koinos, it was submitted by the appellant that this was:
"… a well produced and inoffensive magazine, albeit with a political agenda that cuts across the current of mainstream thinking. It is my submission that there is nothing in law that allows for its prohibition."
It was acknowledged by counsel for the Commonwealth that there was an implied guarantee in the Constitution of freedom of communication on political issues to which I have referred. As stated in Australian Capital Television Pty Ltdv The Commonwealth(No 2) (supra), the freedom extended to matters including "public or political affairs" per Mason CJ at 131, 133 and 139; "political and economic matters" per Brennan J at 149; "political matters" per Deane and Toohey JJ at 169; and "matters of public importance" per Gaudron J at 211. The joint judgment in Lange used the term "political and government matters" throughout.
It was submitted by counsel for the Commonwealth that the constitutional requirement of freedom of communication could "validly extend only so far as is necessary to give effect to ss 7, 24, 64 and 128 of the Constitution: see Lange at 567, 571 and 575". It was also submitted by the Commonwealth that neither Street Boy Dreams nor Koinos constituted "political communication". The appellant, however, sought leave to introduce a body of evidence in the appeal which, he submitted, established that there was, within the community, a political discussion concerning the legitimacy of what he termed "inter‑generational homosexual relations".
Assuming, however, that the appellant's contention that the offending books and documents bore the necessary relationship to a matter of political or governmental significance was correct, the mere intersection of legislative limitation or control with the "area of legal immunity" would not invalidate the relevant legislation. The first step of the test in Lange requires that the Customs Act effectively "burden" or restrict freedom of communication about such political matters. Given that the appellant claimed to have previously purchased a copy of Street Boy Dreams at a bookshop in Sydney some years ago, there is a clear question regarding the extent, if any, that the Customs Act actually "burdens" or otherwise interferes with freedom of communication about such matters. Assuming that the Act does burden or restrict the freedom of communication about inter‑generational homosexual relations and, assuming further, that this is a political or governmental matter, the question arises whether the relevant provisions of the Customs Act are reasonably appropriate and adapted so as to serve a legitimate end.
In Levy v Victoria (supra) at 619, Gaudron J noted a distinction between those laws which interfere with political communication directly, and those laws which do so only incidentally. Her Honour said:
"If the direct purpose of the law is to restrict political communication, it is valid only if necessary for the attainment of some overriding public purpose. If, on the other hand, it has some other purpose, connected with a subject matter within power and only incidentally restricts political communication, it is valid if it is reasonably appropriate and adapted to that other purpose."
This passage was recently approved by Gleeson CJ in Coleman v Power (supra) at [31].
In my opinion, the direct purpose of the relevant statutory provisions and regulations in the present case is not to restrict or burden political communication as such in a way that would impermissibly burden or restrict the freedom of communication implied from the relevant sections of the Constitution. The direct purpose of the relevant statutory provisions and regulations is to prohibit the importation of pornographic publications of the kind referred to in Reg 4A. These include, in particular, items of child pornography within the meaning of s 233BAB(3) of the Customs Act and publications to which Reg 1A applies, namely, that describe and depict, in a way that is likely to cause offence to a reasonable adult, a person who is or looks like a child under 16.

Appellant's affidavits

The appellant relied on two affidavits affirmed by him in support of an application to rely on various documents as evidence in the hearing of his appeal. The first was an affidavit affirmed and filed at request on 8 February 2005. The second affidavit was a supplementary affidavit affirmed and filed on the morning of the hearing of the appeal on 14 February 2005.
In paras 3 to 5 of his affidavit affirmed on 8 February 2005, the appellant states that:
"3.I am a professional story teller and writer. I have worked with young people all around the world. I have had more than a dozen of my plays for young people produced for the professional stage, in Australia and internationally. I have published articles – on story telling, gay literature and homosexuality – and one book of poems.
4.Since the late 1970's I have been an active political campaigner for gay rights, especially in the area of young people's sexuality and on the issues surrounding gay intergenerational sexual relations. I have been invited to speak at many gay rallies, conferences, and discussion groups both in Australia and internationally.
5.In the mid 1980's I attended a counselling course conducted by the Sydney Gay Counselling Service. Since that time I have counselled many gay men and youths on issues surrounding their sexuality, in Australia and overseas."

