Kafcar v Police
[2011] SASC 162
•30 September 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KAFCAR & ORS v POLICE
[2011] SASC 162
Judgment of The Honourable Justice Gray
30 September 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
Appeal against conviction and sentence - appellants were jointly charged and convicted of two counts of possessing unclassified films with the intention of selling them and one count of selling unclassified films contrary to sections 38(a) and 45(1)(a) of the Classification (Publications, Films and Computer Games) Act 1995 (SA) respectively - whether the element of each offence that the films were unclassified under the State Act, had been proved beyond reasonable doubt - whether the Magistrate was in error in allowing the prosecution to re-open its case.
Discussion of the principles relating to judicial notice.
Held: Appeals against conviction and sentence dismissed - the Magistrate was not in error in allowing the prosecution to re-open its case.
Classification (Publications, Films and Computer Games) Act 1995 (SA) s 3, s 4, s 15, s 38, s 40, s 45, s 83, s 83B and s 86 ; Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 5, s 7, s 14 and s 87; Evidence Act 1929 (SA) s 35; Supreme Court Act 1935 (SA) s 17, referred to.
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Barber v Police (2010) 108 SASR 520; Martin v The Department of Transport, Energy and Infrastructure (2010) 269 LSJS 403; Shaw v The Queen (1952) 85 CLR 365, considered.
KAFCAR & ORS v POLICE
[2011] SASC 162Magistrates Appeal
GRAY J.
This is an appeal against conviction and sentence.
Introduction
Kafcar Pty Ltd, Cindy Lee Carter and Leslie Kafkoudas were jointly charged and convicted of breaches of the Classification (Publications, Films and Computer Games) Act 1995 (SA). The counts on which convictions were recorded were as follows:
Count 2 On 28th day of February 2008, at BROOKLYN PARK in the said State, possessed twelve unclassified films that would, if classified, be classified RC or X18+ with the intention of selling the film or copy. Section 45(1)(a) of the Classification (Publications, Films and Computer Games) Act, 1995. …
Count 4 On 28th day of February 2008, at KILKENNY in the said State, sold two unclassified films, that would, if classified be classified RC or X18+. Section 38(a) of the Classification (Publications, Films and Computer Games) Act, 1995. …
Count 5 On 28th day of February 2008, at KILKENNY in the said State, possessed eleven unclassified films that would, if classified, be classified RC or X18+ with the intention of selling the film or copy. Section 45(1)(a) of the Classification (Publications, Films and Computer Games) Act, 1995. …
The classification of films is governed by Commonwealth and State statutes, both of which are titled the Classification (Publications, Films and Computer Games) Act 1995. The State Act is intended to be complementary to the Commonwealth Act.[1]
[1] Section 3 of the Classification (Publications, Films and Computer Games) Act 1995 (SA).
The principal issue on the conviction appeal was whether an element of each count had been proved. In particular it was contended that an element of each offence, that the films were unclassified under the State Act, had not been proved beyond reasonable doubt.
The Commonwealth Act does not of itself provide for offences or enforcement processes. The State Act provides for a number of offences relating to films that may be committed by a person. In relation to the particular complaints under consideration, there are two sections that are relevant:
Section 38
A person must not sell—
(a) an unclassified film that would, if classified, be classified RC or X 18+; or
(b) a film classified RC or X 18+.
Maximum penalty: $10 000.
Section 45
(1) A person must not possess or copy—
(a) an unclassified film that would, if classified, be classified RC or X 18+; or
(b) a film classified RC or X 18+,
with the intention of exhibiting the film or copy in contravention of this Part or selling the film or copy.
Maximum penalty: $10 000.
(2)In proceedings for an offence against this section, evidence that a person was in possession of or made three or more copies of a film of a kind referred to in subsection (1) is evidence that the person intended to exhibit the film in contravention of this Part or sell the film and, in the absence of evidence to the contrary, is proof of that fact.
The defendants Carter and Kafkoudas were the directors of Kafcar. Ms Carter was also the company secretary. Kafcar traded under the business name Black Knight Erotica and operated two sex shops – one at Brooklyn Park and the other at Kilkenny.
During 2007 police officers attended both the Brooklyn Park and Kilkenny premises. The officers observed DVDs and videos for sale and formed the view that there were apparent contraventions of the State Act. Arrangements were made to conduct raids. In the event, both premises were raided simultaneously on 28 February 2008. The police filmed both raids. Immediately prior to the raids commencing, plain clothed police officers entered both premises and purchased films randomly selected. The raids then proceeded. A substantial quantity of DVDs and videos were seized. Examination of the seized material led the police to the view that there had been breaches of the State Act.
Section 86(2) of the State Act provides that if a director of a body corporate acts on behalf of the body corporate within the scope of his or her actual or apparent authority, the body corporate must be taken for the purpose of a prosecution for an offence against the Act also to have engaged in the conduct, unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.[2]
[2] Section 86(2) of the Classification (Publications, Films and Computer Games) Act 1995 (SA) provides:
If a director, employee or agent of a body corporate engages in conduct on behalf of the body corporate within the scope of his or her actual or apparent authority, the body corporate must be taken, for the purposes of a prosecution for an offence against this Act, also to have engaged in the conduct unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.
