Vokalek v Commonwealth of Australia - [2008] SASC 256

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VOKALEK v COMMONWEALTH OF AUSTRALIA
[2008] SASC 256
Judgment of The Honourable Justice Gray
19 September 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - OBSCENE, INDECENT OR OBJECTIONABLE PUBLICATIONS OR REPRESENTATIONS - PUBLICATION, DISTRIBUTION, DELIVERY, ETC
Defendant placed an order in the United States of America for two DVDs containing pornographic material - defendant charged with two counts of importing a prohibited import contrary to section 233(1)(b) of the Customs Act 1901 (Cth) - following a trial before a Magistrate, first count was dismissed - defendant was convicted on the second count - defendant appealed against the conviction on the second count and the Commonwealth appealed against the dismissal of the first count.
The defendant's appeal against the conviction on the second count - whether the DVD the subject of the second count offended against the standards of morality, decency and propriety, generally accepted by reasonable adults, to the extent that the DVD should not be imported - whether the use to which the DVD is intended to be put is a relevant consideration in determining whether it offends against these standards - whether the Magistrate had failed to articulate in her reasons why the DVD the subject of the second count offended the currently accepted standards – whether the Magistrate erred in ruling that evidence from two expert witnesses was inadmissible on the topic of the prevailing community standards of decency.
Held – dismissing the appeal and affirming the conviction on the second count – Magistrate did not err in finding that the DVD the subject of the second count offended against the standards of morality, decency and propriety, generally accepted by reasonable adults, to the extent that the DVD should not be imported – the use to which the DVD is intended to be put is not a relevant consideration for this offence, as when the DVD was imported it was imported on an unrestricted basis – the Magistrate did not err in identifying the need to determine community standards and concluding that those standards were the contemporary standards of decency currently accepted by the Australian community, being the average man or woman of that community – the Magistrate did not err in ruling that the expert evidence was inadmissible – the law leaves the assessment of the relevant publications and whether the publications breach contemporary standards to the finder of fact, in this case the Magistrate.
The Commonwealth’s cross-appeal against the dismissal of the first count – whether the Magistrate applied the wrong test in reaching her conclusion that it had not been proved beyond reasonable doubt that the majority of reasonable adults would take the view that a DVD such as the DVD the subject of the first count would not be tolerated.
Held – allowing the cross-appeal and imposing a conviction on the first count – Magistrate applied the wrong test - Magistrate erred in proceeding on the basis that the DVD was “for private viewing only” - once imported, the DVD would be available in Australia for unrestricted use without classification, and available for dissemination – the DVD offends against the standards of morality, decency and propriety generally accepted by reasonable adults to such an extent that it should not be imported.
Australian Constitution s51(i); Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 18, s 23 and s 23A; Classification (Publications, Films and Computer Games) Bill 1994 (Cth); Customs (Prohibited Imports) Regulations 1956 (Cth) r 4A(1A)(a); Customs Act 1901 (Cth) s 7, s 30, s 31, s 35, s 50, s 68(a), s 112 and s 233(1)(b), referred to.
Holland v The Queen (2005) 193 FLR 140; Crowe v Graham (1968) 121 CLR 375; R v Hicklin [1868] L.R. 3 Q.B. 360; R v Close [1948] VLR 445; Romeyko v Samuels (1972) 2 SASR 529; Chance International Pty Ltd v Forbes and Another (1968) 12 FLR 425; Dorf Industries Pty Ltd and Another v Toose and Others (1994) 127 ALR 654; Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111, considered.

VOKALEK v COMMONWEALTH OF AUSTRALIA
[2008] SASC 256
Magistrates Appeal
GRAY J.

The defendant, George Vokalek, was charged with two counts of importing a prohibited import contrary to section 233(1)(b) of the Customs Act 1901 (Cth).[1] Following a trial before a magistrate the first count was dismissed. The defendant was convicted on the second count. The defendant has appealed against the conviction on the second count and the Commonwealth has appealed against the dismissal of the first count. The appeal and cross-appeal were heard at the same time.
[1] The complaint initially alleged 11 counts. Two counts were withdrawn by the Commonwealth and seven were dismissed by a magistrate as being out of time and therefore without jurisdiction.
The complaint, laid by the Chief Executive Officer of Customs on 10 May 2004, alleged the defendant:
-On or about 16 December 2003 at Clyde in the State of New South Wales imported a prohibited import, namely (1) Digital Video Disc titled “Fetish World” describing, depicting, expressing or otherwise dealing with matters of sex, cruelty, violence, or revolting or abhorrent phenomena in such a way that it offends against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that it should not be imported contrary to paragraph 233(1)(b) of the Customs Act 1901 (“the first Count”).
-On or about 16 December 2003 at Clyde in the State of New South Wales imported a prohibited import, namely one Digital Video Disc titled “Doll House” describing, depicting, expressing or otherwise dealing with matters of sex, cruelty, violence, or revolting or abhorrent phenomena in such a way that it offends against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that it should not be imported contrary to paragraph 233(1)(b) of the Customs Act 1901 (“the second Count”).
The primary facts were not in dispute. The defendant placed an order in the United States of America for two DVDs. One entitled “Fetish World” and the other “Doll House”. The United States entity forwarded the DVDs to the defendant at a post box number in Adelaide. The DVDs were intercepted by Customs officers on 16 December 2003 at the Clyde Mail Centre in Sydney. The officers formed the view that both DVDs offended against regulation 4A(1A)(a) of the Customs (Prohibited Imports) Regulations 1956 (Cth) and therefore against section 233(1)(b) of the Customs Act. It was not in dispute that the defendant had arranged for the importation of the DVDs by the placement of an order overseas and that he provided his post box number in Adelaide as the address to which they were to be sent. It was also accepted by the defendant that he did not have the permission from the Attorney-General or any person authorised by the Attorney-General to import the DVDs.
