Recent Judgments Customs: Importation Of Indecent Books

Press, Volume C, Issue 29643, 13 October 1961, Page 20

Recent Judgments Customs: Importation Of Indecent Books

Collector of Customs v. Marketing Services (N.Z.), Ltd. Before Mr Justice Turner, at Auckland. [By a Legal Correspondent]

It is an offence under s. 46 (5) of the Customs Act, 1913, to import indecent documents; but, as held in this appeal, there must be proof that the importer had a guilty knowledge that they were indecent documents (in this case they were books). In other words, the prosecution must prove that, in the act of importation, the importer had a guilty mind as shown by his awareness of the nature of the contents.

Appeal from the dismissal by a magistrate of a charge of importing indecent documents. The short point for decision was whether the offence constituted by 5.46 (5) of the Customs Act 1913 is one of strict liability, or whether the proved absence of a guilty mind on the part of the defendant company could be invoked as a defence. The facts were not in dispute. On or about May 30, 1060, the respondent company imported into New Zealand among others, three books, which the magistrate held, and it was not disputed, were in fact indecent documents within the meaning of the Indecent Publications Act 1910. They were therefore articles specified in the First Schedule to the Customs Act, and consequently it was unlawful to import them. Magistrate’s Decision The learned Magistrate held that it was .positively proved, however, that though the books were indecent documents the company imported them. "It had no knowledge whatsoever that any of the books was an indecent document; that it had proved its unawareness of the nature of their contents; and that, in the act of importation, it had an honest and reasonable belief in the innocuous nature of the contents of the three books mentioned in the charge.” , So holding, he dismissed the information, deciding that the offence constituted by 5.46 of the Customs, Act 1613 is one in which it is a good defence to prove absence of a guilty mind on the pert of the defendant. The Collector of Customs appealed against the dismis. sal. Mr Justice Turner, in the course cd his judgment ofcserved that instances of statutory provisions which have been held to impose strict criminal liability may be found in statutes dealing with revenue, food and drugs, liquor licensing, and many other matters. In New Zealand, it was held by the Court of Appeal in 1806 in R. V. Ewart, that statutory offences may be divided into three classes: "(1) Those in which, following the common-law rule, a guilty mind must either be necessarily inferred from the nature of the act done, or must be established by independent evidence. "(2) Those in which, either from the language or the scope and object of the en. actment to be construed, it is made plain that the Legislature intended to prohibit the act absolutely, and the question of the existence of a guilty mind Is only relevant for the purpose of determining the quantum of punishment following the offence. “(3) Those in which, although, from the omission from the statute of the word ‘knowingly* or ‘wilfully,’ it is not necessary to aver in the indictment that the offence charged was ‘know.

ingly’ or ‘wilfully’ com- > mitted, or to prove a guilty ; mind, and the commission of , the act in itself prima facie imports an offence, yet the t person charged may still dis- • charge himself by proving to ; the satisfaction of ' the tribunal which tries him that , in fact he had not a guilty mind.’* 1 ( Mr Justice Turner said that . in the present case, the prosecution, and consequently - the appeal, must fail if the , offence created by 5.46 of the ; Customs Act 1813 falls within the first class in Ewart’s ( case, since guilty mind could not be inferred from the facts; indeed the contrary inference could been drawn by ( the learned Magistrate. Neither could the prose- , cution or the appeal succeed , if the offence created by the section falls within one third class in Ewart’s case, since the teamed magistrate had held that the company had , discharged the onus or proof laid upon it by the terms of the definition of the class. In order for the Crown to succeed on the appeal, it had to show that 5.46 of the Customs Act 1913 falls within the second class of offences referred to in Ewart’s case —those in which either from the language or the scope and object of the enactment it is made plain that the Legislature intended to prohibit the aqf absolutely; and in which, therefore, the question of the existence of a guilty mind is relevant only for the purpose of determining the amount of punishment Appeal Fails Having given careful attention to the Crown’s submissions, the learned judge nevertheless, was of, the opinion that this appeal must fail. The words of the section, so far as they affected importers, included no word such as “wilfully” or Icnow. ingly,” that was a cogent consideration when deciding whether the act is one imposing strict liability. Then there was the question *>f penalty. This is a matter which may be of considerable importance in deciding ; whether the statute imposes . strict liability. The learned judge observed that, where the punishment 1 prescribed was nothing more : than a Small pecuniary penalty, it could be said that there was nothing to shock the public mind in suggest- i Ing that the Legislature intended that there might be a , conviction without proof of ; a guilty mind. But where the consequences prescribed were more serious the opposite inference might be drawn., His Honour thought that i the provision in the section < for a minimum fine (£26) > was a compelling considers- J tion, strongly favouring the ■ view that - the Legislature | could not have intended that this offence should be one i independent altogether of a guilty mind, and that con- ; sequently it was probable that it was intended that it < should fall into either the first or the third class In i Ewart’s case. Here the liability, the

learned Judge added, was that of the third class, in which it was. a defence to prove positively the absence at guilty mind; and this had been proved before the learned Magistrate. Mr Justice Turner went on to say that a consideration on the text of the subjectmatter of the section as far as indecent documents were concerned (and these were the subject of this particular prosecution), the section was not the only stautory pro. vision under which persons may be prevented from injuring public morals by such means. After importation, different kinds of transactions and conduct by which indecent documents may be used and dealt with to the public injury are the subject of adequate regulation and prohibition fa other statutes. Section 46 merely deals with their importation, and for that alone there did not seem on the face of the matter to be a very great need for strict liability. His Honour therefore, came to the conclusion that there was nothing in the subject-matter of the section which should compel him to the view that it ought, in the public interest, to be re. garded as imposing strict liability for the importation of the goods which it enumerates. His Honour also considered the text of 5.46 of the Customs Act 1913 when compared with its predecessor, the Customs Law Act 1908, and he could not regard the change in warding in the later statute as without significance when considering whether the new section, like the old, should be con. strued as imposing strict Ma. Nitty. For those reasons, His Honour held that the learned Magistrate was right in his view when he dismissed the information against the respondent. ’ The appeal was therefore dismissed, and the appellant was ordered to pay 15 guineas as the respondent's costs. Counsel: For the appellant, G. D. Speight; for the respondent, Middleton. Solicitors: For the appellant, Crown Solicitor (Auckland); for the respondent, Monaghan and Middleton (New Plymouth).