Muscat v Douglas
[2006] WASCA 107
•19 JUNE 2006
MUSCAT -v- DOUGLAS [2006] WASCA 107
| (2006) 32 WAR 49 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 107 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | SJA:1074/2003 | 16 MARCH 2006 | |
| Coram: | ROBERTS-SMITH JA MCLURE JA BUSS JA | 19/06/06 | |
| 49 | Judgment Part: | 1 of 1 | |
| Result: | Appeals allowed | ||
| A | |||
| PDF Version |
| Parties: | MARIO MUSCAT TREVOR JOHN DOUGLAS CLASSIQUE HEALTH PRODUCTS PTY LTD |
Catchwords: | Criminal law and procedure Appellants charged with possession of films classified "X" with the intention of selling the films No direct evidence that the visual images on the video tape cassettes in the appellants' possession were copies of or identical with films bearing the same name which had been classified "X" Whether the complainant must prove that those video tape cassettes were copies of or identical with those films Whether that fact could be proven by inference and beyond reasonable doubt from the evidence before the learned Magistrate Whether the appellants bore any onus Whether the learned Magistrate was correct in deciding not to view the video tape cassettes and deciding that the appellants had no case to answer Whether the learned Judge was correct in allowing an appeal against the learned Magistrate's dismissal of the complaints |
Legislation: | Censorship Act 1996 (WA), s 3, s 23(1), s 25, s 29(1), s 32, s 33, s 35(1), s 36, s 73, s 74(b), s 77(1), s 80, s 81, s 115(1), s 126, s 141, Pt 2, Pt 3, Pt 4, Pt 5, Pt 6 Censorship Amendment Act 2003 (WA) Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 3, s 5, s 7(2), s 9, s 10(1), s 12, s 20(1), s 21(1), s 22A(1), s 22B, s 25, s 45, s 72, s 87 Justices Act 1902 (WA), s 72 |
Case References: | Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 Barca v The Queen (1975) 133 CLR 82 Barritt v Baker [1948] VLR 491 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Dowling v Bowie (1952) 86 CLR 136 Festa v The Queen (2001) 208 CLR 593 Knight v The Queen (1992) 175 CLR 495 Martin v Osborne (1936) 55 CLR 367 May v O'Sullivan (1955) 92 CLR 654 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Plomp v The Queen (1963) 110 CLR 234 R v Bilick (1984) 36 SASR 321 R v Edwards [1975] QB 27 R v James [1902] 1 KB 540 Roberts v Humphreys (1873) LR 8 QB 483 Samuels v Stokes (1973) 130 CLR 490 Shepherd v The Queen (1990) 170 CLR 573 Vines v Djordjevitch (1955) 91 CLR 512 Woolmington v The Director of Public Prosecutions [1935] AC 462 Draper v The Queen [2000] WASCA 160 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MUSCAT -v- DOUGLAS [2006] WASCA 107 CORAM : ROBERTS-SMITH JA
- MCLURE JA
BUSS JA
- Appellant
AND
TREVOR JOHN DOUGLAS
Respondent
- Appellant
AND
TREVOR JOHN DOUGLAS
Respondent
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ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JOHNSON J
Citation : DOUGLAS -v- MUSCAT [2005] WASCA 46
File No : SJA 1074 of 2003, SJA 1075 of 2003
Catchwords:
Criminal law and procedure - Appellants charged with possession of films classified "X" with the intention of selling the films - No direct evidence that the visual images on the video tape cassettes in the appellants' possession were copies of or identical with films bearing the same name which had been classified "X" - Whether the complainant must prove that those video tape cassettes were copies of or identical with those films - Whether that fact could be proven by inference and beyond reasonable doubt from the evidence before the learned Magistrate - Whether the appellants bore any onus - Whether the learned Magistrate was correct in deciding not to view the video tape cassettes and deciding that the appellants had no case to answer - Whether the learned Judge was correct in allowing an appeal against the learned Magistrate's dismissal of the complaints
Legislation:
Censorship Act 1996 (WA), s 3, s 23(1), s 25, s 29(1), s 32, s 33, s 35(1), s 36, s 73, s 74(b), s 77(1), s 80, s 81, s 115(1), s 126, s 141, Pt 2, Pt 3, Pt 4, Pt 5, Pt 6
Censorship Amendment Act 2003 (WA)
Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 3, s 5, s 7(2), s 9, s 10(1), s 12, s 20(1), s 21(1), s 22A(1), s 22B, s 25, s 45, s 72, s 87
Justices Act 1902 (WA), s 72
Result:
Appeals allowed
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Category: A
Representation:
SJA 1074 of 2003
Counsel:
Appellant : Mr N J Mullany
Respondent : Mr D J Matthews
Solicitors:
Appellant : D G Price & Co
Respondent : State Solicitor's Office
SJA 1075 of 2003
Counsel:
Appellant : Mr N J Mullany
Respondent : Mr D J Matthews
Solicitors:
Appellant : D G Price & Co
Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88
Barca v The Queen (1975) 133 CLR 82
Barritt v Baker [1948] VLR 491
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Dowling v Bowie (1952) 86 CLR 136
Festa v The Queen (2001) 208 CLR 593
Knight v The Queen (1992) 175 CLR 495
Martin v Osborne (1936) 55 CLR 367
May v O'Sullivan (1955) 92 CLR 654
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
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Plomp v The Queen (1963) 110 CLR 234
R v Bilick (1984) 36 SASR 321
R v Edwards [1975] QB 27
R v James [1902] 1 KB 540
Roberts v Humphreys (1873) LR 8 QB 483
Samuels v Stokes (1973) 130 CLR 490
Shepherd v The Queen (1990) 170 CLR 573
Vines v Djordjevitch (1955) 91 CLR 512
Woolmington v The Director of Public Prosecutions [1935] AC 462
Case(s) also cited:
Draper v The Queen [2000] WASCA 160
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1 ROBERTS-SMITH JA: The facts, history and the statutory provisions relevant to these appeals have been set out in the reasons for judgment of Buss JA which I have had the benefit of reading in draft. It is therefore unnecessary for me to repeat them.
2 I have reached a different conclusion than his Honour and McLure JA on the outcome of these appeals and I accordingly set out my reasons below.
3 The very best evidence to prove classification of a film might well be to have the direct evidence of the person who classified the original view that which was seized and say (if it be so) they were the same film. However, the physical difficulties involved in doing that with respect to items seized anywhere in Australia, months or even years after the original classification, and where the persons doing the classifications would have classified hundreds, if not thousands, of films in various formats, are obvious.
4 That is not to say any less rigorous standard of proof should be applied to a criminal prosecution of this kind. Statutory variation aside, the onus of proof is always on the prosecution and the standard of proof is proof beyond reasonable doubt. But direct evidence of that kind is not the only means of proof. Circumstantial evidence may be just as persuasive. It is of no less quality as proof merely because it is circumstantial.
5 Circumstantial evidence is simply any fact relevant to a fact in issue in a case, from which the tribunal of fact may infer the existence of the fact in issue (Festa v The Queen (2001) 208 CLR 593, [5]). The strength of circumstantial evidence is usually manifested by the number of individual items pointing to the existence of the fact in issue, although some particular items may themselves point that way more strongly than others. What is essential, however, is that the various items be relevant - that is, either individually or in combination, logically probative of the fact in issue. The evidentiary effect is to persuade the fact-finder from a combination of circumstances to a logical conclusion based in common sense and human experience.
