LAWS OF WESTERN SAMOA

INDECENT PUBLICATIONS

1960, No. 2

ANALYSIS
Title
1. Short title
2. Interpretation
3. Offences
4. Persons deemed guilty of offence in connection with periodical being an indecent document
5. Considerations determining whether or not document is indecent
6. Servant and employer, and agent and principal, each guilty of offence committed by one of them
7. Absence of guilty knowledge no defence
8. Printed matter to be marked with name or publisher or distributor
9. Evidence of printing, publishing or sale of document by defendant
10. No prosecution to be commenced without leave of Attorney-General
11. Conviction under one statute only

------------------------------

THE INDECENT PUBLICATIONS ORDINANCE 1960

1960, No. 2

An Ordinance to prohibit the publication or sale of indecent literature or other matter or things of an indecent nature

[7 April 1960

1. Short title - This Ordinance may be cited as the Indecent Publications Ordinance 1960.

As to indecent documents or matter to which this Ordinance does not apply, see s. 43 of the Crimes Ordinance 1961.

Section 49 of the Customs Act 1977 prohibits the importing of indecent documents within the meaning of the Indecent Publications Ordinance 1960.

2. Interpretation - In this Ordinance, unless a different intention appears,-

"Court" means [the Supreme Court] of Western Samoa:

"Distributor" means any person who imports for sale in Western Samoa or sells in Western Samoa any printed matter published outside Western Samoa:

"Indecent document" means any book, newspaper, picture, photograph, print, or writing, and any paper or other thing of any description whatsoever, which has printed or impressed upon it, or otherwise attached thereto, or appearing, shown, or exhibited in any manner whatsoever thereon, any indecent word, statement, significant sign, or any indecent picture, illustration, or representation, or which unduly emphasises matters of sex, horror, crime, cruelty, or violence:

"Minister" means the Minister responsible for the Department of the Attorney-General:

"Periodical" means and includes any newspaper or other periodical publication which is published for the time being (whether in Western Samoa or elsewhere) at intervals not exceeding 3 months, or any copy of or part of any copy of any periodical as so defined; and every document which at any time accompanies and is distributed along with any periodical shall be deemed to form part of the periodical:

["Public place" means-

(a) Any road:

(b) Any place of public resort open to or used by the public (whether on payment of money or otherwise):

(c) Any wharf or jetty:

(d) Any passenger ship or boat or other vessel plying for hire at a wharf or jetty or within one mile of the shore:

(e) Any licensed public vehicle plying for hire:

(f) Any church or other building where Divine service is being publicly held:

(g) Any hall or room in which any public entertainment is being held:

(h) Any market place.]

"Court": In this definition, the reference to the Supreme Court was substituted for a reference to the High Court by s. 4 (3) (a) of the Existing Law Adjustment Ordinance 1961.

"Public place": This definition was substituted for the original definition by s. 21 of the Reprint of Statutes (Miscellaneous Provisions) Act 1975.

3. Offences - Every person commits an offence who -

(a) Sells, or delivers by way of hire, or offers for sale or hire, or has in his possession for sale or hire, an indecent document; or

(b) Prints or causes to be printed an indecent document; or

(c) Causes to be inserted in a newspaper any matter or thing whereby that newspaper becomes an indecent document; or

(d) Sends or causes to be sent, or attempts to send, through the post an indecent document; or

(e) Exhibits or causes to be exhibited an indecent document to any person in consideration or expectation of any payment, or otherwise for gain, and whether such payment is made by way of gratuity or otherwise howsoever; or

(f) Publicly exhibits or causes to be publicly exhibited an indecent document in a public place, or so that the same is in view of persons in a public place; or

(g) Delivers or offers, or causes to be delivered or offered, an indecent document to any person in a public place; or

(h) Delivers or leaves, or causes to be delivered or left, on premises in the occupation of any other person an indecent document, knowing or having reasonable means of knowing that such document is indecent; or

(i) Writes, draws, affixes, impresses, or exhibits, or causes to be written, drawn, affixed, impressed, or exhibited, any indecent statement, word, picture, drawing, or sign in or upon a public place, or so that the same is in view of persons in a public place; or

(j) Delivers to any person an indecent document with intent that it should be so dealt with by that or any other person in such a manner as to constitute an offence against this section.

