FEDERAL COURT OF AUSTRALIA
Lai Ha v McCusker [2000] FCA 1173
COPYRIGHT – appeal from conviction by Local Court of New South Wales for offences under ss 132(2A)(a) & 132(1)(b) of the Copyright Act 1968 (Cth) for possession and letting for hire of infringing copies of cinematographic films – whether Copyright Act 1968 (Cth) confers jurisdiction on Federal Court to entertain appeal – nature of appeal – whether an appeal stricto sensu, an appeal by way of re-hearing or an appeal de novo – whether to admit additional evidence
EVIDENCE – whether evidence before Local Court should have been excluded pursuant to ss 90 & 138 of the Evidence Act 1995 (Cth) – whether material seized beyond terms of search warrant should have been excluded – where issue of exclusion of material seized pursuant to search warrant not raised before Local Court – where search warrant not tendered before Local Court – where no evidence tendered on appeal to explain why search warrant not tendered before Local Court – whether admissions in English language by defendant recorded in video recording of purported execution of warrant admissible – whether defendant under arrest during execution of search warrant within meaning of the Crimes Act 1914 (Cth) ss 23F & 23G – whether copy of video or transcript should have been furnished to defendant – whether evidence before Local Court that defendant in possession of video cassettes for purposes of section 132(2A)(a) of the Copyright Act 1968 (Cth) – whether evidence before Local Court that defendant let for hire video cassettes
CRIMINAL LAW – search warrant – whether search warrant valid – whether warrant fairly described an offence under section 132 of the Copyright Act 1968 (Cth) – whether seizure of items in purported execution of search warrant not authorised by law
Copyright Act 1968 (Cth) ss 131A, 131B, 132
Federal Court of Australia Act 1976 (Cth) ss 22, 24, 27
Acts Interpretation Act 1901 (Cth) s 15AB
Crimes Act 1914 (Cth) ss 3E, 23B, 23F, 23G, 23V
Evidence Act 1995 (Cth) ss 90, 138
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Grierson v R (1938) 60 CLR 431 referred to
Tsintris v Roads and Traffic Authority of NSW (1991) 25 NSWLR 68 referred to
Ex parte Currie; Re: Dempsey (1968) 70 SR(NSW) 1 referred to
Orr v Holmes (1948) 76 CLR 632 referred to
R v Ireland (1970) 126 CLR 321 applied
Walkling Ltd v Robinson (1929) 29 Cox CC 131 referred to
KAM LAI-HA v McCUSKER
N 203 OF 2000
KAM LAI-HA v McCUSKER & ANOR
N 606 OF 2000
EMMETT J
27 JULY 2000
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
N 606 OF 2000 |
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BETWEEN: |
KAM LAI-HA APPLICANT
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AND: |
LEANNE McCUSKER FIRST RESPONDENT
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MARK RANDALL J. P. SECOND RESPONDENT |
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JUDGE: |
EMMETT J |
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DATE OF ORDER: |
27 JULY 2000 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The application be dismissed;
2. The applicant pay the respondents’ costs in the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
KAM LAI-HA APPLICANT
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AND: |
LEANNE McCUSKER RESPONDENT
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N 606 OF 2000 |
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BETWEEN: |
KAM LAI-HA |
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AND: |
LEANNE McCUSKER |
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MARK RANDALL J. P. |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 The applicant, Kam Lai-Ha, is also known as Rebecca Kam (“the defendant”). The defendant was convicted in the Local Court of New South Wales on 14 April 1999 of offences under section 132 of the Copyright Act 1968 (Cth) (“the Copyright Act”). The proceedings in the Local Court were initiated by 21 summonses. Seventeen of those summonses related to offences under section 132(2A)(a) of the Copyright Act and the other four related to offences under section 132(1)(b). By application filed on 10 March 2000 the defendant appeals to this Court from those convictions. She also appeals against the severity of the sentences imposed by the Local Court.
2 The appeal is brought pursuant to section 131B(2)(a) of the Copyright Act, which provides that an appeal lies, from a decision of a court of a State under Part V, to the Federal Court of Australia or, by special leave of the High Court, to the High Court. Section 132 appears in Part V. The application was filed out of time pursuant to an order extending time made by me on 3 March 2000. The respondent in the proceeding before me was the informant in the proceedings in the Local Court. The Magistrate who heard the proceedings was originally joined as a respondent, but was subsequently removed as a party.
3 Sections 132(1)(b) and 132(2A)(a) relevantly provide as follows:
“132 (1) A person shall not, at a time when copyright subsists in a work:
………………………
(b) sell or let for hire, or by way of trade offer or expose for sale or hire, an article;
………………………
if the person knows, or ought reasonably to know, the article to be an infringing copy of the work.
………………………
(2A) A person shall not, at a time when copyright subsists in a work, have in his or her possession an article for the purpose of:
(a) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the article;
………………………
if the person knows, or ought reasonably to know, the article to be an infringing copy of a work.”
4 Seventeen of the summons are in the same form as each other, and the other four are in the same form as each other. By way of example the summons that appears first in the appeal book alleges the following offence:
“That Kam Lai-Ha on the 15th day of July 1998, at Randwick in the State of New South Wales, did at a time when copyright subsisted in a cinematograph film have in her possession three articles, namely three video cassettes of the cinematograph film, “In and Out” for the purposes of offering or exposing for sale or hire by way of trade when she knew or ought reasonably to have known that the articles were infringing copies of the cinematograph film.”
The other 16 summonses in this group are in the same form except for the name of the cinematograph film.