As earlier noted the principal complaint on appeal relates to the requirement that the films the subject of the charges had not been classified under the State Act. In this respect, an issue arises as to the obligation to take judicial notice of legislative instruments. The defendants further contend on the appeal that it had not been established beyond reasonable doubt that seven of the films the subject of the charges would, if classified, have been classified RC or X18+. Finally, the defendants submit that the Magistrate was in error in formally recording convictions against the defendants and in imposing the penalty he did.
The Legislative Scheme
The Commonwealth Act establishes a National Classification Board that has the responsibility for classifying films. It is headed by a Director. The National Classification Board may exercise powers and functions in relation to classification that are given to it pursuant to arrangements between the Commonwealth and the States. Apart from where the State intervenes, films are classified by the National Classification Board under the Commonwealth Act. The National Classification Board operates through the Office of Film and Literature Classification, a branch of the Australian Attorney-General’s Department.
There is a right given in the Commonwealth Act for any person or party to make an application for classification of a film. The Commonwealth Act provides a general right to apply for classification.[3] Evidence of the classification decision of the National Classification Board may be established by a certificate issued pursuant to section 87 of the Commonwealth Act.
[3] Section 14 of the Classification (Publications, Films and Computer Games) Act 1995 (Cth) relevantly provides:
(1)An application for classification of a film (other than an enforcement application—see section 22A) must be:
(a) in writing; and
(b) made in a form approved by the Director in writing; and
(c) signed by or on behalf of the applicant; and
(d) accompanied by:
(ia) a copy of the film; and
(i) the prescribed fee for that category of film; and
(ii)an adequate written synopsis of the film in English that includes a statement or summary of any incidents, or of the plot, depicted or intended to be depicted by the film.
Note:For an applicant that is the Commonwealth, or a Commonwealth authority or agency: see section 91A.
(2) An application for classification of a film may be accompanied by a copy of any advertisement that is proposed to be used to advertise the film.
…
The State Act establishes a South Australian Classification Council. A classification will only occur in South Australia with respect to a film, if the Council acts of its own initiative or if the Council is required to act by the Minister.[4] A film may be classified by the Council or the Minister notwithstanding that it is classified under the Commonwealth Act and, in that event, the State classification overrides any classification under the Commonwealth Act.[5] Notice of a classification must be published in the South Australian Government Gazette and the classification takes effect on a date specified in the notice or, if no date is so specified, the date of publication of the notice.
[4] Section 16 of the Classification (Publications, Films and Computer Games) Act 1995 (SA) provides:
(1)Subject to this section, the Council—
(a) may, of its own initiative, and must, if so required by the Minister, examine a publication, film or computer game for classification purposes;
(b) may classify a publication, film or computer game.
(2)If the Minister requires the Council to provide advice as to the classification of a publication, film or computer game—
(a)the Council must provide the Minister with advice as to the classification of the publication, film or game;
(b) the Council may not, unless the Minister otherwise determines, proceed itself to classify the publication, film or game;
(c) the Minister may, after considering the Council's advice as to the classification of the publication, film or game, classify the publication, film or game.
(3) Notice of a classification under this section must be published in the South Australian Government Gazette and the classification takes effect on a date specified in the notice or, if no date is so specified, the date of publication of the notice.
[5]Classification (Publications, Films and Computer Games) Act 1995 (SA) section 17.
The State Act provides a legislative framework for the investigation of offences against the Act and for ‘aids to proof’ if a prosecution is initiated.
Sections 80(2) and 80(3) of the State Act give power to members of the police force to enter a place that they believe on reasonable grounds is being used for or in connection with the sale of films. Those sections also give power to seize any film the police believe on reasonable grounds affords evidence of the commission of an offence against the Act.
Section 83(1) of the State Act provides that in proceedings for an offence, an apparently genuine document purporting to be a certificate or a copy of a certificate signed by the National Director or the Deputy National Director stating that a film is classified, or not classified, under the Commonwealth Act as specified in the certificate is evidence, in the absence of evidence to the contrary, of the fact stated in the certificate.
Section 83(2) of the State Act provides that an apparently genuine document purporting to be a certificate signed by the Registrar of the Council may also prove that a film was classified or not classified under the State Act.
Section 83B(2) of the State Act provides that where a film is unclassified at a particular date, but is later classified at a particular level, the film is taken, if it had been classified at the earlier date, to have been classified at that level.
Section 15 of the State Act sets out the range of classifications. In relation to films those classifications are as follows:[6]
G General
PG Parental Guidance
M Mature
MA 15+ Mature Accompanied
R 18+ Restricted
X 18+ Restricted
RC Refused Classification.
The Commonwealth Act by section 7 provides for the same order of classification.
[6] Classification (Publications, Films and Computer Games) Act 1995 (SA) section 15(2).
In general, X18+ films are so classified if they contain depictions of actual sexual activity between consenting adults, provided there is not violence, fetishes or depictions which would purposefully demean anyone in the activity. The Refused Classification category, RC, are generally films that depict or deal with matters of sex, drug issues, drug addiction, crime, cruelty or violence, or revolting or abhorrent phenomena in a way that is likely to offend against the standards of morality, decency and propriety generally accepted by reasonable adults.
