Douglas v Muscat

[2005] WASCA 46

DOUGLAS -v- MUSCAT [2005] WASCA 46

Link to Appeal : [2006] WASCA 107

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 46
Case No:	SJA:1074/2003	Heard:	5 APRIL 2004
Coram:	JOHNSON J	Delivered:	16/03/05
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal allowed Magistrate's decision to be set aside Matter remitted to Magistrate for further decision
Category:	B
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Parties:	TREVOR JOHN DOUGLAS MARIO MUSCAT CLASSIQUE HEALTH PRODUCTS PTY LTD
Catchwords:	Criminal law and procedure Appeal against dismissal of charges on basis of no case to answer Censorship offences Possession of video tapes of films with intent to sell Challenge at trial as to direct evidence of contents of the video tapes Prosecution submission that trier of fact view the tapes Whether error in not viewing the tapes and consequent finding of no case to answer
Legislation:	Censorship Act 1996 (WA), s 7, s 81(2)(b), s 115, s 141(3)(a) Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 5, s 25, s 87
Case References:	Draper v The Queen [2000] WASCA 160 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 R v Bilick & Anor (1984) 36 SASR 321 R v Murphy (1985) 4 NSWLR 42 Robinson v Vanston [1999] VSC 541 Wilton & Co v Phillips (1903) TLR 390 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : DOUGLAS -v- MUSCAT [2005] WASCA 46 CORAM : JOHNSON J HEARD : 5 APRIL 2004 DELIVERED : 16 MARCH 2005 FILE NO/S : SJA 1074 of 2003 MATTER : Justices Act 1902 (WA) BETWEEN : TREVOR JOHN DOUGLAS

Appellant

AND

MARIO MUSCAT
Respondent

FILE NO/S : SJA 1075 of 2003 MATTER : Justices Act 1902 (WA)

BETWEEN : TREVOR JOHN DOUGLAS

Appellant

AND

CLASSIQUE HEALTH PRODUCTS PTY LTD
Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR J R PACKINGTON SM

File No : PE 11019-21 of 2002, PE 11023 of 2002

Catchwords:

Criminal law and procedure - Appeal against dismissal of charges on basis of no case to answer - Censorship offences - Possession of video tapes of films with intent to sell - Challenge at trial as to direct evidence of contents of the video tapes - Prosecution submission that trier of fact view the tapes - Whether error in not viewing the tapes and consequent finding of no case to answer

Legislation:

Censorship Act 1996 (WA), s 7, s 81(2)(b), s 115, s 141(3)(a)

Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 5, s 25, s 87

Result:

Appeal allowed

Magistrate's decision to be set aside
Matter remitted to Magistrate for further decision

Category: B

(Page 3)

Representation:

SJA 1074 of 2003

Counsel:

Appellant : Mr D J Matthews
Respondent : Mr T F Percy QC & Mr N J Mullany

Solicitors:

Appellant : State Solicitor
Respondent : D G Price & Co

SJA 1075 of 2003

Counsel:

Appellant : Mr D J Matthews
Respondent : Mr T F Percy QC & Mr N J Mullany

Solicitors:

Appellant : State Solicitor
Respondent : D G Price & Co

Case(s) referred to in judgment(s):

Draper v The Queen [2000] WASCA 160
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Bilick & Anor (1984) 36 SASR 321
R v Murphy (1985) 4 NSWLR 42
Robinson v Vanston [1999] VSC 541
Wilton & Co v Phillips (1903) TLR 390

Case(s) also cited:

Nil


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1 JOHNSON J: By an amended complaint dated 13 January 2003 Classique Health Products Pty Ltd was charged that:

(1) on September 27, 2001 it had in its possession a film classified "X" rated with the intention to sell contrary to s 81(2)(b) of the Censorship Act 1996 (WA). The film selected by the prosecution to substantiate the charge was entitled "Carnal Instincts";

(2) on 18 October 2001 it had in its possession a film classified "X" rated with the intention to sell contrary to s 81(2)(b) of the Censorship Act 1996 (WA). The film selected by the prosecution to substantiate the charge was entitled "Rocco's Real Italian Swingers";

(3) on 31 October 2001 it had in its possession a film classified "X" rated with the intention to sell contrary to s 81(2)(b) of the Censorship Act 1996 (WA). The film selected by the prosecution to substantiate the charge was entitled "Prime Time Pussy Number 2".