5 An example of the form of charge in the other four summonses is as follows:
“That Kam Lai-Ha on the 10th day of February 1998, at Randwick in the State of New South Wales did at a time when copyright subsisted in a cinematograph film let for hire an article, namely a video cassette of the cinematograph film “Titanic”, when she knew or ought reasonably to have known, that the article was an infringing copy of the cinematograph form.”
The other three summonses in this set are the same except for the date and the name of the cinematograph film.
JURISDICTION OF THE COURT
6 Jurisdiction is conferred on this Court to entertain the appeal by section 24 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”). Section 24(1)(c) relevantly provides:
“24(1) … the Court has jurisdiction to hear and determine-
(c) in such cases as are provided by any other Act, appeals from judgments of a court of a State other than a Full Court of the Supreme Court of a State, exercising federal jurisdiction.”
7 Section 131B was inserted in the Copyright Act in 1979 at the same time as section 131A. Section 131A confers jurisdiction on the Supreme Court of a State or a Territory in an “action” under Part V. In 1987, section 131C was added. Section 131C confers jurisdiction on the Federal Court of Australia with respect to “actions” under Part V. The term “action” is defined for the purposes of Part V in section 114 as a “proceeding of a civil nature between parties, and includes a counter claim.” However, there is no reference to “action” in section 131B. Section 131B simply refers to a decision of a Court of a State or Territory.
8 Section 131B is sandwiched between two sections referring only to civil proceedings. That might suggest that section 131B is limited to a decision in an “action”. Insofar as there is any ambiguity, it would be appropriate to refer to the explanatory memorandum relating to the bill for the Act to insert sections 131A and 131B: see section 15AB of the Acts Interpretation Act 1901 (Cth). The relevant parts of the explanatory memorandum provide as follows:
“7. An appeal is to lie from the decision of a court under Part V of the Principal Act to the Federal Court of Australia or, by special leave of the High Court, to the High Court. The new appeal arrangements include an appeal from a decision of a court of summary jurisdiction under section 132 on a prosecution for an offence related to the infringing of copyright.
8. These provisions give effect to the policy that the Federal Court of Australia is to be the appellate court in copyright matters subject only to an appeal being taken directly to the High Court in any case where the High Court grants special leave. Like provision has previously been made in respect of appeals in patent and trade mark matters.”
Section 132 appears in Part V. Accordingly, there can be no doubt that section 131B includes appeals in criminal proceedings. I am satisfied, therefore, that I have jurisdiction in relation to the appeal.
9 While at one stage there was a contention by the defendant that the proceeding was outside the jurisdiction of the Local Court, that contention was not pressed. It is clear that the Local Court had jurisdiction to entertain the prosecutions that were commenced by the summonses.
THE NATURE OF THE APPEAL
10 The jurisdiction of a court to hear and determine appeals from a court lower in the court hierarchy is a purely statutory remedy the ambit of which is to be strictly construed, see Grierson v R (1938) 60 CLR 431 at 435. Statutory rights of appeal are not uniform in nature. They may be classified as follows:
1. appeals in the strict sense;
2. appeals by way of re-hearing; and
3. appeals by way of hearing de novo.
11 A question has arisen in these proceedings as to how the appeal to this Court should be categorised. It was contended on behalf of the defendant that the appeal was an appeal de novo. The informant contended to the contrary. Whether the appeal is an appeal in the strict sense or an appeal by way of re-hearing may not be of great significance. However, in order to determine one of the questions that is before me, it is necessary to say something about the nature of the appeal.
12 An appeal in the strict sense is limited to addressing the error in the court below. Such an appeal must be determined by reference to the evidence before that court and to the law at the time of the trial. On the other hand, in an appeal by way of re-hearing the appeal court re-hears issues of fact as well as law and applies the law as it exists at the time of the determination of the appeal. The appeal court may consider events up until the time of the re-hearing. Generally speaking an appeal will be by way of re-hearing only if the statute conferring the right of appeal so provides. Where it so provides, it is usual for the statute also to provide that the appeal court may receive fresh or other evidence.
13 An appeal by way of hearing de novo requires the appeal court to re-try all the issues without being limited to the evidence produced in the court below. On such an appeal, the appeal court must exercise its own discretion. An appeal is an appeal by way of hearing de novo if the statute conferring the right of appeal so provides or, a proper construction of the statute conferring the right of appeal requires a hearing de novo: see Tsintris v Roads & Traffic Authority of New South Wales (1991) 25 NSWLR 68 and Ex parte Currie; Re: Dempsey (1968) 70 SR (NSW) 1.
14 Even if an appeal is an appeal by way of re-hearing, the general principle is that a judgment or order regularly made should not be disturbed by the admission of further evidence by the appeal court unless the interests of justice require it. In determining whether further evidence should be received, regard must be had to the essential appellant function of the appeal court and the public interest requiring that there be a finality to litigation. Special considerations arise where the fresh evidence relates to matters that occurred before the trial. Before such evidence will be received, the appeal court must be satisfied as to three things, namely:
(1) that the evidence could not have been obtained with reasonable diligence for use at the trial,
(2) the evidence is such that there is a high degree of probability that the result of the proceeding below would have been different had it been received at the trial; and
(3) the evidence is sufficiently credible.
See Orr v Holmes (1948) 76 CLR 632 at 640.
15 Section 27 of the Federal Court Act provides that in an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact. The Court also has power, in its discretion, to receive further evidence. Thus it is clear that the Court on the hearing of this appeal has power to permit additional evidence to be received.
