Lai-Ha v McCusker

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FEDERAL COURT OF AUSTRALIA

Lai Ha v McCusker [2000] FCA 1173

COPYRIGHT – appeal from conviction by Local Court of New South Wales for offences under ss 132(2A)(a) & 132(1)(b) of the Copyright Act 1968 (Cth) for possession and letting for hire of infringing copies of cinematographic films – whether Copyright Act 1968 (Cth) confers jurisdiction on Federal Court to entertain appeal – nature of appeal – whether an appeal stricto sensu, an appeal by way of re-hearing or an appeal de novo – whether to admit additional evidence

EVIDENCE – whether evidence before Local Court should have been excluded pursuant to ss 90 & 138 of the Evidence Act 1995 (Cth) – whether material seized beyond terms of search warrant should have been excluded – where issue of exclusion of material seized pursuant to search warrant not raised before Local Court – where search warrant not tendered before Local Court – where no evidence tendered on appeal to explain why search warrant not tendered before Local Court – whether admissions in English language by defendant recorded in video recording of purported execution of warrant admissible – whether defendant under arrest during execution of search warrant within meaning of the Crimes Act 1914 (Cth) ss 23F & 23G – whether copy of video or transcript should have been furnished to defendant – whether evidence before Local Court that defendant in possession of video cassettes for purposes of section 132(2A)(a) of the Copyright Act1968 (Cth) – whether evidence before Local Court that defendant let for hire video cassettes

CRIMINAL LAW – search warrant – whether search warrant valid – whether warrant fairly described an offence under section 132 of the Copyright Act 1968 (Cth) – whether seizure of items in purported execution of search warrant not authorised by law

Copyright Act 1968 (Cth) ss 131A, 131B, 132
Federal Court of Australia Act 1976 (Cth) ss 22, 24, 27
Acts Interpretation Act 1901 (Cth) s 15AB
Crimes Act 1914 (Cth) ss 3E, 23B, 23F, 23G, 23V
Evidence Act 1995 (Cth) ss 90, 138
Administrative Decisions (Judicial Review) Act 1977 (Cth)

Grierson v R (1938) 60 CLR 431 referred to
Tsintris v Roads and Traffic Authority of NSW (1991) 25 NSWLR 68 referred to
Ex parte Currie; Re: Dempsey (1968) 70 SR(NSW) 1 referred to
Orr v Holmes (1948) 76 CLR 632 referred to
R v Ireland (1970) 126 CLR 321 applied
Walkling Ltd v Robinson (1929) 29 Cox CC 131 referred to

KAM LAI-HA v McCUSKER
N 203 OF 2000
KAM LAI-HA v McCUSKER & ANOR
N 606 OF 2000

EMMETT J
27 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 606 OF 2000

BETWEEN:

KAM LAI-HA
APPLICANT

AND:

LEANNE McCUSKER
FIRST RESPONDENT

MARK RANDALL J. P.
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

27 JULY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed;

2.        The applicant pay the respondents’ costs in the proceeding.

Note:    Settlement and…

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Details
Case
[2000] FCA 1173
Decision Date

CaseChat Overview and Summary

Lai-Ha v McCusker was a case where Lai-Ha, the appellant, contested charges related to copyright infringement and possession of infringing articles. The case was heard in the Supreme Court of New South Wales. The primary issue was whether the video recordings and cassettes used in the prosecution were admissible as evidence and whether the Magistrate had the correct jurisdiction to hear the appeal. Lai-Ha also argued that the evidence was insufficient to prove she was the proprietor of the business, as required by the relevant statute.

The court examined the admissibility of the video recordings and found that Lai-Ha's objections were unfounded. The court concluded that the video was properly in evidence and contained admissions that sufficiently established Lai-Ha as the proprietor. The court also noted that Lai-Ha's contention that the Magistrate should not have been satisfied beyond reasonable doubt was not valid, as the evidence, including that from a witness, supported the conclusion that Lai-Ha was indeed the proprietor. The court further addressed the jurisdiction of the Local Court to hear the appeal and determined that the Local Court had the requisite jurisdiction.

The court also clarified the nature of the appeal, stating that it was not an appeal de novo but rather an appeal in the strict sense or by way of re-hearing. This distinction was important for determining how certain questions should be resolved. Ultimately, the court found in favour of the respondent, dismissing Lai-Ha's application and ordering her to pay the respondent's costs.

