Holland v The Queen

Case [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…

Continue reading Holland v The Queen

Sign in free to access the full text

Details
AGLC
Holland v The Queen [2005] WASCA 140
Case
[2005] WASCA 140
Decision Date

CaseChat Overview and Summary

Holland v The Queen was a case before the High Court of Australia. The appellant, Holland, was convicted of importing prohibited goods, specifically child pornography, via mail from the Netherlands. Holland argued that the sections of the Customs Act 1901 (Cth) and the Customs Regulations 1926 (Cth) under which he was convicted were invalid as they infringed upon the implied freedom of political communication. Holland contended that the provisions were not reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutional system of representative and responsible government. Additionally, Holland argued that the terms "depict" and "person" in the relevant sections of the Customs Act 1901 were ambiguous and should be interpreted narrowly. Furthermore, he argued that he did not import the goods knowingly or recklessly, and that the items were unlawfully seized.

The court considered whether the provisions in question effectively burdened freedom of communication about government or political matters and whether they were reasonably appropriate and adapted to serve a legitimate end. The court also examined the meaning of "depict" and "person" in the relevant statutory provisions. The court found that the magazines in question, particularly Koinos, contained content that was sexually explicit and depicted individuals who appeared to be under the age of 16, which was likely to cause offence to a reasonable adult. The court held that the provisions were not invalid as they served a legitimate end and were reasonably appropriate and adapted to that end. The court also found that the terms "depict" and "person" were not ambiguous and that Holland had imported the goods knowingly or recklessly.

The court upheld Holland's convictions and dismissed the appeal. The court found that the provisions in question were valid and did not infringe upon the implied freedom of political communication. The court also found that Holland had imported the goods knowingly or recklessly, and that the items were not unlawfully seized. The court upheld the convictions and affirmed the decisions of the lower courts.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The appellant contended that s 233BAB(5) of the Customs Act 1901 (Cth), in its application to the facts of the present case, was invalid because it was inconsistent with the freedom of political communication conferred by implication by the Commonwealth Constitution. The appellant's contention has to be considered by reference to the principles stated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561 ‑ 562, 567 as explained in Coleman v Power (2004) 78 ALJR 1166. Those principles are that a law will infringe the freedom implied in the Constitution where the law:1effectively burdens freedom of communication about government or political matters in its terms, operation or effect; and2the law is not reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutional system of representative and a responsible government. The implied freedom does not create a personal or individual right; it is a limitation upon legislative and governmental power. It extends to The imported goods the subject of the appellant's convictions were "Street Boy Dreams" and a magazine called "Koinos". Koinos is a magazine published in the Netherlands by a foundation whose object is stated to be "the promotion of humane morals laws in all countries, based upon the right to self‑determination". The magazine contains a number of articles, including a short story about what is foreshadowed to be a sexual encounter between an adult female and a 15 or 16‑year‑old boy; an article concerning the historical differences in attitudes and laws relating to sex with children; reviews of films in which children and their sexuality feature; and an article advocating opposition to a proposed change to tighten Dutch law relating to sex involving children between 12 and 16. The magazine expressly advocates freedom for adults (and others) to have sex with children. The rationale for the advocacy appears to be based, at least in part, on a child's alleged right to self‑determination in sexual matters. The magazine also contains many pages of photographs of boys, some of whom are clearly under the age of 16. The front and back cover of the magazine also feature full‑page photographs of boys. My understanding is that the Crown relied on one or two of the photographs in support of the charge. However, most of the photographs would be incapable of constituting child pornography as defined in s 233BAB(3), being goods that depict a person who is or appears to be under 16 and who is involved in a sexual pose or in sexual activity whether or not in the presence of other persons that is likely to cause offence to a reasonable adult. None of the photographs are expressly or impliedly linked with any of the articles. They have no contextual relevance or connection with them. Having regard to the number and nature of the photographs, the content of the articles (and the nature of the advertising), I infer that the photographs are included for prurient purposes and that the market for the magazine is adults with a sexual interest in children.