16 Thus, whether the appeal should properly be characterised as an appeal stricto sensu or as an appeal by way of a re-hearing may not matter in the light of the express power to receive further evidence. It is clear, however, in my view, that the appeal is not an appeal that permits a hearing de novo. Accordingly, I must consider the appeal on the basis of the evidence that was before the Magistrate and on the basis of any additional evidence that I permit to be adduced in accordance with the appropriate principles for the exercise of the discretion conferred by section 27.
THE GROUNDS OF APPEAL
17 The application that initiated the appeal referred to grounds stated “in the accompanying affidavit”. The accompanying affidavit is an undated affidavit of William Chan filed on 10 March 2000. The affidavit set out eight grounds of appeal. It also asserted that the defendant would, upon the hearing of the appeal, move to adduce evidence further to that which was received in the Court below. The grounds outlined in the affidavit were elaborated upon in a written outline of submissions and then in the course of oral argument.
18 The grounds might be summarised as follows:
1. The Magistrate did not have jurisdiction to hear and determine the offences. As I have said this ground was abandoned in the course of the hearing.
2. and 3. A search warrant issued under section 3E of the Crimes Act 1914 (Cth) (“the Crimes Act”), in the execution of which certain cinematograph video cassettes were seized, was invalid. In consequence of such invalidity, the cassettes seized should not have been admitted into evidence before the Magistrate. That is the matter to which the foreshadowed application to adduce further evidence relates. The basis specified in the affidavit for adducing such evidence was as follows:
“That the said search warrant be tendered in order to determine that the said warrant was invalid and the exercise of discretion may be made under Section 138 of the Evidence Act 1995 as to the admissibility of the articles seized under the said search warrant and the conversations by the Applicant/Appellant with the police at the material time.”
4. A video recording of the execution of the warrant and conversations as recorded in that video recording were not admissible or otherwise should not have been admitted on a discretionary basis. An alleged estoppel was not pressed at the hearing.
5. In respect of the charges of possessing video cassettes there was no evidence of possession on the part of the defendant. Alternatively, possession by the defendant was not proved beyond a reasonable doubt, and the conviction was otherwise unsafe and unsatisfactory on all the evidence.
6. and 7. The evidence in respect of the alleged letting for hire of cassettes by the defendant, which is the subject of the last four summonses, was inadmissible and the findings by the Magistrate in relation to those matters were unsafe and unsatisfactory.
8. The sentences were excessive. By consent I have deferred the consideration of that ground until after determining the question of conviction.
19 I shall deal with each of the remaining grounds separately.
MATERIAL SEIZED PURSUANT TO THE SEARCH WARRANT
20 Grounds 2 and 3 depend upon the admission of additional evidence. The evidence which the defendant sought to adduce consisted of a copy of a search warrant issued on 14 July 1998 and a concession by the informant in the following terms:
“The seizure of the video cassettes the subject of charges 1 to 17 inclusive in the appeal book and all video cassettes comprised within exhibit 16 in the Local Court proceedings before the Second Respondent in proceedings numbered 203/2000 which were not video cassettes of the firms entitled ‘American Werewolf in Paris’ and ‘Switchback’ was not authorised by the search warrant issued by the second respondent in the proceedings numbered 606/2000.”
21 The contention of the defendant was that the seizure of the cassettes that were the subject of the charges in the first 17 summonses was outside the terms of the search warrant and the seizure of those cassettes was improper and unlawful. Accordingly, in so far as they were evidence, they should have been excluded under section 138 of the Evidence Act 1995 (Cth) (“the Evidence Act”).
22 Section 138 of the Evidence Act provides as follows:
“(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian Law, or
(b) in consequence of an impropriety of a contravention of an Australian Law;
is not to admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
………………………
(3) Without limitingthe matters that the court may take into account undersubsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with the right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian Law.”
No objection was taken to the tender of the cassettes at the trial. The warrant was not in evidence and the question of the possible application of section 138 was not raised before the Magistrate.
23 On 4 April 2000 I directed the defendant to file and serve no later than 30 May 2000 any affidavits intended to be relied on in support of any application to adduce further evidence. No affidavits have been filed other than the affidavit of William Chan to which I have referred. There is, therefore, no evidence before me at all to explain why the search warrant could not have been obtained with reasonable diligence for use at the trial. One would have expected that it could have been called for if the question was to be put in issue.
24 Before exercising the discretion under section 138 to refuse to admit evidence it would have been necessary for the Magistrate to consider all of the matters referred to in section 138(3). There was of course no evidence relating to those matters before the Magistrate because the question was not raised before her. I have no way of forming any view as to the degree of probability that the Magistrate would have rejected the evidence consisting of the video cassettes, had the search warrant been in evidence.
25 The search warrant in question contains a recital that the issuing officer was satisfied by information on oath, that there were reasonable grounds for suspecting that there was, at premises located at 54 Belmore Road, Randwick, in New South Wales, evidential material that satisfies all of three conditions. The search warrant authorised the informant to enter those premises, search those premises for any evidential material that satisfies all of the three conditions and to seize any such evidential material that may be found, seize any other thing found at the premises in the course of the search that the informant or other constable assisting believed on reasonable grounds to be either evidential material in relation to an offence to which the warrant relates or evidential material in relation to another offence that is an indictable offence against the law of the Commonwealth.
26 The three conditions specified in the warrant were as follows:
“1. Things which are:
Video cassettes, video recorders, catalogues or documents which are connected with the selling/hiring or making of videos and are connected with an offence under the Copyright Act 1968.
2. Things which relate to any one or more of the following:
Lai-Ha KAM @ Rebecca KAM – Manager of the Video shop.
