INTRODUCTION
3.1 In this Chapter we review the law of blasphemy (if any) in the other Australian jurisdictions and in a range of other common law (English-speaking) legal systems.
THE LAW IN OTHER AUSTRALIAN JURISDICTIONS
Tasmania
3.2 Among the states and territories in Australia, the only express statutory reference to blasphemy apart from that made in the Crimes Act 1900 (NSW), s574, is to be found in the Tasmanian Criminal Code. Section 119 provides that:
(1) Any person who, by words spoken or intended to be read, wilfully publishes a blasphemous libel is guilty of a crime.
(2) The question whether any matter so published is or is not blasphemous is a question of fact.
(3) It is not an offence under this section to express in good faith and in decent language, or to attempt to establish by arguments used in good faith and conveyed in decent language, any opinion whatever upon any religious subject.
(4) No person shall be prosecuted under this section without the consent in writing of the Attorney-General.
This provision is similar to the law in New South Wales insofar as it leaves the full definition of the offence to the common law, but draws a distinction between sober and decent denials of religious doctrine and scurrilous attacks. The Tasmanian law differs insofar as there is no statutory reference to a breach of the peace, and the prior consent of the Attorney is required before launching a prosecution. No maximum penalty is specified in s119, which means that the general Code limitation of 21 years imprisonment applies.1 Sections 120-121 of the Tasmanian Code deal with the offences of interfering with an officiating minister and disturbing religious worship. These offences are framed in similar terms to the equivalent provisions in NSW.2
Queensland
3.3 Blasphemy was apparently considered obsolete in the state of Queensland at the turn of the last century. In 1899, Queensland became the first Australian state to codify its criminal law. The Queensland Criminal Code was the work of Sir Samuel Walker Griffith, Chief Justice of Queensland and, after Federation, the first Chief Justice of the High Court of Australia. In a letter of 29 October 1897, sending the draft Criminal Code to the Attorney-General, Griffith pointed out that the Code did not deal with “the provisions of the English Criminal Law in force in 1828, whether Statutory Law or Common Law, as are manifestly obsolete or inapplicable to Australia.”3
3.4 By s5 of the Criminal Code Act 1899 (to which the Criminal Code is attached as a Schedule), it is provided that no person shall be liable to be tried or punished in Queensland for an indictable offence except under the express provisions of the Code, some other statute of Queensland or an English statute expressly applied to Queensland. By repealing the Blasphemy Act 1697,4 and making no provision for an offence of blasphemy in the Criminal Code, blasphemy was effectively abolished in Queensland.
3.5 There is a related offence in Queensland, however. The Objectionable Literature Act 1954 (Qld) is designed to prevent the distribution in Queensland of such literature as the Literature Board of Review deems objectionable. The term “objectionable” is broadly defined to include material that is “blasphemous”.5 There is no attempt to define what blasphemous means in this context.
Western Australia
3.6 The drafters of the Western Australian Criminal Code closely followed the the Queensland Criminal Code. Section 4 of the Criminal Code Act Compilation Act 1913 (WA) is in virtually identical terms to s5 of the Criminal Code Act 1899 (Qld). As in Queensland, the failure to make provision for an offence of blasphemy in the Code effectively abolishes it.
Victoria
3.7 There is no mention of the offence of blasphemy in the Crimes Act 1958 (Vic), but the offence may exist as a common law crime to the same extent as it applies in New South Wales (although without the statutory modifications introduced by s574 of the Crimes Act 1900 (NSW)). Victoria does not have a comprehensive Criminal Code; in this respect it is similar to the other “common law” states of New South Wales and South Australia. The last attempt to prosecute for common law blasphemy in Victoria was in 1919, but the matter was dropped by the Crown before the trial started.6
3.8 The Summary Offences Act 1966 (Vic) s21 includes an offence of disturbing religious worship, framed in similar terms to that offence provided for by s39 of the Imperial Acts Application Act 1969 (NSW). In one of the few cases to consider this area of the law, the Supreme Court of Victoria decided that the interruption of a rally featuring the American evangelist Billy Graham was not an offence under s21, as the assembly did not amount to a meeting for the purpose of religious worship.7
South Australia
3.9 The position in South Australia is similar to that in Victoria: there are no statutory references to the crime of blasphemy, nor is there an express abolition of the offence. Under the heading of “Offences against religion”, the Criminal Law Consolidation Act 1935 (SA) ss 257-259 contains the related offences of interrupting religious worship, molesting preachers and pretending to witchcraft, the latter offence derived from the Witchcraft Act 1735 (UK).
