Cannavan v Lettvale Pty Ltd

[2003] QDC 156

DISTRICT COURT OF QUEENSLAND

CITATION:

Cannavan v. Lettvale Pty Ltd [2003] QDC 156

PARTIES:

DAVID PATRICK CANNAVAN (appellant)

v

LETTVALE PTY LTD (trading as GOOD VIBRATIONS ADULT WORLD) (respondent)

FILE NO/S:

D4350 of 2002

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Brisbane

DELIVERED ON:

27^th June 2003

DELIVERED AT:

Brisbane

HEARING DATE:

13^th May 2003

JUDGE:

Healy DCJ

ORDER:

Appeal upheld: Respondent company convicted of selling objectionable films and prohibited publications.  Convictions recorded.  Lettvale Pty. Ltd fined in the sum of $24,750 and to pay costs in the sum of $2,100 such sums to be paid to Deputy Registrar of District Court Brisbane within six months -  if not paid within that period levy in distress. 

CATCHWORDS:

PROOF OF CULPABILITY : SALE OF PROHIBITED FILMS AND MAGAZINES

AUTHORITY TO SPEAK – IDENTIFICATION OF DEFENDANT COMPANY – SUFFICIENCY OF EVIDENCE

VALIDITY OF STATE LEGISLATION

HumanRights (SexualConduct) Act1994Cth

Queensland Classification of Films Act 1991

Queensland Classification of Publications Act 1991

COUNSEL:

Mr R V  Hanson QC with Mr. K Sowden for Appellant/Prosecutor

Mr A J Morris QC with Mr C Jennings for Respondent/Defendant

SOLICITORS:

Mr C W  Lohe, Crown Solicitor for Appellant/Prosecutor

Mr. C. Nyst, Nyst Lawyers for Respondent /Defendant

The Appeal

1. The respondent company was prosecuted in the Magistrates Court at Holland Park for one count of selling pornographic films and one count of selling pornographic literature.

1. The Magistrate dismissed both charges on the grounds that he was not prepared to find that the defendant company was responsible for the sales – see p.12 of the Reasons. 

1. The appellant appeals against the whole of the decision of the learned Magistrate delivered at the Holland Park Magistrates Court on 2 October 2002 by which it was ordered that the charges against the respondent be dismissed and  that the appellant pay the respondent costs of $3,125. 

1. The appeal is on the grounds that:

1.          The Magistrate erred in law and in fact in refusing to infer that the person Michael McGregor spoken to by the witness Elridge was authorised to speak on behalf of the defendant company.

2.          The Magistrate engaged in impermissible speculation in having regard to the fact that there was no voice identification, no evidence as to who else had access to the telephone number, and no evidence as to whether another family member had the same name. 

3.        The Magistrate gave no, or no sufficient weight to the circumstances indicating that Mr. McGregor was authorised to speak on behalf of the defendant, viz,

(i)         Mr. Elridge, on asking to be referred to someone who could speak for the company, was referred to Mr. McGregor;

(ii)       Mr. McGregor bore the same name as the sole director and secretary of the company, and the same name as one of the guarantors of the lessee’s obligations;

(iii)      Mr. Elridge identified himself and the nature of his inquiry;

(iv)       Mr. McGregor spoke with apparent knowledge of the business;

(v)        Mr. McGregor agreed to attend for an interview;

4.        The Magistrate failed to…