Finally, reference should be made to relevant definitions. Section 4 of the State Act is a definition section and includes the following:
In this Act—
…
classified means—
(a) in relation to a publication, film or computer game—classified by the Council or the Minister under Part 3 of this Act; or
(b) in relation to a publication, film or computer game that is not classified under Part 3 of this Act—classified under the Commonwealth Act;
Commonwealth Act means the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, as amended from time to time;
…
Council means the South Australian Classification Council established under Part 2 of this Act;
…
determined markings means markings determined under section 8 of the Commonwealth Act;
…
film has the same meaning as in the Commonwealth Act;
…
National Board means the Classification Board established by the Commonwealth Act;
National Classification Code means the National Classification Code as in force from time to time under the Commonwealth Act;
national classification guidelines means the classification guidelines as in force from time to time under the Commonwealth Act;
National Director means Director of the National Board appointed under the Commonwealth Act;
National Review Board means the Classification Review Board established by the Commonwealth Act;
…
sell means sell or exchange or let on hire, and includes offer or display for sale or exchange or hire, agree to sell, exchange or hire and cause or permit to be sold or exchanged or hired, whether by retail or wholesale;
The Commonwealth Act also has a definition section, section 5, which includes the following:
In this Act, unless the contrary intention appears:
…
Board means the Classification Board.
…
classification certificate means a certificate issued under section 25.
classified means classified under this Act.
Code means the National Classification Code, set out in the Schedule to this Act as originally enacted, as amended in accordance with section 6.
…
decision means a decision of the Board:
(a) to classify or refuse to classify a publication, film or computer game (including a decision of the Board under section 39 or 97A); or
…
determined markings means markings determined by the Director under section 8.
Director means the Director of the Board.
…
participating Minister means a Minister of a State or Territory who is responsible for censorship matters where the State or Territory is a participant in the scheme referred to in section 3, but does not include such a Minister in relation to action to be taken under a provision of this Act if:
(a) the action relates to publications, films or computer games; and
(b)the State or Territory does not participate in the scheme in relation to publications, films or computer games, as the case may be.
…
publish includes sell, offer for sale, let on hire, exhibit, display, distribute and demonstrate.
Review Board means the Classification Review Board.
…
The Trial
At trial, evidence was led by the prosecution concerning the police raid, the seizure of films and the subsequent dealings with those films. In respect of that evidence the Magistrate concluded:
… I found all the police officers called as witnesses for the prosecution to be honest and credible witnesses and I accept their evidence. I accept that there were some slight differences that could be attributed to the lapse of time or different perceptions of what was occurring, but essentially all the evidence was properly and consistently given and reflected accurate recollections and memories of the investigation that gave rise to the trial. …
It was the prosecution case that the films the subject of the counts on which convictions were recorded were all unclassified and that if classified would be classified either RC or X18+. It was said that the films the subject of count 4 had been the subject of a sale to the police officers who attended at Kilkenny immediately prior to the raid and that the films the subject of counts 2 and 5 were possessed by the defendants for the purpose of sale.
On December 2010 following the close of the prosecution case, the defence called no evidence. Submissions were made by both parties. During the course of the defence submissions it was submitted, inter alia, that the prosecution had failed to prove that the films, the subject of counts 2, 4 and 5 had not been classified under the State Act. The Magistrate reserved judgment.
On 31 January 2011 the Magistrate forwarded an email to the prosecutor and counsel for the defendants seeking assistance from both parties as to the existence of any gazetted notice for the classification of any of the relevant films. This was a requirement of section 16(3) of the State Act. The Magistrate raised this issue with the parties apparently being conscious of his apparent obligation to take judicial notice of any State gazetted notice.
On 23 February 2011, the parties attended before the Magistrate. Counsel for the defendants declined to assist the Magistrate complaining that this was tantamount to allowing the prosecution to re-open its case. The Magistrate rejected the defence submission and adjourned the matter to enable the enquiries to be pursued.
On 7 April 2011 the matter resumed. The prosecutor advised the Magistrate that he had not identified any Gazetted notices pertaining to classification of the relevant films under the State Act. The prosecutor tendered an email from the Registrar of the South Australian Classification Council advising that the Council had not considered any of the films the subject of counts 2, 4 and 5 for the purposes of classification.
Although there is no transcript of the hearing on 7 April 2011, the Court record contains the following:
Senior Constable Kronitis advises that he had received an email from Wilhelmina Chapman the Registrar of the SA Classification Counsel [sic] advising that there is no State Classification for the exhibits in the case.
[Counsel for the defendants] does not consent to HH receiving that document and can neither agree nor disagree about the accuracy of that document as he has not conducted his own research.
HH receives the document to enable him to determine whether he should take any judicial notice of any notice of classification in a gazette with respect to the exhibits prus. s. 35 of the Evidence Act.
HH advises the parties that in view of the fact that there is apparently no such notice to take judicial notice of, he will find that there are no State Classifications of any of the exhibits in this case.
[Emphasis added.]
The Magistrate, as foreshadowed in the above exchange, concluded that none of the films the subject of counts 2, 4 and 5 had been classified under the State Act. The Magistrate found that the Commonwealth Classification Certificates applied to the relevant films.