2 By an amended complaint dated 13 January 2003, Mario Muscat was charged that on 31 October 2001 he had in his possession a film classified "X" rated with the intention to sell contrary to s 81(2)(b) of the Censorship Act 1996 (WA). The film selected by the prosecution to substantiate the charge was entitled "Prime Time Pussy Number 2". Mr Muscat was charged pursuant to s 115 of the Censorship Act which provides that when a body corporate commits an offence under the Act with the consent or connivance of a director, employee or agent of the corporation, then that person also commits an offence.

3 The offences were alleged to have taken place at a store in Murray Street, Perth, called "Club X".

4 The grounds of appeal in relation to each respondent are slightly different, but it is sufficient if I quote the grounds in SJA 1075 of 2003. It is said the learned Magistrate:

"(a) erred in law in refusing to look at the films admitted into evidence;

(b) erred in law in finding that even if he looked at the films and found they corresponded to the classification certificates admitted into evidence that there would not

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have been evidence capable of establishing beyond reasonable doubt the films were classified 'X'; and

(c) erred in law in finding in relation to the film 'Prime Time Pussy Number 2' that even if he had looked at the film and found that it corresponded with the classification certificate admitted into evidence in relation to 'Prime Time Pussy Number 2' that there would not have been evidence capable of establishing beyond reasonable doubt that the film was classified 'X' because the certificate indicated that 'Prime Time Pussy Number 2' had originally been classified in a digital video disk (DVD) format."

5 It is worth pausing at this point to consider the relevant legislative framework. There is a close interrelationship between the Censorship Act and the Classification (Publications, Films and Computer Games) Act 1995 (Cth) which is defined in s 7 of the Censorship Act as the "Commonwealth Act". By way of example, the phrase "determined markings" is defined in s 7 to mean "markings determined under s 8 of the Commonwealth Act". The term "classified" is also defined in the same section to mean "classified under the Commonwealth Act and includes reclassified under this Act". In other words, in large measure it is the Commonwealth who classify films under Commonwealth legislation. No doubt, the intention is to avoid duplication by the State of work already been done by the Commonwealth.

6 The section which creates the offences with which the respondents were charged is s 81(2) of the Censorship Act and is in the following terms:

"A person must not possess or copy -

(a) an unclassified film that would, if classified, be classified X, R or MA; or

(b) a film classified X,

with the intention of selling the film or the copy, or exhibiting the film or the copy in a public place."

7 It is common ground between the parties that it was an essential element of the offences said to have been committed by the respondents that the films identified were classified "X". In attempting to prove this

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element of the offences, the prosecution initially attempted to rely on s 141 of the Censorship Act (now repealed) which relevantly stated that:

"(1) In any proceeding for an offence against this Act, a certificate purporting to be signed by the Secretary and stating that –

(a) an agreement is or was in force under s 126 and that the agreement was in operation on the day or during any period specified in the certificate;

(b) a person specified in the certificate was the censor or the appeal censor on any day or during any period specified in the certificate,


is admissible in evidence without proof of the Secretary's signature and, unless the contrary is proved, is proof of the facts stated in the certificate.

…

(3) In any proceeding for an offence against this Act, a certificate purporting to be signed by the censor and stating that:


(a) a film or computer game is classified as specified in the certificate and, if the case requires, the determined markings of that type of classification are as specified in the certificate;

(b) a classified film or classified computer game specified in the certificate is modified in a manner specified in the certificate;

(c) a film or computer game is not classified, or is not classified at a classification specified in the certificate; or

(d) an advertisement described in the certificate is approved or has been refused approval under s 40 or has not been approved,


is admissible in evidence without proof of the censor's signature and, unless the contrary is proved, is proof of the facts stated in the certificate."

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8 In order to establish that the films were classified "X", the prosecution, relying on s 141(3)(a) of the Censorship Act, sought to tender certificates under s 87 of the Commonwealth Act in relation to each film. Section 87 empowers any person to apply to the Director of the Commonwealth Office of Film and Literature Classification for a certificate about action taken, or not taken, under the Act. The Director is required to give the certificate on the payment of the prescribed fee. Under s 87, a police officer may take a seized film to the Classification Board and, once the relevant Board employee is satisfied that the film is identical to one which has been classified, the Board issues a certificate stating, inter alia, the rating of the film seized. Section 87 does not address the admissibility of the certificate.