6 As Dixon J (as he then was) said in Martin v Osborne (1936) 55 CLR 367 at 375:
"If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the
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- evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. … the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed."
7 That passage was referred to again by his Honour (with whom Kitto, Taylor and Windeyer JJ agreed) in Plomp v The Queen (1963) 110 CLR 234 at 243.
8 In Barca v The Queen (1975) 133 CLR 82 at 104, Gibbs, Stephen and Mason JJ said:
"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King (1911) 13 CLR 619 at 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen (1963) 110 CLR 234 at 252; see also Thomas v The Queen (1960) 102 CLR 584 at 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.' (Peacock v The King (1911) 13 CLR, at 661). These principles are well settled in Australia." (My emphasis).
9 See also Knight v The Queen (1992) 175 CLR 495 at 502 - 503, 509 - 510.
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10 The main issue in Shepherd v The Queen (1990) 170 CLR 573 was whether in a circumstantial evidence case, all the facts from which an inference of guilt could be drawn had to be proved beyond reasonable doubt. The question had arisen out of uncertain understanding of the decision in Chamberlain v The Queen (No 2) (1984) 153 CLR 521. Shepherd made it clear that Chamberlain (No 2) does not support the proposition that, in a case depending upon circumstantial evidence, the jury may only properly draw inference of guilt upon individual facts proved beyond reasonable doubt. Mason CJ reformulated the proposition by reference to "intermediate fact[s]" (at 576 of Shepherd). The proposition so reformulated was that a jury cannot view an intermediate fact as an indispensable basis for an inference of guilt unless they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury is required to draw an inference from the circumstances of the case. In a criminal case, those circumstances must exclude any reasonable hypothesis consistent with innocence.
11 Although the above authorities all concern the appropriate directions to be given to a jury, the law they articulate is just as applicable to a judicial officer sitting as a tribunal of fact. Thus, what it was necessary for the Magistrate to ask himself here was whether the evidence as a whole was capable of supporting an inference of the guilt of the appellants beyond reasonable doubt, bearing these principles in mind. Unfortunately he was diverted from that course and failed to have regard to all the evidence in that way.
12 The prosecution here led itself into an evidentiary morass from which, in the end, it was unable to extricate itself. Distracted by the notion of the "identicality check" (as was the Magistrate at trial), the prosecution saw proof of their case as depending upon the direct evidence of the classifications done in December 2001 and January 2002 (that is after the dates of the alleged offences) in some sense confirming the classifications made in 2000 and 2001 (which were the relevant classifications). As Buss JA has pointed out, to prove the classifications in that way would still require proof that they were the same films.
13 In that respect, what the prosecution had to establish was that at the relevant times (that is September and October 2001) the particular film had been classified "X" and that classification was still current.
14 As Buss JA points out, evidence of their classification after seizure was irrelevant unless it tended to show they were the films which had been classified in 2000 and 2001.
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15 As I understand it, there was no dispute that three films of those titles had been classified "X" and in each instance that classification was still current at the relevant time. The sole issue at trial was whether the three seized items were classified "X".
16 I agree with Johnson J that the question had to be answered on a consideration of the circumstances shown by all the evidence.
17 There was a body of evidence in respect to each of the subject items which required consideration. For present purposes it is necessary to undertake an examination of that in respect of only one. It matters not which item is taken, but I shall do the exercise in relation to "Prime Time Pussy # 2".
18 The main features of the evidence in relation to this were:
• The video tape cassette and its plastic cover were seized by police from a shop selling sex items including publications, videos and DVDs.
• The respondent Muscat produced the tape which he identified as belonging to that particular cover.
• There was a certified copy of an original classification certificate dated 4 January 2001. The certification by the Director certified that to be a true copy of the original s 25 Classification (Publications, Films and Computer Games) Act 1999 certificate. The certification was dated 7 January 2003. The classification certificate was headed "Office of Film and Literature Classification" under the crest of the Commonwealth of Australia.
• At the top of the certificate is a classification number 5234712F.
• The evidence of the Director of the Classification Board, Mr Clark, was that the film the subject of the original classification had not been reclassified since the original classification - that is, that the classification was current at the relevant date.
• The text of the certificate is as set out in the judgment of Buss JA at [121].
• In addition to what is set out there, on the back of the certificate, under the heading "Classification - Markings" is printed:
"In some jurisdictions you are required by law to display the Classification, Classification Description and Consumer Advice (if applicable) when advertising this film. The markings should be clearly displayed on the bottom front and spine of a video
- cassette disk cover/packaging, on posters and in advertising in print and electronic media. Your obligations are fully set out in the Determination of Markings for Films …."
- • The video cover handed to the police by the appellant as being the cover for the videotape "Prime Time Pussy # 2" bears pictures of women in sexual poses or sexual activities of various kinds. It is also marked "X 18 +" and has printed on it "Restricted to Adults 18 years and over (contains sexually explicit material)".
• The video cassette tape has a label on its spine with the printing "X 18 +", "Prime Time Pussy # 2" and in smaller printing along the top "ACT Lic: XFO24" and "OFLC No: 5234712F".
• The film itself begins with "Empire presents", "A Vamp Pictures Production", "Prime Time Pussy # 2" and shows the film to be "Directed by Vamp Pictures and Kid Sparkle".
• No suggestion was raised on the evidence that the film had been modified in any way.
19 The classification certificate bears the letterhead of the Office of Film and Literature Classification ("OFLC"). That is an agency within the Commonwealth Attorney-General's Department which provides administrative support to the Classification Board and the Classification Review Board. The OFLC is a prescribed agency for the purposes of the Financial Management And Accountability Act 1997 (Cth) and a statutory agency for the purposes of the Public Service Act 1999 (Cth).
20 There is an obvious evidentiary significance in the fact that the classification certificate bears the classification number 5234712F and the cassette also bears the description "OFLC No: 5234712F".
21 The production and other details shown in the credits on the film itself correspond with those on the classification certificate.
22 The running time for the film "Prime Time Pussy # 2" in DVD format (which is the format in which the film was classified) is shown on the classification certificate as "variable". There is no evidentiary utility therefore in a tribunal of fact running or viewing the video to ascertain whether the running time matches the certificate. That may not be so in relation to the other two videos, because the certificates in respect of them do state the running time. In those instances therefore, if the running time were to be appreciably different from that on the certificate, that might give rise to a possibility that the film had been modified, or that it was not the film which had been classified. That would be a matter for the
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- tribunal of fact to take into account together with all the other circumstances shown. On the other hand, if the running time was the same in each instance, that would be another circumstance tending to support the inference the film on the video was that which had been classified "X".
23 I turn to the issue of modification.
24 Section 21(1) of the Classification (Publications, Films and Computer Games) Act 1995 (Cth) and s 32 of the Censorship Act 1996 (WA) are in essentially similar terms. They provide that if a classified film is modified, it becomes unclassified when the modification is made.