The Magistrate made the following observations in the course of his published reasons:
The evidence of Senior Constable Borgardt was that he sent off the remaining films to the Board seeking a Commonwealth classification and subsequently received those classifications and the evidence of that fact in the form of certificates. There was no evidence at either the Brooklyn Park premises or the Kilkenny premises that the DVDs/videos on display for sale had ever been classified. There was not marked on those films or their covers the usual classification markings that are quite familiar to anyone seeking to hire or purchase a DVD or video in Australia. This evidence and the understanding by the police officers that the films were unclassified was not challenged by the defence.
The defence is bound by the course that the trial took. At no stage did the defence suggest to any prosecution witness that their understanding of the status of these DVDs or videos was other than what was stated in the evidence. The defendant company and directors who possessed these films for sale, might also have been expected to challenge any particular film if they were aware that it had either a Commonwealth or State classification. They did not do so. Accordingly, where the evidence of the prosecution witnesses remains unchallenged and was not an apparent issue in the case then the conclusions arising from the prosecution evidence can more readily be drawn. It does not seem to me to be necessary to take the further step of attempting to prove a fact in issue by negating a suggestion that the police officers did not believe existed, namely that there might be a classification under the State Act.
A further reason I reject this argument of [counsel for the defendants] is that the argument is incorrect in its assumption that proof of a State classification must be established by evidence lead by the prosecution. S.16(3) of the State Act states:
Section 16(3) -
Notice of a classification under this section must be published in the South Australian Government Gazette and the classification takes effect on dates specified in the notice, or, if no date is so specified the date of the publication of the notice.
In a court case involving a State classification it is a mandatory requirement of s.35 of the Evidence Act, 1929 for the State Court to take judicial notice of any such notice published in a gazette (Martin v The Department of Energy, Transport and Infrastructure [2010] SASC 141; Police v Barber [2010] SASC 329).
[Emphasis in original.]
On 17 May 2011, the Magistrate recorded convictions on counts 2, 4 and 5 against each defendant.
The Appeal
The Classifications
The defence contended on the appeal that it had not been established beyond reasonable doubt that seven of the films would, if classified, have been classified RC or X18+.
It was submitted that six of the films the subject of count 2 and one of the films the subject of count 5, if unclassified, had not been, as required by section 45(1)(a) of the State Act, proved to be “classified RC or X18+”. It was said that the titles of the seven films as listed in the Commonwealth certificate did not match the titles appearing either on the covers, on the casing or the on the discs themselves. It is to be accepted that it is possible to discern some differences in the descriptions.
The Magistrate rejected this submission:
Another issue raised by [counsel for the defendants] was whether the Court could be satisfied that the various certificate tendered pursuant to s.83 of the State Act matched up with the DVDs and videos that had been seized from both the premises and sent by Senior Constable Borgardt for classification. [Counsel] in making this point, subjected the various covers and actual DVD discs or videos to a minute examination and pointed out with respect to a few of them some discrepancies. However, in the end I am quite satisfied that each certificate that has been tendered pursuant to s.83 of the State Act can appropriately be matched up with a DVD and video that was also tendered as an exhibit. Whilst there may be some minor differences in description, with respect to each certificate their description generally matches enough of the description on each DVD or video to establish the connection. It is also to be born in mind that under consideration is a relatively small bundle of DVDs and videos sent for classification and the certificates that have been generated by that process. The descriptions within that number are easily matched to the certificates, in a sense that there are no other DVDs or videos that remotely match that particular description.
The evidence led in the trial established that the films the subject of counts 2, 4 and 5 had been forwarded to the Commonwealth agency for classification. A receipt had been received and the films returned with their classification. The State police officer supervising this activity gave evidence that he was satisfied that the films as returned were those that had been sent. This evidence was not challenged. There was no evidence to suggest that there was any risk that there had been any misplacement or substitution of films in that process. There was no request for the presentation of the Commonwealth officer or officers involved to attend for cross-examination. Further, the certificates matched detail on the covers of the films, apart from the precise title, including for example the production company, the director and the running time.
In my view the Magistrate’s conclusions in this respect were open to him.
Judicial Notice[7]
[7] McHugh J relevantly observed in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, [64]-[65]:
As a general rule, facts in issue or relevant to a fact in issue must be proved by admissible evidence. The doctrine of judicial notice is an exception to this rule. A court may judicially notice a fact whenever it "is so generally known that every ordinary person may be reasonably presumed to be aware of it". The information which the court acquires by taking judicial notice of facts is not "evidence strictly so called". Facts that may be judicially noticed fall into two categories: facts that can be judicially noticed without inquiry and facts that can be judicially noticed after inquiry. Facts that can be judicially noticed also fall into two other categories: (1) adjudicative facts and (2) legislative facts.