The issue at trial was whether it had been proved beyond reasonable doubt that with respect to each count, the relevant DVD described, depicted, expressed, or otherwise dealt with matters of sex, cruelty, violence or revolting or abhorrent phenomena in such a way that the DVD offended against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that the DVD should not have been imported.
The Legislation
Relevant Provisions
It is convenient at the outset to set out the relevant statutory provisions.
Section 233(1)(b) of the Customs Act provides:
A person shall not:
import any prohibited imports
Prohibited imports are defined in section 4 of the Act to be:
Goods whose importation ... is prohibited by this Act or any other law of the Commonwealth.
The law of the Commonwealth having application is regulation 4A(1A)(a) which relevantly provides:
(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
...
(2)The importation of goods to which this regulation applies is prohibited unless a permission, in writing, to import the goods has been granted by the Attorney-General or a person authorized by the Attorney-General for the purposes of this subregulation.
(2AA)In considering whether to grant a permission under subregulation (2), the Attorney-General or the person authorised by the Attorney-General is to have regard to:
(a)    the purposes for which the goods are to be imported; and
(b)the extent to which the person to whom any permission to import the goods would be granted conducts activities of an artistic or educational, or of a cultural or scientific, nature to which the goods relate; and
(c)the reputation of the person referred to in paragraph (b), both generally and in relation to an activity referred to in that paragraph; and
(d)the ability of that person to meet conditions that may be imposed under subregulaton (3) in relation to the goods; and
(e)    any other relevant matters.
...
(3)A permission under this regulation shall be subject to such conditions imposing requirements or prohibitions on the person to whom the permission is granted with respect to the custody, use, reproduction, disposal, destruction or exportation of the goods, or with respect to accounting for the goods, as the Attorney-General or a person authorized by the Attorney-General for the purposes of subregulation (2) thinks necessary to ensure that the goods are not used otherwise than for the purpose for which he grants the permission.
Publication is defined by regulation 4A(1) to include a film. Film is defined by the same sub-regulation to include a video disc and any other form of recording from which a visual image can be produced. It was not disputed that both DVDs were within the definition of “publications” in regulation 4A.
Legislative History
It is convenient to trace the history of regulation 4A(1A). In 1991, the Australian Law Reform Commission recommended[2] that the criteria for prohibiting the importation of films and printed matter under the Customs (Prohibited Imports) Regulations should be the same as the criteria for classifying publications and films RC (“refused classification”) in Australia.[3]
[2] Australian Law Reform Commission, Film and Literature Censorship Procedure, Report No 55 (1991) at [1.2], [6.3].
[3] “This recommendation may result in an anomaly in respect of the possession of material which is not detected at the barrier. Under existing customs law, it is an offence to import a prohibited import and the import is forever liable to seizure and forfeiture. It is also an offence to possess a prohibited import. Thus it would be an offence to possess publications and films which breached the prohibited import/refused classification criteria only if they were imported, not if they were produced locally. The Commission is presently reviewing the whole of customs and excise law with a view to producing a modern and efficient legislative scheme. It is not clear at this stage whether possession of a prohibited import will remain an offence. If the Commission recommends that it should not be an offence, there will be no anomaly in respect of the possession of locally produced RC material. The Commission recommends that the question of the possession of RC material be reconsidered after the Government has indicated its decision on the recommendations in the Commission's final report on customs and excise law.”
The Law Reform Commission recognised an anomaly – that goods may be the subject of an importation ban under the customs legislation, but that equivalent goods could be produced and disseminated within Australia subject to appropriate classifications. In an effort to overcome this anomaly, it was recommended that the test leading to a prohibition against importation be the same test used in the restricted classification regime under the classification Acts. The Commonwealth accepted this recommendation and amended regulation 4A(1A)(a) so that the test there identified corresponded to the Commonwealth’s classification test.
In the Explanatory Statement issued by the Attorney-General, it was said that “the main purpose of the Regulations is to bring the criteria in regulation 4A into line with the criteria for refused classification in the National Classification Code”[4]. Regulation 4A(1A)(a) has remained in the same terms.
[4] Holland v The Queen (2005) 193 FLR 140 at [177].
Inter-relationship of State and Federal Legislation
The defendant referred to the complexity of Australia’s censorship and classification laws and in the course of submissions developed an analysis of those laws. It was said that an understanding of the inter-relationship and purpose of the relevant State and Commonwealth legislation was important in understanding the different role which each act has to play in the implementation of “a uniform national scheme”.
The defendant submitted that before a decision could be taken to ban a publication from entry into Australia it is relevant to consider whether the same material is lawfully available within Australia. It was further contended that any tribunal of fact should have regard to the nature of material lawfully available to be possessed by private individuals in Australia for their own private viewing.
The Commonwealth accepted that it was necessary to consider the way in which the State and Commonwealth laws integrated, but pointed out that there was no national uniformity and that, in any event, ultimately what was at issue in the present case turned on the controls over the importation of goods.
It is convenient to generally discuss the development of Commonwealth and State laws relating to the importation and censorship of indecent goods before coming to discuss the construction of regulation 4A.
Counsel in written submissions traced the legislative history dealing with the importation of indecent goods into Australia and of the dealing in indecent goods within Australia. I have drawn on their submissions in the summary that follows.