3.10 In 1977, the Criminal Law and Penal Methods Reform Committee completed its report on the substantive criminal law of South Australia. The Committee dealt with blasphemy as one of four types of common law libels punishable by the criminal law (the others being seditious libels, libels affecting the administration of justice, and other defamatory libels.) While considering that blasphemy as defined in Bowman v Secular Society Ltd 8was a common law offence under state law, the Committee concluded that “today it would seem anachronistic to charge anyone with blasphemous libel”. The Committee accordingly recommended its abolition.9
The Northern Territory
3.11 Under the heading of “Offences Relating to Religious Worship”, the Northern Territory Criminal Code provides for only one offence: offering violence to officiating ministers of religion. The Northern Territory Code was based substantially on the Queensland Criminal Code, and this provision is in very similar terms to s206 of the Queensland Code. Unlike the position in Queensland, however, there is an argument that the Northern Territory Criminal Code is not meant to displace entirely the common law, so that non-statutory offences may still exist.10
The Australian Capital Territory
3.12 The Australian Capital Territory (ACT) has adopted and modified the Crimes Act 1900 (NSW).11 Having emerged out of New South Wales, the reception position in the ACT would be the same. Section 574 is retained in the ACT, so the offence of blasphemy in the ACT exists to the same extent as in New South Wales. There are no related offences, however; neither s56 of the Crimes Act 1900 (NSW) nor s39 of the Imperial Acts Application Act 1969 (NSW) have been adopted.
The Commonwealth of Australia
3.13 The Crimes Act 1914 (Cth) includes no reference to blasphemy as a specific offence, nor to any related offence against religion. An offence of sending blasphemous material through the post was repealed in 1989, and replaced by an offence (s85S) of using federal postal or telecommunications services to harass or in a manner that would be regarded by reasonable persons as “offensive” in the circumstances.
3.14 There are a number of uses of the term “blasphemous” in federal legislation. By the Customs (Cinematograph Films) Regulations (Cth), a Censorship Board and a Film and Literature Board of Review is created to register films that are imported for public exhibition, and pass advertisements. The Board will not do so if the film or advertising matter is, amongst other criteria, blasphemous.12
3.15 In pursuance of an agreement between the Governments of the Commonwealth and the States of Australia in 1968, regulations were made under the Customs Act 1901 (Cth) providing for the establishment of a National Literature Board of Review. The Board was to fulfil the same functions as the film Censorship Board, by considering whether books referred to it were suitable for distribution in Australia. One factor affecting the suitability of a particular work is the inclusion of any blasphemous material. As from 1990, the functions of the Board were assumed by the Film and Literature Board of Review.
3.16 The Customs (Prohibited Imports) Regulations (Cth) prohibit the importation of material which is blasphemous, unless permission in writing has been obtained from the Attorney-General.13
3.17 The Broadcasting and Television Act 1942 (Cth) s118 provides that the Australian Broadcasting Commission or a licensee shall not broadcast or televise matter which is blasphemous, indecent or obscene. The term “blasphemous” is not defined in the legislation, but in a policy statement the Australian Broadcasting Tribunal has adopted the modern, common law definition.14 Accordingly, the transmission of programmes criticising or opposing belief in God, Christ or the Christian religion will not be blasphemous unless the programme content goes beyond the normal boundaries of reasonable argument. The Tribunal is aware that the use of words of Christian significance, and words of significance to other religions, may be offensive to a section of the public. In this respect the prohibition on the transmission of blasphemous material is to be read in conjunction with Programme Standards covering the denigration of religious faiths and beliefs of all kinds (rather than with notions of punishment under the criminal law).
