INTRODUCTION: THE CONCEPT OF “BLASPHEMY”

2.1 One reason why the debate over the law of blasphemy can engender such passionate feelings is that “blasphemy”, in its common rather than legal usage, means different things to different people. Some consider the use of “swear words” with a religious connotation in the broadcast media to be blasphemous¹ as well as offensive; others regard any public repudiation of basic religious concepts to be blasphemous; while many regard the whole concept of blasphemy to be obsolete in modern society.² Another view is that blasphemy laws rarely should be utilised, but should nevertheless be maintained to signal the society’s distaste for scurrilous abuse against persons based on their religion or beliefs, and perhaps to punish particularly outrageous cases. It would be remarkable if such differences of opinion did not exist, given that the concept of blasphemy is inextricably linked to personal religious beliefs and notions of pluralism, tolerance and freedom.

2.2 Dictionary definitions of blasphemy include: “impious utterance or action concerning God or sacred things”, “irreverent behaviour towards anything held sacred”³, “profane speaking of God or sacred things; pious irreverence”, and “slander, evil speaking, defamation”.⁴ In the Old Testament, the Third Commandment proscribes the taking of the Lord’s name in vain,⁵ with traditional Judaism prohibiting even the uttering or spelling out of God’s name. In its modern, vernacular sense, however, irreverent behaviour towards anything held in great esteem and respect is sometimes said to be “blasphemous”.

2.3 As a term of art in the criminal law, blasphemy (and the closely related “blasphemous libel”) is used in a much more restricted fashion. A starting point for a modern legal definition of blasphemy and blasphemous libel is Stephen’s Digest of the Criminal Law, which states that:

every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as by law established ... . Everyone who publishes any blasphemous document is guilty ... of publishing a blasphemous libel. Everyone who speaks blasphemous words is guilty of ... blasphemy.⁶

2.4 In Whitehouse v Lemon and Gays News Ltd (1979), the leading authority on the current state of the English common law of blasphemy, the summing-up given by the judge to the jury was in substantially the same terms,⁷ and on appeal Lord Scarman cited Stephen’s Digest with approval. The essence of blasphemy, according to Lord Scarman, is that:

the words must constitute an interference with our religious feelings, creating a sense of insult and outrage by wanton and unnecessary profanity.⁸

2.5 Thus, for an act or statement to be criminally blasphemous under the English common law, it must be highly and unnecessarily offensive in character, and it must relate specifically to the Christian religion. Stroud’s Judicial Dictionary characterises blasphemy as:

the publication of that which [crosses] the dividing line between moderate and reasoned criticism of Christianity on the one hand, and immoderate or offensive treatment of Christianity or sacred subjects on the other hand.⁹

2.7 In order to appreciate the current legal meaning of blasphemy in New South Wales, and to help understand whether it has any continued relevance in modern times, it is necessary to examine the origins of this old concept. Unless otherwise indicated, the term blasphemy will be used in its narrow legal sense in this Paper. Subject to the context, it will be used to refer to both offences of blasphemy and blasphemous libel.

ORIGINS IN ENGLISH ECCLESIASTICAL AND COMMON LAW

2.8 At the time of the settlement of the New South Wales colony, blasphemy had been established in England as a common law offence for about a century. The offence had its earlier origins in ecclesiastical law, where it was closely related to the other religious offences of heresy, schism and atheism, within the jurisdiction of the separate Ecclesiastical Courts.

2.9 A person convicted of blasphemy in the Ecclesiastical Courts was liable to be burnt at the stake by virtue of the common law writ de Haeretico Comburendo.¹¹ Blasphemy could also be dealt with by the Star Chamber and the Court of High Commission, which tended to regard irreligion as an offence against civil order. These Courts were dissolved in 1641, and the writ, together with the punishment of death in pursuance of any ecclesiastical censure, was abolished in 1689. The Court of King’s Bench stepped in to fill what could have been a gap in the law, declaring at the trial in 1663 of Sir Charles Sedley for indecency and blasphemy that the (common law) Court acted as the guardian of morals for all the King’s subjects, and would punish all profane actions that were contrary to modesty and Christianity.¹²

2.10 Taylor’s case¹³ (1676) is said to be “the foundation stone” of the common law of blasphemy,¹⁴ confirming that blasphemy had indeed become an offence punishable by the common law courts. Hale CJ is reported as saying:

such kind of wicked blasphemous words were not only an offence to God and religion, but a crime against the laws, State and Government, and therefore punishable in this Court. For to say, religion is a cheat, is to dissolve all those obligations whereby the civil societies are preserved... . Christianity is parcel of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law.¹⁵ [Emphasis supplied]

2.11 By holding that “Christianity is parcel of the laws of England”, the courts were declaring their readiness to punish all blasphemies, whether scurrilous and offensive or not. This attitude was reflected in the Parliament at the same time. The Blasphemy Act 1698 made it an offence for any person educated in or having professed the Christian religion to deny its truth.¹⁶ As late as 1841 the Commissioners on Criminal Law reported that “the law forbids all denial of the Christian religion”, adding, however, that in actual practice “the course has been to withhold the application of the penal law unless insulting language is used”.¹⁷ Hale’s statement was only officially disapproved of by the courts over 200 years later.¹⁸

2.12 The function of ecclesiastical law was to protect the professed religion of the State. Until the Reformation, England was a Catholic country; after 1536, the established religion was the Church of England.¹⁹ An attack on the State religion of England was equated with an attack on the security of the State itself, and so blasphemy was punished as an offence which “tends manifestly to a dissolution of the civil government.”²⁰ There was no threat to the State where attacks were made on creeds other than the State religion, and consequently no need for such attacks to be made subject to the criminal law.

2.13 In the case of R v Gathercole (1838), Alderson B told a jury that:

a person may, without being liable to prosecution for it, attack Judaism, or Mahomedanism, or even any sect of the Christian religion (save the established religion of the country); and the only reason why the latter is in a different situation from the others is because it is the form established by law, and is therefore a part of the constitution of the country.

2.14 From early on in its history it is evident that blasphemy was punished for two different reasons: that it offended against God and the Christian religion (the theological justification), and that it could lead to civil disorder (the social justification). A court which accepted the theological arguments for punishing blasphemers would be unswayed by arguments that the alleged blasphemy was published in a sober and serious manner, intended to promote discourse and rational thought rather than civil unrest. Conversely, a court which focussed upon the social justification for the criminalisation of blasphemy would be concerned mainly to punish those blasphemous statements made in such an inflammatory manner as potentially to provoke violence or serious social unrest.

2.15 Fox’s Libel Act 1792 placed upon the jury the responsibility for determining, as a matter of fact, whether published matter was blasphemous. Prior to the passage of the Act this was considered to be a question of law for the judge to decide. The Act related to both blasphemous libel and seditious libel. Given that temperate criticism of government was not seditious, the blurring of these offences probably had the effect of further “secularising” the nature of the blasphemy offence.²²

2.16 The trend towards the social, rather than religious, justification for blasphemy has meant that the manner in which an allegedly blasphemous statement is made figures strongly in whether it will attract criminal liability. In R v Hetherington (1841), Lord Denman CJ summed up to the jury in the following terms:

even discussions upon the [great doctrines of Christianity itself] may be by no means a matter of criminal prosecution, but if they be carried on in a sober and temperate and decent style, even those discussions may be tolerated and may take place without criminality attaching to them; but ... if the tone and spirit of them is offence and insult and ridicule, which leaves the judgement really not free to act and therefore cannot be truly called an appeal to the judgement, but an appeal to the wild and improper feelings of the human mind, more particularly in the younger part of the community, in that case the jury will hardly feel it possible to say that such opinions so expressed do not deserve the character [of blasphemy] which is affixed to them in this indictment.²³

2.17 In 1883, Lord Coleridge CJ stated his view on this issue firmly and concisely:

I now lay it down as law, that, if the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being guilty of blasphemy.²⁴

2.18 This question was considered settled by the English courts in 1917, when it was held by the House of Lords in Bowman v Secular Society that:

a temperate and respectful denial, even of the existence of God, is not an offence against our law, however great an offence it might be against the Almighty Himself. ²⁵

Blasphemy at common law, according to the House of Lords in this case, involves “a denial or an attack upon some of the fundamental doctrines of the Christian religion” and requires “an element of vilification, ridicule, or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace”. ²⁶

2.19 This understanding of the law, which emphasises the public order character of the common law offence, was applied in the next reported judgment, R v Gott,²⁷ in 1922. The trial judge in this case directed the jury that it must ask itself whether the words complained of were:

indecent and offensive attacks on Christianity or the Scriptures or sacred persons or objects, calculated to outrage the feelings of the general body of the community and so lead possibly - not inevitably, but so lead possibly - to a breach of the peace.

2.20 For 55 years after Gott, there were no successful prosecutions for blasphemy in England and there was a strong body of opinion that the offence had ceased to exist in modern law. For example, in 1949, Lord Denning pronounced the offence of blasphemy “a dead letter”:

The reason for this law was because it was thought that a denial of Christianity was liable to shake the fabric of society, which was itself founded on the Christian religion. There is no danger to society now and the offence of blasphemy is a dead letter.