The Commonwealth has the sole responsibility for controlling goods at the border using its power under section 51(i) of the Australian Constitution.[5] The Customs Act governs the importation of goods[6] into Australia and the exportation of goods[7] from Australia. The Chief Executive Officer has the general administration of the Customs Act.[8] All imported goods are subject to the control of the Australian Customs Service.[9] Customs has control over unshipped goods at the time of importation;[10] over goods imported by ship or plane while the ship or plane is within the limits of any port or airport in Australia[11]; and over goods posted into Australia.[12] A Customs officer has power to search, examine and seize goods and arrest suspects.[13] The Governor-General may by regulation prohibit goods from being imported[14] or exported.[15]
[5]    Section 51(i) of the Australian Constitution provides:
“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(i)trade and commerce with other countries, and among the States”
[6]    Customs Act 1901 (Cth), part IV.
[7]    Customs Act 1901 (Cth), part VI.
[8]    Customs Act 1901 (Cth), section 7.
[9]    Customs Act 1901 (Cth), section 30.
[10] Customs Act 1901 (Cth), sections 30 and 68(a).
[11] Customs Act 1901 (Cth), section 31.
[12] Customs Act 1901 (Cth), section 35, which provides that “Goods imported by post shall be subject to the control of the Customs equally with goods otherwise imported.”
[13] Customs Act 1901 (Cth), part XII, division 1.
[14] Customs Act 1901 (Cth), section 50.
[15] Customs Act 1901 (Cth), section 112.
In relation to the control of indecent material entering Australia, the Commonwealth has played a role in ‘censoring’ goods that may be imported into Australia since 1917. Between 1917 and 1922 the regulations made under the Customs Act took into account the intended use in Australia of imported goods, where those regulations applied to cinematograph films imported into Australia and intended for exhibition. In 1922 the amended regulations applied to all films, not only those films intended for exhibition. Thereafter, the regulations have been amended from time to time,[16] but the proposed use of publications or films has not been the subject of regulation.
[16] Customs (Cinematograph Films) Regulations 1917 (Cth); Customs (Cinematograph Films) Regulations 1919 (Cth); Customs Regulations 1922 (Cth); Customs (Cinematograph Films) Regulations 1926 (Cth); Customs (Cinematograph Films) Regulations 1928 (Cth); Customs (Prohibited Imports) Regulations 1935 (Cth); Customs (Literature Censorship) Regulations 1937 (Cth); Customs (Prohibited Imports) Regulations 1938 (Cth); Customs (Prohibited Imports) Regulations 1952 (Cth); Customs (Prohibited Imports) Regulations 1956 (Cth); Customs (Cinematograph Films) Regulations 1956 (Cth); Customs (Prohibited Imports) Regulations 1962 (Cth); Customs (Prohibited Imports) Regulations 1963 (Cth); Customs (Cinematograph Films) Regulations 1970 (Cth); Customs (Prohibited Imports) Regulations 1983 (Cth); Customs (Prohibited Imports) Regulations 1984 (Cth); Customs (Cinematograph Films) Regulations 1990 (Cth); Customs (Prohibited Imports) Regulations 1990 (Cth).
Historically, the censorship/classification of “indecent” goods within Australia has been the province of the States. However, in the 1980s, as a result of negotiations between the Commonwealth, State and Territory governments, an attempt was made to implement a “national” scheme within Australia.[17]
[17] Merrin Mason, ‘Legislation relating to pornography in Australia’, Parliamentary Library Issues Brief, 20 October 1992.
On 1 February 1984, the Commonwealth enacted the Classification of Publications Ordinance 1983 (ACT) as model legislation for the States and the Northern Territory to follow. Eight separate pieces of legislation – some being similar in content and form, others unique – and a lack of uniformity created administrative difficulties for the Board and the film and print industries.[18] In relation to the classification of publications, the scheme was voluntary and officers of the Commonwealth classified publications for some jurisdictions while other jurisdictions maintained their own schemes.[19]
[18] Merrin Mason, ‘Legislation relating to pornography in Australia’, Parliamentary Library Issues Brief, 20 October 1992 at [1.1].
[19] From Censorship to Classification: An Address by Attorney General the Hon Daryl Williams AM QC, [1997] Mur UEJL 29.
In 1991, the Australian Law Reform Commission recommended that there should be a federal Act, supported by the power to make laws with respect to the Territories under section 122 of the Australian Constitution, establishing classification bodies and setting out the procedure for classification of publications, films and computer games produced in Australia. It recommended that State and Northern Territory legislation be passed to adopt the classifications given to particular films and publications under the federal Act in their own enforcement laws. It recommended a nationally agreed classification code.[20] It considered that the enforcement of rules restricting the dissemination of films and publications, both classified and unclassified, remain the responsibility of the State and Territories.[21]
[20] Australian Law Reform Commission, Film and Literature Classification Procedure, Report No 55 (1991) at [2.13].
[21] Australian Law Reform Commission, Film and Literature Classification Procedure, Report No 55 (1991) at Chapter 5.

In 1996, following the Australian Law Reform Commission’s recommendations, the Classification (Publications, Films and Computer Games) Act 1995 (Cth) was passed establishing the Commonwealth Classifications Board in relation to the classification of publications, films and computer games within Australia. In relation to imported publications, films and computer games it made the earlier referred to recommendation for the amendment of regulation 4A of the Customs (Prohibited Imports) Regulations. However, there is no legislative requirement upon Customs to seek the opinion of the Commonwealth Classifications Board in determining whether an import is an objectionable import pursuant to regulation 4A of the Customs (Prohibited Imports) Regulations.