25 In Samuels v Stokes (1973) 130 CLR 490, the respondent had been convicted by a Magistrate of failing to cease loitering in a public place when requested by a police officer to do so, contrary to s 18 of the Police Offences Act 1953 (SA). That section relevantly provided that where a person is loitering in a public place and a police officer believes on reasonable grounds, that specified circumstances exist, the officer may request that person to cease loitering and a person failing to comply with such a request, commits an offence.
26 The respondent was taking part in a street demonstration in Adelaide, which had been stationary and disordered and blocked a city intersection for some 15 minutes. She refused to leave when requested by a police officer to do so.
27 Section 6 of the Public Assemblies Act 1972 (SA) provides:
"(1) Where the conduct of an assembly conforms with approved proposals, a person participating in the assembly -
(a) may, in accordance with the proposals, position himself, or proceed over, any portion of a public place defined or described in the proposals;
and
(b) in acting in conformity with the proposals does not incur any civil or criminal liability by reason of the obstruction of a public place.
(2) An act permitted by this section is lawful notwithstanding the provisions of any other Act or law regulating the
- movement of traffic or pedestrians, or relating to the use or obstruction of a public place."
28 The conviction was set aside by the Full Court of the Supreme Court of South Australia (Bray CJ and Mitchell J, Wells J dissenting). That decision was reversed by the High Court, which upheld the conviction. One question raised in the appeal was whether the prosecution had, as part of its case, to negative the operation of s 6 of the Public Assemblies Act. The Court held it had not.
29 Menzies J said the following on the question:
"… whether, upon a charge for breach of s. 18 (3) of the Police Act, it is for the prosecution to negative the operation of s. 6 of the Public Assemblies Act. In my opinion, upon a charge laid under s. 18 of the Police Offences Act, it is not for the prosecution to disprove that s. 6 of the Public Assemblies Act made lawful a continued loitering after a police request, made under s. 18 of the Police Offences Act, to cease loitering. It would be for the person charged to show that, notwithstanding non-compliance with s. 18, the continued loitering was lawful by virtue of compliance with s. 6 of the Public Assemblies Act, or, at least, at the end of the case to have raised a reasonable doubt about that matter. That a person charged with an offence under s. 18 of the Police Offences Act is not within the terms of s. 6 of the Public Assemblies Act is not in any way an element of the offence charged. A person so charged may, however, say that his not ceasing to loiter is lawful, notwithstanding s. 18 of the Police Offences Act, because it is an act permitted by s. 6 of the Public Assemblies Act. This would be a positive defence which it would be for the person charged to raise although if raised and supported by evidence which left the unlawfulness of continued loitering in doubt the prosecution would fail, for not only must the prosecution prove every ingredient in an offence charged, it must also satisfy the tribunal beyond reasonable doubt that a defence open upon the evidence should be rejected: Mancini v Director of Public Prosecutions [1942] AC 1, at pp 7-8, 11-13. The case most nearly in point is R v Hall (1786) 1 TR 320 [99 ER 1117], where it was decided that, upon a charge for an offence under one Act, it is for the defendant to show by way of defence that he falls within the provisions of another Act, which, if applicable, would make lawful what is alleged as the offence. In Roberts v. Humphreys (1873) LR 8
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- QB 483, where an offence was created in one section of an Act and a ground of defence was given in a later section, Blackburn J said, at p 489: 'Thus the offence is created by the one part, and a ground of defence is given by the subsequent part, which according to all rules of pleading must be pleaded by the defendant.' Where a defence is given in a different Act the same would seem to be the case a fortiori.
In reaching the conclusion which I have expressed I do not rely upon either s. 56 of the Justices Act, 1921-1960 (SA), nor upon the common law principle that it is for a defendant to prove facts peculiarly within his own knowledge. My decision rests upon the simple proposition that s. 6 does no more than provide a person with an answer to a charge of breach of a provision of the Police Offences Act relating to the use of a public place.
In this case it was not until the informant's case was closed that reliance was placed upon s. 6 of the Public Assemblies Act and then without more than the submission that it was for the prosecution to prove that it did not provide the respondent with a defence. No defence based upon s. 6 of the Public Assemblies Act was attempted. The defence now relied upon was not open on the evidence."
30 Barwick CJ agreed with Menzies J's conclusion that s 6 of the Public Assemblies Act did no more than afford the respondent a defence to the charge under s 18(2) of the Police Act, and such a defence was not raised. He did not consider it was a case in which, if evidence had been given which did no more than raise the possibility of the existence of a defence under s 6, it would have rested on the prosecution to negative such matter of defence. In other words, his Honour said, it would not have rested on the prosecution to disprove the existence of any approved proposal or that the terms of any approval which did exist, had not been complied with. In his opinion, nothing in Woolmington v The Director of Public Prosecutions [1935] AC 462 and the cases which followed it required a contrary conclusion. His Honour otherwise agreed with the reasons for the conclusions expressed by Menzies J.
31 McTiernan J was the only member of the Court who dealt with an argument that the complaint was deficient because it did not aver the respondent was not entitled to the exemption from liability afforded by s 6 of the Public Assemblies Act. That argument turned on s 56 of the Justices Act 1921 (SA) which provided in part in subs (1) that no
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- exemption, exception or excuse whether contained in the same section as that creating an offence or not, need be specified or negatived in the complaint; and in subs (2) that any such exemption, exception or excuse may be proved by the defendant, but whether or not it is specified or negatived in the complaint, no proof in relation to it shall be required on the part of the complainant. His Honour held that the complaint was not insufficient for want of an averment that the respondent was not entitled to the exemption from liability provided by s 6 of the Public Assemblies Act. That Act and the Police Offences Act did not depend upon each other. If the exemption provided by s 6 was relevant, it was relevant only if alleged by the respondent as a ground of defence - and it had not been so alleged. For this, his Honour cited as authority, R v James [1902] 1 KB 540, 545. His Honour further found there was no evidence upon which the Magistrate could have found the respondent was entitled to the benefit of s 6.
32 Gibbs J held similarly (at 504 - 505):
"… in my opinion, it was not necessary for the prosecution to lead evidence to prove that the conduct of the assembly did not conform with approved proposals or that the respondent was not acting in conformity with those proposals. It was not an element of the offence charged that the conduct of the assembly or of the respondent did not conform with the approved proposals. If, at the conclusion of the evidence, the magistrate had been left in doubt whether the respondent's conduct was rendered lawful by s. 6 he would have been bound to acquit her of the charge, but there was no evidence in the case which raised the issue whether the conditions of s. 6 were satisfied."
33 Walsh J died before delivery of judgment.
34 The statutory construct in the present case in my opinion, falls squarely within the principle to be discerned from Samuels v Stokes.
35 That the film has not been modified is not an element of the offence under s 81(2)(b) of the Western Australian Act. The elements of that offence, in relation to this case, are that the appellant:
(a) possessed a film
(b) which was classified "X"
(c) with the intention of selling it.
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36 There would be no requirement for the prosecution to prove the film had not been modified, unless that possibility was raised on the evidence, in which case the onus would be on the prosecution to disprove it beyond reasonable doubt. In passing, I note that at the time of trial before the Magistrate, the provisions of the Justices Act 1902 (WA) applied. Section 72 of that Act was in substantially the same terms as s 56 of the South Australian Justices Act considered in Samuels v Stokes. (The relevant provision is now contained in s 78 of the Criminal Procedure Act 2004).
