Kafcar v Police - [2011] SASC 162

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 162
Magistrates 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 28^th 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 28^th 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 28^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Kafcar v Police [2011] SASC 162
Case: [2011] SASC 162
Decision Date: 30 September 2011

CaseChat Overview and Summary

The appeal in Kafcar v Police was brought before the Supreme Court by the appellants who were jointly charged and convicted of possessing and selling unclassified films in contravention of the Classification (Publications, Films and Computer Games) Act 1995 (SA). The appellants challenged the conviction and sentence, arguing that the element of each offence that the films were unclassified under the State Act had not been proven beyond reasonable doubt, and that the Magistrate was in error in allowing the prosecution to re-open its case.

The court was required to determine whether the unclassified status of the films, as an element of the offences, was proven beyond reasonable doubt. It also needed to decide whether the Magistrate was correct in permitting the prosecution to re-open its case. The appellants argued that the prosecution failed to establish that the films were unclassified under the Act, and that the Magistrate's decision to allow the prosecution to re-open its case was an error that affected the fairness of the proceedings.

In examining these issues, the court found that the prosecution had established beyond reasonable doubt that the films were unclassified under the Act. It also concluded that the Magistrate's decision to allow the prosecution to re-open its case did not prejudice the appellants' right to a fair trial. The court held that the evidence was sufficient to support the conviction and that there was no procedural error that warranted overturning the conviction or sentence.

The court dismissed the appeal against conviction and sentence, finding that the prosecution had met its burden of proof and that the procedural steps taken during the trial were lawful. The appeals were dismissed, and the convictions and sentences stood as originally determined by the Magistrate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

I would dismiss the appeal against sentence.Conclusion For these reasons the appeals are dismissed.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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