The Classification (Publications, Films and Computer Games) Act was described as the “Commonwealth’s contribution to revising the current legislative structure in cooperation with the state and territories…the bill will not be able to be brought into force until complementary state and territory enforcement legislation is enacted.”[22]
[22] Commonwealth, Parliamentary Debates, House of Assemblies, 22 September 1994, 1381 (The Hon. M.H. Lavarch, Attorney-General).
The Act established the Classification Board[23] to be appointed by the Governor-General ensuring that the membership is broadly representative of the Australian community. It also established the Review Board[24] which may, on application, review the decisions of the Classification Board. Publications, films and computer games are to be classified[25] by the Classification Board in accordance with the National Classification Code[26] and the classification guidelines.[27]
[23] Classification (Publications, Films and Computer Games) Act 1995 (Cth), part VI.
[24] Classification (Publications, Films and Computer Games) Act 1995 (Cth), part VII.
[25] Classification (Publications, Films and Computer Games) Act 1995 (Cth), section 9.
[26] Classification (Publications, Films and Computer Games) Act 1995 (Cth), section 6.
[27] Classification (Publications, Films and Computer Games) Act 1995 (Cth), section 12 provides that the Commonwealth Minister and the participating State and Territories Ministers may determine guidelines to assist the Board in applying the criteria in the Code.
Also, the Director of the Board may require the publisher of a publication to submit an application for classification by the Board if the Director has reasonable grounds to believe that it is a submittable publication[28] and it is being published in the Australian Capital Territory or will be published in the Australian Capital Territory.[29] The Director may also call in an unclassified film[30] if the Director reasonably believes it is not an exempt film and it is being published or will be published in the Australian Capital Territory. In making a classification, the Board is to assume that the publication, film or game will be published only in the form in which it is considered for classification.[31]
[28] Classification (Publications, Films and Computer Games) Act 1995 (Cth), section 5 defines this to mean an unclassified publication that contains depictions or descriptions that are likely to cause the publication to be classified RC; to cause offence to a reasonable adult to the extent that it should not be sold or displayed as an unrestricted publication; or are unsuitable for a minor to see or read.
[29] Classification (Publications, Films and Computer Games) Act 1995 (Cth), section 23.
[30] Classification (Publications, Films and Computer Games) Act 1995 (Cth), section 23A.
[31] Classification (Publications, Films and Computer Games) Act 1995 (Cth), section 18.
The enforcement of the classification given by the Commonwealth Board depends upon the enactment of corresponding State and Territory legislation. It was envisaged that the States and Territories would deal with the consequences in the respective jurisdictions of the different classifications given by the Board to films, publications and computer games.[32] Under the new scheme, it was proposed that state and territory legislation would adopt, in enforcement laws, the classification decisions made under the Commonwealth Act[33]. However, not all States did so.
[32] Classification (Publications, Films and Computer Games) Bill 1994 (Cth),Second Reading speech, 22 September 1994, p2.
[33] Classification (Publications, Films and Computer Games) Bill 1994 (Cth),Second Reading speech, 22 September 1994, p2.
To summarise, there is a “national” scheme for classification of publications, films and computer games within Australia to the extent that a Commonwealth Classifications Board exists to classify publications, films and computer games in accordance with a nationally agreed Classifications Code and classification guidelines. However, the Northern Territory, South Australia and Queensland retain the legislative ability to classify publications, films and computer games independently of the Commonwealth Classifications Board. Further, the permitted use within Australia of classified or unclassified publications, films and computer games varies across the States and Territories.
The Construction of Regulation 4A
Counsel for the defendant drew attention to section 15AA(1) of the Acts Interpretation Act 1901 (Cth), which provides:
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
Attention was also drawn to section 15AB, which authorises the use of extrinsic material in the interpretation of a statute. That section relevantly provides:
(1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)     to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)     to determine the meaning of the provision when:
(i)     the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
…
(3)In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
…
(b)     the need to avoid prolonging legal or other proceedings without compensating advantage.
The defendant submitted that the overriding purpose of the Customs Act and Regulations is to control the importation and exportation of goods into and out of Australia. It was emphasised that the Customs Act was not concerned with the classification of publications. These submissions may be accepted, but in my view they do not support the defendant’s proposed construction of regulation 4A.
The Commonwealth remains solely responsible for determining what goods are objectionable (including “indecent”) at the border. In determining that goods are objectionable, the Commonwealth is not obliged by legislation to have any imported publications, films or computer games classified by the Classifications Board. If prior permission is sought from the Commonwealth to bring “indecent” goods into Australia, permission may be granted, including conditions as to use.
The question of whether something is “indecent” must be considered in its context. The context for determining whether imported goods are “indecent” is set out in regulation 4A, namely, “to the extent that they should not be imported”.
The Magistrate, when construing regulation 4A(1A)(a), noted that the Court was required to determine whether the standards of morality, decency and propriety generally accepted by reasonable adults were transgressed to the extent that the DVDs should not be imported. The Magistrate took the view that it followed that if a DVD contravened the relevant standard, the DVD should not be imported. The Magistrate reasoned:
[T]he fact of the DVD contravening the relevant standard would form the basis for concluding that it should not be imported.
Both parties contended that the Magistrate misconstrued regulation 4A(1A)(a).
The defendant contended that the phrase “to the extent that they should not be imported” was adjectival and qualified the balance of the text of the regulation. It was said that the word “extent” was a reference to the degree to which a transgression extends. The defendant then argued that:
[T]he manner in which sex is depicted in the DVD must offend against or transgress those standards to such a degree that the DVD should be banned from Australia. It is not enough that the standards themselves are transgressed. A breach of standards of taste in respect of matters of morality, decency and propriety is insufficient. Those standards must be transgressed to such a degree that reasonable adults will not tolerate any other adult in Australia possessing and watching the contents of the DVD in the privacy of his or her home.