37 In my opinion Dowling v Bowie (1952) 86 CLR 136, Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 and Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 are distinguishable.
38 All the authorities make it clear it is a matter of statutory construction in each instance. In Dowling, one Shannon was given money by a police officer, to go into a hotel to try and buy liquor. Shannon was racially a half-caste. Dowling sold him a bottle of wine. After the transaction the police officer went into the hotel and asked Dowling if he knew Shannon was not a person in respect of whom any declaration had been made under s 3A of the Aboriginals Ordinance 1918-1947 (NT). Dowling replied that he was sure Shannon was a person in respect of whom such a declaration had been made. The question whether Shannon was a person in respect of whom a declaration had been made was therefore in issue - and was indeed the critical issue - from the outset.
39 Williams and Taylor JJ quoted with approval a long passage from the judgment of Fullagar J in Barritt v Baker [1948] VLR 491. That concerned an offence under s 104 of the Police Offences Act 1928 (Vic) of betting in the street. Section 106 of that Act contained an extremely wide definition of "street", which was in part "… any enclosed or unenclosed land or premises (not including racecourses …)". The betting took place on the Maribyrong Coursing and Running Ground at which a sports meeting was in progress. As Fullagar J explained (supra, 493), the evidence negatived that the betting took place in a house used as a private dwelling "but did not exclude the definite possibility that the 'enclosed land' was a racecourse within the meaning of s 106." Again, therefore, that issue was live from the outset on the evidence, although that was not the basis upon which the decision turned. The contention that the burden of proving that the land was a racecourse rested upon the defendant, was based on s 214 of the Justices Act 1928 (Vic), which was in similar terms to s 72 of the Justices Act 1902 (WA) and s 56 of the Justices Act 1921-1960 (SA). It was that section which his Honour was discussing in
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- the passage from his judgment set out at 145 - 147 of Dowling. Fullagar J opined (at 495) that the question must often turn on the form of the legislation and the problem was not one of formal logic. The task is purely one of statutory construction. The court has only to say what are the elements which the legislature has specified as the prima facie ingredients of the offence. When it has determined as a matter of construction what those ingredients are, it necessarily follows that the burden of proving the totality of those ingredients rests upon the prosecution.
40 In Barritt itself, the legislature had indicated that what it required to be proved was the making of a bet in a street - and that would not be proved unless the evidence showed beyond reasonable doubt that the place was a street within the statutory definition.
41 In the present case, the relevant element was that the film had been classified "X" in accordance with the Code and the classification guidelines referred to in s 12 of the Commonwealth Act. The consequence that a film so classified would become unclassified were it to be modified, was contained in a separate provision of the Act (s 32(1)). Textually there is no reason why proof that a film had been given a particular classification and that classification was still current at the time of the alleged offence, is all the provision requires. However if the evidence were to raise the reasonable possibility that the subject film had been modified, the prosecution would have to prove it had not.
42 In Chugg the question was whether the words "so far as practicable" constituted an element of the primary obligation or represented a qualification accompanying the description of the offence. It was held that they were an element of the primary obligation. In that case, however, the words "so far as practicable" were part of the definition of the offence in the pertinent statutory provision.
43 Dawson, Toohey and Gaudron JJ (with whom Brennan and Deane JJ agreed) with some additional observations) reiterated (supra, 257) that the categorisation of a provision as part of the statement of a general rule or as a statement of exception, reflects its meaning as ascertained by the process of statutory construction. Their Honours said the question is whether there is to be discerned, whether by express words or by implication, a legislative intention to impose upon the accused the ultimate burden of bringing himself within it.
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44 That is not the situation with which we are concerned here. It could not be suggested that s 32(1) creates a statutory exception of a kind which imposes upon a defendant "an ultimate burden of bringing himself within it", any more than that could be said of a defendant who sought to rely upon, for example, self-defence or involuntariness, in respect of a charge of any other criminal offence.
45 In Avel the relevant breach of the Copyright Act 1968 (Cth) was the importation into Australia of an article for a specified purpose without the licence of the owner of the copyright. Once again, absence of a licence from the owner was an express element contained in the definition of the breach. It was for that reason the High Court held the onus of proving the absence of the licence of the copyright owner was on the party asserting the infringement (see Mason CJ, Deane and Gaudron JJ at 94 - 95).
46 The present legislative structure, having regard to the text and the legislative purpose, which is to regulate the dissemination of (inter alia) films considered to have potentially deleterious social effects, or from which some members of the community (such as children) need to be protected, seems to me to reinforce a construction which differs from those authorities which have construed different legislative provisions as requiring certain proofs to be made as elements of offences or breaches. This is not a case which concerns an exemption from liability, the onus of proving which lay upon the applicants. On the proper construction of the legislation, however, it seems to me the issue of modification causing to become unclassified, a film which the evidence showed (prima facie at least) did have a certain classification, would not arise unless and until there was some evidentiary foundation for it.
47 Further, if any modification is sufficient to take a film out of classification, as the legislation seems to provide, then having once classified a film, the OFLC would not necessarily be in a position to know, much less prove, whether or not any particular film which purported to be a copy of it, was subsequently modified. That is a fact which would be known to those who produced or copied the film. There is no reason in public policy, it seems to me, why the onus of raising modification on the evidence as an issue, should not be on the defendant.
48 In the absence of any evidence to the contrary and on a consideration of the evidence as a whole, the individual items of circumstantial evidence were such that a rational and properly instructed tribunal of fact could be satisfied beyond reasonable doubt in each instance that the film seized
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- was "X" rated at the date of seizure. There was, in short, a case to answer, and the Magistrate should have so found.
49 It follows from the above, that I would find grounds 2, 3 and 4 have not been made out.
50 As to ground 1, her Honour was correct to say that for the purposes of the no case submission, whether or not the particular tape or DVD contained a film which had been classified "X" was a matter of inference to be drawn (or not) from the whole of the evidence available, taking the prosecution case at its highest. As she rightly observed, that inference was assisted by every piece of evidence of commonality between the films referred to in the original classification certificates, the films tendered to the court (in whatever format) and the other evidence (and, I would add, no suggestion in the evidence, of modification). As her Honour said (at [23]):
"In circumstantial cases where it is the combination of all relevant pieces of evidence which falls for consideration, it is particularly important that every piece of evidence is scrutinised."
51 That must be correct. That is not to say that every item of evidence will necessarily require the same degree of close, careful and sometimes repeated examination as every other item. It may be that a viewing of, for example, the title and closing credits and a relatively cursory viewing of the rest of the films here would be sufficient to enable the court to form a conclusion whether they exhibit features of evidential significance, either advancing or casting doubt on the prosecution case. I do not mean to be taken as suggesting that it was the Magistrate's task to watch the film in each instance to form his own view as to whether or not it fell into the "X" rated category. It was not for him to classify the film, nor to decide whether or not it had been properly classified. His opinion on that would simply have been irrelevant. The question for him was whether or not the evidence taken as a whole, could have supported a finding beyond reasonable doubt that the film seized had been given a "X" classification. The Magistrate failed to do that and her Honour was correct to so find. In my opinion ground 1 must fail.
