Murushun Pty Ltd & Ors v – Cannavan
[2005] QDC 455
•9 December 2005
DISTRICT COURT OF QUEENSLAND
CITATION: | Murushun Pty Ltd & Ors - v – Cannavan [2005] QDC 455 |
PARTIES: | MURUSHUN PTY LTD trading as Sweethearts, GRS PTY LTD trading as Extasy the Sex shop, WONG, Robyn Michelle trading as Hot Stuff Adult Products and MUNRO, William John trading as Original Sin Appellants Against CANNAVAN, David Patrick Respondent |
FILE NO: | 296/05 |
PROCEEDINGS: | Appeal from Magistrates Court. |
DELIVERED ON: | 9 December 2005 |
DELIVERED AT: | Townsville |
HEARING DATE: | 30 November 2005 |
JUDGE: | C.F Wall Q.C |
ORDERS: | 1. The appeals involving the publications described as: (a) Purely 18 Volume 3 Number 9, 9th July 2001; (b) Live Young Girls Volume 21 Number , 5th June 2001; (c) Gallery, April 2001; and (d) The Australian Rosie 143 dismissed. At the expiration of the appeal period each publication be forfeited. 2. The appeals involving the publications described as: (a) Hustler Volume 6 Number 7; (b) Barely 18 Volume 1 Number 29; (c) Shaved Orientals Volume 8 Number 1; and (d) Fox Volume 19 Number 9 February 2001 allowed and the convictions and sentences set aside. In lieu each applt found not guilty of the offences involving those publications. At the expiration of the appeal period those publications be returned to the appellants. 3. Resp pay applt’s costs fixed at $1,500 |
| CATCHWORDS: | INFERIOR COURTS - APPEAL – EVIDENCE – Sale of prohibited publications - sexually explicit magazines – wh unlawfully obtained by inspector - proof of classification - sufficiency of evidence - wh Qld Act inconsistent with Cth Act Legislation referred to: Cases referred to: |
COUNSEL: | Mr L. Middleton for the Appellants |
SOLICITORS: | Stevenson & McNamara for the Appellants |
HIS HONOUR: These are appeals against the decision of the Magistrates Court at Townsville to convict the appellants of offences of selling prohibited publications contrary to section 12 of the Classification of Publications Act 1991.
Three grounds of appeal were argued. They relate to the alleged unlawfulness of the purchase of the publications by an inspector appointed under section 5(1)(a) of the Act, the fact that four of the publications were not classified as prohibited publications at the dates they were sold and an alleged conflict between section 12 and section 4(1) of the Human Rights (Sexual Conduct) Act 1994 (Commonwealth). I will deal with each ground separately.
Unlawfulness
Section 21 of the Act provides:
"21. An inspector who is not a police officer is not entitled to exercise powers under this part in relation to another person unless the inspector first produces the inspector's identity card for inspection by the person."
In the case of each sale and purchase the inspector did not produce his inspector's identity card, but gave the impression he was purchasing the publications as a private person. The appellants argue that in each case the inspector was either monitoring compliance by the appellants with the requirements of the Act (section 22) or looking for evidence of the commission of an offence against the Act (section 23) and entered each shop and purchased the publications for these purposes, and because he did not first produce his inspector's identity card he was acting unlawfully and the publications were unlawfully acquired and should, for those reasons, be excluded from evidence. Sections 22 and 23 are both contained in the same part of the Act as section 21 (Part 4).
I agree with Mr Isdale, who appeared for the respondent, that an inspector can be performing his duty and at the same time not exercising powers under Part 4. The publications were purchased during the normal business hours of each shop. In my view, Part 4 deals with matters other than the purchase of publications by an unidentified inspector and the inspector in the present case was not exercising powers under Part 4 when he purchased the publications here, notwithstanding that as a result evidence may have been obtained affording evidence of the commission of an offence against the Act. In these circumstances the decision of the Magistrate on this point was clearly correct.
If I am wrong about this there was ample evidence to justify the exercise of the discretion to admit the evidence notwithstanding the breach of section 21. I do not consider there has been such a degree of unfairness to the appellants by the purchase of the publications by an unidentified inspector that the public's interest in the enforcement of the law is outweighed. The authorities dealing with the exercise of the discretion in such circumstances indicate that mere unlawfulness by itself does not require the exclusion of the resultant evidence. It could not be said here that the evidence was obtained oppressively or by trick, on the contrary it was paid for.
