11 AUGUST
NEW ZEALAND GAZETTE
3241

against any persons as a means of sexual gratification or for
any other purpose are clearly in the Tribunal’s view injurious
to the public good. When such elements of violence are
displayed against females, and particularly young females, as
portrayed in these two publications, the risk of injury to the
public good is far greater.

The Tribunal classifies both of these publications Derriere and
Martinet as unconditionally indecent.

Dated at Wellington this 27th day of May 1988.

R. R. KEARNEY, Chairman.

Indecent Publications Tribunal. 1
go8816

Decision No. 19/88
Reference No.: IND 26/87

In the matter of the Indecent Publications Act 1963, and in
the matter of an application by the Comptroller of Customs
for a decision in respect of the following publications:
Drummer, Volume 10, No. 91 and 96, Publisher: Alternate
Publishing; Mach, Volume I, No. 1 and 2, Publisher:
Alternate Publishing; Mach 7, Volume 3, No. 7, Publisher:
Alternate Publishing; Mach 10, Volume 2, No. 10,
Publisher: Alternate Publishing; New Direction, Volume 14,
No. 4, 5, ?, 177, 181, and 182, Publisher: Gadoline Ltd.;
Lovebirds, No. 83, 86, 88, 89, 90, 93, and 94, Publisher:
Sheptonhurst Ltd.; Playbirds, No. 105, 106, 109, and 110,
Publisher: Sheptonhurst Ltd.; Companion, June, July,
August, September, October, November, December 1984,
January, February, March and April 1985, Publisher:
Gentlemans Companion Inc.

Before the Indecent Publications Tribunal

Chairman: Judge R. R. Kearney.

Members: A. J. Graham, K. Hulme, R. Barrington, and S. C.
Middleton.

Hearing at Wellington on the 12th day of April 1988.

Appearances: Mr Wotherspoon on behalf of the Comptroller
of Customs; G. A. Ireland for Lawrence Publishing Company
of New Zealand Ltd. in respect of publication Drummer; Mr
Highly of Exchange Traders, the importer of all magazines.

Decision

These publications were commercially imported at Dunedin in
2 shipments in May and June 1987 and were subsequently
seized by the Collector of Customs, Dunedin.

The importer, Exchange Traders of Dunedin, a business
operated by Mr Highly, have disputed forfeiture of the goods
and therefore they have been referred to the Tribunal prior to
the commencement of condemnation proceedings pursuant to
the Customs Act 1966.

As the Tribunal has mentioned in earlier decisions, Mr Highly
operates a direct sale and mail order business mainly dealing,
as we understand it, in books and magazines including
heterosexual and homosexual orientated publications. On this
occasion Mr Highly was unable to stay over for the second day
of the Tribunal hearing but he very kindly indicated his faith in
and acceptance of the Tribunal’s decisions and reminded the
Chairman that many of these publications are already freely
available on the New Zealand market. At a previous sitting of
the Tribunal in respect of earlier publications imported by
Exchange Traders, Mr Highly informed the Tribunal that a
considerable amount of the material sent to him from overseas
was in fact unsolicited, although it was selected by his agents in
those overseas countries, particularly Australia on the basis
that the material would likely receive at least a restricted
classification from the Tribunal.

Mr Ireland, counsel for Lawrence Publishing had prepared and
presented to the Tribunal a memorandum and submissions in
respect of the publication Drummer, and that memorandum
and those submissions were supported by Mr Logan.

Drummer

This is a paper-back magazine. The whole of the contents of
which is clearly aimed at the male homosexual market, and it
consists of photographs and text which is almost entirely
directed towards male homosexual activity. Appearing
throughout these magazines is the theme of bondage and sado-masochism. In a number of its earlier decisions, the Tribunal
has found the combination of bondage and sado-masochism to
be unacceptable and clearly material which would be injurious
to the public good. Such a finding is set out in Decision
No. 14/87, a decision of the Tribunal delivered on 1
September 1987 in respect of "The Zeus Collection" and
"Mandate" October 1985.

As Mr Ireland points out in his memorandum of submissions
the last issue of Drummer considered by the Tribunal was Issue
104, which the Tribunal found to be unconditionally indecent
because of the emphasis in the magazine on "bondage and
sado-masochism". Decision No. 20/87. Mr Ireland informed
the Tribunal that Lawrence Publishing has appealed that
decision which has yet to be heard by the High Court.

In the memorandum of submissions presented by Mr Ireland,
he informed the Tribunal that Lawrence Publishing has
appealed that earlier decision, because in its opinion, the
Tribunal has not given full and proper consideration as to how
representations of sado-masochism or bondage are injurious to
the public good. Mr Ireland pointed out that to his knowledge
no evidence has been tendered to the Tribunal to establish this.
Mr Ireland submitted that the question is not one of
"judgmental or legislative facts" as referred to in Jefferies J’s
judgment in Comptroller of Customs v. Gordon and Gotch. In
addition Mr Ireland drew the attention of the Tribunal the
decision of Holland J, in Collector of Customs v. Hewitt and
referred the Tribunal in particular to three passages from His
Honour’s decision. We set out that part of Mr Ireland’s
submission in full hereunder:

"4. In the High Court case of Collector of Customs v.
Hewitt, Holland J heard an appeal from the District Court
concerning some video tapes imported from Australia.
The case was heard before the passage of the Video
Recordings Act 1987 and accordingly the question of
whether the tapes were indecent or not fell to be decided
under the provisions of the Indecent Publications Act.
District Court Judge Willy described the tapes as
containing (inter alia) scenes of "a limited amount of
violence and forced sex ... one or more of the
participants is under physical restraint". It was accepted
by the Judge that the videos would be used in the
importer’s own home. On page 27 the Judge summarised
his decision as follows:

"These are four video tapes purchased by a mature couple
openly in a country which has a social make-up not very
different from that of our own. They are manufactured for
the purpose of being displayed on a video machine which
in turn is capable of being used in conjunction with a
television set in a private home. There is no evidence
other than these videos will be watched by the owners of
them and I infer their invited guests. There is no evidence
one way or the other of the sort which was presented in
the Lawrence Publishing Co. case that anybody who is
likely to view these videos will be or is likely to be
corrupted by that exercise."

and on page 28:

"In my view the inquiry in this case is a narrow one which I
express as follows: is it injurious to the public good for
adults to view explicit sexual material in the privacy of
their own home? On the evidence before me I am not
satisfied that the prosecution has proved on the balance of
probabilities that such is so. Accordingly I decline to make"