ALLEGED INDECENT PICTURE.

Dominion, Volume 1, Issue 104, 25 January 1908, Page 7

ALLEGED INDECENT PICTURE.

. CHARGE AGAINST A IJQOKSJSLLER. ;■ DECISION KOvKVKD. At the Magistrate's Coijrt yesterdayamori)ing, before Mr,. W. "g'." Kiddell,' SiM.> tlio 'hearing was .cp;)tjiiHQ,d of agiiijist Bernard Whitti)|\'er, bqok.scjler and staiifmer, Lambtpn (Juay, 'of '.lpivjpg, oi). Derjeiiib'er'.SO, sold to ono Arthur Andrevvs a Pertain" picture iii/ the, " Lono»'Hijjid iflagasijiie, fjifitled " Sleep," which it iyas alleged was of an .indecent lujture./. G))ief Defective M'Grnth appeared on ber hj|Jf of tho ppljco. > '. , ' Defendant; who was rqpresjejjted: hv Mr. Herdman, pleaded nqt guilty, and elected to be tried by His Worsjijp. Cjlief Detectiye jifGratjli said t-bSlt tlio- information was laid under Scetion i! of tho Ollonsivo Publicationg Act, 1892. Dufendant was . a weiNkntawn tyookspllpr anil stfltiqupr. 0|) December, 20 Detectivp Androivs . ; nurpliasiid from 1 him a .Docotpber numljof'of ap Ausfrsli!)!! ; magazifle ;palh>[| tlio ,Lone Hand," which' .published at.fine ?hj|ling. Tl)q iiUUiber jn question contained d piktilra' entitled 'I Sleep," alleged: tp bo of aij indecent n'aturo. 'Defoiidant was a- highly-respect-aljjo busiijess niaj), and flip pqiipe were 'quite certain that he woulil not Knowingly sell an picture or indecent literature; Under Section '2 pf Araendnipnt Act- of IS)QS it Vas, hovfovev, nq defeiice that dpfniiT dant did uof know-' th<? pictpre was. indecent. It was neeessary for him iq Satisfy the Court not. only that ho did not know the :picture iras' indeqent, J»ijt that hq. had ho rpaspna|(Jp opporti|nity, 'of fcnqjfjtfg, and, furthel', that' under all ' tl]p his fgiioi'aijcp.iyas P|i; that .point, hp wp'ijld quqtp ' ffoni, a decision by the Chief Justice '-in tlip case qf the King v, Ewart (25 N.Z.R.,. page 7Q9). - . Interalia. His Honour.had remarked " that the Legislature seemed, to )iayp cast, upon the hqpksejler tho; responsibility of .'being* jus own pensqr. Nq doubt if he could fhqw .that hp was selling: welj-kuoivn literature qr liciyfipapers qrfliljarily rpspeetalilp ;ii}d decpn'f, ijp Qpurt;,. if it found him p|lty, VpijJd"'iijflict a penalty. ,liut if it wej'e that a porsqii cijiild ge,t rid ■ of . a responsibility in selling, indecent litqratpre. by ststiijg. thaf ; he hfid ,)U)t rsad if, gnjl thereforq d)d lipt know tliffifc jiq Ivaß cq(n'n\iftiiig' i\ii ofl'tmco, the be.nefic.iijl opera-: tiqn of tlio Offensivo Publipatiqiis Act would be cxceediiiijly,' restricted, if not rendorpd. entirely nugatory." lii this case, the. iuagur aip'o was. a;magazine of good repute, and \vns splij . by' nearly all the l>ooksnHers in' tlio ppminioii. : Hp, (the Chief- Detective) understood. from some 'remarks- mado : by counsel for tho defendant when the case:was beforo the' Court,, last- week, that he intended to rely on tho fact that this picturo was a copy pf a work pf art,_ audi tluirofqrn,> not i|i-' dcoqnt:. Hq' submitted, jj; did not by iPliy- nioans follow