The appellant says in par 7 of his affidavit that he intends to mention or quote from annexures 1 to 26 in support of ground 1 in relation to the implied freedom of communication.
Documents 27 to 37 are relied upon in support of ground 2 of the grounds of appeal which is concerned with the meaning of "depict" in the context of s 233BAB of the Customs Act.
Documents 38 to 42 are relied upon in support of ground 4 of the grounds of appeal which contends that no jury, properly directed, could have reasonably found the appellant guilty of "knowingly" or "recklessly" importing the items in question.
Documents 43 to 51 are relied upon in support of the appellant's arguments in respect of ground 5 of the grounds of appeal which contends that the documents seized by Customs from his mail and residence were unlawfully seized or held and should not have been "allowed as evidence at trial".
In paras 11 to 13 of his affidavit, the appellant says:
"11.It is important for my Appeal that I be allowed to present these documents because the arguments that will be aired at the Appeal were barely mentioned at trial and little or no documentary evidence was presented at my trial in support of them.
12.Many of my arguments include the necessity of presenting evidence from outside what could be found by quoting legal authorities.
13.The argument in support of ground 5 of my Appeal was not aired at my trial and these documents are the only documents, to my knowledge, that can support or deny this Ground of my Appeal."
Counsel for the Commonwealth made it clear that there was no objection to the tender or reliance by the appellant of articles and other material by way of argument. Attempts to introduce new or fresh evidence, however, were properly made the subject of objection.
It was contended by the appellant that the relevant contents of both Street Boy Dreams and the Koinos magazine were political discussions regarding intergenerational sexual relationships between adult males and young boys and, in particular, boys under the age of 16. It was contended by the appellant that the prohibition of the import of the written material was an infringement of the constitutional implied right of freedom of political communication under the Constitution. It was also contended that the restriction so imposed was unreasonable and did not serve any useful end.
In this context, I agree with the analysis by Roberts‑Smith JA of the appellant's case on ground 1 and the materials. I also accept that there has been a political debate in Australia for some years about sexual offences against children, including debate about the age of consent for both males and females, child abuse generally, paedophilia and same sex relationships between adults and children.
I also agree that neither s 233BAB or reg 4A(1)(b), whether expressly or otherwise, impose any impermissible burden or restriction on governmental or political discussion about such matters. They do not impose any relevant prohibition, restriction or restraint upon anyone advocating changes in the relevant law. In short, I agree with Roberts‑Smith JA that material of this kind does not constitute any part of legitimate political communication, with the consequence that neither s 233BAB nor reg 4A(1)(b) is invalid because neither of them infringe the implied freedom of political debate under the Constitution.
It is then necessary to consider whether and to what extent the two publications were part of the relevant debate, so that a law prohibiting or restricting their importation would infringe the constitutional freedom of political communication. On this aspect of the case, I agree with Roberts‑Smith JA that neither of the two publications is part of any debate which would attract the protection of the implied constitutional freedom. Each of them is properly characterised as child pornography. For these reasons, ground 1 and the relevant aspect of ground 2 both fail.

Ground 4: Were the items knowingly imported?

Ground 4 contended that:
"No jury, properly directed, could have reasonably found the Appellant guilty of 'knowingly' or 'recklessly' importing the items in question.
In directing the jury to decide the Appellants [sic] guilt as to 'knowingly' importing the items, the learned Judge was expecting the jury to make a decision of law as well as of fact. The jury's decision was unreasonable as to the fact, and was not valid as to the law."
I have previously set out the relevant provisions of the Customs Act and the Customs Regulations. Their effect is that it is an offence to knowingly or recklessly import tier 2 goods, the importation of which is prohibited absolutely or prohibited under the Act unless the approval of a particular person had been obtained. In my opinion, the meaning and effect of the relevant provisions is clear as I have explained earlier in these reasons.
The appellant also submitted that the jury had to decide whether he knew that he had imported the items; that he knew that a "person" could be other than a natural person; that he knew that the person appeared to be under the age of 16; that he knew the definition of "offensive" in the Act; and that he knew what a reasonable person would think.
As to knowledge of the importation, the appellant's evidence was that he did not know that the items were imported until he was made aware of this fact by Customs. This was a question of fact for the jury. Fingerprint analysis established that the appellant's fingerprints were located on the envelopes which contained the magazine Koinos, pages of a yellow journal, loose pages found in the yellow journal and on a book imported with Street Boy Dreams.
As has been seen, handwriting analysis on documents seized from the appellant's residence showed that the handwriting on all the documents was written by the same person who addressed the two envelopes and wrote in the yellow journal.
In my opinion, the jury was entitled to be satisfied beyond reasonable doubt, on the evidence that I have recounted, that the appellant had addressed the envelopes to himself, handled the envelopes and handled each of the items enclosed in the envelopes. As has been seen, the appellant gave evidence that Street Boy Dreams and Koinos were posted to Australia by mistake. Whether this evidence was accepted or rejected was a matter for the jury. In my view, the state of the evidence was such that it was open to the jury to reject the evidence of the appellant and find that the appellant knowingly or recklessly imported the items in question.
In my opinion, the contention in ground 4 that in directing the jury to decide whether the appellant "knowingly" or "recklessly" imported the items in question, the jury were expected to make a decision of law as well as of fact is misconceived. The question of knowledge was a question of fact for the jury. In my opinion, the question was whether the appellant "knowingly" imported the relevant item. It is not whether he knew that the relevant item was pornographic, but whether he knowingly imported the book. The question whether each of the items was an item of child pornography was a matter of objective fact for the jury to determine. If each was an item of child pornography, as the jury must have found, then each constituted tier 2 goods, the importation of which was prohibited under the relevant provisions because its contents were found by the jury to be likely to cause offence to a reasonable adult.