The Commonwealth submitted that the construction contended for by the defendant should be rejected. It was submitted that the words “to the extent that they should not be imported” provided the context in which regulation 4A was to operate – that context it was said is the unrestricted importation of goods into Australia. The question to be answered in a particular case was whether the particular publication offends against the standards of morality, decency and propriety generally accepted by reasonable adults to permit the unrestricted importation of the publication.
The defendant placed considerable emphasis, both in written and oral submissions to this Court, on the finding of the Magistrate that the defendant only intended to use the DVDs for private viewing. In my view, this is beside the point. Regardless of intention, the defendant’s importation was, and remained, unrestricted. There was nothing to stop the defendant from changing his mind as to the use to which the DVDs may be put. Once within Australia, there was no general restriction by Commonwealth law on dissemination of the DVDs. Such controls as may exist are a matter for the States and Territories.
There is nothing in the wording of the regulation to support the defendant’s contention that a double test – does the publication transgress, and if so, does it transgress to such a degree that reasonable adults would not tolerate the private adult viewing of the publication – has been imposed. The second of the tests finds no support from the wording of the regulation.
The defendant’s contention appears to contemplate that a subjectively held intention of an importer is to be a touchstone to the legality of the importation. In my view, this consideration is irrelevant. There is no basis for reading such a qualification into regulation 4A.
As earlier discussed, there is no uniformity within the nation about the permitted use of “indecent” material.[34] It is therefore not a consideration which can be applied consistently at the border in order to determine whether the goods are “indecent”.
[34] For example, it is an offence in NSW, Vic, ACT, NT, SA and Qld to possess an RC film with the intention of selling or exhibiting the film; it is an offence in WA to possess an RC film per se and it is not an offence to possess such a film in Tasmania at all regardless of intention. Also, it is an offence in NSW, WA, Vic, SA and Qld to possess an X18+ film with the intention of selling or exhibiting the film but not in Tas or the ACT.
The purpose of regulation 4A(1A)(a) is to prohibit the importation of certain goods into Australia. The phrase in the regulation “to the extent that [the goods] should not be imported” provides the context in which regulation 4A is to operate. That context is the unrestricted importation of goods into Australia. I reject the submission that the use of the word “extent” in the regulation is a reference to the degree to which standards of morality, decency and propriety must be transgressed.
There is no provision in the Customs (Prohibited Imports) Regulations which enables Customs to impose conditions upon the use of “indecent” goods in Australia; conditions can only be imposed upon the importer when prior permission has been sought from the Attorney-General.
It is relevant to refer to regulation 4A(3), dealing with permission to import. This sub-regulation directs the Attorney-General, when granting permission, to attach conditions which ensure that the goods being imported are not used for any unauthorised purpose. Had the defendant sought permission in the present case to import the DVDs, and had the Attorney-General considered it appropriate to allow importation, he could do so, imposing conditions that would ensure that the goods were not used for any unauthorised purpose. This would enable the Attorney-General to control, through conditions, the use to which the DVDs might be put within Australia. Use within Australia is to be regulated through conditions attaching to permission to import. As a consequence it follows that a personal adult use criterion does not form a consideration as to whether an offence against the regulation has been committed.
Guiding Principles
Before coming to discuss the contents of the particular DVDs, it is convenient to set out the relevant legal principles to be applied in determining whether there has been a breach of regulation 4A(1A)(a). In Crowe v Graham,[35] Windeyer J observed:
The magistrate held the publication was indecent. Their Honours who were in the majority in the Supreme Court said it was not open to him to reach this conclusion. I have read their Honour’s judgment carefully. It seems to me that in several ways they misapprehended the question for their decision.
First, they made what I have already said was a falsely sharp distinction between obscenity and indecency; and as a result mistakenly limited the meaning of the latter word.
Secondly, I cannot help thinking that they gave rather more weight to certain views of their own, thus re-trying the case, instead of asking was there material on which the magistrate could find as he did. I fully appreciate that in cases of this sort, where a conclusion cannot be tested by any precise objective criteria, any judge must be influenced to some degree by his own views of where the bounds of decency lie or should be set. A normative inquiry where the norm is unsettled or variable can run into difficulties and debate. I realize too that in a series of cases in New South Wales, beginning with Bremner v. Walker, judges in the Supreme Court have expressed strongly individual opinions in cases arising under this Act. Nevertheless the question is—Could the magistrate find as he did, he being the judge of the fact? The question is the same as it would be if a jury had found the publication indecent: would their verdict have to be set aside as against the evidence?
I think too that the members of the Supreme Court went astray in the way they looked at the publication. They examined it page by page, picture by picture, to pass judgment on each. But the charge was that the publication was, as a whole, “indecent printed matter”. The photographs are only a part of the publication. They are of the kind which might be found pinned up to decorate the wall of a barrack room or hut. They are no doubt voluptuous and would thus have some sensual attraction for some people. They are not works of art. But whether any one of them by itself, or all of them together, could properly be called indecent in some other context seems to me highly questionable. That however is not the point. The publication is to be considered as a whole, its several parts in the context of the whole. When the question is whether there has been a publication of indecent matter, the goodness of part does not necessarily redeem the whole. It is the whole that is on trial in the whole circumstances of its publication. If the Gospels were printed with indecent pictures interleaved, the indecency would be the greater. Conversely, in a publication such as that before us, photographs which might be acceptable in other settings merely point up indecency and help to demonstrate what the magistrate called “the obvious purpose of such miscellany of material”.
