"Visitor Q" Classification To Court Of Appeal

The Society For The Promotion Of Community Standards Inc.

http://www.spcs.org.nz

17 February 2004

Press Release: Society for the Promotion of Community Standards Inc.

For immediate release ..........

SPCS TAKES "VISITOR Q" CLASSIFICATION TO COURT OF APPEAL

The Society's Notice of Appeal (see Appendix below) against the decision of the High Court (Goddard J) with respect to the classification decision of the film/video "Visitor Q", was lodged with the Court of Appeal in Wellington on Monday 16 January 2004.

The R18 film, restricted to film festivals and tertiary media/film studies courses, under its current classification by the Film and Literature Board of Review ("the Board"), a decision supported by the Office of Film and Literature (OFLC), includes extended and gratuitous scenes involving: necrophilia (sex with/on a corpse), incest, sexual conduct in association with urine and excrement, degrading and dehumanising treatment (including mutilation) of a woman's corpse following her viscious rape (which is filmed by "Visitor Q")) and acts of extreme violence.

The Society made submissions to the Board (on review) that the film should be banned or cut. It was incensed that the film was classified by the Board without any censor's descriptive note warning viewers of the objectionable content (the OFLC warning note - "graphic content may offend" - was removed by the Board). It considers the Board's actions as socially irresponsible and a clear breach of the intention of parliament as embodied in the Films, Videos and Publications Classification Act 1993 ("the Act") and relevant Regulations - to prevent injury to the public good.

On January 16 2004 the High Court in Wellington issued Hon Justice Lowell Goddard’s decision dealing with the appeal brought by the Society for the Promotion of Community Standards Inc. ("the Society") against the classification decision of the Board with respect to the Japanese sex-violence film “Visitor Q”. The Society’s appeal was presented on 7 July 2003 in the High Court by the Society’s lawyer Mr Peter McKenzie QC. Goddard J. dismissed the appeal brought by the Society under s. 58 of the Films, Videos and Publications Classification Act 1993 ("the Act") that was based on six alleged errors of law contained in the Board’s classification decision dated 1 November 2002. The Society (the appellant) which lodged its appeal with the High Court on 2 December 2002 (it was filed with the High Court later on 19 December) had until 18 February 2004 to lodge an appeal with the Court of Appeal against the High Court decision.

The Board acknowledged in its decision dated 1 November 2002 that the film/video "Visitor Q" was "objectionable" in terms of s. 3(1) of the Act - i.e. that it "is likely to be injurious to the public good" because of the way it dealt with the following matters: sex, crime, cruelty and violence. Furthermore, it identified six activities that fell under five of the activities listed in s 3(2) of the Act (bestiality being the only activity not found present [3[f]]). These were:

3(a) The exploitation of children, or young persons, or both, for sexual purposes.

3(b) The use of violence or coercion to compel any person to participate in, or submit to, sexual conduct.

3(c) Sexual conduct with or upon the body of a dead person [necrophilia].

3(d) The use of urine or excrement in asociation with degrading or dehumanising conduct or sexual conduct.

3(f) Acts of torture or the infliction of extreme violence or extreme cruelty.

APPENDIX: Copy of Notice of Appeal 16 February 2004

IN THE COURT OR APPEAL OF NEW ZEALAND

UNDER The Films, Videos and Publications Classification Act 1993

IN THE MATTER of a Determination of the Film and Literature Board or Review dated 1 November 2002 on an application for review by the Society for the Promotion of Community Standards Inc of a film/video entitled "Visitor Q".

AND IN THE MATTER of an appeal from that Determination

SOCIETY FOR THE PROMOTION OF COMMUNITY STANDARDS INC

Appellant

NOTICE OF APPEAL
Dated: 16 February 2004

BRYSON & CO
Solicitors RAUMATI BEACH
PO Box 2034 Raumati Beach
Solicitor Acting: Mr John Bryson

TAKE NOTICE that the Society for the Promotion of Community Standards Inc., the

appellant herein, HEREBY APPEALS against that part of the decision of the High Court of New Zealand dated 16 2004 (Goddard J, CIV-2002-485-238) that relates to the first, second, third, fourth and part of the fifth grounds of appeal dealt with in the judgment (paras. [4] to [27] and [32], [36] and [37]) UPON THE GROUNDS that the judgment is erroneous in law.

Grounds of appeal

First ground of appeal, s.3(2) - failure to consider whether publication tends to promote or support certain prescribed activities

1. The learned Judge was in error in holding that the Board had correctly applied s.3(2) and in particular had concluded that the film did not tend to promote or support all of the categories in s.3(2) which were relevant. The Board had not so concluded with respect to four of those categories.

2. The learned Judge was further in error in holding that the Board had not made an error of law by failing to state expressly in its decision whether the film tended to promote or suport all the factors listed in s.3(2) which were relevant.

3. The learned Judge was in error in failing to recognise that each of the six categories refered to in s.3(2) must be examined separately and be dealt with independently by the Board.

Second ground of appeal, s.3(3) - failure to comply with the statutory direction that "particular weight be given to the extent and degree to which, and the manner in which, the publication ... describes, depicts, or otherwise deals with" certain prescribed matters.

4. The learned Judge wrongly held that it was sufficient for the Board in making its classification decision to find that the film fell within s.3(3)(a) (c) of the Act and to then apply s.23(2) of the Act to impose certain age and viewing restrictions on the film, which in the Board's judgment were required. The learned Judge wrongly failed to consider that s.3(3) requires the Board in making its classification decision to give "particular weight" to the extent and degree to which, and the manner in which, the publication offends the various matters set out in s.3(3).

Third ground of appeal, s.3(4)(a) - the dominant effect of the publication as a

whole

5. The words used by the Board are not capable, as a matter of law, of being interpreted as constituting a statement of the dominant effect of the film and the learned Judge was in error in holding that the dominant effect of the film could be discerned from a reading of the whole of the Board's decision such that "dominant effect" 'permeates the whole fabric of the decision'. The Board is required by s.3(4)(a) to expressly direct its mind to the dominant effect of

the publication as a whole.

Fourth ground of appeal, s.23(2) - Film Festival Classification

7. The learned Judge was in error in holding that the screening of the film by the Incredible Film Festival properly came within the meaning of the words "specified purposes" in s.23(2)(c)(iii).

8. The learned Judge wrongly held that any differrences between The Films Act 1983 and the Films, Videos And Publications Classification Act 1993, in this context were not a relevant matter for consideration by the Court. In particular the learned Judge failed to consider whether the introuction into the 1993 Act of a new power to classify a publication as a restricted publication under s.23(3) was intended to replace the provisions in s.13(3) of the 1993 Act providing for special approval of a film for exhibition at a Film Festival.

Fifth ground of appeal s. 32 - the failure by the Board to give reasons declining to make excisions

9. The learned Judge in paras. [36] and [37] wrongly held that the Board had made no error of law by failing to state in its determination the reasons for its decision for determining that excisions should not be made and that it was "inappropriate for the Court to attempt to second guess the Board's reasoning on the matter".

DATED at Wellington this 16 day of February 2004

P.D. McKenzie QC Counsel for the Appellant

TO: The Registrar of the Court of Appeal at Wellington AND TO: The Registrar of the High Court AND TO: The Film and Literature Board Review by its Counsel, Mr JAL Oliver of the Crown Law Office

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