DISMISSED. THE LONE HAND CASE.

Evening Post, Volume LXXV, Issue 26, 31 January 1908, Page 7

DISMISSED. THE LONE HAND CASE.

MAGISTRATE'S DECISION. Judgment was given to-day by Mf» Riddell, S.M., in the case iwoiaght against Bernard Whittakef, bestseller, ■ for having sold what was alleged' to bo an indecent picture, published "in. a- uepy of the Lone Hand Magazine. The magistrate held that the pictnrft was not indecent, and dismissed- information. H?s Worship's fall"judgment on tho ease is as folldwi*:. — . Defendant is charged tha* -oft-- ths 20th day, of December, 1907,, at MTelhnrton, -hoeold to one Arthw Andrews .a certain picture- in- the- LonV- Hand Magazine, "entitled "'Sleep," w^icTi is of an indecent nature, contr^ry;'^, the form of {he- statute jn-such ease ma.de «nd provided. Th»- original picture was painted" by the ' -weU-kfjoym 'Australian artist Bernard HafL " and- has been exhibited ia , various art galFeriea in Australia, and • all expert;' cvi- ' denoe giv-enl" ct the hearing was against i.he picture being of an iadecejat '^tire. Third' is clearly «ome J distinction' between selling- r picture irt -a magazines and . sslling. the , sam^-pjc'tfrr'ji^&i aa. ordinary ppst. card. A eontpajfj^qn"jwith similar picture* published in magazines and bo'dka whkh' have "not been IM Subject of a decision .gives no .ftjs&tfanfca in arriving at - «, conclusion -whether- & certain picttire is indecent or noti'The whole question, 1 is- one. of'"isdlyjdual opinion npoa .ins- f&ets' tani. 'elJpumstances, surrounding . the , "sale, < L .'y. Tha border lino between decency and in- • dee?ncy in pict-ures varies with, the view* of th© individual, and * that ' depends upon n grcs,t number of <othsc factors. . In the present, case^ I b,axe ■ had' the advantage of comparing thfe "picture in question with that of "Psyche's Bath," which was dealt witK by- Mr. Kettl?, S.M., at Auckland (in tlic cas© polico v 4v 4 Lawrence) qn the Cth October, 1906; Moat of the caaes cited at this hearing wero discuKsed bjr- him in hi* decision- (Scs vb!um,e 1 MagiUrate's Court Reports, - Ti&ge 169).. . Qti paga 170 he says, " I'he ' question which I have to dctsrihino' is whether ' the. sr.lo by defendant, who i ia a prctUre ( ,^ea!er, of copies of Lord L'eigliton'* famous picture 'Pftychs' b P,ath" tb A, constable, who was instructed "by his superior officer to purchase it ' in . order that ft prosecution might follow, is a .broach of Tha Offensive Publications Act." Alter discussing ! tho nteaning of tho .words "cb sceno ' and "irtdftccnt" he says, "I Din of opinion that it .would be a groBS libel on 'th.3 fatnoui* works of such % v great artist -as Cord Leighton.to characterise the. picture o& indecent. " Thera is sin entire absence of impure; snggesticn; nothing Itwd*, obscene,.. indecent, ncandalouj, or lascivious in -the^ attitude and poseurs; nothing offensive to> decancy and good. morals.. 'The' picture is not (to nso the .words of the statute) 'irtended to have an indecent; immoral, or obscene effect.' In my opinion, tha defendant in selling the picture to tha constable on tho Occasion referred to did fccfc commit a breach ,of lh^ Act, aiuT ths .information must be djshms^d. It is not necessary for m« . to decide, find I wish> ty to be clearly understood that I do not 'hold that photographs of these pictures as postcards ought^ to bo indiscriminately exhibited and' told to boys and girls. A great dml must depend upon th« manner, extent, and circumstances under which; tha fale» publiahiag, or exhibition is madfej or, t» quota tho words of Lord Chief • Justiea Cokbnrn in f.ngina \\ Mieklia. , 'Tli« immunity mrsb depend, on, the cijeumsftances of tho -publication.' M -• - , I agrfrs with tho dtclsion of MV. 1 Kittle 6xi. the ,-. picfurj} . >/-'?3.yci:3> Bath,' and as tho circuftist'inces* in both ck-scs arc somewhat similar I am nefc prepared to say after pompdpsoa ' that tho copy of the picture entitled "Sleep" is in'docint. I also agree with his remarks ns to the impropriety of indiscriminately selling .photo^raphc oi ' /juch pictures as postcards to young porsons. The information will be dismissed. " •>, Mr. Hcrdman applied for cbstt against the police. ,He know it ,w?c ndl customary "to grant them, but' he submitted that where 'a defendant waa brought before ths court on so fOfilc a clitirg*. as this one, and satisfied "the court ho had Committed no otfenc,e v eosU should bo allowed ngainst the police m th* intcies.s of justice. In this casa considerable expense had beefi occasioned to tho defendant in <iispioving tno chargo. Chief Detective M'GratH said he had n r vcr yefc known costs ''io be allowed agai'isl thi police. Tho magisa'atp said it vms unnccas« sary for tho chief detective to continue J coGts would not be allowed.