2.21 Despite Lord Denning’s confident pronouncement, in 1979 the majority of the House of Lords upheld the 1977 convictions for blasphemous libel of the defendants in Whitehouse v Lemon. ²⁹ (This case is discussed in more detail below.) In 1990, the Divisional Court also accepted the continuing existence of the blasphemy offence at common law, but refused to extend the offence to cover vilification of non-Christian religions. ³⁰

2.22 The convictions in Whitehouse v Lemon were followed by considerable public concern and a Blasphemy (Abolition of Offence) Bill was introduced in the House of Lords in 1978. (A number of other attempts at abolition had failed in the British Parliament between 1885 and 1930.)³¹ It was decided to refer the issue to the Law Commission of England and Wales for review and wider public consultation. In 1966, the Law Commission had recommended repeal of the Blasphemy Act 1697, as part of its review of “ancient offences”,³² and this was accomplished by the Criminal Law Act 1967 (UK).³³ In the same year, the Criminal Law Revision Committee recommended abolition of common law blasphemy and blasphemous libel, but this did not eventuate. After a detailed Working Paper in 1981, which “provisionally concluded” that the offence of blasphemy should be abolished,³⁴ the Commission reported its final recommendations in 1985, and by a majority recommended that the common law offences of blasphemy and blasphemous libel should be abolished without replacement.³⁵

2.23 This recommendation has not yet been taken up by the British Parliament, but the Law Commission’s Report was taken into account by the Divisional Court in its decision not to extend the law of blasphemy in the proceedings arising out of the Rushdie Affair.³⁶ The recent English case law is considered further, under the heading of “The Elements of the Offence”, below.

RECEPTION OF THE OFFENCE IN NEW SOUTH WALES

The doctrine of reception

2.24 When the New South Wales colony was founded in 1788, there was a well-established doctrine of English law that the colonial settlers “carried the law of England with them on their backs”. The benefits of the English law were regarded as the birthright and inheritance of the settlers and the law was thus “received” into the colony. The doctrine of reception was qualified, however. Only so much of the law as was applicable to the situation of the settlers and the circumstances of the new colony was carried with them.³⁷ As the Privy Council stated in 1875:

statutes relating to matters and exigencies peculiar to the local condition of England, and which are not adapted to the circumstances of the particular colony, do not become a part of its law.³⁸

2.25 If blasphemy had remained an ecclesiastical offence at the time of the settlement of New South Wales, it probably would not have been capable of being received into the colony, since the old cases and texts³⁹ suggest that ecclesiastical law is “no part of the common law in any colony”⁴⁰; it is “left behind in the mother country.”⁴¹ The position would be somewhat different, however, if the colony was said to have its own established church and ecclesiastical jurisdiction.⁴² (See discussion below.) In any event, by 1788 blasphemy had become a common law offence in England which, if received, could be tried by the Supreme Court of New South Wales.

2.26 This transplantation of law (and legal institutions) was further limited by reference to the laws of England in force at the time of first settlement. No Act of the Imperial Parliament could come into force in a colony after its settlement without express provision being made in the Imperial Act for such extended jurisdiction.⁴³

2.27 These principles of reception are easy to state but more difficult to apply in practice. There were doubts over which areas of the law were in fact applicable to the circumstances of the settlers of the new colony and disputes arose over the precise date to be used to mark the time of first settlement, rendering unclear the status of many Imperial Acts.⁴⁴ To settle this latter question, s24 of the Australian Courts Act 1828 (UK) provided that:

all laws and statutes in force within the realm of England at the time of the passing of this Act ... shall be applied in the administration of justice in the courts of New South Wales ... so far as the same can be applied within the [colony].⁴⁵

2.28 Although s24 was primarily concerned with the setting of a date after which time no Imperial Act would extend to New South Wales without specific provision, it applied equally to the incorporation of the common law.⁴⁶ As a law “in force within the realm of England” in 1828, blasphemy would have been received in New South Wales insofar as it was applicable to the particular circumstances of the new colony.

2.29 The approach adopted by the courts in considering the circumstantial applicability of an area of law has been to examine the policy reasons behind the enactment or creation of the relevant provision, and the methods employed by the law in enforcing such aims, to determine whether such policy or procedures could have been reasonably applied in 1828 to the condition and circumstances of New South Wales.⁴⁷ For example, in the Victorian case of M’Hugh v Robertson (1885), the test was stated as follows:

courts shall consider, from the circumstances of the colony, as to population and habits, whether it was so like England at the time of the passing of the [Act] that the law might be reasonably applied.⁴⁸

In this case, the Full Court of the Supreme Court of Victoria considered that the English statutory prohibition against taking money for admission to an entertainment on a Sunday was reasonably applicable to the circumstances of the colony in 1828. (According to Coleman, the Victorian Government deliberately chose this offence in preference to reviving the common law of blasphemy, as it did not wish to risk public outcry or the creation of popular support for the defendant based on the controversy of the charge.)⁴⁹

2.30 In determining the substance of the law which applied in the colony, as in most things, no account was taken of the laws and customs of the Aboriginal inhabitants of Australia. In M’Hugh v Robertson, Holroyd J observed wryly that:

from the first the English have occupied Australia as if it were an uninhabited and desert country. The native population were not conquered, but the English Government, and afterwards the colonial authorities, assumed jurisdiction over them as if they were strangers who had immigrated into British territory, and punished them for disobeying laws which they could hardly understand, and which were palpably inapplicable to their condition.⁵⁰

Reception of the law of blasphemy

2.31 There are several concerns about whether, and to what extent, the English common law of blasphemy was received in New South Wales. The English common law of blasphemy only protects with certainty the tenets of the Church of England “as by law established”,⁵¹ and probably other Christian denominations as well, but:

only to the extent that their fundamental beliefs are those which are held in common with the established Church. It is less likely that the present law affords any protection in respect of beliefs not so held; for example, the special place held by the Virgin Mary in the beliefs of certain denominations of the Christian religion.⁵²

As discussed below, it is questionable whether the Church of England in New South Wales has ever been the established church, and it is clear that there is currently no established church. There also is a question whether common law blasphemy was appropriate to the circumstances of New South Wales. The courts have held a number of other laws linked to religion to be inapplicable to the particular conditions of New South Wales. Finally, it may be that common law blasphemy was received in New South Wales, but in a modified form adapted to local circumstances.

2.32 An “established church” at law is generally said to be one which is formally recognised as the official State religion.⁵³ Limited recognition and the protection of the law may be accorded to other religions, however. For example, legislation may authorise ministers of various religions to act as marriage celebrants.⁵⁴ The process of establishment means that the State has given a pre-eminent legal status to the particular church, and certain legal sanctions to its decrees. There is a duty on the civil power to give support and assistance to the established church.⁵⁵

2.33 The status of the Church of England in New South Wales has been the subject of much academic debate. Not surprisingly, Church of England/Anglican authorities and scholars have been more likely to support the idea of the established church, with Catholic and other religious authorities and scholars questioning this on historical and policy grounds.⁵⁶ One problem facing the participants in this debate is the lack of any official consideration of this issue in the eighteenth and early nineteenth centuries. The Colonial Office never defined the legal status of the Church of England in Australia. The reason for this could be, as suggested by one Anglican commentator, that “the various Secretaries of State for the Colonies simply took for granted the status of the Church of England as by law established”⁵⁷; but there is no written evidence to confirm this hypothesis.

2.34 The first chaplain to the penal settlement was a member of the Church of England. By 1821 there were eight chaplains in New South Wales, overseeing not only the religious needs of the community but also the construction of churches. At this time, the British Government gave permission for two Roman Catholic priests to go to New South Wales, and granted them stipends of one hundred pounds each. Another government grant of three hundred pounds was advanced to the first Presbyterian minister of the colony, in addition to an amount equalling one-third of the cost of a Presbyterian chapel. This suggests something more than mere toleration, tending towards the acceptance of religious equality, at least among the various Christian denominations.

2.35 In a number of judicial statements of the last century this reasoning was accepted. In R v Roberts (1850), Dickinson J declared that the English Marriage Acts were inapplicable to New South Wales as being “too inconsistent with the religious equality existing in this colony to be by us adjudged applicable to its condition”; he was clearly of the view that “there is no church established as in England.”⁵⁸ Similarly in Nelan v Downes (1917), the High Court refused to declare that a testamentary gift to a Roman Catholic priest for the saying of masses was void as a “gift for superstitious uses”, holding instead that “this is a country without any established church. Within its bounds, all religions are on equal footing.” ⁵⁹

2.36 As early as 1828, the Permanent Under-Secretary of the Colonial Office was advising against attempting to secure for the Church of England in North America (Canada) “that species of monopoly of secular privileges which it enjoys in this country”⁶⁰; and in 1835 the Secretary of State informed the Governor of New South Wales that any attempt to select any one Church as the exclusive object of public endowment would not be tolerated. The natural consequence of this direction was the enactment of the Church Act 1836 (NSW), providing state funding (for the construction of facilities and the payment of stipends to ministers of religion) for all denominations.⁶¹ In 1864, the Privy Council stated in re Bishop of Natal that:

The [Church of England] is not a part of the Constitution in any colonial settlement, nor can its authorities, or those who bear office in it, claim to be recognised by the law of the colony otherwise than as members of a voluntary association.⁶²

2.37 The early church history of New South Wales was considered in some depth in 1948 by the High Court in Wylde v Attorney General for New South Wales.⁶³ Dixon J stated that:

notwithstanding judicial statements to the contrary tendency, the better opinion appears to be that the Church of England came to New South Wales as the established church and that it possessed that status in the colony for some decades.⁶⁴

Dixon J based his conclusion on three factors: (1) the first chaplain formed part of the civil establishment in the colony; (2) the Governor was instructed that it was his duty to enforce the due observance of religion and to take steps for the due celebration of public worship as circumstances would permit; and (3) Australia lay within the limits of the East India Company’s charter, and by the East India Company’s Act 1813 provision was made for the establishment of a bishopric, which arguably created an ecclesiastical jurisdiction in New South Wales.