3.18 The Australian Law Reform Commission has recently proposed the removal of all references to blasphemy in federal legislation.15 The Commission considered that the offence of blasphemy (and cognate offences) failed to protect the religious sensibilities of non-Christians, and that the legislative extension of the offence to cover other religions was fraught with difficulties.16
OTHER COMMON LAW JURISDICTIONS
Scotland
3.19 Blasphemy is a common law offence under Scottish law, defined as the uttering of impious and profane things against God or the authority of the Holy Scriptures “in a scoffing or railing manner, out of a reproachful disposition in the speaker, and ... with passion against the Almighty, rather than with any purpose of propagating the irreverent opinion.”17
3.20 The continued existence of the offence has been doubted by some commentators. A leading textbook states that “it is not usual now to prosecute for blasphemy, except summarily as a breach of public order.”18 Another leading commentator considers that “it may be said that blasphemy is no longer a crime.”19 The last reported cases were 150 years ago, and concerned the prosecutions of booksellers and publishers of anti-religious, radical and obscene books. “Today any alleged blasphemous conduct would be dealt with as obscenity or breach of the peace.”20
Ireland
3.21 Article 40.6.1.i of the Constitution of Ireland provides that the publication of blasphemous matter is an offence which shall be punishable in accordance with law. There is divided opinion over the current state of the common law in Ireland relating to blasphemy, especially as regards the effect of the House of Lords’ decision in Bowman v Secular Society. 21 Although its value as a binding precedent has been questioned, as it was not a case on appeal from Ireland, the better view seems to be that all decisions of the House of Lords formed part of the law of Ireland carried over by the Constitution of the Irish Free State, and subsequently by the Constitution of Ireland, unless the principle is inconsistent with the Constitution.22 The law of blasphemy is thus in similar terms to that of the law in England, although the offence would, of course, be applicable to the Catholic Church.
3.22 In a recent Paper on The Crime of Libel in Ireland, the Law Reform Commission of Ireland was of the view that “there is no place for the offence of blasphemous libel in a society which respects freedom of speech.”23 Recognising that it is impossible to abolish the offence of blasphemous libel under the existing constitutional provision without a referendum, the Commission proposed a temporary improvement. The new definition of the offence of blasphemous libel would refer to the publication of matter “the sole effect of which is likely to cause outrage to a substantial number of adherents concerning a matter or matters held sacred by that religion.”
Canada
3.23 Section 29624 of the Canadian Criminal Code provides for an offence of blasphemous libel. It is in similar terms to s119 of the Tasmanian Criminal Code, with the one exception that the consent of the Attorney General is not required for the commencement of a prosecution.
3.24 The limited case law on this section of the Canadian Criminal Code is somewhat contradictory. In R v Kinler (1925),25 the court held that the offence of blasphemous libel is only committed by a direct attack upon the Deity; neither an attack upon the clergy nor one upon the doctrine of a particular church will be sufficient. In R v St. Martin (1933),26 however, it was held that blasphemous libel is not confined to a direct attack upon the Deity. It may consist in any publication containing expressions grossly repugnant to religious sentiments, exceeding the limits of decent controversy, and having as their sole object that of outraging the feelings of every sympathiser with the Christian faith. In that case the publication of a number of vitriolic articles attacking the Roman Catholic faith and religious practices of the majority of the people of Quebec was held to be blasphemous libel.
3.25 In R v Rahard (1935), an Anglican priest was convicted of blasphemous libel for fixing posters on his church property which were found by the court to be “offensive and injurious to Roman Catholics and of such a nature that they may lead to a disturbance of the peace”, in terms which were “calculated and intended to insult the feelings of the great majority of persons amongst whom we live.”27 The court looked to the English common law cases to determine the elements of the offence of blasphemy but, in Roman Catholic Quebec, conveniently avoided discussion of the limitation of the offence in England to the Church of England. The case is generally taken to mean that the Canadian Criminal Code offence of blasphemous libel extends to the vilification of the Christian religion generally, but not beyond it.28
3.26 Under the general heading of “Hate Propaganda”, s319 of the Canadian Criminal Code creates offences of public incitement of, and wilful promotion of, hatred against an identifiable group. “Identifiable group” is defined widely to include any section of the public distinguished by colour, race, religion or ethnic origin. Some cases of alleged blasphemy may be more suitably dealt with under these provisions, where the emphasis is on the promotion of inter-group hatred rather than challenges to religious doctrine.
New Zealand
3.27 Section 123 of the Crimes Act 1961 is in similar terms to s119 of the Tasmanian Criminal Code, and is the only recognised crime against religion in New Zealand. The consent of the Attorney General also is required before a prosecution may be commenced. However, the offence carries a maximum penalty of only one year’s imprisonment. The last reported prosecution under this section was in 1922, for the publication of Siegfried Sassoon’s poem “Stand To”29, and a commentator has stated that:
it is doubtful whether it can be said that the Christian religion is part of New Zealand common law, and, if it is not, the main reason for giving preference to the Christian faith disappears.