that hcqause a picture was a work of art i| might not be indecent ,uudor. oert-ain circumstances, wjiiuli was hidecont and,.proper.ujujer que set of. pireunistance? might b'eeoirip jifdeoe'nt iPi|lor ptlici'. J'qr pxaiqple, . there was ljothing Inijeeent ip j\ ijian. standiilg naked in his"o>Vn''house,' hqt if he walked out qii to.tho street hp --would ho 'guilty <if an o'ft'jMipe. _.Tljep, agajpj-.thoj'o lvas; pothing indecent' in ind'eceiifc pictures lieipg {i|iown qr ipdecept literature beipg'V.eiid at a trial, but it \ypuld be an o(fei]eq 'if a pevy-spappr pujilislipd tho picture .qr - reported-'- the' matter. If a picture were hanging with others at ail' 'Aft Gallery it might.not' lie, inc]pcent. Parr sons who went into. Art Galleries" Knew' what they might expect there; If, h'oweypr, pljotor graphs' or' pictures, \vero publicly sold iii tlie street they migjiti ho. indqeent,. 1 •|n li(sp manner, if a v picture wpro publifihed -' in a magajiipo or newspaper it .might liecqme indecent,' i)ltihQu'gh''not indepent lii its proper place—an, Art'jGajlerv. ': TJje : ;<iiitiiority on that po|nfc of: a magistrate at, Birmingham,-"aqd was tq bo found' in 37 J.P., page 233, This decision, although th.it of a' magistrate, '.wa? pitpd as an authority. |p jatp edition of Avohihalrl's •''.Pleading, Byitlenoo, and Practice in .Criminal Cases." ' The proceedings in that oas'p v/erq t'akpn. npdpr aq Act. similar to thp Offensive Publjcqtiqmj Act, apd took the form pf a summims tq show cause why certain piptuvoa should uqt bp destroyedThe defenpa in that casp was that the phqto r graphs weyo, works of art, but tho magistrate ordered tho prints to be deatrqvpfl, No appeal had (tlio Chief Detective saiilt been lodged in that case. In Regina v. Hjcklin (3 Q,B. Reports, page 371),. His; Honour Chief. Justico Coburn had stated that the test of obscenity was whether the tewlnnoy of the matter' charged as obscenity « r qs to /deprave and corrupt those whose minds we.ro open to such immoral influences, and into whoso hands the publication of that sort might fall. This test v'as also cited: in Archibold's work at page 1190. It was not a question whether a picturo was a copy of a work of art or whether artists would call it indecent, but whether a person into-whoso hands it might f;ill might bp deniprahsed. It was a matter 'of common knowledge that people, b'oth young, and'old, lylulst travelling in trains, otp., bought magaziiies, not knowing what might tie m tliom. It was quite a different thing in tlio case of a visit to an Art Gallery. The police did not suggest that the picturo wis of a grossly indecent nature, but considered -that it xtas of such a nature th'at ! it was desiyablo to have a decision as to whether it was .indeeent or not, lie (the Chief Detective) understood tho defendant intended to admit tho sal 9 of the magazine. Counsel, who replied in the aißrinative, asked if the detective who made thy purchase yvas present., .Chief Dfteptivo M'Grath stated that the dotfictivo would give evidence. '

