Judge rejects call to rule T-shirts indecent

Press, 4 August 1987, Page 31

Judge rejects call to rule T-shirts indecent

The proprietor of a Tshirt company in Colombo Street which was picketed by a group of citizens last month, and about whom complaints were made to the police about alleged obscenities printed on the T-shirts, walked from the District Court yesterday carrying the questioned garments, sample prints and transfers.

They had been returned to the proprietor, Robert Bruce Rae, after Judge Fogarty had dismissed an application by the police for a ruling declaring the items indecent, under provisions of the Indecent Publications Act. The r Judge dismissed the application after hearing police evidence and submissions, and without calling on Rae to give evidence or make submissions in opposition to the application. In dismissing the application the Judge held the police had not satisfied the necessary criteria under provisions of the act “on several grounds." None of them involved the question of indecency or otherwise of the items. On one of the grounds more than half the exhibits, including all the Tshirts, were lost to the police’s case early in the proceedings, because Rae had handed them, to an investigating constable in what was termed a spirit of co-operation, without a search warrant having to be used.

The Judge ruled that these exhibits could not be taken into consideration because the act related to items seized under a search warrant. Another ruling leading to the dismissal was that the act required the summons to be issued to the occupier of the premises searched, to show cause why the items seized

under a search warrant should not be destroyed. The Judge said he could not be satisfied on the evidence before him that the person summoned, Rae, was the occupier of the premises. The Judge also said he could not be satisfied, on the evidence adduced, as to the circumstances under which all of the items were on the premises. For the reasons he outlined, and without calling on Rae to answer any of the allegations made by the police, the Judge said he was not satisfied the necessary criteria under section 25 of the act had been made out. The police’s application thus was dismissed.

The police application to the Court stated that the police considered the wording and illustrations on the T-shirts to be indecent, and thus sought a ruling from the Court that they were indecent. Sergeant G. W. Moore appeared for the police. Rae was not represented by counsel.

Constable K. E. Mitchell gave evidence of the police’s receiving several complaints from members of the public early last month relating to T-shirts sold by the Ace T-shirt company in Colombo Street. -

On July 8 he called at the shop and saw the proprietor, Mr Rae, and was given four T-shirts and three transfer templates. They were “seized” by him. He returned to the shop on July 17 and executed a search warrant, and seized a quantity of transfers.

He produced the items seized as exhibits.

To the Judge, the constable said that on the first visit, July 8, when he took seven exhibits, he

carried a search warrant but did not use it.

Sergeant Moore said a search warrant was issued for the first occasion butßae allowed entry to his premises. The seven exhibits were seized but the search warrant was not required.

The Judge referred to a sub-section of the Indecent Publications Act which stipulated documents seized under a search warrant.

He said the situation he was suggesting to Sergeant Moore was that he could not take into account the first seven exhibits because they were not seized.

When the case resumed for the afternoon session Sergeant Moore submitted that Constable Mitchell had gone to the premises with a search warrant, and the items were seized even though they were handed over by Rae in a spirit of co-operation.

The Judge said he had no evidence that any of the articles had been kept on the premises to be so dealt with as to constitute an offence against a provision of the act.

Although they were seized from shop premises there was no evidence of what part of the premises they were displayed — whether they came out of a back room, or upstairs.

Giving his decision to reject the application “on several grounds” the Judge traversed the evidence and submissions made, and said the evidence satisfied him that the seven exhibits taken on the first occasion were not seized by the constable. They were handed to him quite voluntarily by Rae. They were not seized by search warrant as required under the act, and he declined to consider them in the application.

The later been seized in with a search

items had accordance warrant.

The Judge said Rae’s mere presence in the shop was not sufficient to establish he was the occupier within the meaning of the act. There also had been no evidence to show from what' position in the premises the items in question were seized. Rae sought the return of the T-shirts and other items taken by the police, and this was not opposed by the police.