An adjudicative fact is a fact in issue or a fact relevant to a fact in issue. A legislative fact is "a fact which helps the court determine the content of law and policy and to exercise its discretion or judgment in determining what course of action to take". In contrast with adjudicative facts, which always relate to the issues between the parties, legislative facts generally relate to the law-making function of the judicial process. As Brennan J pointed out in Gerhardy v Brown, a court that is considering the validity or scope of a law "is not bound to reach its decision in the same way as it does when it tries an issue of fact between the parties". Whether the law is a Constitution, a legislative enactment or a principle or rule of the common law or equity, the "validity and scope of a law cannot be made to depend on the course of private litigation". In R v Henry, Spigelman CJ said that the means of acquiring information "for the purposes of policy development should not be confined by the rules of evidence developed for fact finding with respect to matters that only concern the parties to a particular case". As a result, as the learned author of Cross on Evidence has pointed out, "[i]t is clear from the cases that judges have felt themselves relatively free to apply their own views and to make their own enquiries of social ethics, psychology, politics and history where relevant without requiring evidence or other proof". And in Rendell v Paul, King CJ, with the approval of the other members of the Full Court of the Supreme Court of South Australia, said that judicial notice can be taken of "general economic trends, the effects of inflation, prevailing rates of interest and returns on investments". Similarly, the Supreme Court of Victoria has taken judicial notice of prevailing economic conditions.
[Footnotes omitted.]
It was further the defence case that each of the counts should be dismissed as the prosecution had failed to prove guilt beyond reasonable doubt. As to counts two, four and five, it was said that it had not been proved that the films were unclassified under the State Act.
On the hearing of the appeal, it was contended that the process followed by the Magistrate was irregular and inappropriate. It was said in substance that the Magistrate had allowed the prosecution to re-open its case to the prejudice of the defendants. It is relevant to note that there was no suggestion by defence counsel that the assertions of the prosecutor or assertions in the correspondence were factually incorrect or inaccurate. Defence counsel’s stand was that the prosecution could not re-open its case.
Section 35 of the Evidence Act 1929 (SA) provides:
(1) A court must take judicial notice of a legislative instrument.
(2) In this section—
legislative instrument means—
(a) an Act of this State, or an Act or ordinance of any other State or a Territory of the Commonwealth;
(b) an Act of the Imperial Parliament that forms part of the law of this State or of any other State or a Territory of the Commonwealth;
(c) a regulation, rule, by-law or other form of subordinate legislation made under the law of this State or of any other State or a Territory of the Commonwealth;
(d) a proclamation, order or notice published in the Gazette or the corresponding official publication of some other State or a Territory of the Commonwealth;
(e) an Act or other instrument of a kind referred to in a preceding paragraph as published or republished under—
(i) the Legislation Revision and Publication Act 2002; or
(ii) a former Act, or provision of an Act, of this State that provided for the reprinting or consolidation of any such instruments; or
(iii)a corresponding Act or ordinance of any other State or a Territory of the Commonwealth.
[Emphasis added.]
The Magistrate discussed in his reasons the events that followed the conclusion of the submissions of the parties at the time of the initial hearing. In that respect the Magistrate observed:
The parties had overlooked this requirement and I arranged for the matter to be called on before me on 23 February. I made it clear to the parties that I stood ready to take judicial notice of any notice of State classification published in the gazette relating to any of the exhibits tendered in this trial. I requested the assistance of both prosecution and defence counsel as officers of the court to assist me by identifying any such gazettal notice. I also of course used the opportunity of advising both parties of what I was intending or prepared to do as a matter of procedural fairness.
During that hearing I rejected two submissions make to me by [counsel for the defendants] about the course I was taking. The first objection was that I was in some sense allowing the prosecution to re-open its case. I made it clear that judicial notice was a different way of proving a fact in issue and I was not allowing the prosecution to re-open its case. The further objection was that any such gazettal notice had to be tendered during the prosecution case. I ruled that judicial notice could be taken at any time up to final judgment or indeed even later by an appeal court and that [counsel’s] submissions were contrary to the reasons of White, J. in Martin v The Department of Transport, Energy and Infrastructure [2010] SASC 141 at para. [28] and [29].
On 7 April the matter was again called on and I was advised by Senior Constable Kronitis that no gazettal notice had been identified for the exhibits before the court. Indeed, in a reply to an enquiry made by Senior Constable Kronitis, the Registrar of the SA Classification Council advised that the Council had not considered any of the exhibit films for classification. This came as no surprise, because as I had already indicated no individual or corporation can apply for a State classification of a film. It is most likely that the State classification will only be made where there is some community disquiet about a particular film or there is some individual concern held by the government about a film. It would be difficult to imagine why the State would have been concerned with the small number of films that have been tendered as exhibits in this case.
As there have been no gazettal notices placed before me to take judicial notice of, I am entitled to conclude that there are no State classifications for any of the exhibits in this case. Accordingly, s.17 of the State Act has no work to do and pursuant to the definition of ‘classified’ in s.3 of the State Act, the Commonwealth classifications I have received evidence about apply to each exhibit.
It is unsurprising that the Magistrate sought the assistance of counsel as to the state of any relevant Gazetted notices. This is a matter on which one would expect counsel to be able to assist the Magistrate. That assistance is evident from both the prosecutor at trial and counsel for the Police on the appeal. This was not a search for evidence; it was an inquiry into a state of affairs of which judicial notice could be taken.