9 Alternatively, the prosecution sought to tender into evidence certificates pursuant to s 25 of the Commonwealth Act. Section 25(1) requires the director to issue a classification certificate for each publication, film and computer game classified by the Classification Board. Section 25(2) sets out the categories of information which must be included in the certificate: (a) markings for the classification; (b) any consumer advice; and (c) the applicant’s obligation about the display of the determined markings and consumer advice. The certificates produced by the prosecution contained the information required by s 25(2) as well as the following categories of information: title, version, format, producer, director, production company, country of origin and running time. In the case of each film, the certificate recorded an "X" rating.

10 The learned Magistrate, relying on the decision of Ashley J in Robinson v Vanston [1999] VSC 541 at par 131 dealing with the equivalent Victorian provision, held that the effect of s 141(3) of the Censorship Act was to prove classification of a film at the date of the certificate only and s 141(3) did not permit receipt of the certificates as evidence of the classification of a film as at the date of the offence. The appellant takes no issue with this ruling.

11 As a consequence of the ruling, the prosecution then called the Director of the Commonwealth Office of Film and Literature Classification and Chairman of the Classification Board, Mr Desmond Clarke. Mr Clarke produced and identified, as signatory, the s 25 certificates in relation to each of the films nominated in the complaints. He also gave evidence that there had been no reclassification of the films since the respective dates of the certificates. This evidence gave currency to the s 25 certificates, thereby overcoming the effect of the decision in Robinson v Vanston.

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12 Despite objection, the certificates were received into evidence as "public documents". Consequently, the certificates being certified copies of public document coming from the proper place, the certificate constituted evidence of every particular stated therein, including the rating and the various particulars referred to above: see Wilton & Co v Phillips (1903) TLR 390 per Phillimore J.

13 The video tapes which had been seized by the police were also tendered into evidence. Although there was some objection taken to the tender of the videotapes, there was no suggestion made by the defence that the tapes should be played in open court or that the content of the tape was in some way excluded from the tender. At one point in his submissions, Senior Counsel for the respondent submitted that the prosecution was approached "on the basis that [the videotape] was sealed and it was never going to be played because it was never given to us and it was not in a playable form". Counsel maintained that, on his understanding, the case against his client consisted solely of the certificates. I have some difficulty with that proposition. The objection taken at trial to the tender of the videotapes was not made on the basis that the defence understood or was led to believe that they did not constitute part of the case against it. Indeed, it would be highly unusual in a case where the quality of certain material is the very basis of the charge, not to tender that material. In some cases, it may not be necessary for that material to be viewed, but it would certainly be admissible. If the defence were to complain that it had not had the opportunity to view the material, or had been denied that opportunity, one would expect an application for an adjournment to be made and, most likely, granted. No such application was made in this case. As the point was not taken at first instance, nor was it relied upon as the basis of an unsuccessful adjournment application, I do not consider that this issue should influence the outcome of this appeal.

14 Consequently, the only issues which fall for consideration on this appeal are:

(i) Whether the properly tendered videotapes should have been viewed by the learned Magistrate;

(ii) Whether the learned Magistrate fell into error in finding that the available evidence was incapable of establishing the charges beyond reasonable doubt; and

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(iii) Whether the learned Magistrate erred in concluding that a different format from the format of the classified film precluded proof beyond reasonable doubt.

15 The evidence of Mr Clarke was that, despite being the signatory of the s 25 certificates, he had never viewed the original classified films and had signed the certificates on advice. He said he had never viewed the films the subject of the charges. Police officers Corry and Douglas gave evidence that neither they nor any other officer had viewed the films. There was also no evidence that any police officer had viewed the original films said to have been classified or had any knowledge of them. Indeed, no evidence was adduced from any person that he or she had ever viewed the films the subject of the charges.

16 Mr Clarke did give evidence of the practice of the Office of Film and Literature Classification when asked to provide a certificate under s 87 of the Commonwealth Act. He stated that a staff member carries out an "identicality check" by comparing notes taken by the original classifier with the notes taken from the viewing of the film produced for certification. In view of the decision ultimately made by the learned Magistrate, it is interesting to note that the two films are not watched simultaneously to verify that one is an exact copy of the other.

17 At the conclusion of the prosecution case, the prosecutor submitted that the learned Magistrate should watch the films and consider whether the films tendered in evidence matched the particulars of the films given on the certificates. The defence saw the absence of direct evidence of the content of the films as particularly significant. It was said that the possibility could not be excluded that the films admitted into evidence had been modified and therefore rendered unclassified: see s 21 of the Commonwealth Act and s 32 of the Censorship Act.

