Vokalek v Commonwealth of Australia

The case of Vokalek v Commonwealth of Australia involved the defendant who ordered two DVDs containing pornographic material from the United States. He was charged with two counts of importing a prohibited import under section 233(1)(b) of the Customs Act 1901 (Cth). Following a trial before a Magistrate, the first count was dismissed, but the defendant was convicted on the second count. Both parties appealed against the outcomes. The defendant challenged the conviction on the second count, while the Commonwealth appealed against the dismissal of the first count.

The legal issues the court needed to decide included whether the DVD in question offended the standards of morality, decency and propriety generally accepted by reasonable adults, and if the intended use of the DVD was a relevant consideration for this offence. The court also needed to determine whether the Magistrate had correctly articulated why the DVD offended accepted standards and if she erred in ruling that expert evidence on community standards of decency was inadmissible.

The court held that the Magistrate did not err in finding that the DVD in question offended against the standards of morality, decency and propriety, generally accepted by reasonable adults, to the extent that it should not be imported. The use of the DVD was not a relevant consideration as it was imported on an unrestricted basis. The court also found that the Magistrate correctly ruled that expert evidence was inadmissible as the assessment of relevant publications and whether they breach contemporary standards is left to the finder of fact. Regarding the cross-appeal, the court held that the Magistrate applied the wrong test in reaching her conclusion that it had not been proven beyond reasonable doubt that a DVD such as the one in question would not be tolerated. The court allowed the cross-appeal and imposed a conviction on the first count.

The court dismissed the defendant's appeal and affirmed the conviction on the second count. It allowed the Commonwealth's cross-appeal and imposed a conviction on the first count. The order of the Magistrate dismissing the first count was set aside, and an order was made convicting the defendant on the first count. The defendant's conviction on the second count remained, and the matter was remitted to the Chief Magistrate for sentence.