In Martin v The Department of Transport, Energy and Infrastructure[8] an issue concerning the accreditation of a taxi driver arose. In finding that a defendant had contravened section 31(7) of the Passenger Transport Act 1994 (SA), the Magistrate concluded that the defendant had failed to comply with a condition of his accreditation as a taxi driver. It was complained on appeal that the conditions of accreditation had not been proved. In this respect White J in dismissing the appeal, observed:[9]
Although the Magistrate’s attention was not drawn to these gazettals, and they were not put in evidence at the trial, I consider that s 35(1) of the Evidence Act 1929 (SA) obliges this Court to take judicial notice of them. Section 35(1) provides that “a court must take judicial notice of a legislative instrument”. In subsection (2), the expression “legislative instrument” is defined to include a regulation, rule or by-law (subparagraph (c)) and a proclamation, order or notice published in the Gazette (subparagraph (d)).
…
Counsel submitted that s 37A of the Evidence Act required, at the least, that the gazetted notices should be produced to the Court (in this case the Magistrates Court) before the Court could take judicial notice of them. Section 37A provides:
The mere production of a paper purporting to be the Gazette shall in all courts be evidence that the paper is the Gazette and was published on the day on which it bears date.
In my respectful opinion, this submission should not be accepted. On its proper construction, s 37A is facilitative. It does not require the production of a copy of the Gazette before a court can act on it: instead it enables the court to act on the mere production of a copy of a relevant gazettal, without requiring any more formal proof. Of course, when a party does wish to rely upon the content of a gazetted notice, proclamation or regulation, the requirements for procedural fairness must be observed. …
On the hearing of this appeal, no challenge was made to the correctness of the observations of White J. I agree with those observations.
[8] Martin v The Department of Transport, Energy and Infrastructure (2010) 269 LSJS 403.
[9] Martin v The Department of Transport, Energy Infrastructure (2010) 269 LSJS 403, [26], [29]; see also, Barber v Police (2010) 108 SASR 520.
If a classification is made under the State Act, section 16 requires notice of that classification to be published in the Gazette.[10] One way of proving that a film had not been classified under the State Act would be to obtain a certificate from the State Council as provided for in section 83(2)(b) and to rely upon the available statutory presumption.[11] This course was not followed.
[10] Section 16 of the Classification (Publications, Films and Computer Games) Act 1995 (SA) is in the following terms:
(1)Subject to this section, the Council—
(a) may, of its own initiative, and must, if so required by the Minister, examine a publication, film or computer game for classification purposes;
(b) may classify a publication, film or computer game.
(2)If the Minister requires the Council to provide advice as to the classification of a publication, film or computer game—
(a)the Council must provide the Minister with advice as to the classification of the publication, film or game;
(b) the Council may not, unless the Minister otherwise determines, proceed itself to classify the publication, film or game;
(c) the Minister may, after considering the Council's advice as to the classification of the publication, film or game, classify the publication, film or game.
(3)Notice of a classification under this section must be published in the South Australian Government Gazette and the classification takes effect on a date specified in the notice or, if no date is so specified, the date of publication of the notice.
[11] Section 83(2) of the Classification (Publications, Films and Computer Games) Act 1995 (SA) provides:
(2) In proceedings for an offence, an apparently genuine document purporting to be a certificate, or copy of a certificate, signed by the Registrar of the Council and stating that—
(a) a film, publication or computer game is classified under Part 3 of this Act as specified in the certificate; or
(b) a film, publication or computer game is not classified under Part 3 of this Act, or is not classified under Part 3 of this Act at a classification specified in the certificate; or
(ba) a film, publication or computer game was not, at a date specified in the certificate, classified under Part 3 or was, at a date specified in the certificate, classified under Part 3 at a classification specified in the certificate; or
(c) an advertisement described in the certificate is approved under Part 3 of this Act, or has been refused approval under Part 3 of this Act, or has not been approved under Part 3 of this Act,
is evidence, and in the absence of evidence to the contrary is proof of, the facts stated in it.
The Magistrate was, however, entitled to refer to and rely on section 35 of the Evidence Act. If a search of all relevant Gazettes and a review of all notices of classification revealed no reference to the particular film, a court was entitled, if not obliged, to take judicial notice that the particular film had not been classified.
While recognising the mandatory terms of section 35 of the Evidence Act, I am not to be understood as accepting that there is an obligation on a court to seek out every document or reference contained in section 35 of the Act. I do not consider this to be the intent of section 35.
During the course of the appeal hearing, I expressed some concern that the prosecutor’s advice to the Magistrate that he was “unaware” of any relevant gazetted notice did not on its face establish that a complete search and review had been undertaken. On the appeal counsel for the police caused a complete search and review to be made and filed an affidavit detailing those matters. The effect of the affidavit is that there has been no relevant gazetted notice.
Accordingly, the conclusion can be drawn that the films the subject of counts 2, 4 and 5 have not been classified under the State Act. When this state of affairs is considered together with the evidence of the Commonwealth certifications, the conclusion can be reached that the films the subject of the convictions on counts 2, 4 and 5 were unclassified both under the State Act and the Commonwealth Act.
