porn case is likely to fail..henson

Chris Merritt, Legal affairs editor | May 24, 2008
THE success rate in obscenity trials in Australia is extremely low - and experts believe the looming case against renowned photographer Bill Henson will prove no different.

With Henson facing the possibility of indecency and child pornography charges after police seized 20 of his works from a Sydney gallery yesterday, Australia is facing a rerun of the divisive Oz obscenity trials in the 1960s and 70s.

The case will almost certainly boil down to a decision by either a magistrate or a jury on whether the photographs are obscene.

The photographs - collectively worth $500,000 - are also at risk of being destroyed if a jury decides that they are pornography.

They were seized yesterday using a warrant issued under a section 91G of the NSW Crimes Act which prohibits the use of children for pornographic purposes. If charges are laid under the same provision, the fate of the photographs could turn on whether expert evidence can show they were being used for an artistic purpose.

Media lawyer Shane Simpson said: "It will be a circus. There will be a string of experts traipsing in to court to give conflicting evidence about whether they are pornography or art."

The maximum penalty under the legislation used for the warrant is 14 years in prison if the children in the photographs are under the age of 14.

If the case goes ahead, the defence would need to show the photographs had been produced and used for a genuine artistic purpose - the same argument used in the Oz trial in London in the 1971. Mr Simpson said it would be relevant that the photographs were part of an exhibit at an art gallery and had not been displayed in one of the main streets of Sydney. Other photographs by Bill Henson are on display at the High Court in Canberra and at the Art Gallery of NSW.

Media lawyer Graham Hryce said he was surprised police were even considering launching a prosecution.

"It is startling that such a prosecution would be brought," he said. If charges were eventually laid, it would be "a re-run of the Oz trial".

"It will turn on the question of artistic purpose - and that is a question that is in the eye of the beholder," he said.

The success rate in earlier obscenity trials had been extremely low. Previous failures included the prosecution of publisher Penguin over the publication of Lady Chatterley's Lover and the prosecution of the University of NSW student publication Tharunka.

"They all failed," Mr Hryce said. "This seems to be just another pointless exercise."

Patrick George of law firm Kennedys said that, if charges were laid, one of the key factors that could determine the outcome would be whether a jury would decide the case or whether it would be before a magistrate sitting alone. The case would be dominated by subjective assessments and he believed the defence would be more likely to succeed if it were heard by a jury.