Ground 5: Lawful seizure of documents

Ground 5, which was added by leave granted by Miller J on 30 June 2004, was that:
"The documents and items seized by Customs from the Appellant's mail and residence were unlawfully seized or held and should not have been allowed as evidence at trial."
The appellant contended that a number of documents admitted in evidence at the trial, which were items in envelopes addressed to the appellant "seized" by Customs officers at Australia Post or "seized" by Customs during a raid on the appellant's house, were unlawfully seized and should not have been admitted in evidence.
No issue as to the validity of the seizure of various documents was raised at the trial. The issue not having been raised, no evidence was led in relation to it. In the absence of any objection to the validity of the seizure, the presumption of regularity would apply and there was no onus on the Commonwealth to lead evidence pre‑empting any possible objection on the facts. At the trial, the issues which were to be raised were expressly stated by counsel for the appellant, Mr Young, that "… the fact is that 95 per cent of the case isn't going to be in dispute".
Mr Young went on to say:
"The issue is going to be a factual issue about importing and there's going to be an issue as to whether the books are offensive, indeed an issue I suppose related to that as to whether Mr Holland knew or was reckless as to that aspect."
It is apparent that no issue was raised regarding the validity of the seizure of the documents at trial. In my opinion, it is too late now to raise the point. There is no substance in ground 5.

Ground 3: Appellant's knowledge that his mail was under surveillance

Ground 3 contended that the learned trial Judge misdirected the jury as to the meaning of the appellant's statement in evidence that he knew his mail was under surveillance with the result that the jury would not have understood the appellant was denying his guilt.
The respondent took issue with this contention and argued that the learned trial Judge correctly stated the appellant's relevant evidence and contended that despite his assertion the jury could not have been in any doubt that he was denying his guilt. The relevant evidence is fully set out in the reasons to be published by Roberts‑Smith JA. I agree with his Honour that the attempt by the learned trial Judge to clarify the position in response to a request from the jury unfortunately resulted in a misstatement of the appellant's evidence on an issue which was clearly regarded by the jury as of some importance. In particular, I agree that, absent the misstatement of the relevant evidence and given an accurate statement by her Honour of the evidence, it was at least highly likely that the jury would not have returned a verdict of guilty on either count. In the result, I agree with Roberts‑Smith JA that ground 3 must succeed because the Crown was not able to demonstrate that the error did not result in a substantial miscarriage of justice.

In the meantime, I have had the opportunity of reading in draft the reasons to be published by McLure JA regarding the absence of any relevant connection between Street Boy Dreams and political or governmental matters. While I agree that the position in relation to Koinos is not so straightforward, the relevant photographs in the magazine are such that their pornographic character has no connection with and provides no justification by reference to any political consideration. The circumstances are such that the prohibition on the importation of child pornography is justified by the position taken by Parliament that the importation of child pornography is harmful and prohibition is reasonably appropriate and adapted as required by the implied constitutional freedom in respect of political communication.
ROBERTS-SMITH JA: On 16 October 2003, following a trial before a Judge and jury in the District Court at Perth, the appellant was convicted of two counts of importing child pornography, namely that:
"1. On or about the 17th day of July 2000 at Perth in the State of Western Australia HARRY HOLLAND knowingly imported goods which were tier 2 goods, namely a book titled 'Street Boy Dreams', the importation of which was prohibited under the Customs Act 1901 without approval, and at the time of the importation approval had not been obtained, contrary to section 233BAB(5) read with sub‑sections (1) and (3) of section 233BAB of the said Act, and further read with Regulation 179AA(3) of the Customs Regulations.
…
4 AND IN THE ALTERNATIVE TO COUNT 3 informs the Court that on or about the 17th day of July 2000 at Perth in the said State HARRY HOLLAND recklessly imported goods which were tier 2 goods, namely a book titled 'Koinos 26 2^nd Quarter 2000', the importation of which was prohibited under the Customs Act 1901 without approval, and at the time of the importation approval had not been obtained, contrary to section 233BAB(5) read with sub‑sections (1) and (3) of section 233BAB of the said Act, and further read with Regulation 179AA(3) of the Customs Regulations."
By a notice dated 6 November 2003 he appeals those convictions on the following grounds:

"1.The Customs Act 1901 section 233 BAB(5) read with subsections (1) and (3) of section 233BAB, and further read with Regulation 179AA(3) of the Customs Regulations, contravenes sections 7 and 24 of the Commonwealth Constitution, or in its effect contravenes section 7 and 24 of the Commonwealth Constitution.
Section 7 and 24 of the Commonwealth Constitution guarantees a freedom of political discussion, which includes the right to import and read the items which were the subject of the charges against the Appellant.
2.The learned judge erred in deciding the definition of the words 'depict' and 'person' as used in the Customs Act 1901.
The learned judge defined the words too broadly, in a way that was not intended by the legislation, or that contravenes sections 7 and 24 of the Commonwealth Constitution.
3.The learned judge misdirected the jury as to the meaning of the Appellant's statement in evidence about whether he knew his mail was under surveillance, to the effect that the jury would not have understood the Appellant was denying his guilt.
4.No jury, properly directed, could have reasonably found the Appellant guilty of 'knowingly' or 'recklessly' importing the items in question.
In directing the jury to decide the Appellant's guilt as to 'knowingly' importing the items, the learned judge was expecting the jury to make a decision of law as well as of fact. The jury's decision was unreasonable as to the fact, and was not valid as to the law."

Leave to amend the notice by adding the following additional ground was granted by Miller J on 30 June 2004:
"5.The documents and items seized by Customs from the Appellant's mail and residence were unlawfully seized or held and should not have been allowed as evidence at trial."
The appellant was represented by counsel at trial, but appeared for himself on the appeal.
The prosecution case at trial was that on 3 July 2000, while in Amsterdam, Holland, the appellant posted or caused to be posted two envelopes he addressed to himself in Perth. The two envelopes arrived in Australia on 17 July 2000 and were intercepted by Customs officers at Postal Control, Welshpool. One envelope contained three books including "Street Boy Dreams". The other envelope contained the magazine "Koinos 26 2^nd Quarter 2000" as well as a yellow hard covered journal (exercise book) and a number of loose pages within the journal.
On 20 July 2000, Australian Customs Service officers executed search and seizure warrants at the appellant's residence. Items seized from there were submitted for handwriting analysis. That analysis concluded the documents were written by the same person who addressed the two envelopes and wrote in the yellow journal intercepted at Postal Control.
The book "Street Boy Dreams" is a work of fiction, centred on Peter, a school teacher aged about 35 years and his relationship with Gito, a 14 year old boy. The book contains depictions of Peter involved in sexual activity with Gito, his 13 year old cousin Chico, a "local boy" Pablito, another boy "Felipe" and a "shoeshine boy", "Willie".
The magazine Koinos, in its editorial, states that it "intends to capture in words and pictures the beauty of boys from the beginning of their puberty until they become adults" and "… to argue in a nuanced manner for a society in which boys in this phase of their lives are valued and in which without obstruction of prejudices they can have the possibility of experiencing intimate relationships and sexual contacts with other persons, including adults, on the basis of mutual respect".
The magazine includes photographs of persons who appear to be under 16 years of age and a short story, two articles, film reviews and advertisements dealing with the relationships between adults and persons under 16 years of age.
Approval is required to import tier 2 goods. No such approval was obtained from the Office of Film and Literature Classification ("OFLC") or the Commonwealth Attorney‑General, to import these publications.
At the outset of the trial the appellant made a number of formal admissions through his counsel pursuant to s 32 of the Evidence Act 1906 (WA). Those included that:
•approval for the importation of the two subject publications had not been obtained from the Attorney‑General or a person authorised by him;
•the appellant was out of Australia between 28 April and 6 July 2000;
•he travelled from the United Kingdom to the Netherlands about 29 June and returned from the Netherlands to the United Kingdom about 3 July 2000;
•the items were imported by post from the Netherlands to the appellant's postal address about 17 July 2000;
•the appellant had changed his name by deed poll on 13 August 1991 from his birth name of Colin Nugent (aka Emu Nugent) to Harry Holland;
•the fingerprints identified as his were in fact his.
The only issues at trial were accordingly essentially the questions of statutory construction and constitutional validity and whether the two publications were tier 2 goods.
The case advanced by the appellant at trial was, briefly, as follows. Between 30 June and 2 July 2000 he attended a Gay conference held outside Amsterdam. At the conference he picked up a free copy of the magazine Koinos and various letters, leaflets and papers. He was going to give the Koinos magazine to someone in England. After the conference he purchased "Street Boy Dreams" in Amsterdam, whilst shopping with his friend Peter, as a gift for someone in England.
The appellant intended to post to himself in Australia only his yellow journal, the papers from the conference and the two books which were later found in the envelope with "Street Boy Dreams". However "Street Boy Dreams" and "Koinos" were posted to Australia by mistake. The appellant's friend Peter packed the appellant's two envelopes at the post office when he left the room and included the two publications which the appellant had intended to give to someone in England.
It was the appellant's experience that every time he came through an Australian international airport, Customs inspected everything. He said he was accordingly aware that Customs would probably search his mail and him personally when he came into Australia. If he was concerned about the legality of books he would not have imported them because he knew Customs had been watching him for 20 years.
The appellant did not consider "Street Boy Dreams" or "Koinos" to be child pornography. He referred to western and world literature through history dealing with sexual relationships between men and boys and said there is a huge genre of available books talking about the subject of men and male youths having sex. He said "coming out stories" are very important to gay men.
He would have presumed that "Street Boy Dreams" was legal because he had purchased it from the book shop in Oxford Street, Sydney around 1997, 1998 or 1999. He did not consider the book was likely to cause offence to a reasonable adult.
The appellant said he has seen material similar to Koinos everywhere in Australia. He does not regard Koinos as explicit, nor offensive. He said the political discussion in Koinos is no different from other available material and could not believe it would be illegal.