Re-opening of Prosecution Case
The Magistrate’s note of 7 April 2011 reads that the prosecutor advised the Court of the terms of his communication with the Registrar of the South Australian Classification Council, advising that the Council had not given consideration to any of the films the subject of counts 2, 4 and 5. As the Magistrate noted in his reasons:
… Indeed, in a reply to an enquiry made by Senior Constable Kronitis, the Registrar of the SA Classification Council advised that the Council had not considered any of the exhibit films for classification. This came as no surprise, because as I had already indicated no individual or corporation can apply for a State classification of a film. It is most likely that the State classification will only be made where there is some community disquiet about a particular film or there is some individual concern held by the government about a film. It would be difficult to imagine why the State would have been concerned with the small number of films that have been tendered as exhibits in this case.
The correspondence between the prosecutor and the Registrar was tendered to the Magistrate. On its face this correspondence allowed the conclusion to be drawn that none of the films had been classified under the State Act.
It is to be accepted that it is exceptional in a criminal proceeding to allow the prosecution to re-open its case.[12] The Magistrate retained a discretion to allow the prosecution to re-open its case. No suggestion was made before the Magistrate of any unfair prejudice resulting from the case being re-opened. The only penalties that follow from breaches of the State Act are monetary penalties and forfeiture. The legislative scheme may be fairly characterised as social regulatory legislation. On the hearing of the appeal, counsel for the defendants accepted that the defendants did not wish to further cross-examine any prosecution witness or have any other witnesses presented.
[12] Shaw v The Queen (1952) 85 CLR 365.
Counsel for the defendants was unable to identify any unfair prejudice flowing from the Magistrate’s receipt of the further information from the prosecutor. Any prejudice as to costs could be met by an appropriate order. Counsel for the defendant pointed out that the material did address a matter that required proof. In my view, however, given the nature of the proceedings, the opportunity given to the parties to make full submissions, the fact that the penalties attaching to any breach of the Act are only monetary and the absence of any apparent prejudice, it was within the discretion of the Magistrate to receive the further material.
In any event, there was other evidence before the Court from which the conclusion could be drawn that the relevant films were unclassified. The evidence at trial established that the films, when seized by the police, contained no classification markings under the Commonwealth or State Acts. Section 40 of the State Act provides for an obligation to display determined markings.[13]
[13] Section 40 of the Classification (Publications, Films and Computer Games) Act 1995 (SA) is in the following terms:
(1)A person must not sell a film unless the determined markings relevant to the classification of the film and relevant consumer advice, if any, are displayed on the container, wrapping or casing of the film.
Maximum penalty: $2 500.
Expiation fee: $210.
(2)A person must not sell an unclassified film if the container, wrapping or casing in which the film is sold bears a marking that indicates or suggests that the film has been classified.
Maximum penalty: $2 500.
Expiation fee: $210.
(3)A person must not sell a classified film if the container, wrapping or casing in which the film is sold bears a marking that indicates or suggests that the film is unclassified or has a different classification.
Maximum penalty: $2 500.
Expiation fee: $210.
(4)If—
(a) a film is reclassified under this Act or the Commonwealth Act; or
(b)a classification or consumer advice for a film is revoked under this Act or the Commonwealth Act,
display of the determined markings and consumer advice applicable to the film before that reclassification or revocation is sufficient compliance with this section for a period of 30 days after the decision to reclassify or revoke takes effect.
None of the films, the subject of counts 2, 4 and 5, disclosed any markings to indicate that the films had been classified under the State or Commonwealth Acts. A number contained no markings at all.
It is to be observed that a number of the films contained a manufacturer’s notation and/or a sticker containing the words X18+. Several films classified by the Commonwealth as RC exhibited an X18+ sticker. These markings raise the question as to whether there had been a display of a determined marking of any of the films under the State or Commonwealth Acts.
The police at the time of the raids seized a roll of stickers from the defendants’ premises containing the words X18+. The roll of stickers was tendered in evidence. There was no indication that stickers from this roll were a determined marking under the State or Commonwealth Acts. They appeared to be stickers of the defendants and applied for the purposes of attracting customers into the belief that they were films of an appropriately explicit nature. Some of the containers came with a manufacturer’s X18+ notation.
Counsel for the defendants on the appeal accepted that these stickers were not recording a determined marking indicating a classification under the State or Commonwealth Acts.[14]
[14] On the appeal hearing, the following exchange occurred:
His Honour: … [the X18+ stickers are] not meant to in any way be indicative of a Commonwealth or State classification.
[Counsel for the defendants]: No.
His Honour: Because if they were, the films are unsaleable.
[Counsel for the defendants]: Correct.
In my view, the Magistrate was entitled to act on this evidence to draw an inference that the films were unclassified under the State and Commonwealth Acts and to reach the conclusion that this element of each count had been established.
On the hearing of the appeal, counsel for the defendants did not make a submission that the films were other than unclassified. His contention was that evidence proving that they were unclassified under the State Act had not been led. In any event, as discussed above, the affidavit of the police filed on the appeal established that there had been no relevant gazetted notices. I enquired from counsel for the defendants if they would wish to have any witnesses called or recalled. I was informed that the defendants did not wish to cross-examine any person involved in the Commonwealth or State classification processes. In the event that the Magistrate was in error in acting on this material, I would permit the material to be admitted on the appeal in the exercise of this Court’s wide powers on a rehearing.[15]
[15] See the inherent jurisdiction of the Supreme Court in addition to the general jurisdiction of the Court as now contained in section 17 of the Supreme Court Act 1935 (SA).