2.38 Similarly, Latham CJ held that:

the Church in New South Wales is still a Church of England, not a Church of New South Wales or Australia ... [W]hen New South Wales was occupied the Church of England was recognized and treated as teaching the State religion, and the chaplains of the church were paid from public funds.⁶⁵

2.39 Whatever the correct historical position, there seems to be little dispute that the Church of England in New South Wales today is a “voluntary association organised on a consensual basis”⁶⁶ with no question of State establishment. In Wylde, Dixon J wrote that:

although in the beginning and for a not inconsiderate period the position of the Church of England in New South Wales appears to have been that of the church established by law, time changed its relation to the law ... [E]ventually it came to be considered as a body like other churches established upon a consensual basis. The Ecclesiastical Court was disused and forgotten, the Acts of Council referring to it ceased to be law as did other early legislation in which might be seen a recognition of the church as an institution established by law. But the chief reason doubtless is to be found in the grant of representative government and the separation of the colonies. The Church itself resolved in effect upon the principle of voluntary association.⁶⁷

2.40 Another factor in the determination of the modern status of the Church of England was the principle embodied by the Church Act 1836 (NSW) of state aid to religion generally as against that of state endowment of the Church of England alone. The Grants for Public Worship Prohibition Act 1862 (NSW), ending all state subsidies, signalled the end of any connection between the state and the Church of England that might tend to suggest that the latter was “by law established.”⁶⁸ Rich J suggested that the Church in Australia is in the same position as the Church of England in England would be if the latter were disestablished and the Act of Uniformity 1662 (UK) ceased to be a paramount law.⁶⁹

2.41 In a number of cases where the courts have been asked to rule on the local suitability of English laws of a religious nature, it has been held that the policy and provisions of such laws are inapplicable to the circumstances of New South Wales, and consequently of no effect. Two examples have been cited above: R v Roberts ⁷⁰ (English Marriage Acts inapplicable to New South Wales as being “too inconsistent with the religious equality existing in this colony”); and Nelan v Downes⁷¹ (a gift to the Catholic church not void as a “superstitious use”, given the absence in Australia of an established church: “within its bounds, all religions are on equal footing”). In ex parte Ryan⁷² (1855), an English statute prescribing certain religious holidays on which there should be an abstinence from work was held to be of no force in New South Wales, for two reasons. First, the Supreme Court noted that its provisions could not be carried out in New South Wales since the only penalties provided for were spiritual sanctions to be administered by an ecclesiastical court. Secondly, the court felt that the statute, passed for the maintenance of a uniformity of religion, was clearly inapplicable to the circumstances of the colony:

Where the professors of all religions were placed upon a footing of equality, a law obviously passed for the maintenance of a dominant church was clearly not applicable.⁷³

2.42 In the absence of any definitive judicial consideration of this point, there are several possible conclusions about the early status - and therefore to some extent the present status - of the common law of blasphemy in New South Wales. If the Church of England was the established church of the colony, blasphemy would have been received as a common law crime with a definition identical to that in England. If the Church of England was not the established church, however, then the common law of blasphemy might be regarded as inapplicable to the circumstances of New South Wales and therefore not received, in the same way that some other religious laws have been found to be inappropriate. Another possibility may be that the common law of blasphemy was received, but only to the extent that it could be adapted to local circumstances. In the latter case, blasphemy was received but in a modified form, with its ambit extended to other Christian denominations, but only to the extent that the basic tenets of those denominations coincide with those of the Church of England.⁷⁴

CURRENT STATUS IN NSW

Legislation

2.43 Whatever the correct theoretical position on the question of the reception of blasphemy might be, it has been assumed from an early date by the state legislature in New South Wales that a law of blasphemy does exist here. In 1827, the Governor and Council passed an Act “restraining the Abuses arising from the publication of Blasphemous and Seditious Libels”.⁷⁵ The penalty of banishment was imposed upon any person convicted on two separate occasions of the “high misdemeanour” of publishing “any blasphemous... Libel tending... to Excite His Majesty’s subjects to attempt the alteration of any matter in the Church or State as by law established otherwise than by lawful means”.⁷⁶

2.44 In 1883, the Criminal Law Amendment Act (NSW) was enacted, amounting to a major revision and consolidation of the criminal law in New South Wales (to be read together with the common law). Section 463 of that Act, subject to minor changes in punctuation, was reproduced as s574 of the Crimes Act 1900 (NSW), which provides that:

No person shall be liable to prosecution in respect of any publication by him orally, or otherwise, of words or matter charged as blasphemous, where the same is by way of argument, or statement, and not for the purpose of scoffing or reviling, nor of violating public decency, nor in any manner tending to a breach of the peace.

2.45 It is probably no coincidence that the New South Wales legislation was enacted in 1883, the same year as the notorious prosecutions in England of Ramsay and Foote⁷⁷ and (the noted dissident Member of Parliament) Bradlaugh⁷⁸, for blasphemous libel. Unfortunately there is no Hansard record to determine how direct the relationship between these events was. Certainly the prosecutions of Bradlaugh, at least, and his unsuccessful efforts to have blasphemy abolished by legislation, would have attracted attention as far away as New South Wales.

2.46 Schedule 1 of the Defamation Act 1974 (NSW) later inserted s574A into the Crimes Act, relating to the initiation of criminal proceedings for blasphemous libel. Under s574A, it is not necessary in an information or indictment alleging an “obscene or blasphemous libel” to set out the obscene or blasphemous passages. Rather, it is sufficient to deposit the relevant publication with the information or indictment, specifying in the particulars which portion or passage is the subject of the allegation.

2.47 The Defamation Act 1974, s49(1), abolished the common law misdemeanour of criminal libel, but expressly left in operation “the law relating to blasphemous, seditious or obscene libel” (sub-s(2)). A new offence of criminal defamation was created by s50 to replace common law criminal libel. Under s50(4), proceedings for criminal defamation may not be commenced except with the written consent of the Attorney General or, now, the Director of Public Prosecutions.⁷⁹ This replaced the similar requirement under s6 of the Australian Courts Act 1828 (UK) that leave of the Supreme Court was required before proceedings for criminal libel could be commenced. No such requirement of judicial or executive consent was introduced in respect of blasphemy, however, despite the opportunity to do so with the insertion of s574A into the Crimes Act.

2.48 Thus the current statute law in New South Wales clearly assumes the existence of the offence of blasphemy (and/or blasphemous libel). The Crimes Act provides aspects of the law in relation to the manner and motive of the communication (s574) and the form of the information or indictment (s574A), but leaves much to be supplied by the common law. Consequently, it is still necessary to determine the precise nature of the common law of blasphemy which would be applied by the courts in this State.

Common Law

2.49 Blasphemy shares a number of important features with all common law crimes. There is no comprehensive statutory definition of blasphemy (although s574 of the Crimes Act 1900 (NSW) contains some important limitations). Sentencing is at large, given the absence of any fixed maximum for the term of imprisonment. In theory, at least, it would be possible for a person convicted of blasphemy to be sentenced to life imprisonment. Proceedings would have to be by way of indictment, heard before a Supreme Court judge and jury, since summary jurisdiction is entirely a statutory creation.

2.50 Notwithstanding the implicit assumptions in the legislation, it is necessary to consider whether the common law crime of blasphemy is in fact extant in New South Wales. The common law itself includes a concept of “desuetude”, whereby an offence may lapse through prolonged disuse. In the 1977 English case of R v Lemon,⁸⁰ the defendants argued at their trial that the offence of blasphemy, by virtue of the lack of prosecutions in England since 1922, should be regarded as having fallen into desuetude. This line of argument was rejected by the trial judge, and unfortunately was not raised before the higher courts on appeal.

2.51 The desuetude argument might meet with more success in New South Wales, however, should a prosecution for blasphemy ever be commenced, given the rare usage of the offence here. There have been no reported judgments in relation to prosecutions for blasphemy in New South Wales and the literature reveals only a single prosecution, over 120 years ago. In 1871, William Lorando Jones was convicted in the Parramatta Quarter Sessions of blasphemy and sentenced to two years imprisonment and a fine of one hundred pounds, the judge reportedly telling Jones: “There is enough infidelity in this world without people publicly proclaiming the Bible as a mass of lies.”⁸¹ The defence was conducted on the premise that Jones was entitled to freedom of speech; the actual existence of the offence with which he was charged apparently was never challenged. The outcry at the severity of the sentence meant that Jones ultimately spent only four weeks in gaol before being released.

2.52 As a consequence of Jones’ case, a private member’s bill, the Religious Opinions Bill 1871, was introduced into the New South Wales Legislative Assembly, which sought to prohibit further prosecutions for blasphemy. In the ensuing debate, the Attorney General of New South Wales told the Legislative Assembly in opposing the Bill that “anyone should be free to ridicule the 39 Articles, the Roman Catholic Church, or indeed any religious opinion, but that atheistic opinions and attacks on the Bible were really attacks on the law since `the Scriptures are the basis of the common law’”.⁸² The Bill was defeated 17-5 at the Second Reading stage, but there have been no further prosecutions for blasphemy in New South Wales. According to Peter Coleman’s analysis of the events, “Jones and the freethinkers were ... the real victors in the whole affair and no further attempts were made to prosecute freethinkers for the crime of blasphemy.”⁸³

2.53 The last use of blasphemy by prosecuting authorities in Australia was in Victoria in 1919, when the eponymous editor of Ross’s Magazine of Protest, Personality and Progress, an “aggressively socialist, anti-militarist, atheist and anti-clerical” publication was charged by the Post Office and the Victorian Police with common law blasphemy and sending a blasphemous article through the mails.⁸⁴ Ross was convicted of the latter offence in controversial circumstances, and ultimately fined £50, but the common law action was dropped by the Crown. Shortly thereafter a petition containing over 6000 signatures calling for the repeal of blasphemy laws was presented to the Commonwealth Government, but did not meet with success.⁸⁵

2.54 The main argument against the application of the doctrine of desuetude to blasphemy in New South Wales is that, notwithstanding the rarity of prosecutions, the legislature has continued to assume the existence of the offence, expressly and by implication. Blasphemy was taken to exist in the debate over the Religious Opinions Bill 1871, in the Criminal Law Amendment Act 1883, in the Crimes Act 1900 and in the Defamation Act 1974. Despite the opportunities to abolish blasphemy or considerably restrict the possibility of its use, and the fact that many other common law crimes have been abolished or substantially modified during the same period,⁸⁶ the NSW Parliament has left blasphemy in place.