P. Dang – Owner of the video shop
3. Things as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following offence(s) against the laws of the Commonwealth:
That Lai-Ha KAM of 54 Belmore Road, Randwick, under section 132(1)(b) of the Copyright Act 1968, for that on the 7th day of July, 1998, at Randwick in the State of New South Wales, did at a time when copyright subsisted in cinematograph film hire two video cassettes of cinematograph film ‘American Werewolf in Paris’ and ‘Switchback’ when she knew, or ought reasonably to have known that the articles were infringing copies of the cinematograph film.”
27 In the course of the purported execution of that warrant the informant and those assisting her seized a number of video cassettes that were not referred to in condition 3 together with other items of equipment. Those other cassettes and other items of equipment were neither evidential material in relation to an offence to which the warrant related nor evidential material in relation to another offence that was an indictable offence against the law of the Commonwealth. Accordingly, the concession made by the informant for the purposes of the proceeding, that the seizure of the cassettes that were the subject of charges of 1 to 17 was not authorised by the warrant, was well made.
28 In the absence of a search warrant, there would have been no lawful occasion for the video cassettes and other items to be seized by the informant. On one view, therefore, it might have been possible to conclude, if the warrant and nothing else was in evidence before the Magistrate, that the video cassettes were seized improperly or in consequence of an impropriety. However, the question on appeal is not whether the seizure was proper. The question is whether, on the hearing of this appeal, there is a proper basis established for me to exercise the power conferred by section 27 of the Federal Court Act.
29 As I have said there has been no explanation as to why the warrant was not in evidence at the trial. Since the point was not taken below, the question of whether or not the discretion under section 138 of the Evidence Act would have been exercised in favour of the defendant has not been explored. In the circumstances I am not satisfied that I should permit the additional evidence to be tendered. It follows that grounds 2 and 3 relied on in Mr Chan's affidavit have not been established.
VIDEO RECORDING OF THE EXECUTION OF THE SEARCH WARRANT
30 Ground 4 related to a video recording made of the purported execution of the warrant. The video recording was part of the evidence before the Magistrate that was included in the appeal book. It was played in court during the hearing of the appeal before me. The significance of the video recording is that it contains evidence of admissions by the defendant that she was, in effect, the proprietor of the business being conducted at the premises at 54 Belmore Road, Randwick, NSW. A number of different complaints were made in relation to the video.
Interpretation
31 First, it was said that, in so far as the video recording evidences questions put to and answers given by the defendant in a foreign language, the purported interpretation of those answers by an interpreter should not have been admitted without evidence from the interpreter as to the correctness of the translation and interpretation.
32 The video would probably be admissible as evidence of the foreign language utterances of the defendant. However, unless there was proper evidence of the meaning in English of those words, that evidence would have no significance. Thus, if the interpreter were called to give that evidence, the statements in the foreign language would carry some weight. The interpreter was not called to give evidence. Accordingly, statements by the defendant in a foreign language were of no weight.
33 In any event, the evidence comprising the admissions as to proprietorship of the business, were made by the defendant in English. The questions and answers recorded on the video were as follows:
Informant: “How long have you worked at this shop for?”
Defendant: “1½ years, I think nearly years.”
Informant: “What’s your position here?”
Defendant: “Just working here.”
Informant: “What I mean by that is are you the manager, are you the shop assistant, what is your position and what are your duties?”
Defendant: “Before I was just working here just for part-time and now somebody sell to me this shop. I just buy it.”
Informant: “You have bought…you now own the shop?”
Defendant: “Yeah.”
Informant: “How long have you owned the shop for?”
Defendant: “1½ years.”
Informant: “Who did you buy the shop from?”
Defendant: “From the lady.”
Informant: “From the lady. What was the lady’s name?”
Defendant: “She’s back to China.”
Informant: “She’s gone back to China. What was her name?”
Defendant: “Just another English name.”
Informant: “Another English name?”
Defendant: “Yeah, I don’t know her Chinese name.”
Informant: “What was her English name?”
Defendant: “It’s called…Julie.”
Informant: “Julie who?”
Defendant: Inaudible.
Informant: “Do you have documents of when you purchased this store, this business?”
Defendant: Shakes head.
Informant: “How much did you pay for the business?”
Defendant: “Just four – four thousand”
Informant: “Four thousand dollars. Four thousand Australian dollars? Did you pay in cash or cheque for that?
Defendant: “I just paid cash.”
Informant: “Do you remember the date that you actually purchased the business?”
Defendant: Shakes head.
Informant: “What month was it that you actually purchased the business?”
Defendant: “I can’t remember.”
Informant: “What year was it that you purchased the business?”
Defendant: “I can’t remember.”
34 While, from my observation of the video recording, it was clear that the defendant was ill at ease and that her knowledge of English was limited, I was satisfied that the questions and answers that I have just recorded were given in circumstances where the defendant comprehended the questions and gave meaningful answers. The objection to the evidence of the interpreter has no relevance to that material. It was not contended, as I understand the argument, that any of the other answers given in a foreign language were critical to the determination of the Magistrate.
35 That also disposes of the second matter raised in relation to the video as evidence of admissions. It was asserted on behalf of the defendant that she had only limited knowledge of English and that the interpretation of the questions that were put to her was in the Mandarin language whereas the defendant does not understand Mandarin but speaks Cantonese. It was said, therefore, that under section 90 of the Evidence Act the video should have been rejected. Section 90 provides:
“In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”
36 In so far as the admission consists of the questioning and answers in English that I have already recounted, I do not consider, on the material before me, that there was any unfairness such as to justify rejection of that part of the video evidence.