United States of America
3.28 According to one authority, blasphemy exists as a common law offence in American law, and consists in maliciously reviling God or religion. It is classified under three headings: “(1) denying the being and providence of God; (2) contumelious reproaches of Jesus Christ; profane and malevolent scoffing of the Scriptures, or exposing any part of them to contempt and ridicule; (3) certain immoralities tending to subvert all religion and morality, which are the foundation of all governments.” A “wilful and malicious intent in assailing God or a doctrine of the Christian religion” is required for a successful prosecution.31
3.29 This view must be considered in the light of the American Constitution, however, which guarantees the freedoms of speech, religious liberty and worship, and provides that “Congress shall make no law respecting the establishment of religion.”32 Thus a blasphemy offence arguably would fall foul of these Constitutional freedoms and would only be sustained by the courts upon a showing that there was a compelling need for the offence which substantially outweighed those freedoms. There have been no prosecutions for blasphemy in America in modern times.
Papua New Guinea
3.30 The Papua New Guinea Criminal Code 1974 is based very substantially on the Queensland Criminal Code, which was adopted by the colonial administration in 1902.33 As with the Queensland Code, the Papua New Guinea (PNG) Code is comprehensive and the omission of blasphemy is tantamount to abolition. Under the heading of “Offences Relating to Religious Worship” in the PNG Code, there are offences (ss207-208) of offering violence to officiating ministers of religion, and disturbing religious worship.
3.31 Under Schedule 2 of the Papua New Guinea Constitution, the senior courts are given broad powers to fashion an “underlying law” - that is, a Papua New Guinean common law - which is appropriate to the unique circumstances of PNG. Among the sources of underlying law are customary law and the English common law. However, the PNG courts would not be able to introduce common law blasphemy through the back door, since s37(2) of the Constitution specifies that it is a fundamental human right that (except in the case of contempt of court) no one “may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law”.
Nauru
3.32 The position in the Republic of Nauru still is governed by the Queensland Criminal Code 1899 (Adopted), which was brought in during the period of Australian administration of the United Nations Trusteeship before independence in 1968. (The High Court of Australia is the final court of appeal in the Nauru legal system as well, hearing appeals from the single judge Supreme Court of Nauru). Consequently, the position with respect to the law of blasphemy is the same as in Queensland: the offence has been effectively abolished by the failure to include it in the Code.
India
3.33 In the nineteenth century Lord Macaulay protested in the English Parliament against the way the blasphemy laws were then being administered, stating that:
If I were a judge in India, I should have no scruple about punishing a Christian who should pollute a mosque.
3.34 The Indian Penal Code 1860 was based on the draft drawn up by the first Indian Law Commission, of which Lord Macaulay was President. Section 298 provides that:
Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person, or places any object in the sight of that person, shall be punished with imprisonment.
3.35 Section 295A provides for the written form of blasphemy:
Whoever, with the deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment.
3.36 These provisions are wider than the common law in one important respect: the Code protects the religious feelings of any person or class of citizens of India. There is no limitation of the offence to one religion; indeed there is no definition of what constitutes a religion.
3.37 Under s298, the defendant must deliberately intend to wound someone’s religious feelings by acting in the proscribed manner. To be guilty of an offence under s295A the defendant must deliberately and maliciously intend to outrage the religious feelings of others. The elements of the offence under s295A are more restrictively defined, and consequently the difficulties of obtaining a conviction greater, for this more serious offence.
Fiji
3.38 The Fiji Penal Code (Ch 17 of the Laws of Fiji) is closely based on Macaulay’s Indian Penal Code 1860. In Ch XVI of the Fijian Code, entitled “Offences Relating to Religion”, there are four misdemeanour offences: damaging, destroying or defiling a place of worship (s145); disturbing a religious assembly (s146); trespass to burial places (s147); and writing or uttering words with intent to wound religious feelings (s148), which is in identical terms to s298 of the Indian Penal Code. As with the Indian Code, the offences in Fiji are not limited to protection of the Christian religion. For example, s145 relates to “any place of worship or any object which is held sacred by any class of persons”. Section 148 is the offence most analogous to blasphemy, with a specified maximum penalty, being imprisonment for one year. There was a large demonstration in Suva recently by Methodists calling for a stronger blasphemy offence and for charges to be laid against members of Muslim group who screened a film alleged to be blasphemous,34 but no action was taken by the authorities.