2.55 It is likely that, despite the judicial development of the law of blasphemy, the courts would now feel constrained from judicially abolishing this offence, considering it a matter for the legislature. For the purposes of this Discussion Paper, at least, the Commission assumes the continued existence of a common law offence of blasphemy.

THE ELEMENTS OF THE OFFENCE

2.56 Reading s574 of the Crimes Act 1900 (NSW) together with the common law, the elements of the offence of blasphemy appear to be that the Crown must prove beyond reasonable doubt that:

• the accused has published any words or matter,
• which refer to the basic tenets of the Christian religion (as defined by the Church of England),
• not by way of argument or statement but in a manner which is scoffing, reviling or violating public decency, or in any manner tending to a breach of the peace,
• with the intention of causing offence or outrage.

The first three matters may be said to constitute the actus reus or conduct element of the offence, and the latter the mens rea or mental element of the offence. These requirements are dealt with in turn, below.

Publication of the alleged blasphemy

2.57 The allegedly blasphemous material must be “published” in the legal sense, which simply means that it has been disclosed to a third party⁸⁷, before any prosecution may be brought. Such disclosure may be orally or in writing, in common with the requirement in the law of defamation, or the law relating to the publication of indecent or obscene material. Section 5(1) of the Indecent Articles and Classified Publications Act 1975 (NSW), for example, defines “publish” to include “distribute, disseminate, circulate, deliver, send, display, exhibit...”.

2.58 At common law, blasphemy referred to the spoken word and the parallel offence of blasphemous libel referred to the written publication - for example, in a book, pamphlet or newspaper article. The reference in s574A of the Crimes Act to “blasphemous libel”, inserted by the Defamation Act 1974, suggests that the NSW Parliament accepts this dichotomy. The only consequence of maintaining two blasphemy offences rather than merging them is that more care must be taken in the framing of a particular indictment to specify the relevant offence (or offences) on the facts. The modern trend has been to consolidate like offences and causes of action, rather than accumulate large numbers of specific instances, as witnessed by the merger of slander and libel in defamation law and the merger of assault and battery in the criminal law.

The nature of the alleged blasphemy

The character of the words or material

2.59 Section 574 refers to words or matter which are “scoffing or reviling” or “violating public decency”. The English courts and commentators have used these and similar terms, such as “contemptuous”, “reviling”, “scurrilous”, “ludicrous”, “wanton”, “offensive”, “outrageous” and “profane”. ⁸⁸

2.60 Both s574 and the English common law cases seek to distinguish between comment on or criticism of Christianity which is “carried on in a sober and temperate and decent style”⁸⁹, “by way of statement or argument”⁹⁰, where “the decencies of controversy are observed”,⁹¹ and those immoderate, intemperate or disrespectful communications made in a “spirit of ... offence and insult and ridicule”⁹² which exceed “the permitted limits”.⁹³

2.61 According to the Law Commission of England of Wales, it is the character of the publication rather than its motive which is of principal concern:

[I]t is settled that an “attack” on the Christian religions is not an essential element of the offence: an attack may be couched in terms which do not insult or vilify and, if this is the case, the law does not penalise it. But if the words are an outrage upon the feelings of the “general body of the community”, the opinion or argument they are used to advance or destroy is “of no moment”.⁹⁴

Tendency to cause a breach of the peace

2.62 As discussed above,⁹⁶ one of the reasons for enforcing a common law offence of blasphemy was to prevent social unrest. It is clear from numerous decisions that the courts were very concerned to preserve the existing social structure, and insulate it from change or upheaval. Probyn J in Curl’s Case (1727) explained that blasphemy was punishable at common law as “an offence against the peace in tending to weaken the bonds of civil society.”⁹⁷

2.63 Lord Parker in Bowman v Secular Society (1917) found that an essential element of blasphemy was vilification, ridicule or irreverence such as would be likely to exasperate the feelings of others and so lead to a breach of the peace. The law was unconcerned with the simple expression of dissenting opinion, insofar as such expression was consistent with the maintenance of public order.⁹⁸ In the same case, Lord Sumner noted that in the eighteenth and nineteenth centuries, various publishers of Paine’s Age of Reason were prosecuted; the words indicted were chosen for their irreverence, but the motive behind the prosecutions was to prevent the wide circulation of a book which was “the badge of revolution and tended to jeopardise the State.”⁹⁹ The courts would not punish irreligious words against God unless such words might:

endanger the peace then and there ... deprave public morality generally ... shake the fabric of society ...[or] be a cause of civil strife.¹⁰⁰

2.64 There is an important difference in emphasis in the approaches taken by Lords Parker and Sumner. Lord Parker used the term “breach of the peace” in its “traditional and longstanding sense, which does not necessarily signify general disorder”¹⁰¹ and includes any public situation where there is danger to the person or property. A breach of the peace has been defined as:

an act done ... which either actually harms a person, or in his presence his property, or is likely to cause such harm.¹⁰²

2.65 In R v Gott (1922), Avory J told the jury that:

what you have to ask yourselves in this case is whether these words [are] calculated to outrage the feelings of the general body of the community and so lead, possibly ... to a breach of the peace.¹⁰⁵

2.66 The trial judge in R v Lemon (1977) instructed the jury that, for the purposes of blasphemy law, a tendency to cause a breach of the peace meant:

to provoke or arouse angry feelings, something which is a possibility, not a probability ... the alleged blasphemy must be such as might well arouse anger or provoke strong feelings of resentment and be such that any reader could - not would but could - be provoked into committing a breach of the peace.¹⁰⁶

2.67 This summing up was approved as “faultless” in the Court of Appeal and “masterly” in the House of Lords, although the jury had to request clarification of the meaning of the words “breach of the peace” and “tendency”. Lord Scarman added that:

it is a jejune exercise to speculate whether an outraged Christian would feel provoked ... to commit a breach of the peace... [T]he true test is whether the words are calculated to outrage and insult the Christian’s religious feelings: and in modern law the phrase “a tendency to cause a breach of the peace” is really a reference to that test. The use of the phrase is no more than a minor contribution to the discussion of the subject. It does remind us that we are in the field where the law seeks to safeguard public order and tranquillity.¹⁰⁷

2.68 It is doubtful whether Lord Scarman’s words confirm the trial judge’s directions, or whether they add another element: that the words be calculated to insult the religious sentiments of Christians. One thing is evident: that the meaning of and requirement for a tendency to a breach of the peace remains unclear under English common law.

2.69 In New South Wales, s574 of the Crimes Act 1900 specifies that a person will be liable for blasphemy where the “scoffing or reviling” words or matter in question are “in any manner tending to a breach of the peace.”¹⁰⁸ This goes no further in settling which of the two common law positions is to be followed.

2.70 In the absence of any judicial guidance, this Commission believes that Lord Sumner’s view in Bowman v Secular Society of the meaning of “breach of the peace” in this context is preferable, both on the basis of historical accuracy as well as contemporary policy. Modern statutory offences similar to the traditional, common law “breach of the peace”, such as offensive behaviour and simple assault, tend to be triable summarily and carry relatively light maximum penalties. Blasphemy, however, was a “high misdemeanour”, at one time carrying the penalty of death or banishment. Sentencing for blasphemy now, as a common law offence, is at large, leaving open the possibility of a significant term of imprisonment and considerable stigma for the person convicted. As Lord Sumner noted, “the gist of the offence of blasphemy is a supposed tendency in fact to shake the fabric of a society generally”.¹⁰⁹ The Crown should therefore be required to prove that the published or matter complained of is capable of causing this degree of social distress, or else pursue other, less serious, charges.

2.71 The breach of the peace issue also raises the more general concern relating to the ability of an aggrieved audience, by their own conduct, to criminalise the lawful actions of another. This is referred to derisively in American law as the “heckler’s veto”: the possibility that the threat of violence by observers can colour otherwise lawful speech or assembly, and cause the organisers or demonstrators to be liable for a criminal offence if a breach of the peace is caused by those who disagree with the speaker.¹¹⁰ The leading English case of Beatty v Gillbanks expressly denied the proposition “that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act.”¹¹¹ More recently, however, the English courts have accorded greater emphasis to public order considerations than to the freedom of expression. In Jordan v Burgoyne (1963), it was decided that the speaker “must take the audience as he finds them, and if those words to that audience or that part of the audience are likely to provoke a breach of the peace, then the speaker is guilty of an offence.”¹¹² This is true even where “a body of hooligans ... came with the preconceived idea of preventing [the person] from speaking.”¹¹³

2.72 The law in New South Wales may, at present, place similar emphasis on public order considerations at the expense of freedom of expression. In Commissioner of Police v Willis,¹¹⁴ a “non-violent, silent and solemn” procession was refused authorisation, one reason being that the procession could lead to a breach of the peace. The Supreme Court envisaged that violence and resentment could be stirred up against the marchers (who were members of the Sydney Women Against Rape Coalition, attempting to march on Anzac Day) not by them.