Whether Defendant Under Arrest
37 Next in relation to the video evidence it was said that, having regard to the circumstances of the purported execution of the warrant, the defendant was a person under arrest within the meaning of sections 23F and 23G of the Crimes Act 1914. Sections 23F(1) and 23F(2) relevantly provide as follows:
“(1) Subject to subsection (3), if a person is under arrest for a Commonwealth offence, an investigating official must, before starting to question a person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.
(2) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency…”
38 Section 23G(1) relevantly provides as follows:
“Subject to subsection 23L, if a person is under arrest for a Commonwealth offence, an investigating official must, before starting to question a person, inform the person that he or she may:
(a) communicate, or attempt to communicate, with a friend or relative to inform that person of his or her whereabouts; and
(b) communicate, or attempt to communicate, with a legal practitioner of the person’s choice and arrange, or attempt to arrange, for a legal practitioner of the person's choice to be present during the questioning;
and the investigating official must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning.”
39 The informant, who was a member of the New South Wales Police Service, is an investigating official within the meaning of section 23B(1) of the Crimes Act. The defendant relied on section 23B(2) in support of her contention that, at the relevant time, she was a person under arrest within the meaning of sections 23F and 23G. Section 23B(2) relevantly provides as follows:
“Subject to subsections (3) and (4), a reference in this Part to a person who is arrested includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:
(a) the official believes that there is sufficient evidence to establish that the person has committed a Commonwealth offence that is to be the subject of the questioning; or
(b) the official would not allow the person to leave if the person wished to do so; or
(c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so;”
40 The question of whether or not sections 23F and 23G applied in the circumstances was not canvassed before the Magistrate. Accordingly, no investigation was made as to the circumstances to determine whether or not the defendant could be said to be “a person who is arrested” within the meaning of section 23B(2). I shall assume, without deciding the matter, that a person who is arrested is “a person under arrest” within those provisions.
41 The defendant contended that I should draw inferences from my observation of the playing of the video recording that the informant did in fact have the belief referred to in section 23B(2)(a), or that the informant would not allow the defendant to leave if she had wished to or had given her reasonable grounds for believing that she would not be allowed to leave if she wished to. No evidence was given by the defendant. While there was some evidence in the video recording that the front door of the premises were secured, no opportunity arose for any explanation to be given by the informant as to why the premises were secured. There may be any number of reasons for doing so, other than not permitting the defendant to leave.
42 Further, although the informant gave evidence, no questions were addressed to her belief as to whether the defendant had committed an offence. It may well be that it would not be a difficult step to draw the inference that the informant did in fact have such a belief, having regard to the terms of the warrant. Nevertheless, failure to comply with section 23F and 23G does not of itself render evidence inadmissible. Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. That is so whether the unlawfulness derives from the common law or from statute: see R v Ireland (1970) 126 CLR 321 and 334.
43 Sections 90 and 138 of the Evidence Act may be relied upon in aid of rejection of evidence obtained in circumstances where section 23F and 23G were not complied with. However they are discretionary matters and, in the absence of exploration of the matters referred to in section 138(3) and of the fairness generally of the interview recorded in the video, I am not satisfied that the interview was unfair. Nor do I consider that it is appropriate for me to form any view as to whether the evidence should have been rejected under section 138 in circumstances where the matter was not an issue before the Magistrate. Accordingly, I am not satisfied that the defendant was under arrest so as to attract section 23F or section 23G.
Provision of Recording or Transcript of Interview with Defendant
44 Finally, in relation to the video, reliance was placed on section 23V(2) of the Crimes Act. Section 23V(1) provides:
“If a person who is being interviewed as a suspect (whether under arrest or not) makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:
(a) if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission – the questioning of the person and anything said by the person during that questioning was tape recorded;”
45 No contention was advanced on behalf of the defendant that section 23V(1)(a) had not been complied with. Section 23V(1) prohibits the evidence of such an admission unless the prerequisites of section 23V(1)(a) are satisfied. Section 23V(2) then provides relevantly as follows:
“If the questioning, confession or admission, or the confirmation of a confession or admission, of a person is recorded as required under this section, the investigating official must, without charge:
(a) if the recording is an audio recording only or a video recording only - make the recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording; and
………………………
(c) if a transcript of the tape recording is prepared - make a copy of the transcript available to the person or his or her legal representative within 7 days after the preparation of the transcript.”
46 The defendant, having taken no point about section 23V(1) at the trial, says that the video was not furnished to her or made available to her or her legal representatives and that no copy of a transcript was prepared. There is no obligation to make a transcript; only to make it available if one is prepared. Since there is no evidence that one was prepared, paragraphs 23V(2)(c) appears to have no operation.
47 In any event, under section 23V(6):
“A court may admit evidence to which section 23V applies even if a provision of subsection (2) has not been complied with if, having regard to the reasons for the non-compliance and any other relevant matters, the court is satisfied that it was not practicable to comply with that provision.”
Once again, no point was taken before the Magistrate concerning the failure to comply with section 23V(2). Accordingly, there was no evidence before the Magistrate concerning the practicability of compliance with section 23V(2), assuming it was not complied with. I am not satisfied, on the basis the material before me, that section 23V(2) and any failure to comply with it would have been a ground for rejection of the evidence of the admission contained in the video recording.
48 In conclusion, I am not satisfied that any of the bases advanced on behalf of the defendant for rejection of the video recording has been made out. Accordingly, ground 4 outlined in Mr Chan’s affidavit fails.