(2) Every person who commits an offence against subsection (1) of this section is liable on conviction to a fine not exceeding [$50].

(3) Every person commits an offence who wilfully does any act mentioned in subsection (1) of this section.

(4) Every person who commits an offence against subsection (3) of this section is liable on conviction-

(a) In the case of an individual to a fine not exceeding [$100], or to imprisonment for a term not exceeding 3 months:

(b) In the case of a body corporate, to a fine not exceeding [$400].

(5) Every person charged with an offence against subsection (3) of this section may be convicted of an offence against subsection (1) of this section.

4. Persons deemed guilty of offence in connection with periodical being an indecent document - If any periodical printed, or published, or sold, or offered for sale, or kept for the purpose of sale in Western Samoa contains any matter or thing whereby it becomes an indecent document, every person who at the date of the publication of that periodical is or acts as a printer, publisher, proprietor, manager, editor or sub-editor thereof, and every person who consented to the insertion therein of that matter or thing, shall, without excluding the liability of any other person, be conclusively deemed to have caused that matter or thing to be inserted in the periodical, and shall be severally guilty of an offence against this Ordinance accordingly.

5. Considerations determining whether or not document is indecent - (1) In determining whether any document or other matter is indecent within the meaning of this Ordinance the Court shall take into consideration-

(a) The nature of the document or matter:

(b) The nature and circumstances of the act done by the defendant with respect thereto, and the purpose for which the act was done:

(c) The literary or artistic merit or medical, legal, political, or scientific character or importance of the document or matter:

(d) The persons, classes of persons, or age groups to or amongst whom the document or matter was or was intended or was likely to be published, distributed, sold, exhibited, given, sent, or delivered, and the tendency of the matter or thing to deprave or corrupt any such persons, class of persons, or age groups (notwithstanding that persons in other classes or age groups may not be similarly affected thereby).

(2) No document or matter shall be held to be indecent unless, having regard to the aforesaid and all other relevant considerations, the Court is of opinion that the act of the defendant was of an immoral or mischievous tendency.

6. Servant and employer, and agent and principal, each guilty of offence committed by one of them - When an indecent document is sold, or delivered by way of hire, or offered for sale or hire, by a servant or agent in the course of his employment or agency, whether with or without the authority of his employer or principal, the document shall, for the purposes of this Ordinance, be conclusively deemed to have been so sold, delivered, or offered, as the case may be, both by the servant or agent and by his employer or principal, and each of those persons shall be severally guilty of an offence against this Ordinance accordingly.

7. Absence of guilty knowledge no defence - Except as is otherwise provided in paragraph (h) of subsection (1) of section 3 hereof, it shall be no defence in a prosecution for any offence against that subsection that the defendant had no knowledge that the document, matter or thing to which the prosecution relates was of an indecent nature.

8. Printed matter to be marked with name of publisher or distributor - (1) Except as provided in subsection (2) of this section-

(a) No person shall publish any printed matter published in Western Samoa, unless each separate article is printed or stamped with his name and address:

(b) No distributor shall sell or distribute any printed matter published elsewhere than in Western Samoa unless each separate article so sold or distributed is printed or stamped with his name and address.

(2) The Minister may from time to time, by notice in the Western Samoa Gazette, grant exemption from compliance with the provisions of this section in respect of any printed matter or class of printed matter specified or described in the notice, and may from time to time in like manner amend or revoke any such notice.

9. Evidence of printing, publishing, or sale, of document by defendant - When, in the case of any prosecution for an offence against this Ordinance, the indecent document which is the subject of the prosecution contains a statement that the document was printed, published, or sold by the defendant, the statement may be received as sufficient evidence of the fact so stated unless the contrary is proved.

10. No prosecution to be commenced without leave of Attorney-General - No prosecution for an offence against this Ordinance shall be commenced except with the leave of the Attorney-General.

11. Conviction under one statute only - No person shall in respect of the same act be convicted both under this Ordinance and also under the Samoa Act 1921 (N.Z.).

Section 138 of the Samoa Act 1921 (N.Z.) dealing with indecent documents is no longer in force in Western Samoa.

---------------------------------------

The Indecent Publications Ordinance 1960 is administered in the Department of Justice.