Holder, Raymond v Searle, Bradley William (No 1)

[1997] FCA 1157

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - application for leave to amend information for offence in criminal proceedings - proposed amendments to allege principal liability rather than accessorial liability - leave granted.

PRACTICE AND PROCEDURE - application for leave to amend summons - disconformity between description of offence specified in the information and the offence specified in the summons - summons set out two counts but summons stated “the charge the prosecutor makes against you” - without amendments, offences out of time pursuant to s 133 of the Copyright Act 1968 (‘the Act’) - leave granted.

COPYRIGHT - interpretation of s 133 of the Act - s 133(2) provides a cap on the amount of the fine that can be imposed where there are multiple articles - amendments not unfair to defendant as the subject matter of the offences substantially same as originally formulated - prosecution permitted to amend.

Copyright Act 1968 (Cth) s 132(1)(b), s 133
Crimes Act 1914 (Cth) s 5

RAYMOND HOLDER v BRADLEY WILLIAM SEARLE
QG 187 of 1996, QG 188 of 1996 and QG 189 of 1996

SPENDER J
BRISBANE
23 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 187 of 1996

BETWEEN:	RAYMOND HOLDER Prosecutor
AND:	BRADLEY WILLIAM SEARLE Defendant

JUDGE:	SPENDER J
DATE OF ORDER:	23 SEPTEMBER 1997
WHERE MADE:	BRISBANE

THE COURT GRANTS leave to amend the summons in QG 187 of 1996.

THE COURT ORDERS that costs be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 188 of 1996

BETWEEN:	RAYMOND HOLDER Prosecutor
AND:	BRADLEY WILLIAM SEARLE Defendant

JUDGE:	SPENDER J
DATE OF ORDER:	23 SEPTEMBER 1997
WHERE MADE:	BRISBANE

THE COURT GRANTS:leave to amend the information for offence and the summons in QG 188 of 1996.

THE COURT ORDERS that costs be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 189 of 1996

BETWEEN:	RAYMOND HOLDER Prosecutor
AND:	BRADLEY WILLIAM SEARLE Defendant

JUDGE:	SPENDER J
DATE OF ORDER:	23 SEPTEMBER 1997
WHERE MADE:	BRISBANE

THE COURT GRANTS leave to amend the summons in QG 189 of 1996.

THE COURT ORDERS THAT costs be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 187 of 1996

BETWEEN:	RAYMOND HOLDER Prosecutor
AND:	BRADLEY WILLIAM SEARLE Defendant

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 188 of 1996

BETWEEN:	RAYMOND HOLDER Prosecutor
AND:	BRADLEY WILLIAM SEARLE Defendant

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 189 of 1996

BETWEEN:	RAYMOND HOLDER Prosecutor
AND:	BRADLEY WILLIAM SEARLE Defendant

JUDGE:	SPENDER J
DATE:	23 SEPTEMBER 1997
PLACE:	BRISBANE

EX TEMPORE REASONS FOR GRANTING LEAVE TO AMEND  (No 1)

On 31 October 1996 three informations for offences in the form of Form 1 of the First Schedule of the Federal Court Rules (‘the Rules’) were placed before a Deputy District Registrar of the Federal Court who, on that same day, affixed the seal of the Federal Court of Australia, Queensland District Registry, over his signature as Deputy District Registrar, to three documents headed “Summons”.

The present difficulty comes about because in each case there is a disconformity between the offence specified in each of the informations and the offences specified in each of the summons.  The offence described in each summons is said to be “the charge the prosecutor makes against you”, which description differs from the offence in the information.

Order 49 of the Rules deals with proceedings for an offence and relevantly provides:

“1(1)A prosecution for an offence shall be commenced by summons upon information.

1(2)…

2(1)A summons shall -

(a) state the offence with which the defendant is charged; and

(b)     give particulars of the act or omission of the defendant to   which the prosecution relates.

2(2)A summons and an information shall be in the forms numbered 51           and 52 in the First Schedule.

3(1)A summons shall not be prolix and shall be divided into paragraphs         numbered consecutively.

3(2)So far as convenient, each paragraph shall deal only with one      matter.

This morning Mr Jerrard QC, who appears with Mr Boddice for the prosecutor (Mr Raymond Holder), seeks leave to amend one of the informations and each of the summonses in the three prosecutions, QG 187 of 1996, QG 188 of 1996 and QG 189 of 1996.

With respect to proceedings QG 188 of 1996, the information presently alleges a single offence, being that Bradley William Searle (‘Mr Searle’) was knowingly concerned in the commission of an offence against s 132(1)(b) of the Copyright Act 1968 (Cth) (‘the Act’) by B.W. Searle Pty Ltd. That offence relates to the sale of two laser video discs, one being of a film entitled “Forrest Gump” and the other being of a film entitled “Boyz ‘N’ The Hood”, it being alleged that the company knew or ought reasonably to have known that the articles were infringing copies of the cinematographic films.