52 I would dismiss the appeals.
53 MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Roberts-Smith JA and Buss JA. I agree with Buss JA that the appeals should be allowed. I have concluded that there
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- was no legal or evidential burden on the appellants in this case and that the evidence adduced by the prosecution was incapable of establishing beyond reasonable doubt that the films were classified X as at the date of the offence.
54 The facts and other relevant background material are set out in the judgment of Buss JA and not repeated here unless necessary for an understanding of these reasons.
55 The parties conducted the trial and the first appeal on the assumption that the prosecution bore the legal burden of proving, and the evidential burden of eliciting evidence, that the three films the subject of the four complaints were classified X as at the date of the offences. In particular, it was not contended by the prosecution that the appellants carried the legal or evidential burden of establishing or eliciting evidence that the films were a modified version of the classified films such as to cause the classified films to become unclassified under s 32(1) of the Censorship Act 1996 (WA) ("the Western Australian Act").
56 Section 32 of the Western Australian Act materially provided:
"(1) Subject to subsection (2), if a classified film … is modified, it becomes unclassified when the modification is made.
(2) Subsection (1) does not apply to a modification that consists of including an advertisement, other than an advertisement to which section 33 applies."
57 Section 33 provided that a film must not be classified if it contained an advertisement for a film that had not been classified or an advertisement for a film that had a higher classification.
58 At the time of the alleged offences in 2001, the Western Australian Act contained a censorship classification regime in Pts 2, 3, 4, 5 and 6 that generally mirrored the regime in the Classification (Publications, Films and Computer Games) Act 1995 (Cth) ("the Commonwealth Act"). Pursuant to an agreement with the Commonwealth under s 126 of the Western Australian Act, the Commonwealth censorship authorities performed the classification functions and duties under the Western Australian Act.
59 By the Censorship Amendment Act 2003 (WA) ("the 2003 Amendment Act"), the State's censorship classification regime in Pts 2, 3, 4, 5 and 6 of the Western Australian Act was repealed. Western Australia
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- now adopts the classification decisions made under the Commonwealth Act.
60 Sections 32 and 33 were in Pt 3 of the Western Australian Act. Part 3 dealt with classification of films and computer games and was repealed by the 2003 Amendment Act. Section 32 corresponded with s 21 of the Commonwealth Act which remains part of the Commonwealth censorship classification regime. All future reference in these reasons to the Western Australian Act is a reference to the law as it stood at the time of the alleged offences and before the commencement of the 2003 Amendment Act.
61 The appellants were charged with being in breach of s 81(2)(b) of the Western Australian Act which materially provided:
"(2) A person must not possess … —
(a) an unclassified film that would, if classified, be classified X … ; or
(b) a film classified X,
with the intention of selling the film or the copy, or exhibiting the film or the copy in a public place."
63 The term "classified" is defined as classified under the Western Australian Act (s 3). The term "modified" was not (and is not) defined in the Western Australian Act or the Commonwealth Act. In its natural and ordinary meaning it means altered or changed. It is apparent from the
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- learned Magistrate's reasons for upholding the no case submission that the appellants contended, and he accepted, that any change or alteration to the classified film, however minor, resulted in a classified film becoming unclassified from the date of the modification. It is the case that a s 32 modification effects an automatic change in the status of a film from classified to unclassified. There is room for debate about whether the section applies to a modification of any nature or degree or to a material modification in both nature and degree. There are statutory contextual indications that it is the former (see s 29(1) and s 74(b)). However, it is unnecessary to determine that question for the purposes of these appeals. It is sufficient to note that the purpose of s 32, and its Commonwealth equivalent, is to preserve the integrity of the classification regime.
64 That is the statutory context in which questions as to burden of proof need to be considered.
Legal and evidential burden
65 The legal burden of proof is the obligation of a party to prove or disprove a fact in issue to the requisite standard, be it beyond reasonable doubt or on the balance of probabilities. The evidential burden is the obligation to show that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact. The general rule is that the party who bears the legal burden of proof also bears the evidential burden. However, there are some exceptional situations where the party with the legal burden does not also bear the evidential burden. That is the case for the criminal law defences of, inter alia, provocation, self defence and duress. See J Heydon Cross on Evidence (7th Australian ed) 2004 at [7010] - [7030].
66 There are common law rules as to the construction of statutes concerning the incidence of the burden of proof. The rules have their origins in pleading rules. There is a helpful discussion of the history and the common law rules in R v Edwards [1975] QB 27 at 31 - 40 per Lawton LJ.
67 In addition to the common law, s 72 of the Justices Act 1902 (WA), which applied at the relevant time but is now repealed, concerned the burden of proof for summary offences in this jurisdiction. Section 72 provided:
"If the complaint in any case of a simple offence or other matter negatives any exemption, exception, proviso, or condition contained in the Act on which the same is framed, it shall not be
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- necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative thereof in his defence."
68 This section cast a legal burden on an accused. The focus of the section was on the pleading of the offence in the complaint: it only applied if the complaint expressly negatived a matter that was appropriately classified as an exception etc. At common law, the burden is on an accused to establish any statutory exemption, exception, proviso or condition which in effect excuses an accused from liability for a statutory offence: R v Edwards (supra). It is unclear whether the common law casts a legal or evidentiary burden on the accused. However, neither s 72 nor the common law applies to impose a burden on an accused if, on a proper construction of the statute in question, the fact to be proved or negatived is, or directly concerns, an element of the offence: Dowling v Bowie (1952) 86 CLR 136 at 145 per Williams and Taylor JJ; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 258 per Dawson, Toohey and Gaudron JJ.
69 In Dowling, the appellant was convicted of breaching s 141 of the Licensing Ordinance1939 - 1952 (NT). Section 141 provided:
"(1) A person shall not sell, give or supply, or permit to be sold, given or supplied, liquor to a person who is an [A]boriginal or a half-caste within the meaning, and for the purposes of, the Aboriginals Ordinance1918 - 1947."
70 The Aboriginals Ordinance provided that a person who was a half-caste as defined might be declared by the Chief Protector not to be a half-caste within the AboriginalsOrdinance. The High Court held that the onus was on the prosecution to show that the person to whom the appellant sold liquor was not the subject of a declaration. Dixon CJ said (at 140):
"The question … where in such cases the burden of proof lies may be determined in accordance with common law principle upon considerations of substance and not of form. A qualification or exception to a general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the
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- conclusion that the party relying on the qualification or exception must show that he comes within it …
But in the present case an essential element in the liability imposed by s. 141 … is that the person to whom liquor is sold should be governed by the Aboriginals Ordinance. He must be a half-caste (or [A]boriginal) not only within the meaning but also for the purposes of the Aboriginals Ordinance …
For when s. 141 makes it necessary that the person to whom it applies shall be an [A]boriginal or half-caste for the purposes of the Aboriginals Ordinance it selects a criterion which means that he must be under that protection."