I return to the appellant's submissions. As to his knowledge of importation, he asserts he did not know that the items were imported until made aware of the fact by Customs. He says Customs cannot have known his intention at the time the goods were intercepted and that they were required to allow him the opportunity to declare them. In support of that proposition he relies upon the statement by Dawson J in He Kaw Teh v The Queen (1985) 157 CLR 523, 596 that:
"Goods would not, to my mind, be imported if they were discovered on board a ship or an aircraft during a journey to Australia and were handed to customs officers on arrival here because their importation was prohibited".
That passage does not support the proposition for which it is advanced. Dawson J was explaining the notion of importation, and specifically, that it connotes an intention to use or consume the goods once they are brought into Australia. The handing of prohibited goods to Customs officers on arrival would negate any such intention. His Honour was saying nothing at all about any obligation on Customs officers to allow a person to declare prohibited goods. In any event, the time for these goods to have been declared (as the evidence showed) was by indorsement on a label affixed to the envelopes when posted. The real issue in this regard was, as her Honour explained it, whether the appellant posted the envelopes knowing the prohibited items were in them. Her Honour's directions about that were correct in law and drew the jury's attention sufficiently to the evidence and the respective arguments put before them.
The appellant's submission that the prosecution had to prove he "knew" how each of the terms used in s 233BAB were to be construed and how the two publications would fall within them - as the appellant put it, that he "knew" the way that particular law is interpreted and administered - cannot be accepted.
As a matter of statutory construction, the statutory elements of "knowingly" or "recklessly" apply only to the act of importation. However, cases involving the importation of prohibited drugs have long established that there is a further necessary mental element. It would not be sufficient to prove a person deliberately imported an item, that they did so without knowing the nature of it. The further mental element is knowledge of what the relevant item was. Thus, in the context of drug cases, it is necessary (and sufficient) for the prosecution to prove the accused knew the item was, or was likely to be, a narcotic drug, for example. It is not necessary to prove it was a particular prohibited drug, nor the quantity of it (He Kaw Teh (supra) per Gibbs CJ (with whom Mason J agreed) at 537; Brennan J at 584, 585; Dawson J at 596). The relevant state of mind was described in Sherras v De Rutzen [1895] 1 QB 918 at 921 as "evil intention or knowledge of the wrongfulness of the act". In R v Turnbull (1943) 44 SR (NSW) 108, Jordan CJ suggested (at 109) that meant the accused:
"… knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged."
That statement of the law was approved by Windeyer J in Iannella v French (1968) 119 CLR 84 at 108 ‑ 109.
It follows that a person cannot be guilty of importing prohibited goods contrary to s 233BAB unless the person:
1.knowingly or recklessly imports goods (that is, intentionally or recklessly brings them into Australia for the purpose of using or consuming them);
2.knowing (or suspecting) that they are goods of a particular kind (here, child pornography) (He Kaw Teh (supra));
3.which are in fact tier 2 goods; and
4.whose importation without permission is prohibited.
It was put by the appellant that s 233BAB(1), (3), (5) and reg 179AA(3) are so cumulatively subjective in their wording and so badly written, that it is impossible for any person to know how to stay within the meaning of the law; it is not possible to effectively know the meaning of the law and therefore cannot be possible to "knowingly" transgress it.