[35] Crowe v Graham (1968) 121 CLR 375 at 397-398 (footnotes omitted).
The defendant drew attention to the Fullagar Memorial Lecture, delivered by Dr JJ Bray in July 1971,[36] in which Dr Bray traced the juristic basis of the law relating to offences against public morality and decency. Dr Bray referred to the early decision of Hicklin[37] and noted that it had been applied by Fullagar J in Close.[38] At that time Fullagar J observed that there was no obscene libel unless what was published was both offensive according to current standards of decency and calculated or likely to have the effect described in Hicklin – a tendency to deprave and corrupt people whose minds were susceptible to corruption and into whose hands the material may fall. Dr Bray went on to note that the High Court in Crowe had gone further and limited the test of indecency as to whether it was offensive according to current standards of decency. It was Dr Bray’s prediction that the law would abandon the attempt to protect morality in the field of words, written or spoken, the graphic arts, the stage and films, and would confine itself to the lesser task of endeavouring to protect decency. The prediction of Dr Bray has proved to be correct.
[36] Dr JJ Bray, ‘The Juristic Basis of the Law Relating to Offences Against Public Morality and Decency,’ (Speech delivered at the Third Wilfred Fullagar Memorial Lecture, Monash University, 19 July 1971). Published in (1972) 46 ALJ 100.
[37] R v Hicklin [1868] L.R. 3 Q.B. 360.
[38] R vClose [1948] VLR 445.
The propositions established by the High Court in Crowe v Graham[39] were succinctly and conveniently summarised by Bray CJ in Romeyko v Samuels,[40] in a passage that I respectfully adopt:
1.That the test of indecency is whether the matter in question is offensive to the sexual modesty of the average man (per Barwick C.J. at p. 526), or to the contemporary standards (i.e. as I understand it, the contemporary standards of decency) “currently accepted by the Australian community” (per Windeyer J. at p. 540). I think, with some hesitation, that it is also necessary that they should offend to a substantial degree; see Norley v. Malthouse.
2.That in applying that test it is the contemporary standard which must be applied, not the standard of some past age, and that all the circumstances and the setting of the publication have to be considered (see per Barwick C.J. at p. 526, per Windeyer J. at p. 538). In other words, something might be offensive to contemporary standards of decency in one context, but not in another.
…
4.That the words complained of must be looked at in the context of the publication as a whole (see per Windeyer J. at p. 539).
5.That “only within very narrow limits is evidence beyond the publication itself necessary or admissible” (per Windeyer J. at p. 538). In particular, evidence of what has been published in other books or writings is not admissible, nor is the opinion of experts about the tendency of the matter in question or about the nature of contemporary standards (per Windeyer J. at p. 538).
[39] Crowe v Graham (1968) 121 CLR 375.
[40] Romeyko v Samuels (1972) 2 SASR 529 at 560-561 (footnotes omitted).
Determination of Community Standards

The defendant complained that the Magistrate had failed to articulate in her reasons why the DVD “Doll House” offended the currently accepted standard. It was said that the Magistrate was obliged to make a finding of those standards and to articulate why those standards were transgressed.
The Commonwealth submitted that the Magistrate identified the need to determine community standards and after referring to the relevant authorities concluded that those standards were the contemporary standards of decency currently accepted by the Australian community, being the average man or woman of that community. This was sufficient. The Magistrate was not required to go further to identify or detail what knowledge of information she used to determine that standard. In my view the defendant’s complaint should be rejected.
Admissibility of Expert Evidence
The Magistrate had evidence before her, admitted de bene esse, from two suggested experts – Professor Paul Wilson, Forensic Psychologist and Criminologist and Dr Jody Hanson, Writer, Teacher and Dominatrix.
Broadly, the evidence went to the suggested acceptance by the community of DVDs of a similar nature to those the subject of the complaint. It was contended by the defendant that the Magistrate was entitled to have regard to this evidence in determining whether the defendant had breached regulation 4A(1A) when importing the DVDs.
The Magistrate considered that evidence led by the defendant about standards of indecency from Professor Wilson and Dr Hansen was inadmissible with reference to the Magistrate’s determination of appropriate community standards. The defendant complained about this ruling and contended on appeal, as he had at trial, that the evidence was admissible.
In my earlier discussion, the observations of the High Court in Crowe v Graham, and also of Bray CJ in Romeyko v Samuels, addressing the inadmissibility of expert evidence about contemporary standards and whether any particular publication offends such standards, are set out. These observations directly support the Magistrate’s ruling that the evidence was inadmissible.
As Windeyer J observed in Crowe v Graham,[41] whether the goods transgress the standards:
… is a question of fact to be decided by the tribunal of fact. It is to be answered by reading the publication. Common sense and a sense of decency must supply the answer. Only within very narrow limits is evidence beyond the publication itself necessary or admissible. Evidence of what has been published in other books or writing is not admissible. … Nor is it to be had by calling witnesses – whether writers, publishers or psychologists – and asking them to give their opinion on the matter.
This approach has been frequently applied throughout Australia.[42]
[41] Crowe v Graham (1967-68) 121 CLR 375 at 395-396.
[42] Chance International Pty Ltd v Forbes and Another (1968) 12 FLR 425 at 427; Romeyko v Samuels (1972) 2 SASR 529 at 561, 563, 564 (Bray CJ); Dorf Industries Pty Ltd and Another v Toose and Others (1994) 127 ALR 654 at 670.