2.73 This issue would be of greater concern in the context of blasphemy if the Commission was of the view that the mental element of the offence would be read down to something approaching strict liability, as is the case in England. However, the Commission is confident that the Australian courts would demand a much higher standard of fault, requiring the Crown to prove not merely that a breach of the peace was caused or was likely, but that the defendant intended this result and used scurrilous or abusive language for this purpose. The question of intention is dealt with in more detail, below.¹¹⁵

The limitation to Christianity

2.74 As discussed earlier in this Chapter,¹¹⁶ for theological, historical and political reasons, the offence of blasphemy under English law was limited to protection of the tenets of the Church of England as by law established, and perhaps other Christian denominations to the extent that their tenets overlap with those of the Church of England. This was clear in the early common law cases cited above, and has not been altered in the recent English cases.¹¹⁷

2.75 In Whitehouse v Lemon, Lord Scarman defended the role of blasphemy law in modern society and suggested its broadening to include other religions, but assumed that this needed to be accomplished by Parliament rather than the courts:

I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in the modern law. On the contrary, I think there is a case for legislation extending it to protect the religious beliefs and feelings of non-Christians. The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom. In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs, feelings, and practices of all but also to protect them from scurrility, vilification, ridicule and contempt. ... My criticism of the common law offence of blasphemy is not that it exists but that it is not sufficiently comprehensive. It is shackled by the chains of history.¹¹⁸

2.76 This issue was squarely raised in R v Chief Metropolitan Stipendiary Magistrate, Ex parte Choudhury¹¹⁹, in which summonses were sought by a private citizen alleging that the author and publisher of Salman Rushdie’s The Satanic Verses were guilty of blasphemous libel. The magistrate refused to issue the summons on the basis that in England and Wales blasphemy protects only the Christian religion, and the matter was sent to the Divisional Court for review. After a thorough consideration of the preceding cases, the Court concluded that:

We have no doubt that as the law now stands it does not extend to religions other than Christianity.¹²⁰

The intention of the author

The English approach

2.77 As discussed above, blasphemy requires the publication of words or material of an offensive, abusive, intemperate nature. In many cases, it may be readily inferred from the published matter that the author intended to insult or wound the feelings of others. However, this is not a necessary inference in all cases. The question is whether the common law of blasphemy requires the jury to be convinced beyond reasonable doubt that the author intended not only to publish the material but also to cause serious offence.

2.78 Although it is now considered fundamental that “the Golden Thread of the Common Law” means that the Crown must affirmatively prove mens rea beyond reasonable doubt in common law crimes, rather than asking the jury to presume intention based on the actions of the accused, this doctrine actually dates back only to the 1935 House of Lords decision in Woolmington v DPP.¹²³ Prior to that time, juries were routinely directed that they could presume that the accused intended the natural and probable consequences of his or her actions, which effectively shifted the onus of proof onto the accused to convince the jury that he or she did not have the requisite intention. In Woolmington, the House of Lords unanimously decided that the general presumption of innocence required that the Crown bear the onus of proving intention as well as proving that the accused did the prohibited act.

2.79 It must be kept in mind, therefore, that much of the judicial development of the law of blasphemy occurred prior to Woolmington. The pre-Woolmington cases, such as Taylor’s case,¹²⁴R v Hetherington,¹²⁵ and Bowman v Secular Society,¹²⁶ considered the elements of blasphemy in the framework of the law of that time. The intention of the actor was a relevant consideration, but mainly for the purposes of characterising the act as “scurrilous,” “abusive”, etc. Nevertheless the language of intention does appear in some of the early cases and texts¹²⁷ (albeit with the burden of proof reversed). For example, in R v Richard Carlile (1819), Lord Abbott CJ directed the jury that:

It will be for you to say whether in anything you have heard from the defendant you can find anything enabling you to say that the defendant did not at the time he published this intend to bring the Christian religion into disbelief and contempt. If he did, that is an unlawful intention and it appears to me that you ought on your consciences to pronounce him guilty.¹²⁸

2.80 Starkie’s 1830 treatise on the law of libel stated that:

It is the mischievous abuse of this state of intellectual liberty [the right to criticise religion in sober and moderate terms] which calls for penal censure. The law visits not the honest errors, but the malice of mankind. A wilful intention to pervert, insult, and mislead others, by means of licentious and contumelious abuse applied to sacred objects, or by wilful misrepresentations or wilful sophistry, calculated to mislead the ignorant and the unwary, is the criterion and test of guilt. A malicious and mischievous intention, or what is equivalent to such an intention, in law, as well as morals - a state of apathy and indifference to the interests of society - is the broad boundary between right and wrong. ¹²⁹

2.81 Although this statement of the law was criticised 149 years later by Lord Diplock as being well in advance of its time and “perhaps more that of the advocate of law reform than of the draftsman of a criminal code”¹³⁰, Starkie’s proposition was in fact referred to in trial judges’ directions to the juries in R v Ramsay and Foote¹³¹ and R v Bradlaugh.¹³²

2.82 The issue of intention was raised squarely in the modern context before the House of Lords in Whitehouse v Lemon.¹³³ This case involved a private prosecution for blasphemy by the campaigner Mrs Mary Whitehouse against the editor and publisher of the magazine Gay News, for publishing a poem which suggested that Christ had engaged in homosexual practices. The defendants were convicted on a majority verdict of 10-2, and appealed on the principal ground that the trial judge had not properly directed the jury on the question of intention. The appellants contended that the direction should have been in the terms suggested by Starkie and employed in R v Ramsay and Foote, requiring proof of “the intention to attack the Christian religion so violently or so scurrilously as to insult the adherents of the Christian religion to such an extent that a breach of the peace is likely.”

2.83 The Court of Appeal rejected this argument and dismissed the appeal, stating that:

The cases before Ramsay and Foote seem to us clearly to show that if an accused person deliberately published that which crossed the line which divided the blasphemous from the non-blasphemous, he could not be heard to say that he did not know or realise or intend that which he had deliberately put into circulation possessed hose characteristics which rendered him liable to conviction for blasphemy... .¹³⁴

2.84 By a 3-2 majority,¹³⁵ the House of Lords held that the trial judge’s direction was correct; that is, that the only intention that the Crown need prove is the intention to publish the material in question. An intention to publish material knowing it to be offensive, abusive, etc, is thus not a requirement under English law. After surveying the case law, Viscount Dilhorne considered that the law of blasphemy has remained essentially unchanged since the 18th Century, concluding that:

If it be accepted, as I think it must, that that which is sought to prevent is the publication of blasphemous libels, the harm is done by their intentional publication, whether or not the publisher intended to blaspheme. ... Guilt of the offence of publishing a blasphemous libel does not depend on the accused having an intent to blaspheme but on proof that the publication was intentional (or, in the case of a bookseller, negligent (Lord Campbell’s Act 1843)) and that the matter published was blasphemous.¹³⁶

2.85 Lord Scarman, while coming to the same conclusion as Viscount Dilhorne, did not feel constrained by the case law on this point, however:

The history of the law is obscure and confused. The point is, therefore, open for your Lordships’ decision as a matter of principle. And in deciding the point your Lordships are not saying what the law was in the past or ought to be in the future but what is required of in the conditions of today’s society. ¹³⁷

As a matter of social policy, then, Lord Scarman concluded that:

It would be intolerable if by allowing an author or publisher to plead the excellence of his motives and the right of free speech he could evade the penalties of the law even though his words were blasphemous in the sense of constituting an outrage upon the religious feelings of his fellow citizens. This is no way forward for a successful plural society. ... The character of the words published matter; but not the motive of the author or publisher.¹³⁸

2.86 Lord Diplock, in dissent, pointed out that there have been “significant changes in the general concept of mens rea in criminal law that have occurred in the last 100 years” from which the law of blasphemy should not be “immune”.¹³⁹ Lord Diplock considered that these changes meant that the House of Lords should adopt:

the milder view that the offence today is no longer one of strict liability, but is one requiring proof of ... a “specific intention,” namely, to shock and arouse resentment among those who believe in or respect the Christian faith.”¹⁴⁰

be a retrograde step which could not be justified by any considerations of public policy. The usual justification for creating by statute a criminal offence of strict liability, in which the prosecution need not prove mens rea as to one of the elements of the actus reus, is the threat that the actus reus of the offence poses to public health, public safety, public morals or public order. The very fact that there have been no prosecutions for blasphemous libel for more than 50 years is sufficient to dispose of any suggestion that in modern times a judicial decision to include this common law offence in this exceptional class of offences of strict liability could be justified upon grounds of public morals or public order.¹⁴¹

2.87 Lord Edmund-Davies, in dissent, also undertook a detailed analysis of the statutes and case law on blasphemy. He considered that the common law had passed through several stages of development:

In the earliest stage it was clearly a crime of strict liability and consisted merely of any attack upon the Christian Church and its tenets. In the second stage the original harshness of the law was ameliorated, and the attack was not punishable unless expressed in intemperate or scurrilous language. In the third stage, opinions were mixed. some judges held that the subjective intention of the author or publisher was irrelevant, others that it was of the greatest materiality. ... The preponderance of authority was nevertheless increasingly and markedly in favour of the view that intention to blaspheme must be established if conviction was to ensue. In my judgment, such is now indeed the law, and any 20th century cases in conflict with it ... should be regarded as wrongly decided.¹⁴³

2.88 It should be noted that despite the division of opinion on this important point of legal principle, all five Law Lords expressed their “revulsion over this deplorable publication”¹⁴⁵ in the particular case, and were of the view that whatever form the judge’s direction took, the jury would have convicted the defendants of blasphemous libel. It is also relevant that the defendants in Lemon only received fines after their convictions (following review by the Court of Appeal),¹⁴⁶ so that it is somewhat more understandable that the majority of the House of Lords would treat blasphemy - despite its origins and the potency of the term itself - as just another offence of strict liability.