Defective Andrews giivo evidence, relating tn the purchase of the magazine- Crosspxatliinod, ho stated that ho knew tho jtiagaiiino well, and always unc]crstood that it had a lurco ciroulatipii.

Cqunscl: Apart from, what you havo heard whilst tho question of taking jupepedings was under consideration, liavp ypp hea|'(i it suggiisted. tlmt the picture is' indecent 1 cap't fj'l.V 1 hiivc-, Counsel; Np. dpijbt vp\i know that the monthly magazines publish pictures of nude wpmeu'j for Vnslancpfi, reprpduutions of oelc.lirated paintingsf—Witness; I can't call any tff iniiul.

He-examined by th" Chief Detective, the witness stated that the picture in question had been brought under ' tne notice of the police by a well-known citizen. Counsel: By whopi?—No reply. The Chief Detective produced the magazine, and intimated that that was the case for the prosecution. Mr.. Hordman said that, in dealing with tho defence, ho did riot wjsli to refer to the proceedings in a laughing fashion, but ho would venture to say that it seemed to him that in taking action against .defendant the police hiid allowed themselves to he mado use of, also that these proceedings had been taken without duo consideration. If llis ' Worship would look at the picture in question, ho would conic to the conclusion, counsel was confident, that, there was nothing indecent or obscene, about it. Tho picture had been painted by a well-known Australian artist., Mr. Lindsay Bernard Hall (who was present, in Court), and tho idea that it represented was sloop, beat, and stillness. The artist had chosen as his subject a beautiful woman who was reposing on a couch, seeking rest. At her head was a slave, and there was one at her feet. One had Her fingers to her mouth suggesting tho idea of silence. To suggest thai the picture was either indecent or obscene—and if it were indecent it must bo obscene—was absolute folly. If the Magistrate hold that the picture was indecent and obscene, then the. position would be this, that art. students in tho Dominion darn not portray the nude. Hp (counsel) submitted that there was nothing suggestive ill tho picture either as . regards the poso or appearaneo of the liguro. If persons were debarred from painting and exhibiting pictures of this kind the people of tho Dominion would make themselves - the laughing-stock ol' Australasia. 'Iho prosecution was, he submitted, on an fours with that which took placo at Auckland some time ago before Mr. Kettle, S.M. The sub-ject-matter of tho charge on that occasion was a copy of tho painting entitled ".Psyche at the l!iith." As much'of tho ligurc was revealed in that picture as in the one. which defendant- was charged with selling. The

