Court Upholds Reversal Of Obscenity Charge

Press, Volume CIX, Issue 32166, 9 December 1969, Page 14

Court Upholds Reversal Of Obscenity Charge

(N.Z. Press Assn.—Copyright) SYDNEY, Dec. 5. The full Bench on the High Court has refused the Queensland Crown Solicitor leave to appeal against the dismissal of an obscene language charge against an actor.

The Crown Solicitor wanted to appeal against the Queensland Supreme Court decision which in October upheld an appeal by Mr Norman Staines, aged 49, and quashed his conviction for using obsence language in the Australian play “Norm and Ahmed.” In the Brisbane Magistrate’s Court on May 23, Mr Staines was fined $l5 by Mr W. C. Barlow, S.M., for using the word “boong”—a slang word for Aborigine—during the play at the Twelfth Night Theatre, Brisbane, on April 19. The full Bench of the High Court yesterday consisted of the Chief Justice, Sir Garfield Barwick, .Mr Justice Menziea, Mr Justice Windeyer, Mr Justice Owen and Mr Justice Walsh. The Queensland Crown Solicitor, Mr T. Parslow, said in an affidavit setting out the grounds for an appeal that the Crown considered the matter one of great public importance. It was also of great importance to the Crown and those police officers charged with

administering the laws relating to indecency and obsenity in Queensland, he said. The Crown claimed that the Supreme Court had misdirected themselves in law, and that they should have held the Magistrate was correct in ruling the word obscene within the definition of a section of the Vagrancy, Gaming and Other Offences Act.

The High Court, which sat In Sydney, heard submissions from Mr D. Sheahan, Q.C., for the Crown, for about an hour before adjourning. The Bench returned in less than half an hour with its decision, dismissing the request for an appeal to be heard. Sir Garfield Barwick said the circumstances under which words said to the obscene were used, could and should be taken into account The Supreme Court decision had found the use of the word in context could not be considered obscene.

The High Court decision did not form a precedent, nor could it govern the use of the word in other circumstances.

Earlier, Mr Justice Owen, to Mr Sheaban, told the Court that the word used by Mr Staines might not be considered obscene in a hotel bar, but would be thought obscene, for example, in a church. Mr Sheahan, in his submission, said a man on the stage using the word was in the

same position as a man who shouted it on the street. He said that under the relevant section if words were used in public and were considered offensive to the general standard of decency In the community, the act was said to have been completed. It still recognised that the meaning of obscene included offensiveness. Sir Garfield Barwick said minds might differ on the criteria used to define obscenity and the High Court was not there to remove uncertainties.

Mr Sheahan said the average juryman or a magistrate had a fair idea what was offensive to the common standards of decency. “We submit that this word is not used in polite society and not in front of females," he said. There were a few words which would be regarded as taboo and a list could be compiled. Mr Justice Walsh asked who would make the list, and who would have the power to change such a list. Mr Sheahan said the sole basis of his submission was that the full court committed a fundamental error in law. Mr Justice Owen said the High Court was not to decide if the word was obscene. Both the Supreme Court and the Magistrate had said there could be discrepancies. He said a court was a public place, and the word had been used during court cases. Costs were awarded to Mr Staines.