EVIDENCE THAT CASSETTES WERE IN THE POSSESSION OF THE DEFENDANT
49 Ground 5 concerned the first 17 charges under section 132(2A)(a) of the Copyright Act. It is an essential requirement for the operation of that provision that a person have in his or her possession an article for the specified purpose. The prosecution case before the Magistrate was that the defendant, as the proprietor of the business being carried on in the premises at 54 Belmore Road, Randwick, had in her possession the video cassettes that were in use in carrying on the business. The defendant contended there was no satisfactory evidence that she was in fact the proprietor. However, the informant relied upon evidence in addition to the admissions contained in the video.
50 I have already concluded, for the reasons just indicated, that the video recording was properly in evidence. That clearly contains admissions upon which the Magistrate could have based a conclusion that the defendant was in fact the proprietor of the business. The contention, however, is that the Magistrate should not have been satisfied beyond reasonable doubt as to that question, having regard to other evidence before her. The other evidence consisted of evidence of a Miss Vivian Wu, who gave evidence before the Magistrate through an interpreter in the Cantonese language. Ms Wu said that she worked for “PC Video”, the name under which the business was carried on, and that she started in approximately January or February 1996. She says that she is still working there although she had stopped for approximately one year and began again at the beginning of 1998.
51 Ms Wu said that the defendant started working in the business in March or April 1996. She was asked whether she had to go through an interview when she got the job at PC Video. She said that she was interviewed by P.D. Dang. When asked whether P. D. Dang had an English name, Ms Wu said, “Could be Julie. Nobody we call her Miss Dang in Chinese not in English of course.” Ms Wu described that person as being “middle age [sic] or in her fifties could be a bit older” and being Chinese. She said that for the second period of her employment she was not interviewed but she rang the manager. She said she recognised the voice on the other end of the telephone when she rang and said that that person was Mr “R. Sem”.
52 Ms Wu described Ms Dang as “the boss”. She said that she did not see Ms Dang very often and in 1996 she saw her a few times. She said that she did not know anything about any information as to the change of ownership of the shop. When asked whether she had observed Rebecca Kam in the shop, she said, “not very often some time I see her”. She said that she and Rebecca Kam work on different shifts and that it was only if they were busy at the weekend that they would be together.
53 Ms Wu was asked about the circumstances in which tapes were acquired for the purposes of the business. She said that she did not pay for the tapes herself. About $10 was paid for each tape and she was told by “R. Sem” to get the money from the drawer to pay for them. Ms Wu said that while she was working with Rebecca Kam in the second period of her employment, Rebecca Kam never gave her any orders or directions as to how to perform her job. She said that she obtained orders and directions from the man called “Sem”. She said that if they were busy, he would tell her when to come to work. Sometimes he would tell her what sort of tape she should record or where to get the tapes and what sort of tapes she should get. She also said that, when she worked with Rebecca, “Sem” gave the same sorts of orders and directions to Rebecca Kam.
54 In cross-examination Ms Wu was asked who is Mr “Sem”. Ms Wu said that “Sam” is Chinese and is middle aged. Ms Wu said, “We call him Sam”. She said that was his English name. She said that for her wages “Sam” sometimes gave her the money if he saw her. He would put the money on the table but he did not say “This is your pay for the week”. Ms Wu also said that on other occasions “Sam”, when she saw him in the shop, would give her her wages directly in cash and not in an envelope. She said that “Sam” has always been the one who told her which days to come to work.
55 The Magistrate, in giving her reasons for convicting the defendant, referred to the evidence given by Ms Wu. She was described as a part-time assistant in the shop and as having given evidence that the person described as “Julie” was known to her as the owner of the business in co-ownership with the person known as “Sam”. The Magistrate said as follows:
“She described that person, that description does not and could not fit with the date of birth of the registered proprietor which appears on the face of exhibit 18 and quite frankly I think Ms Wu bore no credit whatsoever and in fact, I am concerned and I certainly [do not] mean to aim this at the defendant's legal representative, but I would be concerned that Ms Wu especially in the capacity, that is, that she is a current employee no doubt relying on that work, was suborned to give untruthful evidence because I did not accept it and I do not believe any of what she put before this Court about who paid her, about the very rare times in which she saw the defendant and I simply put it aside as of no use to this Court whatsoever and as having no credit.”
56 Counsel for the defendant urged me to disregard entirely the Magistrate’s observations concerning the credit of Ms Wu. However, I do not consider that that is appropriate, having regard to the nature of this appeal. This Court must be guided by assessments of credit of witnesses by a trial court. That is not to say that it is beyond the capacity of the Court to reach a different conclusion. However the Magistrate had the advantage of seeing Ms Wu and making an assessment of her credibility. If the only reason for rejecting her evidence was inconsistencies in that evidence, which could be the subject of analysis by an appellate court, that might be a reason why the appellate court might take a different view of the reliability of a witness. That is not this case and the Magistrate weighed in the balance the evidence of the video recording and her assessment of Ms Wu’s credibility. I am permitted to have regard to the result of that balancing exercise.
57 The Magistrate also had before her other evidence capable of supporting a conclusion that the defendant was the proprietor of the business. A statement made by Mr Glenn Anthony Thornton was admitted without objection. Mr Thornton is a licensed private inquiry agent and from time to time carries out inquiries on behalf of the Australasian Film and Video Security Office. He gave oral evidence concerning his knowledge of the defendant. He said that he had seen her on many occasions prior to February 1998 since 1995. When asked in what circumstances, he said that she took his details and issued him with a card “when I joined”. He said that he and the defendant had many conversations, some of a personal nature. She served him and hired tapes out to him on numerous occasions. He said that he had never met a person at the store or elsewhere named P. Dang. He said that the defendant told him that she was “the boss”.