lircpncdiiiga at A'ucUland nrf -instHtiibi! 1 l»y file iwlir'p, hilt ill \vl)iij}o ipfitiftilt-ioj) no did not knpw. , Mr. ]£<•('( |q*yep(iinu.j •«!««! We\y /if tlip Cjign, it)ul flisjuiusod tlio'i||f«)rro'i>tion.' Hcy(Miinspl) plight' |Tptii|d the police that it was (Innucrmis ;to ipstituto jii'ocoptiipgs. without pepper epn£idqrafioi|. Although there was nothing suggestive about tlio • picturo, numbers of persons with prurient mind? might now imagine" that the.v saw• indecency > tyhpre ill reality -none existed. The picture, wliip|i wuh coniinpm-pd seven years'a;so,-;jii![l ))een exhibited j» jMolb.ounuv, Sydney,' and .Adelaide, npd much prnjso hud been liestowcfi' qn Jim artist hjr jiereenV r.9>?}-. petent to judge. All the icndmg newspapers' and magazines had inserted notices .regarding it, but in none had it been suggested that the pietlirqiyus indecent, in the slightest degree. ;In painting , the picture tho : artist Wfts actuated- only lit the highest- possible inofcivß. The proprietors of the magazine hail dccided to punish reproductions of -the art treasures Australasia possessed, and Mr. Hall had allowed,them to publish 1 his picture. Curiously onotighy noiio of . the • newspapers or magazines which,rayiewed .tdiat number of the '' Lone Hand" which 'contained . tho illustration liad suggested that the .picture in question was indecent. .Some people thero weji;,. whp considered tha|; every picture pf a figure in tho nude was indecent; J'robabjy the porsop who hod made tho complaint. to tliQ pplico was one pf thpsp who could iiqfc for t|)B life of him bear to see the nude.--revealed. That inn if would objept to' any artist-fpvealing,through the medium of his work the dreadful secret that a woman v/af . a biped. ..He reminded counsel. of the old iady who could npfc go intp the drawingroom without a>'bliish coming to'her check because the legs of' tho jiiaUo Were not draped iu : cretonne! ' \Vhafc' yipw 'would 1 a ■ ;pfrspiv with a healthy- itiind takq of the picture? Did .it suggest iewd, ; libidinous thoughts ? Hjs (counsel's) Qflinajp was that- every' man who regarded .tho picture as indecent had an unhealthy indeopnt; mind. \To an 'ordinary' l persjiit 1)0 suggestion of indecency would ' oo.oiii'. The tho defence were (1) that the picture in .itself .was. not indecent; (2) that defendant could satisfy, tho Court- that-hp did 1 not' knew the ■picture was indecent; also that ho had no' opportunity of knowing, and, ftirthor, that 1 updor the circumstances his ignorance was excusable. X-oiiiisel hoped that he tt'bulj)not ..have to rely on the second ground of dofonce. His Worship , would, he trusted, pome to the qonolnsion that the picture Was not indepept. ' As His Worship was aware, tho niost beautiful thing in nature was the hu'maii form—in man it reprosonted .strength' aiid dignity, and in woman beauty. If the prcsecutjon succeeded, however, the publica- . tjor\ of reproductions' of works' of art which' gavo .'so much chjoymcut to all, vfould ,;be, debarred. Were. Wo. going to establish' a precedent in this country which -judges'in Kngjniul' aiid 'Australia would not follow? Counsel then referred to. reproductions in a pumber of works. • 110 showed ;His Worship tho pictures by Sir/Noel Pa tonj (president- of tho Scottish' Academy) illustrating Shakespeare's "Tempest."".Would anyone. suggest, he. observed, that theso pictures were, indecent ? Yet this hook was sold -by all respectable _ bqpksellors. Counsel admitted that from time to time indeccnt'and obseono pictures—pictures, which \yqro of-, tho most revolting description—yyorp published. Thero was, liowoyer, a great gulf between pictures of that eljiss and' tho .'picture wltiph was tho su'bjecf-matter' 'of the chargoX Hp.iyoukl impress on His. iiii'|irl jlujt'. if. he' did hoi;) tjiat aiiyoiip ,iyas delia |tc?l from printing a pieturo of Uie same, class as ''Sleep, I '-, booksellers woiihl |)p, (jebflrred from spiling tho illustrated edition to the i( which hp had submitted for inspeptioii of tho Court, l'pintjng to stpek pi journals- and reviews, which lie. had brought' ipt.Q pQiijti counsel remarked that if tho, coiiU>))tioii .of' thc'|ni!i:i!? were correct he was surrounded by indecency. ' Another picture suliinitted to tlio Court'was a representation of Galatea, which. appeared in " Uhick 'aiid' White,"- and' which,, counsel submitted, was in the. same category. <is Mr: Hall's picture. Air, Herdman stated tho presonfc case was qtiite distinct from tlio IMnuiughain cas<3 cited by tho. Chief "Detective. In that casp the defendant was charged .with having exhibited ■ Severn I hundreds' of photographs -of persons in various states and attitudes. Counsel had no fault to find 'with thn.tpst of obscenity laid down by- Chief dust-ice Coburn. At this stage, he quoWd Irom the Knglish and American Encycloppedia of Law, vol. 21, page .701, in support of his contention that m law indecent and obsccno were equivalent tpnr.s. Counsel then yoterreci to a liuuibVir pf reproductions in a publication entitled "To Tohunga," tivo hundred copies of which had been .purchased hy_ the-Government for distribution. In bis opinion, several of'the figures'in tho illustrations, which were by Ijettmc.r, were just as naked as tho figure in Mr, Hall's picture. If tho prosecution succeeded, anyone who' took a friend into his house and showed him, say, the 'painting entitled "'Judgment of Paris," would render- himself liable t-o bo summoned. The object of the Govmim<snt in placing tho Offensive Publications Act on tho Statute Book was, counsel obsoryed, to prevent the publication j of low ami disgusting pictures. In conclusion, ho referred to 'tlio fact that tho London National Gallery had just purchased for the' nation "Vonus's .Vlirror," by Velasquez, for £40,000. . Ho vnt-imatcd that ho proposed to call a number pf gtntlemen Interested in art to give evidence that Mr. Hall' 3 picturo was not indccent. ' •

The Chief Datective submitted that- such evidence cot\ld not bo admitted. Somo people might sav that tho picturo was decent; others that it would be indecent. Tho question whether the picture was decent' or not was one for the Magistrate to decide. His Worship said tjiat he was prepared to admit the evidence. '