71 The High Court in Vines v Djordjevitch (1955) 91 CLR 512 considered who carried the burden of proving compliance with a notice provision contained in what was, in form, a proviso. The High Court held that notice was a condition precedent to the cause of action, the burden of proving compliance with which was on the plaintiff. The common law previously attached importance to a distinction between exceptions and provisos, the prosecution having to negative exceptions but not provisos. In a joint judgment, the High Court said that the burden was to be determined upon matters of substance not form. The Court said (at 519 - 520):
"When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts … But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from
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- which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter … "
72 The common law also previously attached importance to whether the exception was within the section creating liability or in a separate provision (or Act): see Roberts v Humphreys (1873) LR 8 QB 483. The focus is now on substance rather than form: Dowling at 139 - 140; Vines (supra); Chugg (supra).
73 The question of burden rose again in Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88. In that case, the High Court considered s 37 of the Copyright Act1968 (Cth) which provided that copyright in a literary or other work "is infringed by a person who, without the licence of the owner of the copyright, imports an article into Australia" for specified purposes. The High Court held that the onus of proving the absence of the licence of the owner of the copyright in relation to an infringement under s 37 lay on the party who asserted infringement. McHugh J said (at 119):
"When a statute imposes an obligation which is the subject of a qualification, exception or proviso, the burden of proof concerning that qualification, exception or proviso depends on whether it is part of the total statement of the obligation. If it is, the onus rests on the party alleging a breach of the obligation. If, however, the qualification, exception or proviso provides an excuse or justification for not complying with the obligation, the onus of proof lies on the party alleging that he falls within the qualification, excuse or proviso … Whatever form the statute takes, the question has to be determined as one of substance … "
74 It is necessary to apply these principles to the circumstances of this case. The elements of the offence alleged against each appellant are that they possessed a film which, at the time it was in their possession, was classified X and they possessed it with the intention of selling it. Thus, it is an element of each offence that the film the subject of the complaint was classified X when it was in the appellants' possession on or around the date specified in the complaint. Whether or not a film is so classified at the relevant time is determined by reference to the statutory provisions relating to classification, including how classification is gained and also
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- how it is lost. Section 32 governs or affects what is required to be proved in order to establish an element of the offence charged in the same way as the definition of half-caste in Dowling. Section 32 does not provide an excuse or justification for not complying with the obligation imposed in s 81(2)(b) of the Western Australian Act.
75 I am satisfied that the legal and evidential burden rested on the respondent to prove that each film was classified X as at the date of the offence and, in order to do so, it was necessary to prove that there was no modification that resulted in the films being unclassified by virtue of s 32.
76 The remaining question is whether the evidence was capable of establishing beyond reasonable doubt that the films were classified X as at the date of the offence. There was no direct evidence on the fact in issue, namely whether each of the seized films was an unmodified version of the film that had been classified under the Western Australian Act. The prosecution relied on circumstantial evidence. Accordingly, the central issue is whether there was evidence from which the finder of fact could conclude that the only reasonable inference on the evidence was that each of the seized films was an unmodified version of the film that had been classified.
77 The plastic cassette covers state that the film of the specified title is classified X and the label on the spine of the cassettes contain a classification number which corresponds with the classification number for a film by that name in the relevant classification certificate. Further, for the purposes of this analysis it can be assumed that a viewing of the film would disclose that the film in the cassette corresponded with the identifying information on the plastic cassette cover and in the classification certificate (including title, producer, subject matter and viewing time). The learned Magistrate concluded that this information to be gained from viewing the films could not bridge the evidential gap on the question whether the seized film was a modified version of the film the subject of the classification certificate.
78 What is sufficient to establish a case to answer can be affected by the fact that the accused is the person with the relevant knowledge or documentation concerning the fact in issue. In those circumstances, slight evidence may be sufficient: see Heydon Cross on Evidence at [7165]. However, that is not the position in this case. There is no evidence to suggest that the appellants were involved in, or connected with, the making of the films, or the applications for their classification or the packaging and labels for the films. On the evidence, their involvement
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- was confined to the retail stage. There is nothing they did, or refrained from doing, which supports an inference that the films in their possession had not been modified at some earlier stage by a third party. There was no evidence as to the difficulty or otherwise of modifying films, whether by the addition or substitution of material. Classification X is the penultimate classification category. The ultimate category is RC which means "refused classification". There are greater restrictions on such films; for example, it is an offence to possess a film classified RC or an unclassified film that would, if classified, be classified RC (s 81 of the Western Australian Act). I note it was a revised version of "Carnal Instincts" that received an X classification. There is nothing in the circumstances to suggest that it would be against the commercial interests of third parties to pass off a modified version of a film once it has been classified X.
79 Moreover, there is nothing in the evidence to suggest that it was in the appellants' commercial interests to ensure that what they possessed with the intention of sale was in fact classified X. It is also an offence to possess unclassified material, that would, if classified, be classified X, with the intention of sale. Finally, there is no suggestion that the appellants knew or ought to have known whether the packaging and labelling of the films accurately represented that the films had been, and continued to be, classified X under the Western Australian Act. I see no basis for concluding that representations as to classification made by unknown third parties in unknown circumstances in relation to films catering to a fringe market are, together with the other evidence to which I have referred, capable of supporting, as the only reasonable inference available, a finding that the seized films were unmodified versions of the films classified by the censorship authorities.
80 For these reasons, I am satisfied that the learned Magistrate was correct to conclude that the appellants had no case to answer.
81 BUSS JA: At all material times the appellant, Classique Health Products Pty Ltd, carried on business under the name "Club X".
82 By an amended complaint dated 13 January 2003, Classique Health Products Pty Ltd was charged that:
(a) on 27 September 2001 it had in its possession a film classified "X" with the intention of selling the film, contrary to s 81(2)(b) of the Censorship Act 1996 (WA) ("the Western Australian Act"). (The film selected by the prosecution to substantiate the charge was entitled "Carnal Instincts".)
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- (b) on 18 October 2001 it had in its possession a film classified "X" with the intention of selling the film, contrary to s 81(2)(b) of the Western Australian Act. (The film selected by the prosecution to substantiate the charge was entitled "Rocco's Real Italian Swingers".)
(c) on 31 October 2001 it had in its possession a film classified "X" with the intention of selling the film, contrary to s 81(2)(b) of the Western Australian Act. (The film selected by the prosecution to substantiate the charge was entitled "Prime Time Pussy No 2".)
83 By an amended complaint dated 13 January 2003, the appellant, Mr Muscat, was charged that on 31 October 2001 he had in his possession a film classified "X" with the intention of selling the film, contrary to s 81(2)(b) of the Western Australian Act. (The film selected by the prosecution to substantiate the charge was "Prime Time Pussy No 2".)
84 Mr Muscat was charged under s 115(1) of the Western Australian Act which provides that if a body corporate commits an offence under the Act, and it is proved that the offence occurred with the consent or connivance of any director, employee or agent of the body, or any person who was purporting to act in any such capacity, that person, as well as the body corporate, commits that offence.
85 The offences were alleged to have occurred at 353 Murray Street, Perth. At all material times, Classique Health Products Pty Ltd traded from premises at that address.
Statutory framework: Commonwealth Act
86 The Classification (Publications, Films and Computer Games) Act 1995 (Cth) ("the Commonwealth Act") was enacted with the intention that it should form part of a Commonwealth/State/Territory scheme for the classification of publications, films and computer games, and for the enforcement of those classifications: s 3.