The reliance on accessorial liability is based on s 5 of the Crimes Act 1914 (Cth), which relevantly provides:

“(1)Any person who aids, abets, counsels, or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or a party to, the commission of any offence against the law of the Commonwealth ... shall be deemed to have committed that offence and shall be punishable accordingly.

(2)…”

It is sought to amend the information in QG 188 of 1996 to allege liability as a principal, as opposed to liability based on being “knowingly concerned”, the prosecutor now wanting to allege that Mr Searle in fact sold the two articles, in contravention of s 132(1)(b) of the Act.

That question is a discrete issue from the applications for leave to amend the summonses in each of the three proceedings QG 187 of 1996, QG 188 of 1996 and QG 189 of 1996.

In relation to QG 188 of 1996, amendment of the summons is sought because there is presently a disconformity between the description of the offence in the information to which the summons relates, and the contents of the summons.  The summons is addressed to Mr Searle and continues:

“You are required to appear before the Federal Court of Australia at the time and place specified below to answer the charge the prosecutor makes against you, viz.,”

and then paragraph 1 describes an alleged offence by B.W. Searle Pty Ltd concerning a single article, namely the cinematograph film, “Forrest Gump”, and particulars are supplied in respect of that film.  The summons continues in a paragraph numbered 2 to describe an offence relating to a single article, being the cinematograph film, “Boyz ‘N’ The Hood”, and gives particulars of that film.  The summons on its face purports therefore to set out two “counts”, notwithstanding that the two counts are referred to compendiously at the commencement of the summons as “the charge the prosecutor makes against you”.

Leave is sought by the prosecution to amend the summons to achieve conformity between the proposed amended information and the proposed amended summons, each of them being directed to an offence by Mr Searle as principal and in respect of a single transaction involving the two films. 

In relation to QG 187 of 1996 and QG 189 of 1996, no change is sought in respect of the informations which allege that Mr Searle was knowingly concerned in contraventions by B.W. Searle Pty Ltd.  Mr Jerrard seeks to amend the summonses in a similar way to the amendment sought of the summons in QG 188 of 1996.  In each case, in QG 187 of 1996 and QG 189 of 1996, the summons, while it commences by referring to “… the charge the prosecutor makes against you”, sets out in numbered paragraphs what effectively are separate counts involving a single film, but in some cases multiple copies of that single film.

Objection to leave being granted is taken by counsel for the respondent, Mr Couper QC.

In relation to proceedings QG 188 of 1996, the objection taken is that each of the counts in the summons as presently framed is out of time.  The proposed changes to the information and the summons would render the offence sought to be made by the prosecutor as one that it is competent now to bring.

It was submitted by Mr Couper that when the focus is directed at the offences constituted by the numbered counts in the summons as issued, a number of those counts would be out of time having regard to the provisions of s 133 of the Act.

For the prosecutor, it was said that these matters were not out of time, reliance being placed on s 133 of the Act, which relevantly provides:

“(1)A contravention by a person of subsection (1), (2) or (2A) of section 132 is an offence punishable on summary conviction by:

(a)if it is the first conviction of the person of an offence by reason of a contravention of that section and the article or each article to which the contravention relates is an infringing copy of a work or other subject-matter other than a cinematograph film - a fine not exceeding:

(i)if the person is a natural person - $500; or

(ii)if the person is a body corporate - $2,500;

for the article, or for each article, to which the offence relates;

(b)if it is the first conviction of the person of an offence by reason of a contravention of that section and the article or each article to which the contravention relates is an infringing copy of a cinematograph film:

(i)if the person is a natural person - a fine not exceeding $1,500 for the article, or for each article, to which the offence relates or imprisonment for a period not exceeding 2 years, or both; or

(ii)if the person is a body corporate - a fine not exceeding $7,500 for the article, or for each article, to which the offence relates;

(c)if it is not the first conviction of the person of an offence by reason of a contravention of that section and the article or each article to which the contravention relates is an infringing copy of a work or other subject-matter other than a cinematograph film:

(i)if the person is a natural person - a fine not exceeding $500 for the article, or for each article, to which the offence relates or imprisonment for a period not exceeding 6 months, or both; or

(ii)if the person is a body corporate - a fine not exceeding $5,000 for the article, or for each article, to which the offence relates; and

(d)if it is not the first conviction of the person of an offence by reason of a contravention of that section and the article or each article to which the contravention relates is an infringing copy of a cinematograph film:

(i)if the person is a natural person - a fine not exceeding $1,500 for the article, or for each article, to which the offence relates or imprisonment for a period not exceeding 5 years, or both; or

(ii)if the person is a body corporate - a fine not exceeding $15,000 for the article, or for each article, to which the offence relates.