That submission must be rejected. It is predicated on a proposition that "knowingly" requires proof that the appellant knew he was breaking the law. That is not a requirement of the section. It offends the maxim that ignorance of the law is no excuse (Evans v Bartlam [1937] AC 473, 479; Johnson v Youden [1950] 1 KB 544, 546). It has been said that every person is presumed to know the law (Sir Matthew Hale "Historia Placitorum Coronae", Ch VI), but that gloss did not find favour. As Maule J pointed out in Martindale v Falkner (1846) 2 CB 706, 719 ‑ 720:
"There is no presumption in this country that every person knows the law: it would be contrary to commonsense and reason if it were so … The rule is, that ignorance of the law shall not excuse a man, or relieve him from the consequences of the crime, or from liability upon a contract."
In McKechnie v Jones (1976) 13 SASR 184 the Full Court of South Australia explained it thus (at 187):
"The doctrine is not that all persons are deemed to know the law. It is properly expressed in the maxim ignorantia juris haud excusat; that is to say, ignorance of the law does not excuse an act which contravenes it. This is not the same thing as saying that the person concerned is deemed to know the law. It merely says that, even though he does not know it, his ignorance is no excuse to him."
(and see Iannella v French (supra) per Taylor J at 101 and Windeyer J at 112). It was explained by Gleeson CJ and Kirby J in Ostrowski v Palmer (2004) 206 ALR 422 at [1]:
"Professor Glanville Williams said that almost the only knowledge of law that many people possess is the knowledge that ignorance of the law is no excuse when a person is charged with an offence. This does not mean that people are presumed to know the law. Such a presumption would be absurd. Rather, it means that, if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the question of guilt that the accused person was not aware that those elements constituted an offence." (References omitted)
The doctrine has even been applied in circumstances in which the defendant has acted honestly but on erroneous legal advice about what the law was (Surrey County Council v Battersby [1965] 1 All ER 273; Ostrowski (supra)).
Here the prosecution had to establish the appellant knew (or was reckless as to whether) the publications were, or were likely to be, child pornography (see also Davis v The Queen (1990) 5 WAR 269; Evans v The Queen [2003] WASCA 194 per Murray ACJ (with whom Anderson and Steytler JJ agreed) at [11] ‑ [13]).
The appellant's argument on this point involves an assertion that he did not know or believe the items were child pornography. In respect of an offence which requires proof of an intent to import goods of the type prohibited, as here, there is no scope for a "defence" of honest and reasonable but mistaken belief, because that is subsumed in the greater requirement of proof of actual knowledge (per Dawson J in He Kaw Teh at 598). The Judge directed the jury that "knowingly" required proof of knowledge by the appellant of the nature of the items imported, namely that they came within the definition of child pornography. That direction was unduly favourable to the appellant, since it was sufficient for the prosecution to prove the appellant knew they were items which in fact depicted persons apparently under the age of 16 years involved in a sexual pose or sexual activity and which were likely to cause offence to a reasonable adult. It was not necessary for the prosecution to prove the appellant actually knew the statutory definition, nor how the items fell within it, any more than it would be necessary to show a drug importer knew the prohibited drug fell within the terms of a particular statutory definition or proscription. Her Honour's direction of "recklessly" also properly put the law applicable to that aspect squarely before the jury. Her Honour directed the jury they could not convict unless they were satisfied the publications were tier 2 goods. That put it more in the appellant's favour than the law required, but it was how the Crown had put it to her Honour and the basis upon which the trial had been conducted.
The verdicts returned necessarily mean the jury was satisfied beyond reasonable doubt the appellant knew "Street Boy Dreams" was an item of child pornography and that he was reckless as to whether or not Koinos was. It was open on the evidence for them to be so satisfied. There is no substance in ground 4.