In Transport Publishing Co Pty Ltd v Literature Board of Review,[43] the High Court criticised the influence of extrinsic evidence on a decision of the Supreme Court of Queensland, which had been heard at first instance by the Literature Board of Review. Dixon CJ, Kitto and Taylor JJ observed:
[I]t may be said at once that ordinary human nature, that of people at large, is not a subject of proof by evidence, whether supposedly expert or not.
Their Honours went on to observe that it was conceivable that opinion evidence may in some circumstances be given upon the characteristics, responses or behaviour of a special category of persons. However, these comments were made in the context of a consideration of the Objectionable Literature Act 1954 (Q.) That Act required the relevant Board to have regard to “the persons, classes of persons, and age groups to or amongst whom that literature is or is intended to be or is likely to be distributed”. Even in this context, their Honours went on to disapprove of the use of the “extrinsic evidence” in that case.
[43] Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111 at 119.
It is also relevant to note one of the reasons identified by Dixon CJ, Kitto and Taylor JJ in Transport Publishing Co for this type of evidence being inadmissible:[44]
Once the court permits the boundaries to be transgressed which the law places upon proof of the opinion of others in such a matter, it is very likely to be drawn from the issue by a flood of controversial argument as to the effect and desirability of the publications which will be advanced in the guise of expert testimony.
[44] Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111 at 120.
Counsel for the Commonwealth submitted that there was no authority to support the defendant’s proposition that the evidence in this case was admissible to assist the finder of fact to properly evaluate the specialised form of sexual practice depicted in the DVD, so as to eliminate the risk that the finder of fact would misinterpret what was depicted as in fact being truly violent, or otherwise necessary and admissible for the Court to understand what it was in truth observing.
A fact finder is capable of viewing the DVD, seeing the images and applying the standard without the assistance of an expert. The law leaves the assessment of the relevant publications and whether the publications breach contemporary standards to the finder of fact, in this case the Magistrate. This was the ultimate question for the Magistrate in this case. It was not a topic on which expert evidence was admissible.
Doll House
Against this background, I now turn to discuss the defendant’s attack on the Magistrate’s conclusion that the DVD “Doll House” breached the standard set out in regulation 4A.
The defendant attacked the Magistrate’s reasoning with respect to her conclusion that the DVD “Doll House” depicted matters of sex and violence in such a way that it offended against the standards of morality, decency and propriety, generally accepted by reasonable adults, to the extent that the DVD should not be imported.
The defendant’s contention was that reasonable adults would not be so intolerant as to require the banning of a DVD from Australia, if such a DVD could be lawfully possessed within Australia, and described sex by a manner of activity which is not unlawful within Australia, or described sex in a manner which could lawfully be the subject of a DVD created, possessed and viewed in Australia.
In support of this submission the defendant drew attention to the statutes, both Commonwealth and State, that deal with the classification of films, including DVDs, within Australia. As earlier observed, the defendant submitted that there was a national uniform scheme dealing with the classification of materials produced and disseminated within Australia. However, a review of the legislation shows that there is not a national uniform scheme in place.
The Magistrate described the images depicted in the DVD “Doll House” as follows:
The film “Doll House” includes scenes involving three women where scissors are held near the vagina in a threatening manner and scenes where raw meat is grabbed with the teeth by one woman and torn. There are further scenes involving three women with harsh slapping around the genitals. One woman subsequently puts the meat and then her teeth on the vagina of another. In addition, this DVD contains a featurette depicting sexual activity at knifepoint. In the course of this section of the film, three women are involved in sexual activities during which one has a knife, which is held across the cheek of another, and also across the vagina of another insisting on sexual activity. At one stage, clothing is torn by the knife and later the knife is held by one woman’s ear. Later still the knife is held against the flesh of a leg during sexual activity. At another stage, one of the women is held by the throat. Clothing is cut off with the knife during the various scenes. I have no hesitation in finding that the use of a knife against the flesh, at times in the genital region and the use of the knife to tear clothing, involves depictions of violence as well as sexual activity. A further scene depicts the tormenting of a fish flailing and held up by chopsticks against a background of sexual overtones. I am satisfied that this scene involves cruelty.
In finding this charge proved the Magistrate reasoned:
On the other hand, I am satisfied beyond reasonable doubt that the combination of sex and violence in several parts of “Doll House”, notably the scenes depicting violent sexual acts involving the knife and scissors, does contravene the standards of “morality decency and propriety generally accepted by reasonable adults to the extent that the DVD should not be imported”. I am satisfied that this is the case notwithstanding that the DVD was for private viewing.
My review of the DVD “Doll House” allows the conclusion that the Magistrate’s descriptions of the relevant scenes are accurate. However, I would add that a number of scenes depicted the use of knives in proximity to the face and neck of a participant in circumstances where their use appeared to cause fear and submission on the part of that participant to sexual contact.
My review of the DVD “Doll House” leaves me in no doubt that the combination of sex and violence in several scenes of the DVD, notably those depicting violent and sexual acts involving knives and scissors, do contravene the standards of morality, decency and propriety generally accepted by reasonable adults, to the extent that the DVD should not be imported – that is, be the subject of unrestricted importation into Australia. The fact that the DVD “Doll House” could have been produced and classified in Australia is not to the point. Such a DVD, so classified, would not, I presume, be available on an unrestricted basis within Australia. The Commonwealth Government are entitled to regulate in the way they have, and applying the test of federal regulation, the importation by the defendant of the DVD “Doll House” involved a breach of regulation 4A.