(2)Where a fine is imposed upon a person by virtue of subsection (1) in relation to an offence committed by the person and there is more than one article to which the offence relates:

(a)where the person is prosecuted before the Federal Court of Australia - the fine imposed in respect of that offence shall not exceed:

(i)if the person is a natural person - $50,000; or

(ii)if the person is a body corporate - $250,000; and

(b)where the person is prosecuted before any other court - the fine imposed in respect of that offence shall not exceed:

(i)if the person is a natural person - $10,000; or

(ii)if the person is a body corporate - $50,000.”

In my opinion, this submission on behalf of the prosecutor misinterprets the application of s 133(2).

In my opinion, the reference in subsection (2) to the words “a fine imposed upon a person by virtue of subsection (1) in relation to an offence committed by the person” is a reference in the present case to the fines when viewed in the context of an offence alleged against Mr Searle personally, the fine for which provision is made in 133(1)(b)(i), and in respect of any offence which is alleged to have been committed by B.W. Searle Pty Ltd, the fine for which provision is made by 133(1)(b)(ii) of the Act.

In the view I take of s 133(1)(b) (a subsection which is not without its difficulties), subsection (2) provides a cap on the amount of fine that can be imposed where there are multiple articles.

It was further submitted by the prosecutor that the reference to “summary conviction” in subsection (1) was not apt to describe proceedings in the Federal Court of Australia for offences which are contraventions of s 132.  Subsection (7) of that section provides:

“Prosecutions for offences against this section may be brought in the Federal Court of Australia or in any other court of competent jurisdiction.”

Subsection (8) provides:

“Jurisdiction is conferred on the Federal Court of Australia to hear and determine prosecution for offences under this section.”

I accept that there are difficulties by the conjunction of the reference to summary conviction and proceedings in the Federal Court, but the view I take of the matter is that the reference to an offence punishable on summary conviction in s 133(1)(b) of the Act is a means by which it is indicated that the offences are not indictable offences which would attract trial by jury but which are punishable by a process not requiring trial by jury, and that proceedings in the Federal Court are, nonetheless, proceedings on summary conviction for the purpose of defining the quantum of penalty that may be imposed for a contravention of s 132.

I therefore accept that in respect of the “counts” 2, 3 and 4 in QG 187 of 1996 and “counts” 3, 5, 11, 13, 14, 16, 23, 26, 28, 30, 33, 35, 40 and 48 in proceedings QG 189 of 1996, the prosecution would be out of time, were there to be proceedings in respect of offences as enumerated in those “counts”.

Notwithstanding that consideration, it seems to me that the Court ought to permit the prosecution to amend the summonses in the manner sought.  There may be some question of costs to be considered, but, as a matter of principle, it seems to me that the prosecutor ought to be permitted to allege the three offences which he wishes to allege as particularised by the amended summonses for which leave is sought.

I do not think that to permit leave to amend is unfair to Mr Searle.  Each of the informations and summons which are sought to be relied upon could be instituted and issued today.  Whether those offences can fairly be tried today is quite a different matter.  The subject matter of the offences is substantially the same as the subject of the proceedings as originally formulated.  There are aspects which may be necessary to consider further concerning multiplicity and other aspects.  However, as a matter of principle, it seems to me that, notwithstanding the unhappy history thus far of the proceeding, the prosecution ought to be permitted to amend its proceedings as sought.  Leave is accordingly given to amend the information in proceedings QG 188 of 1996 and each of the three summonses in QG 187 of 1996, QG 188 of 1996 and QG 189 of 1996.

The matter which then arises is the question of costs in relation to the information as originally formulated in QG 188 of 1996.  The information in the other matters has not been changed.

Counsel for the respondent has made an application for costs.

It is appropriate at this stage to note the application and to adjourn it to a later time.  It seems to me that there may be costs penalties for the prosecution in relation to the course that has been taken.  The ordinary consequence would be that the prosecution would have to pay, as part of costs of getting leave, the costs of the other side, notwithstanding that the respondent has unsuccessfully opposed the grant of leave. 

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .

Associate:

Dated:            23 September 1997

Counsel for the Applicant:	Mr J Jerrard QC and Mr D Boddice
Solicitor for the Applicant:	Director of Public Prosecutions
Counsel for the Respondent:	Mr S Couper QC
Solicitor for the Respondent:	McLaughlins
Date of Hearing:	23 September 1997
Date of Judgment:	23 September 1997