18 The learned Magistrate decided that he should not view the films and he upheld a no case submission on behalf of the defendants. The learned Magistrate expressed his conclusions in the following way:

"But I have come to the conclusion that there's actually no point in me doing that (viewing the films) and the reason for that is, that I have taken my cue from the evidence of Mr Clarke, who when explaining what he thought would have been done by people in his office who had put the stickers on these cassettes, he said, 'We have the records that we keep and we have our files. We do not identically check for these matters and we compare notes taken by the original classifiers with the notes

(Page 10)

taken by the person doing the second viewing, that gives us a very accurate record of whether its identical or not.'

And I glean from that, the fact that a person in the Classification Board could not say whether a film was identical to the one originally classified unless that person was either the original classifier or else had the original classifier's notes and files as retained by the Classification Board. And if a person in the Classification Board can't do that, then I don't see how I can either, unless I were to be assisted by such a person and the alternative I suppose would be for such a person to come and give evidence about what they have actually done and how they had done it.

The upshot of all of that, is that I have come to the view that there is a gap in the prosecution case relating to whether these exhibits are identical to the films mentioned in exhibit 15 and that that gap can't be cured by me sitting down and watching the videos, even if I were to glean from such a viewing that they had the same title, even if they went for the same length of time and had the same director and so on. And on that basis, I have come to the conclusion that there is not evidence upon which I could be satisfied that these are identical, satisfied beyond a reasonable doubt that these are identical with the films classified 'X', as per exhibit 15. And it seems to me therefore that on that basis the defendant has no case to answer."

It is from that decision that this appeal arises.

19 The question to be answered on a submission of no case to answer is whether the evidence, taken at its highest, is capable of sustaining a verdict of guilty by proof beyond reasonable doubt: Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 per Malcolm CJ at 490; R v Murphy (1985) 4 NSWLR 42 at 69; R v Bilick & Anor (1984) 36 SASR 321 at 335 per King CJ (with whom Mohr J agreed). The same test is applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence, although the manner of its application will be different: R v Bilick. As King CJ observed in Bilick (at 337):

"Where the case is a circumstantial or partly circumstantial case and therefore depends upon inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the

(Page 11)

point of view of the case for the prosecution is accurate, and on the further assumption that all inferences which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt, of the guilt of the accused."

The decision in R v Bilick was followed by Malcolm CJ in Morrison v Kiwi Electrix Pty Ltd at 491: see also Draper v The Queen [2000] WASCA 160 at [41] per Murray J.

20 On appeal, counsel for the appellant reiterated the argument put to the learned Magistrate and further submitted that there was no evidence which would have made it unreasonable to draw the inference that the seized films were the same as the films classified "X". It was said there was no evidence of other versions of the same films being in distribution. The evidence of the processes followed by the Office of Film and Literature Classification before providing a s 87 certificate was said to be irrelevant to the issue before the Court.

21 On behalf of the respondent, it was submitted that no purpose would have been served by the Magistrate viewing the films, as it could not have filled the evidentiary lacuna in the prosecution case. Even if the information on the s 25 certificates was considered to match the respective features of the films the subject of the charges, the inference urged upon the Magistrate by the prosecution was not reasonably open. It is apparent from the submissions that the respondent considers that the prosecution is obliged to establish "identicality" between the film the subject of the s 25 certificate and the film tendered which bears the same name. Consequently, as the method available to the censorship authorities to identify "identicality" was not available to the learned Magistrate, it was not possible for the Court to be satisfied beyond a reasonable doubt that the films were identical, even taking the evidence at its highest. For example, running time and the warning that the film contains sexually explicit material is said to be meaningless as indicia of "identicality". On that basis, it is said, there was indeed no point in viewing the tendered videotapes because the exercise could not have resulted in satisfaction of the relevant test on a no case to answer submission.

22 Before I turn to address the primary issue of whether the learned Magistrate should have watched the films which had been tendered into evidence, it is necessary to accurately identify the element of the offence to which the certificates and the videotapes relate. In my view, there is no requirement to prove "identicality". The prosecution is required to prove to the requisite standard that each film is rated "X". That is the inference

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which is to be drawn by the Magistrate from the whole of the evidence available, taking that evidence at its highest. That inference is assisted by every piece of evidence of commonality between the films referred to in the s 25 certificate and the films tendered into evidence and any other evidence available to the Court. An alteration to a film may or may not change the classification of the film. Therefore, the mere possibility of an alteration of some type to the film tendered is not, of itself, sufficient to prevent the drawing of the relevant inference. Further, while in some cases variations between the information in the certificate and the details of the film may be fatal to the drawing of the necessary inference, minor variations may not reasonably preclude the drawing of the inference.