Classification of four of the publications after the dates of sale
David Cannavan, the publications classification officer, from the Office of Fair Trading, Queensland gave evidence. He said he examined the magazines and issued certificates of classification "for a number of them". The prosecution then sought to tender the certificates. The defence objected to the admissibility of those relating to magazines which had not been classified at the dates of sale. These are Exhibits 14, 18, 19 and 20. Mr Cannavan said that for those magazines that had been classified, that is already classified as at the dates of sale, he issued a certificate to that effect. These are Exhibits 15, 16, 17 and 21. For those that had not been classified he classified them and issued a certificate. These are Exhibits 14, 18, 19 and 20.
The defence objection (which was overruled by the Magistrate) depended on section 9(5) of the Act having primacy over section 3, the definition section. In my view, the decision of the Magistrate on this particular aspect was correct. Section 9(1) provides that the publications classification officer may classify a publication as unrestricted, category 1 or 2 restricted or RC. Section 9(5) provides:
"9(5) A classification under this section is effective immediately."
Section 9(5) does not, in my opinion, exclude the operation of section 3 so far as it bears on the issue of whether the publication sold was a prohibited publication. Such publications are, for present purposes, either those that have been classified as category 1 or 2 restricted or would be so classified had they been classified at the relevant time.
Section 12 makes it an offence for a person to sell a "prohibited publication". A "prohibited publication" is defined, so far as is presently relevant, as a "restricted publication" which in turn is defined to mean:
"A publication that is, or, if classified, would be classified as category 1 restricted or category 2 restricted."
A publication includes a magazine. The certificates, Exhibits 15, 16, 17 and 21, related to magazines which had been classified as at the date each was sold. Each was therefore a publication "that is classified".
In the case of the other four magazines the prosecution needed to adduce evidence that if they had been classified on the date each was sold they would have been classified as category 1 or 2 restricted. The normal way to do this would be to have asked Mr Cannavan what he would have classified each as on the dates each was sold. The prosecution did not do this, but relied on the certificates tendered, Exhibits 14, 18, 19 and 20, to prove this fact.
Each certificate states that it is a certificate under section 32(1) of the Act. Paragraph (3) of each is a certification that:
"On (the date of sale) the publication referred to above would have been classified as a category (1 or 2) restricted publication."
Section 32(1) provides as follows:
"32.(1) In a proceeding for an offence against this Act, a certificate signed or purporting to be signed by the publications classification officer stating that-
(a)a specified publication has been classified (and specifying the classification); or
(b)a specified publication has not been classified; or
(c)a specified publication is a prohibited publication;
is on its production in the proceeding evidence of the matters stated in the certificate."
Paragraph (3) of each certificate could have no evidentiary effect as section 32(1) does not provide for or authorise a certificate to that effect. Mr Isdale agreed that section 32(1) "does not contemplate a certificate that on a particular date, if classified, the publication referred to would have been classified."
The statement in each certificate that the publication referred to "is a prohibited publication" meant no more than that it bore that categorisation as a result of the classification made by Mr Cannavan on the 11th of October 2001 in the case of Exhibit 14 and the 12th of October 2001 in the case of Exhibits 18, 19 and 20. It would be unduly straining the English language to read that as meaning also that had the publication been classified on the date of sale it would have been classified as a category 1 or 2 restricted publication.
The end result is that there was no admissible evidence before the Magistrate that those publications which had not been classified as at the date of their sale were in fact prohibited publications.
Notwithstanding that this point was raised for the first time on the hearing of the appeal and had not been specifically raised before the Magistrate, because it relates to the sufficiency of the evidence to support four of the charges and because they are charges carrying a penalty upon conviction the appellants should not, in my view, be precluded from raising it now. The admission of the certificates (Exhibits 14, 18, 19 and 20) into evidence did not relieve the Magistrate from determining their evidentiary effect. Had that been done the conclusion would have been reached that they could not, by reason of the terms of section 32(1), be used as evidence of what classification the publications would have borne had they been classified on the date each was sold. Section 32(1) is limited in its scope and application and because it amounts to a departure from the normal rules of evidence it should, in my view, be strictly construed and confined to the matters which it specifically refers to.
Mr Isdale submitted that the defence should have taken the point when the prosecution sought to tender the certificates so that, if necessary, oral evidence about the matter could have been given by Mr Cannavan. That is certainly a course which could have been adopted, but the fact that it was not did not relieve the Magistrate in any event from considering what precisely was the evidentiary effect of the certificates, bearing in mind the limited use which could be made of them having regard to the terms of section 32(1). For these reasons the appellants should not now be precluded from arguing that the certificates did not, in fact, have the evidentiary effect contended for by the prosecution.