58 Mr Thornton said in oral evidence in chief that he said to the defendant, “Why aren’t you here all of the time?”. He said that she replied, “I have a young child and when school is in session I work night and in the holidays I don’t”. Mr Thorton said that he said to the defendant, “You must have a very understanding boss” and that she replied, “I am the boss”. He also said that through the whole time that he has been involved with the shop, the defendant was the one person always there. There are other itinerant workers who were not there for very long. He also asserted in cross-examination that the defendant had said that she was the boss.
59 In the course of cross-examination, the informant was asked whether she had done anything in relation to the name P. Dang. The reason for attention being addressed to P. Dang is that there was evidence that the business name “PC Video” was registered in the name of P. Dang. In answer to the question, the informant said that she could not recall exactly what she had done in relation to the name P. Dang.
60 When it was suggested to her that she had not done anything about Dang, she responded:
“I may have attempted computer checks. I can’t remember exactly. Can I say something else? Checks were made in relation to the address of 54 Belmore Road, Randwick and Ms Rebecca Kam came up as the tenant for that address.”
At that stage, the Magistrate said:
“Mr Chan, I think that is responsive, you asked her if she’d done anything about checking Mr Dang, and part of her answer as I’m hearing it is, well, yes we did a location check I am assuming on Belmore Road to see if Dang was the owner. Is that what you meant?”
The informant said “Yes”. The informant then went on to say:
“A location inquiry on our computer system may indicate to us, who is recorded on that system to that address. Certain information that I received was Miss Rebecca Kam, came up as that, as the tenant to that address and also I believe was the phone number inquiry.”
Subsequently, the informant said, in answer to a question from Mr Chan:
“I had a business extract that I looked at then I made my inquiries in relation to that address via the police computer which also has accurate information and also electricity details which recorded Rebecca Kam as the tenant.”
61 No request was made to strike those answers out. It may well be that the evidence could have been rejected had proper objection been taken to it. In any event, the refusal to do so was not a ground of appeal. If the evidence had been rejected, additional evidence may well have been tendered in order to establish the facts asserted by the informant. That evidence was before the Magistrate and added weight to the evidence of the video recording and the evidence of Mr Thornton. There was clearly evidence before the Magistrate upon which she could be satisfied, beyond reasonable doubt, that the defendant was the proprietor of the business at the time of the purported execution of the warrant.
62 No argument was advanced that the defendant was not relevantly in possession of the video cassettes if she was in fact the proprietor of the business. The defendant’s case was that she was a mere employee. There was no suggestion in the proceedings before the Magistrate that she was a manager of the business, so as to raise the question that was in issue in Walkling Ltd v Robinson (1929) 29 Cox CC 131 at 144. There, it was held that the manager of a bread shop is not necessarily in possession of the loaves of bread in the shop.
63 As I said, however, that question does not appear to arise in the present proceedings, since the only question was whether the defendant was the proprietor of the business or a mere employee. In any event, there was ample evidence upon which the Magistrate could be satisfied beyond reasonable doubt that the defendant was the proprietor of the business at the relevant time and was therefore in possession of the video cassettes in question.
EVIDENCE OF LETTING FOR HIRE
64 Finally, grounds 6 and 7 relate to the alleged offences involving the letting for hire of infringing articles. The informant's case depended on the evidence of Mr Thornton. The summonses allege offences on 10 February 1998, 11 February 1998, 16 February 1998 and 4 March 1998, each in relation to a different video cassette.
65 Mr Thornton confirmed that the person who actually physically handed the cassettes to him on those occasions was not the defendant. The defendant contended, therefore, that there was no evidence before the Magistrate that was capable of supporting the offence charged. The case for the informant, however, was that the business was in fact the business of the defendant and that the person who actually physically handed the video cassettes to Mr Thornton was acting as agent of the proprietor of the business.
66 Thus, it appears to me that this ground is answered by the same evidence that I have already summarised and dealt with in relation to ground 5. That is, once it is concluded that the defendant was the proprietor of the business, the acts of an employee in the course of the employee’s duties would be the acts of the proprietor. In other words, it was the proprietor of the business who let for hire the articles alleged in the summonses.
67 A suggestion was made on behalf of the defendant that it could not be concluded that the proprietor of a business would authorise the letting for hire of infringing articles by an employee. However, having regard to the conclusions reached in relation to the other 17 charges, an inference is easily drawn that any employee of the defendant was authorised to let on hire the infringing cassettes that were within the shop for the purposes of the business. Knowledge on the part of the defendant could therefore be inferred, particularly in the absence of any evidence denying any such knowledge.
68 I do not consider, therefore, that these grounds have been established. It follows that none of the grounds for setting aside the convictions have been established. Accordingly, application N 203 of 2000 should be dismissed in so far as it seeks orders setting aside the conviction. However, it will be necessary now to hear argument in relation to the appeal against penalty.
JUDICIAL REVIEW PROCEEDING
69 Before dealing with penalty, I should also deal with the other proceeding before me. On 9 June 2000, the defendant filed a further application for an order of review, N 606 of 2000. That is also before me. The application is described as follows:
“Application to review the decision of the Second Respondent in issuing a Search Warrant under Section 3E of the Crimes Act 1914 on 14 July 1998 in respect of premises located at 54 Belmore Road, Randwick; and
Application to review the conduct of the First Respondent, whereby the First Respondent and others executed the said warrant.”