Ground 5 - Seized items improperly admitted

A number of other documents were tendered in evidence by the prosecution at trial or otherwise relied upon in cross‑examination of the appellant. These were items in envelopes addressed to the appellant and seized by Customs officers at Australia Post or during a raid under search warrant at the appellant's residence. Some of those referred to in evidence were "Misunderstood Intimacy, A Pastoral Approach to Paedophilia", "Understanding Love Boys and Boy Lovers", a document "How to Meet Children", an email "What to Do", a passport of the appellant in the name of Emu Nugent, a yellow journal in which he had made notes of the Amsterdam conference and various envelopes addressed to Emu Nugent.
The additional materials, not produced at trial, but upon which the appellant wishes to rely on the appeal, are:
1.ACS receipt for goods dated 18 July 2000, listing the two subject items and the other materials from the two envelopes seized that day;
2.search warrant issued under s 198 of the Customs Act dated 19 July 2000 authorising search of the appellant's residence;
3.a seizure warrant issued under s 203 of the Customs Act also on the same date;
4.a located evidence list dated 20 July 2000, and
5.seizure notices in respect of each of "Street Boy Dreams" and "Koinos", the letter from the appellant's solicitors Messrs Gibson & Gibson to ACS dated 17 August 2000 relating to items seized, exhibits, property receipts and a one and a half page statement of Mr Plant dated 1 August 2000.
The appellant wishes to rely on these documents to show the seizures were unlawful and on that ground, the items were not admissible or should have been excluded from evidence and the Crown prosecutor should not have been permitted to refer to them. He also submits the materials were irrelevant and inadmissible or alternatively, ought to have been excluded in the exercise of her Honour's discretion as unfairly prejudicial to him.
For the respondent it is submitted that those items which were adduced in evidence were tendered by consent and no objection was taken to the evidentiary use of the others.
They were said to be relevant and admissible in two ways: first, as to some of them, that they were part of the evidence proving the fingerprint identification of the appellant; secondly, as to others, to show knowledge on the part of the appellant that material of the kind was such that reasonable people would find it offensive. None of the material now sought to be relied upon is fresh evidence. Manifestly, it was not evidence that did not exist or could not with reasonable diligence have been discovered prior to trial. Nor is it "new" evidence of that kind for the same reason (for the distinction see Mickelberg v The Queen (2004) 29 WAR 13, [416]; Beamish v The Queen [2005] WASCA 62, [9]).
The appellant was represented by counsel at trial. The lawfulness of the seizures, and the admission into evidence of the seized items, or reference to them, were never issues in contest. That being so, no evidence was directed to them, which it might otherwise have been. I would not give leave to the appellant to introduce this material on the appeal.
The admission into evidence and the use of the seized material in the trial was one of the matters canvassed by counsel before the Judge at a pre‑trial hearing and again in the course of trial. It is important to note that the appellant wished to himself testify and to adduce evidence about a range of material of this kind, to show first the existence and nature of the political debate upon which he was relying, and secondly, to show the availability within Australia of a large amount of what he wished to contend was similar material to "Koinos" and "Street Boy Dreams". The point sought to be made from the second aspect was that being aware of the availability within Australia of these other materials, the appellant had no reason to think the two subject publications would be offensive to a reasonable person. It was in that context that the Crown prosecutor subsequently cross‑examined the appellant on the content of some of the documents seized from him by ACS, to show the contrary - that is, that he was aware it was offensive to a reasonable person.
One example may be given. Included in the envelope mailed to the appellant was a one page copy email dated 24 June 2000. It purports to be a list of things adults can do to form "meaningful relationships" with children. Under "places of contact" it lists children's friends, friends' children, and public places, and notes "We must be conscious of being conspicuous. Do we have a believable reason for being there?" Under "methods of contact" it suggests a sincere smile and "comments on current activity/compliments" as crucial first steps in finding friendly, open children. It recommends being bold to join in games and getting to know each other and parents, if possible, and mentions knowing when to back off or walk away. In the appellant's handwritten notes from the Amsterdam conference, in an apparent reference to the email sheet, the appellant has written "How to meet children - what are the parents scared of?"
The appellant was cross‑examined on the content of the email, apparently to show that he was aware there was concern amongst the wider community about adults engaging, or seeking to engage, in sexual activity with young children - all that being directed to the question whether "Street Boy Dreams" and "Koinos" were publications likely to be offensive to a reasonable person. The forensic efficacy of this may be open to some doubt, but nonetheless, it was no more than the other side of what the appellant was himself trying to demonstrate in a similar way.
During the prosecution case, the Crown prosecutor tendered what he contended were the relevant parts of "Street Boy Dreams" and "Koinos", together with some of the other seized documents. Counsel for the appellant was asked at the time whether there was any objection to the latter and he said there was not. He did submit that the whole of the subject publications should be put before the jury. At the close of the prosecution case, the Crown prosecutor tendered the whole of those two publications accordingly. At the same time, he sought to provide for each member of the jury a photocopy of the documents collected and notes made by the appellant at the Amsterdam conference. Counsel for the appellant had apparently earlier agreed to that, but objected to it being done before the appellant had given his evidence. This appears in the following exchange (t 310):
"YOUNG, MR:   Yes. Well, it's something which, I can simply say, it's going to come out in evidence anyway.   That's why I didn't object to it because it's going to come out one way or another with Mr Holland.
KENNEDY DCJ:   Yes.
YOUNG, MR:      They are all conference notes from the conference he was at in Holland. That has to come out, so there's no point hiding anything from the jury really in that regard. It's just a question of having - sorry, your Honour. Just a question of the jury having it
KENNEDY DCJ:   At this stage.
YOUNG, MR:            before they heard his evidence, going through it over lunch, that kind of thing.
KENNEDY DCJ:   Yes, I see, before they hear his explanation.
YOUNG, MR:      That's right.

KENNEDY DCJ: I understand. I think that is perfectly reasonable."

Given the course of events at trial in relation to the documents the subject of ground 5, and in particular that the issue was not then raised and that if it had been the Crown might well have adduced evidence about it and the trial may have been conducted differently, I would refuse leave to appeal on ground 5.
For the reasons given above, I would give leave to appeal in respect of grounds 1, 2, 3 and 4, would reject grounds 1, 2 and 4, but uphold ground 3. As it cannot be said the appellant has not thereby lost a reasonable possibility of acquittal, the Crown has not demonstrated the error did not result in a substantial miscarriage of justice. It is accordingly not a case in which the proviso to s 689 of the Criminal Code (now s 30(4) of the Criminal Appeals Act 2004) may be applied. I would allow the appeal, set aside the convictions and order a re‑trial.
MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Roberts‑Smith JA. I agree with the orders he proposes generally for the reasons he gives. However, I wish to state my own reasons on the constitutional question.
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; and
2the 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

conduct as well as speech: Levy v Victoria (1997) 189 CLR 579 at 614, 623 ‑ 624.

