NOT INDECENT!

NZ Truth, Issue 137, 1 February 1908, Page 6

NOT INDECENT!

' r SIEEP " NOT SINFUL. The " Lone Hand " and the Law. Magistrate Riddell Dismisses the . , ■ Case. Magistrate Riddell yesterday delivered his judgment m the astonishing prosecutions instituted by the police against Bernard Whittaker and Jno. Dickie, two Wellington -booksellers charged with selling a copy of the "Lone Hand" magazine for December 2, containing a copy of Bernard Hall's magnificent picture- "Sleep," alleged by some prurient-minded wowser to be indecent. His Worship dismissed the information m "the following words :— Defendant (Whittaker) is charged that on the 20th day of December, 1907, at Wellington, he sold to one Arthur Andrews a certain picture m the "Lone' Hand", magazine, eiftitled '•'Sleep," which is of an indecent nature, contrary to the form of the statute m such case made and provided. The original picture was painted by the well-known Australian artist, Bernard Hall, and has been exhibited m various art galleries m Australia, and all the expert evidence at the hearing was against the picture being of an indecent character. There is clearly some distinction between selling a picture m a magazine \and selling, the same picture on an ordinary post-card. A comparison with' similar • pictures published m magazines and books which have not been the subject of a decision give no assistance m arriving at a conclusion whether a certain picture is indecent or not. The whole question is ONE OF INDIVIDUAL OPINION upon the facts ami circumstances surrounding the sale. The border line between decency, "and indecency m pictures varies with- the view of the individual, and that depends upon a great number of otter factors. In the present case I have had the advantage of comparing the picture m question with that of "Psyche's Bath," 1 which was dealt with. by Mr Kettle, S.M., at Auckland; m. the case. Police w Lawrence, on the Sth •October, 1906. _ Most of the cases cited at that hearing .were discussed by him m -his ' decision. On page 70 he says '— "The question I have to determine is whether the sale by defendant, who is a picture dealer,, of copies of Lord Leigh-ton's famous picture, 'Psyche's Bath 1 to a constable who was instructed by his superior officer to purchase it m order, that a prosecu-* tion might follow, is a breach of the Offensive Publications Acts." After discussing the meaning of-the words "obscene" and "indecent," he says : — . ' . ■ "I -am of opinion that it would be a gross libel on the famous works of such a great artist as Lord Leigh; ton to characterise the picture as indecent. There is an entire absence of ' an impure suggestion, nothing lev/d, obscene, indecent, scandalous, or lascivious m the attitude and posture, nothing, offensive to decency and good morals, the .picture is not, to use the words of the statute, 'intended to have an indecent, immoral, or obscene object.' In my opinion, the defendant, m selling the picture to the constable under the circumstances, referred to, did not commit a breach of the Act, and the INFORMATION MUST BE DISMISSED. It is not necessary for me to decide, and I wish it to be clearly understood that I do not hold that photographs of these pictures as postcards ought to be indiscriminately exhibited' and sold to boys and girls. A great deal must depend upon the manner, extent and circumstances under which the sale, publishing or exhibiting, is made, or, to quote the words of L. C. J. CockJmr-n, m Regina v. Hicklin, 'The immunity must depend on the circumstances, of the publication.' " I (Mr Riddell) agree with the decision of Mr Kettle,- on the picture, "Psyche's Bath," and as the circumstances m both cases are somewhat similar, I am not prepared to say, after comparison, that the copy picture entitled'' "Sleep" is indecent. I also agree with his remarks as to the impropriety of INDISCRIMINATELY SELLING PHOTO GRAPHS of such pictures as f pictures to young persons. Information dismissed. Mr Herdman applied for costs. It was not usual to give expenses m unsuccessful prosecutions instituted by the police, still Whittaker had been brought before the Court though guilty of so offence, and counsel submitted that m view of the expense that defendant had been put to to prove the decency of the picture costs should be allowed. Chief Detective McGrath said he had never known costs to be allowed m such ca^es, and his Worship .refused the application. The information against John Dickie, another' bookseller, was with drawn, by the police^