The Solomon Islands
3.39 The Solomon Islands Penal Code is also closely based on Macaulay’s Indian Penal Code 1860 and is very similar to its counterpart in Fiji. The four offences mentioned in the preceding paragraph are reproduced in identical terms in the Solomon Islands Penal Code, ss 123-125 and 127.
Vanuatu
3.40 The Vanuatu Penal Code is loosely based on the Indian Penal Code, but was substantially revised in 1981 (after Independence in 1980). Under the Vanuatu Penal Code, ss 88-89, there are offences of damaging/defiling a place of worship and disturbing religious worship, but there is no longer an offence of blasphemy or of wounding religious feelings.
Western Samoa
3.41 The Western Samoa Crimes Act 1961, which was imported from the New Zealand Crimes Act 1961, contains an offence of blasphemous libel (s42) in identical terms to s123 of the New Zealand Crimes Act and in similar terms to s117 of the Tasmanian Criminal Code. The maximum penalty is imprisonment for one year.
South Africa
3.42 Blasphemy is a common law crime in South Africa. One commentator has stated that “although this crime is undoubtedly still part of the law, there is great uncertainty about its exact scope.”35 The only reported prosecution for blasphemy was in 1934.36 Modern authorities favour the view that the crime should now be restrictively interpreted and applied.37 The Publications Act 1974 (SAfr) prohibits the publication and distribution of blasphemous material, and criminal prosecutions may be brought for a breach of that Act.
SUMMARY
3.43 The legal systems of Victoria, South Australia, Scotland and South Africa all may be said to have retained the common law offence of blasphemy in the absence of any legislative or judicial abrogation, although there is a question whether the offence may have lapsed through disuse. Commentators in these jurisdictions mainly regard blasphemy as an anachronism.
3.44 In the Queensland Criminal Code 1899, and its regional derivatives in Western Australia, the Northern Territory, Papua New Guinea and Nauru, blasphemy was effectively abolished by the move to codification itself (which excludes purely common law, or non-statutory, offences) and the decision by Sir Samuel Griffith not to include blasphemy among the comprehensive list of major crimes. It is interesting to note that blasphemy was considered obsolete as long ago as 1897 by the first Chief Justice of Australia, who decided that the offence had no place in a modern codification of the criminal law.
3.45 The criminal laws of Tasmania, Canada, New Zealand and Western Samoa all contain a (virtually identical) statutory reference to blasphemy, limited by the “good faith” exception. The provisions in Tasmania, New Zealand and Western Samoa all require the consent of the Attorney General before any proceedings are launched. Prosecutions have been very rare, especially in the second half of this century. The Irish Constitution entrenches the offence of blasphemy in Irish law, together with other aspects of the established (Catholic) church. The maximum penalty is one year’s imprisonment in New Zealand and Western Samoa, two years in Canada, and (by default) 21 years in Tasmania.
3.46 The Indian Penal Code 1860 and its regional derivatives in Fiji and the Solomon Islands all contain offences analogous to blasphemy. However, it is worth noting that: (1) these Codes were drafted well over a century ago, having regard to the state of the English common law at that time; (2) the offences created by Macaulay were meant to operate in the diverse, multicultural context of colonial India and were not limited to the protection only of an established Christian religion or particular denomination; and (3) the offences were oriented more in nature and penalty to modern public order offences than to ancient ecclesiastical law - a maximum penalty of one year’s imprisonment is prescribed. In Vanuatu, where the adopted Penal Code was subjected to a thorough post-Independence review in 1981, the blasphemy offence was dropped.
3.47 All of the several law reform commission inquiries into the law of blasphemy in recent times - in South Australia, England and Wales, Ireland (notwithstanding the need for a Constitutional referendum) and the Australian Commonwealth - have recommended abolition.
3.48 In sum, while a significant number of the jurisdictions surveyed retain an offence of blasphemy (or blasphemous libel) in the statute book or in the common law, prosecutions this century are very rare. The continued existence of the offence, then, may owe as much to inertia in the absence of controversy than to conscious policy decisions. Even where incidents arise which may raise issues of blasphemy, it is clear that in modern times the preferred course of action for prosecuting authorities is to utilise other offences, such as obscenity, indecency, or public order offences. This would be reinforced by the requirement in several of the jurisdictions that the consent of the Attorney General is required before proceeding with a charge of blasphemy. It is notable that the House of Lords considered this area of the law in 1979 only after a private prosecution was commenced by Mrs. Mary Whitehouse against some publishers for blasphemous libel,38 30 years after Lord Denning pronounced the offence “a dead letter” in England.39
FOOTNOTES
1 Criminal Code 1924 (Tas), s389(3).
2 See paras 4.32-4.34, below.
3 Quoted in Carter, Criminal Law of Queensland (6th ed, 1982) 4.
4 Criminal Code Act 1899, s3.
5 It is not sufficient that the material is merely blasphemous; it must tend to deprave and corrupt the classes of persons amongst whom it is likely to be distributed: see Literature Board of Review v Invincible Press; ex parte Invincible Press and Truth And Sportsman Ltd [1955] St R Qd 525.