Had the defendant sought, as he was entitled, permission from the Attorney-General to import the DVD, he would have avoided any breach of regulation 4A. The appeal against the conviction recorded by the Magistrate on the second Count is dismissed.
Fetish World
As earlier observed, the Magistrate dismissed the first Count with respect to the publication “Fetish World”. The Magistrate described the relevant images depicted as follows:
“Fetish World” includes scenes depicting various sexual behaviours including a scene in which two women pretending to be cats engage in behaviour with sexual overtones involving the licking of milk from each other’s bodies; an elaborate bondage scene where a woman is first bound and then flogged with what appears to be a type of whip. She then has painted on her a Chinese character which it is agreed translates as “Take me”. Other scenes depict sexual behaviour between a man and a woman in water both dressed in tight leather garments which cover their faces and bodies. These are then partially removed with scissors. Behaviour involved includes hard slapping of various parts of the body. There are further scenes in which a woman, who is bridled and treated as if she were a horse, is subjected to whipping by a person described as her “trainer”. There is clear evidence of redness to the skin on her buttocks. She also appears to flinch when struck in the chest area with a form of whip. I am satisfied that both these scenes involve violence albeit ritualised. “Fetish World” also contains a scene where women dressed and acting as schoolgirls are gradually undressed, masturbate themselves and each other, at times being watched by a fully dressed man masturbating himself. There is also a scene in which women made up and remaining still to appear like dolls, are the subject of sexual activity.
My review of this DVD confirms that the Magistrate’s description of the images depicted is accurate.
As earlier discussed, both parties agreed that the Magistrate applied the wrong test in reaching her conclusion that it had not been proved beyond reasonable doubt that the majority of reasonable adults would take the view that such a DVD would not be tolerated. In reaching that view, the Magistrate had specific regard to the evidence that the intended audience was private adult viewing. In that respect her Honour observed:
I am urged to consider placing the DVDs in question in the context of their intended audience namely the viewing by an adult in private. In this context, I take into account the comments in the various cases referred to above. For the reasons already set out, I accept that the size of the prospective audience or the degree to which the material might be generally available is a relevant consideration. I also note the comments by Bray CJ in Romeyko v Samuels (1972) 3 SASR 529 at 560 where he states, “something might be offensive to contemporary standards of decency in one context but not in another”. In addition, in Dalton v Bartlett 3 SASR 549 at 555, his Honour Chief Justice Bray states, on the topic of whether or not something is indecent, that it is “a question of fact to be decided by the application of an evalutatory standard after due consideration of the circumstances and the context.”
…
There is intended to be no dissemination here (c.f. Chance at 428-30). As set above, whether the materials are in the public or private domain is an important consideration (ibid at 431). A reasonable adult will place the material in the context of who sees it and may consider that it is legitimate for adults to experiment with sexuality in lawful and consensual ways in the context that the material is not intended to be in the public arena or shown to children. It is said that the videos are confronting, unlikely to be the sort of material sought out by the majority of adults in the community, but not requiring intervention and censorship.
In reaching her decision in regard to the DVD “Fetish World”, the Magistrate concluded:
As the cases reflect, it is not easy task to ascertain what are the standards of morality, decency and propriety generally accepted by reasonable adults. I am of the view that current community standards are broader and more tolerant now than in the past. Having considered the contents of the two DVDs and taking into account the need to balance the extent of tolerance likely to be generally felt by reasonable adults for consensual sexual behaviour which is to be limited in its availability as against what might breach their standards, I am of the view that I cannot be satisfied beyond reasonable doubt in relation to “Fetish World” that such material should be classified as offending against general community standards and therefore prohibited. I conclude that there is a reasonable possibility that the majority of reasonable adults may take the view that consenting behaviour of adults in these circumstances, albeit not the practice of most adults and indeed not considered by the majority to be desirable, can be tolerated when the DVD in question is for private viewing only. I reach this conclusion with some hesitation in relation to the “child” scene but I note that the two women actors who take the roles are clearly adults.
[Emphasis added]
In my view, the Magistrate was in error in proceeding on the basis that the DVD was “for private viewing only”. As earlier discussed, the test to be applied is whether the DVD “Fetish World” “depicts … or otherwise deals with matters of sex … cruelty, violence … in such a way that [it] offends against standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be imported”. Once imported, the DVD would be available in Australia for unrestricted use without classification, and available for dissemination. “Fetish World” is not fit for unrestricted importation into Australia. Were the same DVD or a similar DVD to be produced in Australia and classified, members of the public would be aware of the limitations on the use of such material.
I consider that the DVD “Fetish World” does offend against the standards of morality, decency and propriety generally accepted by reasonable adults to such an extent that it should not be imported. Scenes involving sex, cruelty and violence are depicted. Those scenes also include depictions of restraint through bondage and humiliation. The defendant should be convicted on the first Count.
As earlier observed, it was open to the defendant to have sought the permission of the Commonwealth Attorney-General to the importation. Had that course been followed, then the Attorney-General could have given consideration to the allowing of the importation, subject to conditions. That process may have led to the legal availability of the DVD for private adult viewing only. The defendant chose not to follow that course. Notwithstanding his evidence as to his intended use of the DVD, the DVD was imported into Australia. But for its seizure it would have been unclassified. There was nothing to stop the defendant from changing his mind, forming a different intention, and disseminating the DVD to others.
Conclusion
The appeal by the defendant is dismissed. The cross-appeal by the Commonwealth is allowed. The order of the Magistrate dismissing the first count is set aside. An order is made convicting the defendant on the first count. The defendant’s conviction on the second count remains. The matter is remitted to the Chief Magistrate for sentence.