Book Seizure Argued In Supreme Court

Press, Volume CVIII, Issue 31621, 6 March 1968, Page 28

Book Seizure Argued In Supreme Court

(New Zealand Press Association)

WELLINGTON, March 5.

The legality of a search warrant issued under the Indecent Publications Act, allowing 3449 books and magazines—34 separate titles—to be seized from the premises of the Seven Seas Publishing Company in Tory Street, Wellington, last August, was challenged today in the Supreme Court.

The company is seeking writs of prohibition and certiorari against two Wellington Stipendiary Magistrates and two police officers concerned with the execution of the search warrant.

Mr Justice McGregor reserved his decision.

The publishing company is represented by Mr K. B. Cooke. Q.C., with him Mr P. J. Downey. The first defendants are Desmond John S Jlivan and James Albert Wicks, Stipendiary Magistrates; Detective Senior-Sergeant Robert Nelson Lark and Detective Peter John Woodward, are second defendants.

Mr R. C. Savage, the Crown solicitor, is appearing for all four defendants.

Mr Cooke said that the proceedings were by way of a motion for prohibition to test .he lega'ity of the seizure of the books and magazines, allegedly under the Indecent Publications Act, 1963.

“On August 23, 1967, the publications were seized from the plaintiff’s premises in Wellington by members of the police force, following the issue by a Magistrate of a search warrant,” said Mr Cooke. Not Referred The plaintiff in the present proceedings had been summoned to appear before the Magistrate to show cause why the books and magazines should not be destroyed. Mr Cooke told the court that none of the books seized by the police under the search warrant had been held indecent by the Indecent Publications Tribunal. “Not only have they not been held indecent,” said Mr Cooke, “but except for two, none had been referred to the tribunal. Counsel said the two exceptions had been mentioned in evidence when the matter first came on for hearing in the Magistrate’s Court. The detective senior-sergeant, who was in charge of the seizure, had then said that they had been taken inadvertently. His Honour: The two books were held not to be indecent by the tribunal? Later Returned Mr Cooke replied that one of the books, “Deep Fingers Talk,” had been found not to be indecent and the other, “The Jewel In The Lotus,” had been restricted for sale to persons 18 years of age or over.

The two books seized by the police had later been returned to the plaintiff company.

The plaintiff had applied

for leave from the Minister of Justice to submit the books to the tribunal, but the Minister declined to do this because the search warrant procedure had been put in motion.

Mr Cooke submitted that Parliament would not have intended that members of the police should be able to seize an importer’s entire stock of a certain book merely because those members thought that the volume may possibly be indecent.

“The issue in this case,” said Mr Cooke, “is whether the act permits the procedure which has been adopted in this case. The Magistrate in issuing the search warrant has not made the finding necessary to justify the issue of it, since he had found merely that there were reasonable grounds for suspecting the books were indecent, not that there was reasonable grounds for so believing.” At Source Mr Savage said that the purpose of the provision for the issue of a search warrant was to ensure that documents that were indecent should be stopped at source. If, for instance, a bookseller had 500 copies of a book that was indecent it should be stopped at source, rather than delaying to submit a copy to the tribunal. If a bookseller went to the Minister and asked him to refer the book to the tribunal and the Minister refused, then the bookseller could refer the book to the chairman of the tribunal, Mr Savage said.

No adverse inference turned on the Minister’s refusal in the present case.

Before issuing a warrant the Magistrate must be satisfied that reasonable grounds exist for believing an indecent document is being kept, and if he is so satisfied he may issue a search warrant, I said Mr Savage.