6 See para 2.47, above, and P Coleman, Obscenity, Blasphemy, Sedition: Censorship in Australia (2nd ed, 1974) Ch 4.
7 Macrae v Joliffe [1970] VR 61. In response to Billy Graham’s exhortation that the assembled people make a decision for Christ, the defendant had made her way through the crowd, thrown a bundle of pamphlets in the air and loudly shouted “bullshit”.
8 [1917] AC 406.
9 Criminal Law and Penal Methods Reform Committee of South Australia, The Substantive Criminal Law (4th Report, 1977) 248.
10 There is some doubt over the continued application of the common law in the Territory; there is no “exclusive jurisdiction” provision in the Territory Criminal Code as there is in the Queensland Code (see para 3.4, above).
11 Areas where the Crimes Act (NSW) has been substantially modified in its application to the Territory include the law of homicide and defences.
12 Customs (Cinematograph Films) Regulations, reg 13. In the guidelines produced by the Office of Film and Literature Classification there is no reference to blasphemous material, however: see the Guidelines for the Classification of Films, Videotapes and Printed Matter (Information Bulletin No 5, March 1990).
13 Customs (Prohibited Imports) Regulations, reg 4A. For a review of the existing censorship procedures and the interplay of the various Regulations, see Australian Law Reform Commission, Censorship Procedure (ALRC 55, 1991).
14 Australian Broadcasting Tribunal, Blasphemous, Indecent or Obscene Matter (POS 03, 17 October 1983).
15 Australian Law Reform Commission, Multiculturalism: Criminal Law (DP 48, 1991) para 4.33.
16 Ibid, at paras 4.12 and 4.30-4.32.
17 Hume, Commentaries on the Law of Scotland Respecting Crimes (4th ed, 1844) vol 2, 568.
18 MacDonald, Criminal Law of Scotland (1948) 153; an earlier edition of 1894 contains the same passage.
19 Gordon, Criminal Law (2nd ed, 1978) 998.
20 Maher, “Blasphemy in Scots Law” [1977] Scots LT 257, 260.
21 [1917] AC 407.
22 See Law Reform Commission of Ireland, The Crime Of Libel (Consultation Paper, August 1991) 17, 80.
23 Ibid, at 172.
24 Previously s260, renumbered in the 1985 Revised Statutes of Canada. See Snow’s Annotated Criminal Code.
25 (1925) 63 Que SC 483.
26 (1933) 41 R de Jur 411.
27 [1936] 3 DLR 230, at 237-238.
28 Law Commission of England and Wales, Offences Against Religion and Public Worship (WP 79, 1981) para 4.7.
29 R v Glover [1922] GLR 125.
30 Adams, Criminal Law and Practice in New Zealand (2nd ed, 1971) 258.
31 Wharton, Criminal Law and Procedure (1957) vol 2, at 666-669.
32 The First Amendment to the US Constitution.
33 See DRC Chalmers, D Weisbrot and W Andrew, Criminal Law and Practice of Papua New Guinea (2nd ed 1985).
34 “Blasphemy ban sought”, The Australian, 6 July 1991, at 12.
35 Joubert, The Law of South Africa (1981) vol 6, para 249.
36 R v Webb [1934] AD 493.
37 Ibid, at 497; see Publication Control Board v Gallo (Africa) Ltd [1975] 3 SA 665.
38 Counsel for the defendants in R v Lemon frankly admitted before the Court of Appeal that the material in dispute may well have led to a successful prosecution under the Obscene Publications Act 1959 (UK). The choice of prosecuting the publishers for blasphemy appears to have been made after a copy of the offending poem was sent to Mrs. Whitehouse by a supporter just as she was thinking of trying the law of blasphemy as a new weapon in her campaigns: see Tracey and Morrison, Whitehouse (1979) 114.
39 Denning, Freedom Under the Law (Hamlyn Lectures, 1st series, 1949) 46.