87 Section 45 established a Classification Board, and s 72 a Classification Review Board.
88 At the material time, s 9 provided, relevantly, that films were to be classified in accordance with:
(a) the National Classification Code set out in the Schedule to the Act, or that Code as amended in accordance with s 6; and
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- (b) the classification guidelines.
89 At the material time, the word "film" was defined, relevantly, as follows:
"'film' includes a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced …"
90 At the material time, the types of classification available under the Commonwealth Act for films were, in ascending order, "G" (General), "PG" (Parental Guidance), "M" (Mature), "MA" (Mature Accompanied), "R" (Restricted), "X" (Restricted) and "RC" (Refused Classification): s 7(2). The Code set out in the Schedule provided that films (except "RC" films) were to be classified "X" if they:
(a) explicitly depicted sexual activity between adults, where there was no sexual violence, coercion or non-consent of any kind, in a way that was likely to cause offence to a reasonable adult; and
(b) were unsuitable for a minor to see.
91 Section 10(1) provides (and at all material times has provided):
"Classifications of … films … are to be made by the [Classification Board] in writing on application."
92 Section 12 makes provision (and at all material times has made provision) for the determination of guidelines to assist the Classification Board in applying the criteria in the Code.
93 Section 20(1) provides (and at all material times has provided) that if the Classification Board classifies a film "X", it is required to determine consumer advice giving information about the content of the film.
94 Section 21(1) provides (and at all material times has provided), relevantly:
"… if a classified film … is modified, it becomes unclassified when the modification is made."
- The word "classified" means (and at all material times has meant) classified under the Act: s 5.
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95 Section 22A(1) provides (and at all material times has provided), relevantly, that:
"An application for classification of a … film … that is an enforcement application must be :
(a) in writing; and
(b) made in a form approved by the Director [of the Classification Board] in writing; and
(c) signed by or on behalf of the applicant; and
(d) accompanied by a copy of the … film …"
- By s 5, the term "enforcement application" means (and at all material times has meant) an application that is made:
(a) by the Commonwealth, a State or a Territory, or by an authority or agency of the Commonwealth, a State or a Territory; and
(b) for the purpose of investigating or prosecuting an offence against a law of the Commonwealth, a State or a Territory.
(a) the determined markings for the classification given to the film; and
(b) any consumer advice for the film; and
(c) the applicant's obligations about the display of the determined markings and consumer advice.
97 Part 5 contains provisions relating to the review by the Classification Review Board of decisions made by the Classification Board.
98 Section 87 is concerned with evidentiary certificates. It provides (and at all material times has provided):
"(1) A person may apply to the Director [of the Classification Board] for a certificate about action taken, or not taken, under this Act.
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- (2) If the application is not an enforcement application, the Director must give the certificate to the applicant after the applicant pays the prescribed fee.
(3) If the application is an enforcement application, the Director must give the certificate to the applicant after the applicant makes the application. The applicant must pay the prescribed fee on or after making the application."
Section 22B of the Commonwealth Act
99 Section 22B was introduced into the Commonwealth Act by the Classification (Publications, Films and Computer Games) Amendment Act (No 1) 2001 (the "2001 Amendment Act"). The date of commencement of the 2001Amendment Act was 22 March 2002. Accordingly, s 22B was not part of the Commonwealth Act when the alleged offences were committed. Section 22B provides:
"(1) The Board may proceed to classify a … film … (the new item) if:
(a) an application is made for its classification; and
(b) the Board is of the opinion that the new item may be the same as or similar to another … film … that has already been classified (the classified item); and
(c) the Board does not have a copy of the classified item and a copy is not available to it; and
(d) the Board is not able to ascertain from its records whether the items are identical.
(2) A classification by the Board of the new item is valid even though the Board may discover, after the classification of the new item, that it is the same as the classified item.
(3) If:
(a) the Board obtains a copy of the classified item; and
- (b) the Board decides that it is the same as the new item but:
(i) the classifications for the classified item and the new item are different; or
(ii) the consumer advice for the classified item and the new item are different;
the Board must revoke the classification or consumer advice for the classified item."
100 The rationale for the introduction of s 22B is set out in pars 55 and 56 of the explanatory memorandum to the Classification (Publications, Films and Computer Games) Amendment Bill (No 2) 1999, which became part of the 2001 Amendment Act. Paragraphs 55 and 56 provide:
"55. This item will insert a new section 22B into the Principal Act. The new section will allow the Board to classify a publication, film or computer game where it considers that it may be the same as or similar to another publication, film or computer game that has already been classified. This may only occur if the Board is unable to ascertain from its records whether the items are identical and a copy of the original item is not available to it.
56. It is often the case that a publication, film or computer game is submitted for classification and it appears from the title or from other indicators that the material is similar to or the same as a previously classified item. If a copy of the earlier classified item is not available and the records of the earlier decision are not adequate to effect a satisfactory comparison the Board is in the difficult position of not knowing whether it can legitimately proceed to classify the material submitted for classification. Under the proposed amendment, if the Board subsequently obtains a copy of the earlier item and finds that it is in fact identical to the later item and the classification or the consumer advice for the two differ it can revoke the earlier classification or consumer advice as the case requires."
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Statutory framework: Western Australian Act
101 The Western Australian Act is complementary to the Commonwealth Act.
102 At the material time, there were definitions of "classified" and "film" which were identical to the definitions in the Commonwealth Act.
103 At the material time, s 3 defined "censor" to mean:
"(a) the officer or authority of the Commonwealth exercising and discharging on behalf of the State the functions of a censor pursuant to an agreement under s 126;
(b) where no such agreement is in force, the censor appointed within the meaning of s 127;"
104 At the material time, s 126(1) provided, relevantly, that the State may, by written agreement, make arrangements with the Commonwealth for the exercise and discharge by officers or authorities of the Commonwealth, on behalf of the State, of the functions of a censor, or of an appeal censor, with respect to the classification of films under the Western Australian Act. It was agreed between the parties that at the material time there was in existence a written agreement between the Commonwealth and the State pursuant to s 126(1). At the material time, the Classification Board exercised and discharged, on behalf of the State, the functions of a censor with respect to the classification of films under the Western Australian Act, and the Classification Review Board exercised and discharged, on behalf of the State, the functions of an appeal censor.
105 At the material time, s 23(1) provided, relevantly, that if an agreement was in force under s 126, films were to be classified in accordance with the Code and the classification guidelines referred to in s 12 of the Commonwealth Act.
106 At the material time, s 32(1) contained provisions which were identical to s 21(1) of the Commonwealth Act in relation to classified films becoming unclassified upon their being modified. At the material time, s 3 contained a definition of "classified" which was identical to the definition in the Commonwealth Act.
107 At the material time, s 35(1) provided, relevantly, for classifications of films to be made by the censor in writing on application.
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108 At the material time, s 36(1) provided, relevantly, that the censor must issue a classification certificate for each film that was classified by the censor. At the material time, s 36(2) was, relevantly and in substance, identical to s 25(2) of the Commonwealth Act.
109 Section 73 prohibits (and at all material times has prohibited), relevantly, the sale of unclassified films. See also, in relation to the regulation (and prohibition) of various activities concerning unclassified films, ss 77(1), 80 and 81.
