Robertson v Smith
| Jurisdiction | Scotland |
| Judgment Date | 03 April 1979 |
| Docket Number | No. 1. |
| Date | 03 April 1979 |
| Court | High Court of Justiciary |
JC
L.J-G. Emslie, Lords Cameron, Avonside.
Particular crimes—Shamelessly indecent conduct—Relevancy of complaint—Whether offence constituted by exposure of obscene material for sale.
The appellant was charged on a complaint alleging that he had conducted himself in a shamelessly indecent manner and had sold, exposed for sale and had for sale indecent and obscene books, magazines, films and playing cards which were likely to deprave and corrupt the morals of the lieges and to create in their minds inordinate and lustful desires. The relevancy of the complaint was challenged before the Sheriff who repelled the plea. The evidence disclosed that obscene books, magazines and playing cards were displayed for sale within the appellant's shop. Additionally there was a reserve of publications and films kept in the back room of the shop, entry to which by customers was not permitted. The shop premises were constructed so that it was impossible to see inside the shop from outside. There were notices outside the shop indicating that the business of bookselling was carried on and that persons under 18 years were not admitted. The appellant was convicted.
Held (1) that the charge of shameless and indecent conduct was relevantly libelled in that it referred to selling, exposing and having for sale obscene articles; (2) that the care taken by the appellant to conceal his wares from outward view was both an invitation and an indication of the character and quality of the goods inside the shop and demonstrated the appellant's awareness of the type of custom he was seeking to cultivate; (3) that the inclusion of the words "have for sale" was tautological and did not render the complaint irrelevant given that the words were used in a context wherein they were subordinate to the principal allegation of exposure for sale of obscene material; (4) that the Sheriff was accordingly entitled to find that the appellant's conduct was calculated or liable to deprave or to corrupt; and appeal refused.
John George Robertson was charged on a summary complaint that on 7th March 1978 at shop premises owned by him at 54 South Tay Street, Dundee, he conducted himself in a shamelessly indecent manner in respect that he did sell, expose for sale and have for sale indecent and obscene books, magazines, films and playing cards likely to deprave and corrupt the morals of the lieges and to create in their minds inordinate and lustful desires.
The complaint was first called on 13th July 1978 and was adjourned until 3rd August 1978 without a plea being tendered. On 3rd August 1978 the relevancy of the complaint was challenged and on 11th August 1978 argument and submissions were heard. The complaint was held relevant and competent for proof. The appellant pled not guilty and after trial on 3rd November 1978 he was convicted as libelled and fined £500. The Sheriff (Christie) stated a case for the opinion of the High Court of Justiciary at the request of the appellant.
The facts proved or admitted before the Sheriff are set out in the stated case and narrated in the opinion of Lord Cameron.
The case was heard by the High Court of Justiciary on 13th and 14th March 1979. The question for the Court was: "Whether on the facts stated I was entitled to convict the appellant?"
At advising on 3rd April 1979,—
LORD CAMERON.—This is an appeal against conviction in the Sheriff Court at Dundee on a complaint which libelled that the appellant did "on 7th March 1978 at the shop premises occupied by him at 54 South Tay Street, Dundee, conduct himself in a shamelessly indecent manner, that he did sell, expose for sale, and have for sale 1060 indecent and obscene books and magazines … five indecent and obscene films … and a pack of indecent and obscene playing cards, which books, magazines, films and playing cards were likely...
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