Lindsay Bornard'llall, tvlio painted the

picture, stated that ho was director of tho National Gallery at Melbourne, in charge of tho School of Art, and advisor to tho I'elton 'Irusteqs, who were charged with the annual expenditure of £8000 oii works of art. Me stated that h» commenced to pai.nt : tho picture about seven years ago. It had .been exhibited in Melbourne, ney, and Adelaide. Numbers 'of critics bad spoken highly of it, whilst others had commented adversely. The London 'paper ''The Studio" had stated that the picture was admirably drawn and painted. He had been painting for thirty years in various parts of tile world. It had 'not previously, been suggested that the picture was indecent. He might mention that ho had mado a specialty of painting tho nude, and that lie had never beard of works of this, class being referred to : as indecent. The picture was a decorative picture, meant to beautify a wall. Tho subject happened to be-what is was—nude figure, drapery and accessories to convey the idea of heat, sleep, and stilhiess. In none of tho reviews bad it been suggested that tho picture was indecent. ' The Chief Detective: There is nothing indoccnt in the picture from an artistic point of view? —Witness: No. "Under other circumstances it might bo regarded as indecent?—l know how the nude is regarded throughout the \yorld; I don't know how they regard it here. Some people may regard the nude as indecent, I have never met anyone who did. Tho Chief Detective handed witness a copy of the "Lone Hand" for Jannary. in which an illustrated story entitled "As it was in the Beginning" appeared, and asked witness if he considered the illustrations, which were drawn by Norman Lindsay, works of art. The witness replied in the afliriuative. I The (Jhief Detective: Do you consider this plioto postcard (depicting a female scantily chid) a work of art."—Witness: It is a photo from life; therefore not a work of art. The Chief Detective: Is there anything indecent aboufj it?— No. I see nothing about it that is objectionable. The Chief Detective: Are you surprised to bear that- a poison was convicted bore for selling this post-card ?—Witness: I atu iiot surprised. The circumstances "ere quite dilferent. In that case the publication was wanton and wilful. The post-cards were sent through tho Post Oflice. 1 may say, howover. that it is not indecent to me. Tho Chief Detective next handed to witness a photo post-card, on which were the figures of a man and a woman. He asked: Do you consider that one indecent? Witness: It is meant to be indecent; that is not the mule. Asked whether die considered another picture on a post-card indecent, witness replied in the affirmative. 'J'lie Chief Defective: If copies of your picture were sent broadcast through tho post oii post-cards, would you consider them in*

