Solicitor-General v Porter [1982] CKHC 2 (2 March 1982)

IN THE HIGH COURT OF THE COOK ISLANDS
(CIVIL DIVISION)

BETWEEN

SOLICITOR-GENERAL
Applicant

AND

BRETT PORTER
Respondent

Counsel: Solicitor-General in person
Arnold for Respondent.

Date of Hearing: 11.2.1982
Date of Decision: 2.3.1982

DECISION OF SIR GAVEN DONNE C.J.

This is an application laid under section 46 and 257 of the Customs Act 1911 (N.Z.) (hereinafter referred to as "the Act") which applies in the Cook Islands for a condemnation order in respect of two periodicals known as "Club" December 1981 issue and "Penthouse" November 1981 issue.

These periodicals were seized by the Collector of Customs from the Respondent on his arrival from Pago Pago American Samoa where he had purchased them. The Respondent challenged the seizure as he was entitled to do, under section 256(1) of the Act and these proceedings were taken by the Collector pursuant to section 257.

I have no doubt that when considered in the sense of the ordinary and natural meaning of the word "indecent" both periodicals seized are indecent. The Shorter Oxford Dictionary (3^rd Edn) Volume 1 p. 1053 defines "indecent" as:

"1. Unbecoming; in extremely bad taste, unseemly;

2. Uncomely;

3. Offending against propriety or delicacy; immodest; suggesting or tending to obscenity."

But before such "goods" as these can be seized and condemned they must be prohibited imports under The Customs Import Prohibition (Indecent Document) Order 1980, the relevant regulation of which reads:

"2 Importation of indecent documents - The importation of the goods specified in the Schedule hereto is hereby prohibited."

Schedule

"All indecent documents within the meaning of the Crimes Act 1969 and all other indecent and obscene articles."

These periodicals are "documents" within the meaning of the interpretation of the term "indecent document" in section 2 of the Crimes Act 1969.

The Solicitor-General informed the Court that he had inquired as to whether either of the periodicals had been banned in New Zealand which has a specific code of law dealing with indecent publications and that no orders so declaring them had been revealed.

While such information is of interest, the law as to indecent documents in New Zealand cannot affect the interpretation of the law here unless there be some persuasive authority to support a contention as to how our law should be applied. No argument on those lines was presented here.

The periodicals under consideration were purchased in American Samoa. After considering them I have concluded that the periodical "Club" is devoid of any literary or artistic merit. It consists of several lewd photography displays of female genitalia with written texts of unexpurgated filth. In general the written articles and advertisements can be said to unduly emphasise sex and perversion. By way of observation I would doubt if it has reached New Zealand.

I accept that the periodical "Penthouse" is generally on sale in New Zealand and that this particular issue has not been banned. Certainly while there are some photographs and articles therein devoted to eroticism and sex there are also several articles displaying some literary merit and presumably, on the balance, the publication passed the test laid down in New Zealand and was not declared indecent.

But, of course, the New Zealand standards are not necessarily our standards. Our law prohibits any document which is indecent "within the meaning of the Crimes Act 1969". In this enactment while there is a definition of what can be included within the ambit if an indecent document (Sec. 2 (supra)), the meaning of the term "indecent" is not defined. Nevertheless, there is no question but that the test as to whether a document can be declared indecent must be that laid down in the Act. Apart from the definition in section 2 above mentioned, the only other relevant section in the Act is section 139 which reads:

139. Considerations determining whether or not document is indecent - (1) In determining whether any document or other matter is indecent the Court shall take into consideration -

(a) The nature of the document or matter;

(b) The nature and circumstances of the act done by the accused with respect thereto and the purpose for which the act was done;

(c) The literary or artistic merit or medical, legal, political, or scientific character or importance of the document or matter;

(d) The persons, classes of persons, or age group to or amongst whom the document or matter was or was intended or likely to be published, distributed, sold, exhibited, given, sent, or delivered: and the tendency of the matter or thing to deprave or corrupt any such persons, class of persons, or age group (notwithstanding that persons in other classes or age group may not similarly affected thereby).

(2) No document or matter shall be held to be indecent unless, having regard to the aforesaid and all other relevant considerations, the Court is of opinion that the act of the accused was of an immoral or mischievous tendency.

Now before a document can be held to be indecent within the meaning of the Crimes Act the act of the person importing it must be found to be "immoral" or "mischievous" (subsection 2). The legislative message here is clear. It recognises the right of the individual to act in his own domain according to his conscience. He may indulge, if he chooses, in the dubious pleasure of obtaining possessing and reading indecent documents. That is his own affair and his action in so doing could not be considered either immoral or mischievous. The subsection does not, in my view, extend to protecting those who import such documents for distribution exhibition or sale. If on the consideration of the principles in subsection 1 a document were considered indecent, it would follow, I consider, that the act of importing it for sale and distribution could at least be "mischievous".

At the hearing, I hold, on the evidence, that the Respondent when he purchased the periodicals did procure them for his own edification and had not imported them for an immoral or mischievous purpose. His action was not of an immoral or mischievous tendency. That finding in the circumstances precludes any further consideration as to the indecency of the periodicals.

The application must be declined.

SIR GAVEN DONNE, K.B.E.
CHIEF JUSTICE

Solicitor for applicant: Crown Law Office, Rarotonga.
Solicitor for respondent: Clarke, Ingram & Co., Rarotonga.