23 In my view, the primary issue is easily resolved. The films were received into evidence and the learned Magistrate ought to have viewed them. He fell into error in declining to do so. To determine whether there is a case to answer, a Court is required to consider all of the evidence. In circumstantial cases where it is the combination of all relevant pieces of evidence which falls for consideration, it is particularly important that every piece of evidence is scrutinised. It is difficult to see how such an exercise can properly be conducted where one body of evidence is excluded from the exercise.

24 The available body of evidence included the films, the actual moving images, not just the cassette case in which the film was found. In my view, it will be a rare circumstantial evidence case in which it can be said that there is no point in viewing or giving full consideration to a component of the evidence because of a view that the evidence was not capable of establishing proof beyond a reasonable doubt. In any event, this was not such a case. I consider that the learned Magistrate fell into error in equating his role with that of the Office of Film and Literature Classification and concluding that the absence of the material available to that Office in determining "identicality" for the purposes of s 87 meant that the test for a prima facie case could not be met. I agree with the submission of counsel for the appellant that the practices of the Office are irrelevant to the determination to be made by the learned Magistrate.

25 Once the submission of no case to answer was made, the learned Magistrate was required to examine the whole of the evidence to determine whether, taken at its highest, it was capable of proving beyond a reasonable doubt, each element of each offence. In this case, the only element in issue was whether each film was classified "X". The evidence available to the Magistrate in relation to each film was not simply the s 25 certificate and the film itself. Other available evidence was the location in

(Page 13)

which the film was found, the name and nature of the premises in which the film was found and the markings on the cover of the video cassette. Those markings included the "X 18+" rating, the warning "Restricted to adults 18 years and over (contains sexually explicit material)" and still photographs. In my view, the learned Magistrate could not and should not have reached the conclusion that he did without first viewing the films and considering all that material.

26 The final issue for consideration is the effect of a difference between the format of the classified film and the format of the film tendered into evidence. The classification certificate for "Prime Time Pussy Number 2" identified the format as being in "DVD". The film tendered was in VHS format. The learned Magistrate dealt with this difference in the following way:

" … I think that makes the identicality problem even more difficult without direct evidence from someone who sat and viewed a film in whatever format it was, because I think it is by now notorious that films in DVD form often have material that is not on the VHS version and vice versa."

27 As I have indicated, the relevant element of the offence was that the film was classified "X", not that it was identical to the film referred to in the certificate. On behalf of the appellant, it was said that the Commonwealth Act sets up a regime for the classification of "films" (see Pt 2 Div 2 of the Commonwealth Act) which is designed to classify a film regardless of the format in which it is produced. "Film" is defined by s 5 of the Act to include "a cinematographic film, a slide, a videotape and video disk and any other form of recording from which a visual image, including a computer generated image can be produced." It was submitted that the use of the word "film" in the Commonwealth Act, combined with the expansive definition in s 5, indicates that the classification given to a set of visual images is to apply regardless of how the visual images are recorded and reproduced. In other words, a film will be a film regardless of the form of recording from which the visual image is produced. It was submitted that the learned Magistrate should have compared the particulars given on the certificate for "Prime Time Pussy Number 2" which was in DVD format with the film on the video cassette which was tendered in evidence.

28 In my view, the fact that the film is in a different format is a relevant consideration rather than a determining factor. The evidence of Mr Clarke was to the effect that the reference on the menu page to the

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format is not part of the classification process. It is the film itself and not the film in a particular format which is classified. As with the evidence in relation to the other charges, the learned Magistrate should have considered the whole of the evidence including the fact that the film tendered was in a different format and including the evidence of Mr Clarke on the relevance of format to classification. In my view, it cannot be said that a change of format precludes the drawing of the inference that the film is classified "X".

29 The appellant has established that the learned Magistrate fell into error in the approach that he took to the submission on each charge that there was no case to answer. The appeal should be allowed and the decision of the learned Magistrate should be set aside. The matter should be referred back to the Magistrate for a decision in line with these reasons.