The appeals against conviction should be dismissed.
Appeal Against Penalty
The Magistrate imposed monetary penalties on each defendant as set out in the following table:
Charge
Kafcar Pty Ltd
Carter
Kafkoudas
Count 2
$6,000 (Maximum $20,000)
$3,000 (Maximum ($10,000)
$3,000 (Maximum ($10,000)
Count 4
$2,000 (Maximum $20,000)
$1,000 (Maximum ($10,000)
$1,000 (Maximum ($10,000)
Count 5
$6,000 (Maximum $20,000)
$3,000 (Maximum ($10,000)
$3,000 (Maximum ($10,000)
Total
$14,000 (Maximum $60,000)
$7,000 (Maximum ($30,000)
$7,000 (Maximum ($30,000)
The Magistrate also made extensive remarks to explain the penalties imposed. Those remarks included the following:
It is envisaged by the scheme that the main form of classification in this State will be under the Commonwealth Act. Any party can apply for classification under the Commonwealth Act, whereas under the State Act there is no absolute clear cut right for a party to obtain a classification made under State legislation. The scheme of classification in this State is underpinned by various criminal offences and other enforcement provisions contained within the State Act. The State Act generally permits full commercial dealings (with some exceptions relating to films with the R 18+ classification) of all classifications set out in s.15(2) of the State Act, except for X 18+ and RC classifications.
…
There has been a clear public policy decision by Parliament in this State not to permit any commercial dealings in film classified as X 18+ or RC. The simple possession of films of those classifications by citizens in this State is not prohibited, no doubt reflecting the probability that citizens can purchase such films in other parts of Australia or perhaps overseas. It is the commercial dealing in such films in this State that is prohibited. A series of criminal offences within the State Act essentially renders as criminal behaviour the commercial dealing in films with an X 18+ or RC classification. The offences are largely directed against distributors, exhibitors or sellers of films of those classifications. Examples of the offences created by the State Act include s.38 and s.45 of the Act that the defendant company and directors have been found guilty of.
The public policy underlying the Act reflects the determination of Parliament on behalf of the South Australian community that it is not in the interest of a healthy moral community to be exposed to the contents of films bearing those classifications. The type of content that Parliament is keen for citizens not to have readily available has been dealt with by me in paragraph 8 of my judgment and I need not repeat it in these reasons. However, I have been assisted today by Constable Kronitis handing up to me a document called ‘Guidelines for the Classification of Films and Computer Games’. I have had regard to the guidelines with respect to the X 18+ and RC classifications in arriving at a sentence in this matter. The guidelines reflect the sorts of comments I have made in para.8 in my judgment.
[Emphasis in original.]
The Magistrate noted that defendants were engaged in a commercial venture:
I find that the defendant directors and company stood to make a considerable commercial gain from their activities. I have heard evidence in this case that the DVDS or videos were on sale for $40 each and the customers were apparently being advised, at least on the day of the raid, that a film could be recycled back into the shop through a form of barter that involved the return of the original film for another film plus a $20 payment. The company was therefore presumably making money through this additional form of recycling over and above the original purchase price.
During the appeal the Court was informed by the defendants’ counsel that although the margin of profit varied, at times it was as high as 100 per cent.
The personal defendants were aged in their mid-forties, in a domestic relationship together, with a child and step-children. They have operated the business of the sale of erotica for more than a decade. The business continues to be conducted at Brooklyn Park and Kilkenny. The Magistrate did not consider that any real contrition or remorse had been shown.
It was explained that at the time of the subject offending, the defendants had relied on the information provided by their suppliers as to the suitability of the films for sale. It would appear that they have been conducting their business for many years without any system to ensure compliance with legislation with which it might be presumed they were well familiar. Apparently, steps have been taken to change the business practices to ensure compliance with the classification legislation.
On the appeal counsel for the defendants argued that having regard to the defendants’ lack of any relevant antecedents and the steps taken to avoid offending in the future, the Court should have proceeded without recording convictions. Further support for this submission was said to come from their contrition and remorse. The Magistrate was said to have fallen into error in his view that there was no real contrition and remorse and further in treating the offending as part of an ongoing course of conduct. It was also complained that the long delay in the commencement of proceedings should have been brought to account.
In my view the Magistrate has not been shown to have made any error of sentencing principle. The defendants were evidently engaged in an established commercial operation where they stood to receive considerable gains. There was no evidence before the Court of any particular contrition or remorse. In the circumstances the monetary penalties imposed were well within the discretion of the Magistrate. The nature of the offending was such that the Magistrate was entitled to proceed to record convictions.
One further matter should be addressed. The defendant company was no more than the alter ego of the personal defendants. In these circumstances, the question becomes: was it appropriate to impose separate penalties? It my opinion it was appropriate as the State Act evinces a clear intention that if a person contravenes the Act through the agency of an incorporated body, that body and its directors face separate penalties.[16]
[16] See section 86 of the Classification (Publications, Films and Computer Games) Act 1995 (SA).
I would dismiss the appeal against sentence.
Conclusion
For these reasons the appeals are dismissed.
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