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.

Street Boy Dreams is a work of fiction. Unlike Koinos, its messages are not overt. However, according to the appellant, it serves to assist understanding of, and for, boys (under 16) struggling with their sexuality and the differences between what advocates of sex with children understand to be paedophilia (which they accept to be improper) and what the appellant describes as "intergenerational sexual relations".
It was not suggested by the Crown that a prohibition on importation does not impose a burden on communication. It clearly does. The Crown contended that the imported goods were not communications about government or political matters. The direct purpose of the law is clearly not to restrict political communication. The question is whether it incidentally restricts political communication.
Conduct related to criticism, or change, of any law or government policy would seem to be a political matter: see Levy v Victoria; Coleman v Power at [28] per Gleeson CJ; Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 82 FCR 225 at 245 per Heerey J.
According to McHugh J in Coleman v Power at [91]:
"In all but exceptional cases, a law will not burden such communications unless, by its operation or practical effect, it directly and not remotely restricts or limits the content of those communications or the time, place, manner or conditions of their occurrence."
Section 233BAB, in its application to both publications, directly limits the content of communications. However, insofar as Street Boy Dreams is concerned, the communication has no relevant connection with political or government matters. The promotion of understanding said to result from fiction of this nature is too remote to be characterised as a communication on political matters. Accordingly, the implied freedom of communication has no application to Street Boy Dreams.
The situation in relation to Koinos is not as straightforward. Some of its content may be characterised as a communication on political matters. That may be so notwithstanding the communication is, in effect, preaching to the converted. However, for the reasons already given, the photographs in question are neither a political communication nor relevantly connected with such communications. As the political advocacy component of the magazine is not insubstantial, in purpose or in content, the magazine cannot be characterised as a whole as non‑political. As the conviction is for importing the magazine, I am satisfied that the incidental practical effect of s 233BAB may be to limit the content of political communications. Accordingly, it is necessary to consider the second limb of the principle.
The object of s 233BAB is to criminalise the importation of tier 2 child pornography as defined above. Section 233BAB was introduced by the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000 (Cth). In the second reading speech the Commonwealth Attorney‑General materially said:
"Shielding the community from injury and protecting children from exploitation are two essential responsibilities of a just society. While each member of society should uphold public safety and protect children from harm, governments and parliaments have a unique role in establishing laws which can ensure the protection of the community and deter crime and antisocial behaviour."
Thus, the purpose of the law is to protect children from harm and to deter crime. It appears the legislature acted in part because of what the Executive and Parliament saw as a link between child pornography and the commission of criminal offences prohibiting sexual relations with children, as, for example, ss 320, 321 and 321A of the Criminal Code (WA).
If the Court can accept at face value the legislature's assessment that there is a link between child pornography, on the one hand, and breaches of the criminal law and harm to children more generally (such as, for example, the children who are featured in the material), the law would be reasonably appropriate and adapted in the ways required: see Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 77 per Deane and Toohey JJ; Langer v The Commonwealth (1996) 186 CLR 302. In accordance with standard principles of statutory construction, the courts in sentencing for breaches of the laws relating to child pornography accept that it is harmful in the ways referred to by the legislature: R v Jones (1999) 108 A Crim R 50 at 51; R v Assheton (2002) 132 A Crim R 237 at 246 ‑ 247; R v Quick [2004] VSC 270 at [53] - [57]. It may be thought to be odd for the Court to proceed on a different basis when considering whether the law is reasonably appropriate and adapted. Further, the political content in approving and purporting to morally justify the conduct would arguably increase the risk of harm contemplated by the legislature. I am satisfied that there is a reasonable apprehension that all forms of child pornography the subject of s 233BAB(5) cause harm to children.
However, the Court was not addressed by the parties on issues such as whether or not the harm has to be established, if so, by whom and the standard of review. These are difficult and unresolved issues (see Stone, "The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication" (1999) 23 Melbourne University Law Review 668, McHugh J's rebuttal in Coleman v Power at [83] - [100]), the more restrictive approach of Gleeson CJ in that case at [31] and that taken by the Supreme Court of Canada in R v Sharpe [2001] 1 SCR 45.
Fortunately, it is unnecessary to attempt to resolve them because of the unusual circumstances of this case. Section 233BAB directly affects communications of a specific kind, being child pornography. In this case, the offending material has no relevant connection with the political content in the magazine; it is entirely gratuitous. Further, it cannot be said that child pornography might reasonably or expectedly be used in the course of communications on political matters. This is in contrast to the type of language in which political communications might be communicated: see Coleman v Power per Gleeson CJ at [27] and McHugh J at [81]. In those circumstances, I am satisfied that the prohibition on the importation of child pornography is reasonably appropriate and adapted as required by the implied constitutional freedom.