The Australian approach

2.89 It is most unlikely that the High Court of Australia would follow Whitehouse v Lemon. It is precisely in the area of mens rea that English and Australian common law have diverged most strikingly in the past 30 years.¹⁴⁷

2.90 Even after Federation, the Australian courts demonstrated a marked reluctance to depart from the decisions of the senior English courts. “Judicial nationalism” in Australia arrived with the High Court’s 1963 decision in Parker v R.¹⁴⁸ In the preceding English case of DPP v Smith,¹⁴⁹ the House of Lords considered the mental element in murder, deciding that the test was whether a reasonable person in the position of the accused would have foreseen the danger of death or grievous bodily harm. In settling upon this objective standard, the House of Lords further decided that the accused person was not entitled to bring his or her actual state of mind into issue. In essence, therefore, the House of Lords was saying that a person could be convicted of murder on the basis of negligence, where the jury believed that he or she did not actually perceive the dangerousness of the situation but a “reasonable person” in the circumstances would have. The decision raised considerable controversy in England and was ultimately reversed by legislation¹⁵⁰ and effectively renounced by the Privy Council.¹⁵¹

2.91 In Parker, the High Court of Australia refused to accept the decision of the House of lords in Smith. As Dixon CJ wrote,¹⁵² with the authorisation of all the other members of the High Court:

Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith’s case I think that we cannot adhere to that view or policy. There are propositions laid down in the judgment which I believe to be misconceived and wrong. They are fundamental and they are propositions which I could never bring myself to accept. I wish there to be no misunderstanding on the subject ... Smith’s Case should not be used as authority in Australia at all.

2.92 Since Parker, the High Court has pursued a consistent approach to the concept of mens rea in criminal law, emphasising the need to incorporate a subjective element of awareness as a condition of ascribing liability for serious crimes. In R v O’Connor,¹⁵³ the High Court again split with the House of Lords¹⁵⁴ on the issue of the relevance of intoxication to criminal liability. The majority of the House of Lords, for policy reasons, had limited the application of evidence of intoxication to crimes of specific intent - that is, crimes in which the actor must have intended a particular consequence, rather than merely intended to do the act. The majority of the High Court, however, ruled that evidence of intoxication was relevant to every offence, insofar as it may show that the accused person was so intoxicated as to lack volition or the necessary intention or other guilty state of mind.

2.93 In Crabbe,¹⁵⁵ the High Court considered the mens rea for murder under the common law, and decided that this consisted of the actual intention to cause death or grievous bodily harm, or a conscious appreciation of the probable risk of death or grievous bodily harm (recklessness). Recklessness is thus a wholly subjective concept in Australian law,¹⁵⁶ relating to the accused person’s actual state of mind. The English authorities, however, have extended this concept to include inadvertent or negligent conduct, although its application to murder has been limited.¹⁵⁷

2.94 Other recent examples of the Australian courts’ insistence on strict proof of actual state of mind include the development of the law relating to complicity,¹⁵⁸ rape¹⁵⁹, and possession of drugs.¹⁶⁰

2.95 As a general matter, then, the Australian courts have been far more concerned to develop and refine the “awareness” element in crime in a consistent, principled manner, while a majority of the English judiciary has taken a more pragmatic approach, determined by its view of the exigencies of a “law and order” oriented public policy. This shows through clearly in the opinions of the majority in Whitehouse v Lemon: the Law Lords were willing to allow a person to be convicted of a serious crime such as blasphemy based on proof of the negative social consequences of his or her actions, even where such actions were inadvertent. As quoted above, Viscount Dilhorne considered that the bookseller who displays or sells material which is found to be blasphemous is guilty of the offence, notwithstanding that the bookseller actually may be unaware of the contents. According to this view, it is socially preferable to render the offence one of strict liability, and thus to convict the negligent, in order to induce booksellers to ensure that they are aware of all of the material available in the shop. By contrast, for example, in R v Willy Wampfler,¹⁶¹ the New South Wales Court of Criminal Appeal quashed the conviction of a person convicted of publishing indecent articles¹⁶² (by making duplicate copies for commercial release of a prohibited “X rated” video) on the basis that, for such a serious offence, evidence that the accused had an honest and reasonable belief that his actions were not improper was relevant to criminal liability. As Street CJ noted, “There is a discernible trend in modern authorities away from construing statutes as creating absolute liability”.¹⁶³ In Jeffs v Graham,¹⁶⁴ the New South Wales Supreme Court also read in a requirement of mens rea into the statutory offence of “offensive conduct”.

2.97 The courts in Wampfler and Jeffs were heavily influenced by the landmark High Court decision of He Kaw Teh.¹⁶⁵ In this case the High Court considered the mental element of the offence of possession of a prohibited drug under s233B of the Customs Act 1901 (Cth). Under the then-existing position in New South Wales¹⁶⁶ and England¹⁶⁷, Crown proof of actual physical custody of the drugs by the accused lead to the presumption of knowledge. The accused person then was obliged to affirmatively rebut this presumption on the balance of probabilities. A jury unsure on this point would have been obliged to convict, given the reversal of the onus. The High Court, however, found that this position violated basic common law concerns about the presumption of innocence and the onus of proof dating back at least to Woolmington’s case. The Court took s233B to include an implied requirement that the Crown must prove that the accused actually knew that he or she was in possession of prohibited drugs.

2.98 The actual ruling of the High Court in He Kaw Teh is less important for our purposes than the reasoning of the Court and, especially, the general principles of statutory interpretation that were laid down consistently with the earlier decision of Proudman v Dayman.¹⁶⁸ According to the High Court, the primary principle is that:

There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals, and both must be considered.¹⁶⁹

2.99 Thus, there is a presumption that a subjective element of intention or awareness is a part of every offence, unless this presumption is rebutted by the wording of the offence expressly or by necessary implication. Where this presumption is successfully rebutted, it is replaced by a subordinate presumption that the accused person should be able to avoid criminal liability by showing that he or she engaged in the behaviour complained of on the basis of an honest and reasonable mistake of fact (known as the “Proudman v Dayman defence”). In these circumstances, intention is not an essential element of the offence which must be proved by the prosecution in every case, but state of mind is relevant where the accused acted under a reasonable mistaken belief. Where both these common law presumptions are found to be inapplicable, the resulting offence is said to be one of “absolute liability”, in which criminal liability attaches where a prohibited act is proved and the actor’s state of mind is irrelevant (except, perhaps, for the purposes of sentencing). Absolute liability offences tend to appear in the public health and safety area; for example, in laws about pure food and drugs, some motor traffic offences, and the handling of hazardous substances.

2.100 It is often the case that the wording and context of a statutory offence do not expressly rebut the common law presumptions, and it left for the courts to employ a number of related factors to be weighed in interpreting and classifying the offence. Among these recognised factors are: (1) the history of the offence; (2) the severity of the punishment for breach; (3) the stigma which attaches to conviction; and (4) the subject matter of the offence.

2.101 The courts will look at the history of the offence to determine how the matter has been looked at over time. To oversimplify somewhat: is it a matter which has traditionally been the subject of the criminal law in the common law, and is therefore a “truly criminal” offence, or is it an area new to the criminal law that is really “regulatory” in character and “not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty”?¹⁷⁰ In the former case the presumption of mens rea is unlikely to be dispensed with, while in the latter case there is a greater likelihood that Proudman v Dayman will apply or that the subjective element will be dispensed with entirely. Assault, rape, homicide, larceny, fraud, forgery and burglary were all basic common law crimes. A statutory provision which used a different name to describe the offence but covered substantially the same subject would thus carry a presumption of subjective fault, absent clear language to the contrary. For example, an offence of “sexual assault” may be thought to be analogous to the common law crimes of rape and assault. The characterisation of an offence is not always patent, however; is “fare evasion” on the railways analogous to the old offence of larceny, or is it a regulatory offence incidental to the operations of the railway and the preservation of public revenues?¹⁷¹

2.102 The severity of the punishment available is a key factor, since the greater the penalty the greater the reluctance of the courts to impose liability absent a showing of subjective fault. Similarly, the courts will be loath to see persons convicted of offences which carry significant social stigma where subjective fault - and therefore moral blameworthiness - is not an ingredient. The courts have on a number of occasions expressed their concern about the possibility defining offences in such a way as to create a class of “luckless victims”.¹⁷²

2.103 In He Kaw Teh, for example, the High Court found that the prohibition on the possession and distribution of certain drugs entered the criminal law through the regulatory law and was not a subject of concern at common law. Indeed, the placement of drug offences in statutes such as the Customs Act 1901 (Cth) and the Poisons Acts (NSW)¹⁷³ rather than the Crimes Act is an indicator (albeit not a conclusive one) of its regulatory origins. However, in recent times drug offences have been treated as among the most serious on the criminal calendar, attracting penalties of up to life imprisonment, massive fines and civil forfeiture. A conviction, particularly for drug trafficking, would carry a very high degree of stigma. In the circumstances, the High Court determined that although the offences contained in s233B of the Customs Act did not start off as common law offences, they were now sufficiently of a “common law type” or of a “truly criminal” character to indicate that the common law presumption of subjective fault had not been rebutted by the wording of the statutory provisions.

2.104 The New South Wales courts in the Wampfler and Jeffs v Graham¹⁷⁴ cases (see above) went through a similar analysis, considering the “not insubstantial” penalties involved, the subject matter and the stigma attached to conviction, before deciding that the offences required fault. In the case of Jeffs v Graham, the penalty for offensive conduct available at that time was a fine of not more than $200, without the direct possibility of any term of imprisonment.¹⁷⁵

2.105 The common law requirement of subjective fault is almost certain to be upheld in the context of the offence of blasphemy. Although there is also a statutory component in New South Wales under s574 of the Crimes Act, blasphemy is a common law offence. It was developed by the common law courts after its beginnings in ecclesiastical law, and it is triable in New South Wales only under common law procedures (judge and jury). The penalty available upon conviction is potentially very large (life imprisonment), and the stigma attaching to conviction would be considerable.

2.106 The Commission is therefore confident that the courts in New South Wales would require that subjective fault be an element of blasphemy, requiring the prosecution to prove not only that the accused person intended to publish the material in question, but also that he or she intended to cause such grave offence that a breach of the peace was a real possibility.