70 The informant is the first respondent to that proceeding and Mark Randall JP, the person named as the issuing officer in the search warrant, is the second respondent. The grounds of the application were as follows:
“1. The said Warrant was invalid in not stating a valid offence or offences.
2. The said Warrant authorised the seizure of things not related to any particular valid offence or offences stated in the Warrant.
3. The said Warrant is too wide, general and vague as to the things to be seized.
4. Things were seized that were not the subject of any valid offence stated in the said Warrant.
5. Things were seized that were not the subject of any indictable offence.”
71 The relief claimed was originally as follows:
“1. A declaration that the Search Warrant issued by the Second Respondent on 14 July 1998 for premises at 54 Belmore Road, Randwick be declared invalid and of no effect.
2. An Order that the articles and documents seized under the said Warrant that are or will not be the subject of any legal proceedings be returned to the Applicant.”
In the course of the hearing before me, the defendant was given leave to file an amended application in which the second prayer for relief was deleted and a new prayer for relief substituted in the following terms:
“2. A declaration that the seizure of all the things, including the subject of charges 1 to 17 inclusive in the Appeal Book, was not authorised by law.”
72 The defendant contended that the warrant was invalid because it did not refer to any offence under section 132 of the Copyright Act. The warrant asserts that the defendant, “did, at a time when copyright subsisted in a cinematograph form, hire two video cassettes.” It was said that such a statement does not describe an offence under section 132, since the word “hire” signifies the conduct of the customer and not the conduct of the proprietor. The distinction between the two parties to a contract for hire is of some antiquity. Roman law distinguished between locator and conductor. Clearly, the offence under section 132 is committed by the proprietor (or locator), not the customer (or conductor).
73 Section 132(1)(b) refers to a person “selling or letting for hire, or offering or exposing for sale or hire”. In the present context, the relevant phrase is, “let for hire”. The word “hire”, as a matter of English, can refer both to the actions of the proprietor, as well as to the customer. “Hire” means, amongst other things, “to grant the temporary use of… for a payment” see Macquarie Dictionary. According to the Oxford English Dictionary (2nd ed.) it can also mean, “to grant the temporary use of for stipulated payment, to let out on hire, to lease”. Thus, the word “hire” by itself clearly signifies the action of a proprietor (or locator) in letting out video cassettes on hire.
74 A warrant is not required to use the precise language of the statute creating the offence. It is sufficient to indicate to the recipient the facts that are said to constitute the offence. I consider, particularly having regard to the fact that reference is made to section 132(1)(b) in the warrant, that the warrant fairly describes an offence under section 132(1)(b). Accordingly, I would decline to make the declaration first sought in the application made in this second proceeding.
75 The informant has, in effect, conceded that the seizure of the items that were seized in the purported execution of the warrant was not authorised by the warrant. However, that is not the declaration that is sought in the amended application. The declaration sought is that the seizure was not authorised by law. I do not have before me any evidence as to the ownership of the items. Nor do I have any evidence as to who was entitled to possession of those items. I am not satisfied, one way or the other, that the seizure was not authorised.
76 If there were some evidence as to the owner or the person entitled to possession of the items in question then it may well be that a conclusion could be drawn that the seizure was not authorised by law. The defendant does not make any submission that she has any interest in the items in question. Her contention in the appeal is to the contrary, since she says that she was no more than a mere employee of the business. While the Magistrate concluded that she was the proprietor, that may or may not have given her some standing in relation to the question of the unauthorised seizure of the items.
77 In any event, no claim for substantive relief is made in respect of the seizure of the items. It may be that the person entitled to possession or the owner would have a claim in conversion, trespass to goods or detinue. No such claim is made in this proceeding. If such a claim were made, there may be a question, of course, as to whether this Court would have jurisdiction. Such a claim could only be made as part of accrued jurisdiction attached to a claim within the jurisdiction of the court.
78 In the absence of any substantive claim it may be contrary to the provisions of section 22 of the Federal Court Act for me to make a declaration a propos of no substantive claim. Section 22 provides that the Court must, in every matter before the Court, grant all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim in the matter so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of the matters avoided.
79 It would be inappropriate, it seems to me, for me to make a declaration such as is sought, without resolving any real issue between the parties. Accordingly, as a matter of discretion, I would decline to make the second declaration claimed, even if there were sufficient evidence before me to show that there had been a seizure without authority. I would therefore dismiss the second proceeding.
80 In so far as application N 606 of 2000 is brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), it is out of time. Application has been made for extension of time for filing the application. In my view time should not be extended. No evidence has been filed to indicate the circumstances that led to the filing of the application at the time when it was filed. In any event, I have considered the merits of the application and have concluded that it should fail on the merits. In the circumstances I decline to extend the time for filing the application insofar as it is made under the ADJR Act.
81 The second prayer for relief, both in its original form and in its amended form, does not appear to arise under the ADJR Act and accordingly it would not be out of time. In any event, as I have indicated, I decline to make the order on the merits. Either way the application must be dismissed, and I see no reason why costs should not follow the event in accordance with the normal practice. The applicant in proceedings N 606 of 2000 should pay the costs of the respondents in the proceeding.
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I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. |
Associate:
Dated: 22 August 2000
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Counsel for the Applicant: |
Mr J C Papayanni |
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Solicitor for the Applicant: |
W. Chan & Co |
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Counsel for the First Respondent: |
Ms M Cinque |
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Solicitor for the First Respondent: |
Director of Public Prosecutions (Commonwealth) |
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Solicitor for the Second Respondent: |
Crown Solicitor (NSW) |
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Date of Hearing: |
24, 25, 26, 27 July 2000 |
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Date of Judgment: |
27 July 2000 |