Before the Magistrate the defence mounted a frontal assault on the admissibility of the certificates relying in particular on section 9(5). It was argued that the classification of a publication after the date of sale could not make an earlier sale of the publication an offence. This argument clearly raised the application of the definitions of "prohibited publication" and "restricted publication" and it was upon those definitions that the prosecution rested its case. It was therefore, in my view, incumbent upon the prosecution to ensure that the foundations of its case were secure. The use of the certificates to achieve the result contended for by the prosecution required careful analysis and it was incumbent on the prosecution to ensure the sufficiency of its evidence relying on these definitions and for the Magistrate to do likewise before convicting. Upon a proper analysis it would or should have been apparent that the evidence relied upon by the prosecution, the certificates, was not sufficient to satisfy the definitions. Evidence should have been but was not led from Mr Cannavan. This was, unfortunately for the prosecution, a fatal omission.
Mr Isdale argued by reference to two brief passages in the evidence of Mr Cannavan at page 66 of the transcript that the witness did in fact give evidence of what classification each publication would have had at the dates of sale had they then been classified. He conceded this was a "weak argument" and I agree. He also conceded that the evidence was "not very direct evidence on the point". In my view the passages referred to do not have the meaning suggested by Mr Isdale. That evidence related to the certificates prepared by him and was confined to those certificates. I think it would be reading too much into a few brief words in two sentences to conclude that the issue was in fact dealt with by Mr Cannavan in his evidence.
Mr Isdale's main argument on this point related to what he submitted was the absence of a "temporal hook" in the definition of "restricted publication". He submitted that "if" in that definition is not temporally linked to the date of sale and it does not matter when the publication was classified only that it has been classified even if after the date of sale. The sale does not crystallise into an offence unless the publication is later classified restricted and it does not matter that this does not occur until a date after the date of sale. I am unable to accept this argument. In my view it offends the clear meaning of the words used in the definition. Either conduct is an offence when it occurs or it is not and an innocent act cannot be later converted into an offence by the decision of a third party.
Conflict with the Human Rights (Sexual Conduct) Act
In my view this is answered by the decision of the Court of Appeal in Lettvale v. Cannavan [2003] QCA528. The distinction which was referred to in that decision between the sale of goods and sexual conduct applies equally to the present case and the evidence given by Mr McCann did not blur that distinction. It was not, in my view, sufficient to convert what was in reality the sale of magazines into sexual conduct which may have been engaged in (to varying degrees and in different ways) by readers of those magazines. Notwithstanding the gloss which Mr Middleton, who appeared for the appellants, sought to place on the evidence, the prohibition in section 12 against the sale of classified publications does not "involve interference with the privacy of sexual conduct involving consenting adults acting in private." Section 12 proscribes the sale of certain material not forms of sexual conduct notwithstanding that the sexual conduct may come about as a result of reading the magazines. The arguments advanced by Mr Middleton are referred to in particular by Justice McMurdo in paragraph [8] of the judgment and, with respect, answer those arguments. There is then no substance to this ground.
Result
The appellants will be given leave to add a ground of appeal on the following terms:
"There was no evidence that the publications, Hustler Volume 6 Number 7, Barely 18 Volume 1 Number 29, Shaved Orientals Volume 8 Number 1, and Fox Volume 19 Number 9 February 2001, were prohibited publications."
The convictions of the appellants for offences involving magazines which had not been classified at the dates each were sold must be set aside.
I make the following orders:
1. The appeals involving the publications described as:
(a) Purely 18 Volume 3 Number 9, 9th July 2001;
(b) Live Young Girls Volume 21 Number 5, 5th June 2001;
(c) Gallery, April 2001; and
(d) The Australian Rosie 143;
will be dismissed.
2. The appeals involving the publications described as:
(a) Hustler Volume 6 Number 7;
(b) Barely 18 Volume 1 Number 29;
(c) Shaved Orientals Volume 8 Number 1; and
(d) Fox Volume 19 Number 9 February 2001;
will be allowed and the convictions and sentences set aside and in lieu each appellant will be found not guilty of the offences involving those publications.
The appellants have been partially successful on the appeals. They have succeeded on four on one of the three grounds argued and failed on all grounds argued in the case of the other four. Only one costs order is sought in relation to all of the appeals. The maximum costs order I can make is $2,100. In all of the circumstances I consider the appellants are entitled to costs but not to the extent claimed. I order that the respondent pay the costs of the appellants fixed at $1,500.
No forfeiture orders were made by the Magistrates Court under section 34(1) but I consider such orders should now be made. In the case of the four offences where the convictions stand I order that at the expiration of the appeal period each publication, the subject of those convictions, be forfeited. In the case of the other four publications I order that at the expiration of the appeal period they be returned to the appellants.
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