decent pictures?— Witness: 1 would object, but. 1 would jipt iroitsiiit-r. lljoiii indecent. Jf t||u (lonlrai figure in niy picture wore photographed in the public view tlm.photo would be indecent. The. Chief Detective: You will 1 not say that because a picture is a-, work of art it. might not beconifs indecent imdcr certain cireum-. stances? —Oh, it might.. The Chief Detective:' If copies of works jn sav, the Art- Gallery, Loudon, were sold in the street, would vmi consider they wore in- ! ilecoflt pictures ?—To . the '~ indecent they would be indecent.' .■ ' Mr. Hordman: Dp yon consider the "Lone H:\nrt" a highly respectable magazine ?—Yes. Mr. Herdniaiii: And the reproduction of . your picture in it.is not indecent? —'Witness: Oh. no. Referring to a ppst-pard .y/hich had: 'been shown him, 'witness stated that the cards would ho sent through ..the. pqst promiscuously, and with an ipdeccnt- motivp. Subsewitness voluntarily stated, that ho ; was pot directly interested in the prosecution. .'T|ie''proprietors or the "Lnne Hand" had,applied 't-b him for permission to publish his'picture, arid he ha,d, given .them permission, Henry Samuel Wardeli, Stipendiary Mag- ' istrntp, and President of the Academy of ' h'iiiq Arts, Wellington,, said that he .looked upon tho proqe'wjtioii as a grotesque absurdity. in his: opinion tlip picture-was ■ pure,, and the surroundings piir«. -.Qomparod with advertisoment pictures, sjp^'ing' wonigu trying'on corsets and' boqts, it was piirjty itseLf. Only a thprqijghly. pnirjent.' mind'could get thoughts of inipvirity from it'.' Sometimes persons who preached purity possessed prurient minds themselves ■ The' Chief Detective:.'Do you-consider tliat. a picture of a naked woman published ill a •magazine, or 'newspaper'is'not" indecent—l don't mean in any- attitude?—'Witii'css: v Yes. Thomas' Kennedy Maodonald, auctioneer, who helpod to estuhlish t|ic local Academy of Arts, who .was, with the. Mayor, chosen ' by,'tho'public to' assist in the selection of ■pictures pffered for sale at the Exhibition, was the next witness, ' H'o'held that the ture in . question was the very opposite of. indeceiiey; There was, in his opinion,; lioth-. ing ;dbc)ut the jiicture' to suggest indecency. A' nurober of pictures of nude, figures wero' on yiew in tho Art' Gallery at the Exliibi- % tion. Mr, Hall's picture was nqt'inore indecont; than one exhibited there by Mr. Sol-' omon J. Solomons,, which was purchased by, . one of tile art galleries. ■ Tjje Chief l)eteotive: .'Do you consider that it is. iiidcoenk to publish a picture of a nudo woman iiidclicately posed?— Witness: -Jt do-' ponds pa .cirtunistanccs. i am not .prepared 'to- :go the length qf paying t)iat it, is indccentl> I think,"it. is better not tp do. it-. '<• 'Nelson " Illihiworth,, sculptor, at 'prcseiit residing in''Wclliiigton, said lie hrid studied ill various countries, and had .visited' tl]e principal Art; Galleries in Europe. He imiil that he lifid,seen tho original 'of the picture. In his opinion thorp was nothing sjbout it; to suggest indeceuoy. It ..was, in' fact', not' possible for it to be indecent to a pure mind. Anybody should, he thought, bo ablo to, sec in his'or her own home, through''t'iie meilium .of a niagazino,. reprp/luotioiis of pictures exr hi()ited iji an art gallery. ■ Tho,Chiof llpteofivo: Would, it not bo'indonent to publish a, picture 'of a' nudp UUt!(?—No, not unless the figure was in ;m .indecent attitude. .' ,George B. Pitkeathly, in charge" of the art septipn pf tjie AVellingtoji, Tec||i.ii(:al. f!!(<lioo|, Sftitl that lie djil «Pt coiisidor tlio reproductibns indecent .hy (i(iy ineiins. ' .I'ipi lives similar tq Hull's in tho leading yipnthly maguzhies. ' ■' . ■'. witness, stated that, in his .Qpinioq, -a pjoture wliiqh; wqs n reprpductipii °f ? good work of art in a magazine, whs npt. indecent. . Jas. M'Donald.J in charge of the art:.scoj' "■tibn of .tho. Tourist Department, considered that the'reproduction'of a work of art could not be objected to provided tho work was ! pure mtpntipnod. . I YvnltWr. A. Bowring, artist, was also culled,' as a. witfieps,... He. thought the picture \\;as exceedingly, py're. witness, stated that it would do'peiid on the uiotivo of the. painter wlietlier ho would consider tho picture of a nude; woman'inde'oent. If the,, motive were indecent, ho would certainly hold .that the picture should not bo reproduced. Mr. Henlnian intimated that, defendant could give evidence Uifif. ho liatl ,110 knowledge of . tho existence of tho picture in the book, ' ■ Tho Cliiqf Dglcctivc: Wo ore prepared, tp admit that. ' ' Continuing, Mr. JV.Gfath pointed put that t.he late Mr. Riohu'oiid, luid. held, in Armstrong v.' Mooro, that that which was obscene was always indecent, lmf. what was indecent wqs not necessarily obscene. Some of tho witnesses seemed'to be of opinion that tho question as to whether a picture was mdepent or not depended on the motive of *-ho ' artist or. of tho seller. He might pnin' out that the motive of the artist or tlu: seller was not of any consequence. Authority for that was to bp found in Rogina v. Hicklin, 3, Q.B. .Reports. Evidence of intent to corrupt morals was not necessary; if the' Court found ;thi}t the picture was indecent under the circumstances in which it'was sold : that was sufficient. It was not sug-gested-that a-'picture like Mr. Hall's could not be exhibited, but the proper'place' for it to be exhibited in was (lie Art Gallery. The police department had fully considered the matter,; and had cqmp to tho conclusion that it' was an instance, in which the deci-' sion of a Magistrate ought, to be obtained. - Hi? Worship said he was not to give his decision at once. He wished to examine the pictures subpiitted to him, also to refer to the'authorities quoted. Judgment would be reserved. ■ A similar eharun' against John Dickie, bookseller, was held over until January 31, pending decision in tho previous case.