2.107 There is a question whether recklessness is sufficient to meet the requirement of subjective fault - that is, where the accused does not necessarily intend such consequences, but is aware that such consequences are likely to flow from his or her actions. Recklessness is normally comprehended by the common law requirement of intention or malice,¹⁷⁶ but this is not necessarily so. For example, in the law of complicity, the High Court has ruled¹⁷⁷ that the accomplice must intentionally render assistance or encouragement to the principal offender knowing of “the essential matters constituting the principal offence”. Recklessness in these circumstances would not, according to the majority of the High Court, render the alleged accomplice liable of aiding and abetting the principal offence.¹⁷⁸ The rationale behind elevating the mens rea requirement in this area of the law is that the actus reus required for complicity is somewhat vague and truncated. The accomplice is punished for the facilitation of the act of another, and the accomplice’s act may be relatively minor in the scheme of things, such as shouting encouragement to the principal actor. Since the accomplice is guilty of the same offence and to the same degree as the principal actor,¹⁷⁹ the High Court was thus reluctant to impose criminal liability for serious offences based on a minor act without a showing of substantial moral culpability in the form of clear evidence of intention. There is an argument that this rationale applies in the context of blasphemy as well, on the basis that the actus reus of the offence is expressed in uncertain terms and the scope of criminal liability needs to be limited by a restrictively defined mental element.

2.108 Some of the deficiencies in the existing common law of blasphemy are discussed further in Chapter 4, below.

1 Of the 1800 submissions received by the Law Commission of England and Wales in response to their Working Paper, Offences against Religion and Public Worship, over one quarter of correspondents complained of the bad language in broadcasting: Law Commission, Offences against Religion and Public Worship (Report No 145, 1985) 5. See Boyd v Angus & Robertson Ltd (1946) 63 WN (NSW) 189, in which Studdert ChQS found that the book We Were the Rats by Lawson Glassop was an obscene publication, stating that:

The dialogue, from beginning to end, teems with the irreverent use of the name of the Founder of Christianity and in a way which can only be a constant affront to the members of a Christian community. If the intention of the author was to give a robust flavour to the conversation of the Australian fighting man I think it fails dismally to achieve that object and succeeds only in leaving the decent-minded reader with a feeling of disgust.

3 The Macquarie Dictionary (1981).

4 The Oxford English Dictionary (1933, reprinted 1961).

5 Exodus 20:7; Deuteronomy 5:11.

6 Stephen’s Digest of the Criminal Law (9th ed, 1950) Article 214.

7 Judge King-Hamilton QC in R v Lemon, R v Gay News Ltd, Central Criminal Court, London, 11 July 1977.

8 Whitehouse v Lemon [1979] AC 617, at 661, citing Ogders, Libel and Slander (6th ed, 1929) 404.

9 Stroud’s Judicial Dictionary (5th ed, 1986).

10 R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1990] 3 WLR 986.

11 Hawkins’ Pleas of the Crown 1716-1721 (1973) Book 1, Part 2, c26.

12 (1663) 1 Sid 168, cited in WS Holdsworth, 8 A History of English Law 407 (7th ed, 1972).

13 (1676) 1 Vent 293; 86 ER 189.

14 Bowman v Secular Society Ltd [1917] AC 406, at 457, per Lord Sumner. See also Nokes, A History of the Crime of Blasphemy (1928), and Kenny, “The Evolution of the Law of Blasphemy” (1922) 1 CLJ 127.

15 Cited by Lord Sumner in Bowman v Secular Society [1917] AC 407, at 458.

16 Repealed in New South Wales by the Criminal Law (Amendment) Act 1883, Schedule 1.

17 Sixth Report of Her Majesty’s Commissioners on Criminal Law (1841) cited by Lord Edmund-Davies in Whitehouse v Lemon [1979] AC 617, at 647.

18 R v Ramsay and Foote [1883] 15 Cox CC 231, at 235 per Coleridge CJ.

19 With the exceptions of the reign of Mary (1553-1558) and the rule of Cromwell (1649-1660).

20 R v Woolston (1728) Fitzg 64 per Raymond CJ.

21 (1838) 2 Lew 237, at 254.

22 The Law Commission of England and Wales, Offences Against Religion and Public Worship (WP 79, 1981) para 2.4. (Hereafter, “Law Commission, WP 79”.)

23 (1841) 4 St Tr NS 563, at 590.

24 R v Ramsay and Foote [1883] 15 Cox CC 231, at 235.

25 [1917] AC 407, at 466 (HL) per Lord Sumner.

26 Ibid, at 445-446, per Lord Parker.

27 (1922) 16 Cr App R 87.

28 Freedom Under the Law (Hamlyn Lectures, 1st series, 1949) 46.

29 [1979] AC 617.

30 R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1990] 3 WLR 986.

31 Law Commission, WP 79, at para 2.25.

32 Law Commission, Proposals for the Abolition of Certain Ancient Offences (Report No 3, 1966).

33 Section 13 and Schedule 4.

34 Law Commission, WP 79, para 9.2.

35 Law Commission, Offences Against Religion and Public Worship (Report No 145, 1985) para 2.47.

36 R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1990] 3 WLR 986, at 1000-1003.

37 Halsbury’s Laws of England (4th ed) vol 6, para 1101.

38 Yeap Cheah Neo v Ong Cheng Neo (1875) PCAC 381, at 394.

39 See Blackstone’s Commentaries on the Laws of England (1876) Vol 1, at 81; 14 Halsbury’s Laws of England (4th ed) para 334.

40 Ex parte King (1861) Legge 1307, 1324.

41 Ex parte Thackeray (1874) 13 SCR 1, 65.

42 See Wylde v Attorney General for New South Wales (1948) 78 CLR 225, and A Castles, An Introduction to Australian Legal History (1971) 60-61.

43 See TP Webb, Imperial Law (2nd ed, 1892) 14-20.

44 The Charters of Justice that initially established the court system in New South Wales did nothing to clarify the substance of the law that was to be applied: see Castles, ch 8.

45 9 Geo IV c 83. The Act provided that, in the event of doubt, the Governor, with the advice of the Legislative Council, was to declare whether any Imperial statute extended to the colony and to limit or modify such law as seemed expedient. The Supreme Court was directed to decide upon the circumstantial applicability of any law when doubt arose in any proceedings before it.

46 See, eg, R v Governor (1900) 17 WN (NSW) 185: common law of England in regard to outlawry is not in force in New South Wales (distinguished in Dugan v Mirror Newspapers Ltd. [1976] NSWLR 403 on different grounds).

47 Whicker v Hume (1858) 7 HLC 124; Quan Yick v Hinds (1905) 2 CLR 345; Garrett v Overy (1968) 69 SR (NSW) 281.

48 (1885) 11 VLR 410, at 428 (FC) per Molesworth CJ.

49 For a review of the few cases concerning blasphemy in Australia see P Coleman, Obscenity, Blasphemy, Sedition: 100 Years of Censorship in Australia (2nd ed, 1974) Ch 4.

50 (1885) 11 VLR 410, at 431.

51 Stephen’s Digest of the Criminal Law (9th ed, 1950) Art 214.

52 Law Commission, WP 79, at para 6.19.

53 The matters which make the Church of England the “established church” in England can be inferred from the provisions of the Welsh Church Act 1914, which disestablished that Church.

54 See Attorney-General for the State of Victoria (ex rel Black) v Commonwealth of Australia (1981) 146 CLR 559, at 597.

55 Marshall v Graham [1907] 2 KB 112.

56 See Clarke, Constitutional Church Government (1924) 77, for the Anglican position; O’Brien, The Dawn of Catholicism (1928) vol II at 216, for the contrary view. The Australian Encyclopaedia (vol 1, at 143: “Anglican Church”) suggests that “as elsewhere in the Empire, the Church of England was to be accorded quasi-established status as the upholder of a conservative social order”.

57 Border, Church and State in Australia 1788-1872 (1962) 54.

58 (1850) Legge 544, at 570.

59 (1917) 23 CLR 546, at 550; see also ex parte King (1861) Legge 1307; ex parte Ryan (1855) Legge 876; M’Hugh v Robertson (1885) 11 VLR 410.

60 P Knaplund, James Stephen and the British Colonial System (1953) 138.

61 For a general history of the Church and Schools Corporation see Austin, Australian Education 1788-1900 (Pitman Australia, 1972) ch 1.

62 (1864) 3 Moore NS 115, at 149.

63 (1948) 78 CLR 225; see also Attorney General for the State of Victoria (ex rel Black) v Commonwealth of Australia (1981) 146 CLR 559, at 607: “Australia’s colonial history does indeed disclose, first, something at least approaching official recognition of the Church of England; followed, however, by a general recognition of a wide variety of denominations, accompanied by impartial financial assistance to all their churches and schools; then, in the latter part of the nineteenth century, there occurred a move towards complete separation of church and state, with the abolition of all financial aid to church and to church schools.”

64 Ibid, at 284.

65 Ibid, at 256-257.

66 Ibid, at 257.

67 Ibid, at 285-286.

68 The language of the 1862 Act does not refer to the “disestablishment” of any religion; it had “no need to deal in such concepts because there existed in Australia no established church capable of being disestablished”; see Attorney General for the State of Victoria (ex rel Black) v Commonwealth of Australia (1981) 146 CLR 559, at 608, per Stephen J.

69 Ibid, at 276.

70 (1850) Legge 544, at 570.

71 (1917) 23 CLR 546, at 550. See also In the Will of Purcell (1895) 21 VLR 249, in which it was said that: “it would not be reasonable to apply a Statute passed in England, in the interests of one religious body as against the interests of another religious body, to a colony where these religious bodies were equal in number.”

72 (1855) Legge 876.

73 Ibid. However, cf M’Hugh v Robertson (1885) 11 VLR 410, in which an English statute prohibiting the operation of an entertainment for profit on a Sunday was held to be reasonably applicable to Australian conditions and thus received law.