Orders

Orders of the court

1. The application be dismissed;

2. The applicant pay the respondents’ costs in the proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In conclusion, I am not satisfied that any of the bases advanced on behalf of the defendant for rejection of the video recording has been made out. Accordingly, ground 4 outlined in Mr Chan’s affidavit fails.EVIDENCE THAT CASSETTES WERE IN THE POSSESSION OF THE DEFENDANT Ground 5 concerned the first 17 charges under section 132(2A)(a) of the Copyright Act. It is an essential requirement for the operation of that provision that a person have in his or her possession an article for the specified purpose. The prosecution case before the Magistrate was that the defendant, as the proprietor of the business being carried on in the premises at 54 Belmore Road, Randwick, had in her possession the video cassettes that were in use in carrying on the business. The defendant contended there was no satisfactory evidence that she was in fact the proprietor. However, the informant relied upon evidence in addition to the admissions contained in the video. I have already concluded, for the reasons just indicated, that the video recording was properly in evidence. That clearly contains admissions upon which the Magistrate could have based a conclusion that the defendant was in fact the proprietor of the business. The contention, however, is that the Magistrate should not have been satisfied beyond reasonable doubt as to that question, having regard to other evidence before her. The other evidence consisted of evidence of a Miss Vivian Wu, who gave evidence before the Magistrate through an interpreter in the Cantonese language. Ms Wu said that she worked for “PC Video”, the name under which the business was carried on, and that she started in approximately January or February 1996. She says that she is still working there although she had stopped for approximately one year and began again at the beginning of 1998. Ms Wu said that the defendant started working in the business in March or April 1996. She was asked whether she had to go through an interview when she got the job at PC Video. She said that she was interviewed by P.D. Dang. When asked whether P. D. Dang had an English name, Ms Wu said, “Could be Julie. Nobody we call her Miss Dang in Chinese not in English of course.” Ms Wu described that person as being “middle age [sic] or in her fifties could be a bit older” and being Chinese. She said that for the second period of her employment she was not interviewed but she rang the manager. She said she recognised the voice on the other end of the telephone when she rang and said that that person was Mr “R. Sem”. Ms Wu described Ms Dang as “the boss”. She said that she did not see Ms Dang very often and in 1996 she saw her a few times. She said that she did not know anything about any information as to the change of ownership of the shop. When asked whether she had observed Rebecca Kam in the shop, she said, “not very often some time I see her”. She said that she and Rebecca Kam work on different shifts and that it was only if they were busy at the weekend that they would be together.

Decision

Reasons for decision

EMMETT J
Section 131B was inserted in the Copyright Act in 1979 at the same time as section 131A. Section 131A confers jurisdiction on the Supreme Court of a State or a Territory in an “action” under Part V. In 1987, section 131C was added. Section 131C confers jurisdiction on the Federal Court of Australia with respect to “actions” under Part V. The term “action” is defined for the purposes of Part V in section 114 as a “proceeding of a civil nature between parties, and includes a counter claim.” However, there is no reference to “action” in section 131B. Section 131B simply refers to a decision of a Court of a State or Territory. Section 131B is sandwiched between two sections referring only to civil proceedings. That might suggest that section 131B is limited to a decision in an “action”. Insofar as there is any ambiguity, it would be appropriate to refer to the explanatory memorandum relating to the bill for the Act to insert sections 131A and 131B: see section 15AB of the Acts Interpretation Act 1901 (Cth). The relevant parts of the explanatory memorandum provide as follows:“7. An appeal is to lie from the decision of a court under Part V of the Principal Act to the Federal Court of Australia or, by special leave of the High Court, to the High Court. The new appeal arrangements include an appeal from a decision of a court of summary jurisdiction under section 132 on a prosecution for an offence related to the infringing of copyright.8.These provisions give effect to the policy that the Federal Court of Australia is to be the appellate court in copyright matters subject only to an appeal being taken directly to the High Court in any case where the High Court grants special leave. Like provision has previously been made in respect of appeals in patent and trade mark matters.”Section 132 appears in Part V. Accordingly, there can be no doubt that section 131B includes appeals in criminal proceedings. I am satisfied, therefore, that I have jurisdiction in relation to the appeal. While at one stage there was a contention by the defendant that the proceeding was outside the jurisdiction of the Local Court, that contention was not pressed. It is clear that the Local Court had jurisdiction to entertain the prosecutions that were commenced by the summonses.THE NATURE OF THE APPEAL The jurisdiction of a court to hear and determine appeals from a court lower in the court hierarchy is a purely statutory remedy the ambit of which is to be strictly construed, see Grierson v R (1938) 60 CLR 431 at 435. Statutory rights of appeal are not uniform in nature. They may be classified as follows:1. appeals in the strict sense;2. appeals by way of re-hearing; and 3. appeals by way of hearing de novo. A question has arisen in these proceedings as to how the appeal to this Court should be categorised. It was contended on behalf of the defendant that the appeal was an appeal de novo. The informant contended to the contrary. Whether the appeal is an appeal in the strict sense or an appeal by way of re-hearing may not be of great significance. However, in order to determine one of the questions that is before me, it is necessary to say something about the nature of the appeal.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

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