74 See para 2.31, above.

75 8 Geo IV No 2. It may be argued that this legislative reference is an inferential declaration by the Governor, with the advice of the Legislative Council, of the extension of the English offence of blasphemy to New South Wales, as provided for by the Australian Courts Act 1828. The wording also lends force to the view that the Church of England was regarded by the Governor as the established church in the early days of the colony. The Act was eventually repealed by the Newspapers Act 1898 (NSW).

76 Section 20. The penalty provision was amended by 11 Geo IV No 1, ss 9-10 (limiting banishment to not less than two and not more than seven), and by 5 Vic No 19, s1 (repealing the penalty of banishment). The latter Act also provided, in s2, that no actions for this offence could be commenced except in the name of the Attorney General, the Solicitor General or the Crown Prosecutor.

77 R v Ramsay and Foote (1883) 15 Cox CC 231.

78 R v Bradlaugh (1883) 15 Cox CC 217.

79 See the order made under s11(2) of the Director of Public Prosecutions Act 1986 (NSW), published in the New South Wales Government Gazette No 189, 30 December 1988, at 6680.

80 R v Lemon, R v Gay News Ltd, Central Criminal Court, London, 11 July 1977.

81 Cited in Coleman, at 66.

82 Ibid, at 67.

83 Ibid, at 67.

84 Ibid, at 74.

85 Ibid.

86 For example, the offences of criminal libel, riot, rout, affray, and rape. The general question of common law crime (non-statutory offences) will be the subject of another Discussion Paper in 1992, under the Commission’s new reference on Conspiracy, Complicity, Attempt and Common Law Crime.

87 In theory, publication to one other person would be sufficient, but there are no known prosecutions in these circumstances. See Law Commission, WP 79, at para 3.5.

88 See paras 2.3 et seq, above.

89 R v Hetherington (1841) 4 St Tr NS 563, at 590, per Lord Denman CJ.

90 Crimes Act 1900 (NSW), s574.

91 R v Ramsay and Foote [1883] 15 Cox CC 231, at 235, per Lord Coleridge CJ.

92 R v Hetherington (1841) 4 St Tr NS 563, at 590, per Lord Denman CJ.

93 R v Boulter (1908) 72 JP 188, at 189, per Phillimore J.

94 Law Commission, WP 79, at para 3.1, citing Whitehouse v Lemon [1979] AC 617, at 662, (HL) per Lord Scarman.

95 See paras 2.77 et seq.

96 See paras 2.14 et seq.

97 (1727) 2 Str 788.

98 [1917] AC 407, at 445-446 (HL).

99 Ibid, at 459; see, eg, R v Williams (1797) 26 St Tr 654.

100 Ibid, at 467.

101 Law Commission, WP 79, at para 2.13.

102 Howell [1982] 1 QB 416, at 426. See also Glanville Williams, “Arrest for Breach of the Peace” [1954] Crim LR 578, at 578-583.

103 Law Commission, WP 79, at para 2.13.

104 [1917] AC 407, at 460.

105 [1922] 16 Cr App R 87.

106 R v Lemon, R v Gay News Ltd. Central Criminal Court, 11 July 1977.

107 Whitehouse v Lemon [1979] AC 617, at 662 (HL).

108 Crimes Act 1900 (NSW), s574.

109 [1917] AC 406, at 459-460.

110 See D Brown, D Neal, D Farrier, and D Weisbrot, Criminal Laws (1990) 1046.

111 (1882) 9 QBD 308, at 314. See para 4.87, below, for further discussion of this point.

112 Jordan v Burgoyne [1963] 2 QB 744, at 748-749, per Lord Parker CJ.

113 Ibid, at 749.

114 NSW Supreme Court, Admin Law Div, unreported, 22 April 1983; see Brown, Farrier, Neal and Weisbrot, at 1039.

115 See paras 2.77 et seq.

116 See especially para 2.42, above.

117 In Canada, the reach of blasphemy has been extended to encompass ridicule of the Roman Catholic Church, but not to other non-Christian religions. See para 3.25, below.

118 [1979] AC 617, at 658.

119 [1990] 3 WLR 986 (QBD).

120 Ibid, at 999.

121 Ibid.

122 Ibid, at 1000.

123 [1935] AC 462, per Lord Sankey LC.

124 (1676) 1 Vent 293; 86 ER 189.

125 (1841) 4 St Tr NS 563.

126 [1917] AC 406. This was a civil case, but the House of Lords was obliged to consider the criminal law of blasphemy in order to reach its decision.

127 These examples are taken from the Law Commission, WP 79, paras 2.7-2.11.

128 [1819] 1 St Tr NS 1387, at 1390.

129 Starkie, Treatise on the Law of Slander and Libel (2nd ed, 1830) 146.

130 Whitehouse v Lemon [1979] AC 617, at 635. Starkie was one of the Criminal Law Commissioners in the 1830s and 1840s.

131 (1883) 15 Cox CC 231.

132 (1883) 15 Cox CC 217.

133 [1979] AC 617.

134 R v Lemon [1979] QB 10, at 27.

135 [1979] AC 617. Viscount Dilhorne, Lord Russell and Lord Scarman formed the majority, with Lords Diplock and Lord Edmund-Davies dissenting.

136 Ibid, at 645-646.

137 Ibid, at 662. Lord Russell agreed that the “authorities embrace an abundance of apparently contradictory or ambivalent comments. The question is open for decision.” Ibid, at 657.

138 Ibid, at 665.

139 Ibid, at 636.

140 Ibid.

141 Ibid, at 638.

142 Ibid.

143 Ibid, at 654-655.

144 Ibid, at 656.

145 Ibid.

146 £500 in the case of the editor, Lemon, and £1000 in the case of the publishing company, Gay News Ltd. See R v Lemon [1979] QB 10, at 30.

147 See Brown, Farrier, Neal and Weisbrot, at 438-538; B Fisse, Howard’s Criminal Law (5th ed, 1990) 478-539.

148 (1963) 111 CLR 610.

149 [1961] AC 290.

150 Criminal Justice Act 1967 (Eng) s8.

151 See Frankland [1987] AC 576 (PC).

152 (1963) 111 CLR at 632-633.

153 (1980) 149 CLR 64.

154 See DPP v Majewski [1977] AC 443.

155 (1985) 156 CLR 464.

156 The New South Wales Court of Criminal Appeal had reached this view before the High Court’s decision in Crabbe: see Solomon [1980] 1 NSWLR 321.

157 See Caldwell [1982] AC 341 (HL) and Lawrence [1982] AC 510 (HL); cf Moloney [1985] AC 905 (HL) and Hancock [1986] AC 455 (HL).

158 Giorgianni v R (1985) 156 CLR 473 (HCA).

159 Here, the Australian and English common law coincide. In DPP v Morgan [1976] AC 182, the House of Lords decided that rape was a crime of subjective fault: the accused must be shown to have intended to have carnal knowledge of the victim knowing that she was not consenting or being recklessly indifferent to the fact of consent. This case has been followed in all Australian jurisdictions. In New South Wales, see R v McEwan [1979] 2 NSWLR 926, over-ruling R v Sperotto [1970] SR (NSW) 334 (which asked juries to consider whether the “reasonable man” in the position of the accused would have realised the woman was not consenting). Common law rape has since been replaced in New South Wales, but a similar subjective mental element applies in respect of sexual assault: Crimes Act 1900 (NSW), s61D.

160 He Kaw Teh (1985) 157 CLR 523 (HCA), discussed below.

161 (1987) 11 NSWLR 541.

162 Under the Indecent Articles and Classified Publications Act 1975 (NSW), s6(1).

163 (1987) 11 NSWLR 541, at 547. The New Zealand courts had earlier come to the same conclusion in a similar case: see R v Ewart (1905) 25 NZLR 709.

164 (1987) 8 NSWLR 292 (SC). See also Pregelj and Wurramurra v Manison (1988) 31 A Crim R 383, in which the Northern Territory Court of Criminal Appeal came to a similar result.

165 (1985) 157 CLR 523 (HCA).

166 R v Bush [1975] 1 NSWLR 298 (NSW CCA).

167 R v Carver [1978] QB 472.

168 (1941) 67 CLR 536 (HCA). See also the English cases of Sweet v Parsley [1970] AC 132, Sherras v De Rutzen [1895] 1 QB 918, and Tolson (1889) 23 QBD 168; and the New Zealand case of Millar v Ministry of Transport [1986] 1 NZLR 660.

169 (1985) 157 CLR 523, at 528, per Gibbs CJ.

170 Sherras v De Rutzen [1895] 1 QB 918, at 922 per Wright J.

171 See Phipps v State Rail Authority for New South Wales (1986) 4 NSWLR 444 (NSW Court of Criminal Appeal).

172 On this last factor, see Boucher v GJ Coles & Co (1974) 9 SASR 495, at 523, and Lim Chin Aik v R [1963] AC 160.

173 1902, 1952 and 1966. In NSW, drug trafficking offences and related offences are now dealt with by the Drugs Misuse and Trafficking Act 1985.

174 See para 2.95.

175 Under the Offences in Public Places Act 1979 (NSW), s5, as amended in 1983. Imprisonment would only have been available for defaulting upon the imposed fine. The Act has since been repealed and replaced by the Summary Offences Act 1988.

176 See Crabbe (1985) 156 CLR 464 (HCA). Regarding “malice”, see also the Crimes Act 1900 (NSW), s5.

177 Giorgianni v R (1985) 156 CLR 473, esp at 506-507 per Wilson, Deane and Dawson JJ.

178 For a critique of the reasoning of the High Court in Giorgianni, see Fisse, at 329-337.

179 This is true both under the common law and under s345 of the Crimes Act 1900 (NSW).