110 Section 81(2) provides (and at all material times has provided):
"A person must not possess or copy -
(a) an unclassified film that would, if classified, be classified X, R or MA; or
(b) a film classified X,
with the intention of selling the film or the copy, or exhibiting the film or the copy in a public place.
…"
111 At the material time, s 141 provided, relevantly:
"…
(3) In any proceeding for an offence against this Act, a certificate purporting to be signed by the censor and stating that -
(a) a film … is classified as specified in the certificate and, if the case requires, the determined markings for that type of classification are as specified in the certificate;
(b) a classified film … specified in the certificate is modified in a manner specified in the certificate;
(c) a film … is not classified, or is not classified at a classification specified in the certificate; or
(d) an advertisement described in the certificate is approved or has been refused approval under section 40 or has not been approved,
- is admissible in evidence without proof of the censor's signature and, unless the contrary is proved, is proof of the facts stated in the certificate."
The trial before the learned Magistrate
112 Mr J R Packington SM heard the amended complaints.
113 Counsel for the complainant called three witnesses, namely, Detective Sergeant Robert Allan Corry, Senior Detective Trevor John Douglas and Desmond Matthew Clark.
114 Detective Sergeant Corry gave evidence that on 27 September 2001 and 18 October 2001 he had visited the premises of Classique Health Products Pty Ltd at 353 Murray Street, Perth. On each occasion he and another police officer had seized numerous video tape cassettes, digital video discs ("DVDs") and compact discs. The goods seized included, relevantly:
(a) a video tape cassette and cover, with the cover bearing the title "Carnal Instincts" and being marked "X (18+)"; and
(b) a video tape cassette and cover, with the cover bearing the title "Rocco's Real Italian Swingers" and being marked "X (18+)".
- The learned Magistrate admitted into evidence, each of these video tape cassettes and covers.
115 Senior Detective Douglas said in evidence that on 31 October 2001 he had visited the premises at 353 Murray Street, Perth. He and another police officer had seized various goods, including a video tape cassette and cover, with the cover bearing the title "Prime Time Pussy No 2" and being marked "X-rated". The learned Magistrate accepted this video tape cassette and cover into evidence.
116 Detective Sergeant Corry and Senior Detective Douglas gave evidence that the covers of the video tape cassettes were displayed on shelves in the premises. The video tape cassettes were stored under a counter. Mr Muscat, who was present when the police officers visited the premises, assisted them by producing the video tape cassettes which corresponded to various covers on the shelves. The police officers, with the assistance of Mr Muscat, inserted each video tape cassette into its applicable cover. The police then removed the video tape cassettes and covers from the premises.
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117 Detective Sergeant Corry and Senior Detective Douglas said in evidence that goods of an erotic nature were available for purchase at the premises. They included "adult novelties and toys", "exotic lingerie", video tape cassettes, DVDs, books and magazines. According to Senior Detective Douglas, there was a sign at the entrance to the premises to the effect that persons under the age of 18 were not permitted on the premises.
118 At all material times, Mr Clark was the Director of the Classification Board. Mr Clark produced and identified his signature on three classification certificates issued pursuant to s 25 of the Commonwealth Act for films classified by the Classification Board. The learned Magistrate accepted the classification certificates into evidence. Two of the certificates were addressed to the attention of Mr Gerald Hercus/Peter Willmott at The Axis Group (Aust) Pty Ltd, 14-18 Essington Street, Mitchell in the Australian Capital Territory. The other certificate was addressed to the attention of Erinn Donnelly at Adultshop.Com Limited, PO Box 57, Mitchell. One certificate related to a film entitled "Carnal Instincts", another to a film entitled "Rocco's Real Italian Swingers", and the third to a film entitled "Prime Time Pussy No 2".
119 The classification certificate relating to "Carnal Instincts" was, relevantly, in these terms:
"I refer to your application dated 12 October 2000 for the classification of the undermentioned film. I certify that the decision of the Classification board for this film is detailed below:
Title: CARNAL INSTINCTS
Version: REVISED
Format: VHS
Producer: J.B.
Director: JAMES AVALON
Production Company: A CAL VISTA FILM/METRO
Country of origin: USA
Running time: 71 MINUTE(S)
Classification: X 18+
Consumer Advice: CONTAINS SEXUALLY EXPLICIT MATERIAL
- The markings appropriate to the classification together with the prescribed consumer advice are to be displayed according to the Determination of Markings for Films made in Commonwealth Gazette GN32 of 13 August 1997.
Yours sincerely
(signed)
Des Clark
Director
Dated 6 November 2000"
120 The classification certificate relating to "Rocco's Real Italian Swingers" was, relevantly, in these terms:
"I refer to your application dated 20 April 2001 for the classification of the undermentioned film. I certify that the decision of the Classification Board for this film is detailed below:
Title: ROCCO'S REAL ITALIAN SWINGERS
Version: ORIGINAL
Format: VHS
Producer: NOT SHOWN
Director: ROCCO SIFFREDI
Production Company: ROCCO SIFFREDI PRODUCTIONS
Country of origin: ITALY
Running time: 139 MINUTE(S)
Classification: X 18+
Consumer Advice: CONTAINS SEXUALLY EXPLICIT MATERIAL
The markings appropriate to the classification together with the prescribed consumer advice are to be displayed according to the Determination of Markings for Films made in Commonwealth Gazette GN50 of 20 December 2000.
Yours sincerely
(signed)
Des Clark
Director
Dated 23 May 2001"
(Page 36)
121 The classification certificate relating to "Prime Time Pussy No 2" was, relevantly, in these terms:
"I refer to your application dated 20 November 2000 for the classification of the undermentioned film. I certify that the decision of the Classification board for this film is detailed below:
Title: PRIME TIME PUSSY # 2
Version: ORIGINAL
Format: DVD
Producer: NOT SHOWN
Director: VAMP PICTURES & KID SPARKLE
Production Company:
Country of origin: USA
Running time: VARIABLE
Classification: X 18+
Consumer Advice: CONTAINS SEXUALLY EXPLICIT MATERIAL
The markings appropriate to the classification together with the prescribed consumer advice are to be displayed according to the Determination of Markings for Films made in Commonwealth Gazette GN32 of 13 August 1997.
Yours sincerely
(signed)
Des Clark
Director
Dated 4 January 2001"
122 Detective Sergeant Corry, Senior Detective Douglas and Mr Clark said in evidence that they had never viewed any of the films the subject of the classification certificates or any of the video tape cassettes seized from the premises of Classique Health Products Pty Ltd.
123 According to Mr Clark, the Classification Board maintains a system of records in relation to films it has classified. These records comprise, relevantly in relation to the films the subject of the classification certificates, the information contained in the certificates and the notes of the person employed by the Classification Board (known as a "classifier")
(Page 37)
- who viewed each film for the purpose of its original classification. Mr Clark said that the films the subject of the classification certificates had not been re-classified since they were originally classified.
124 Senior Detective Douglas gave evidence that he sent the video tape cassettes, the subject of the amended complaints, to the Classification Board for classification. Mr Clark said that, according to the records of the Classification Board, the relevant video tape cassettes were received on 10 December 2001. Those records also revealed that:
(a) The video tape cassette entitled "Carnal Instincts" was viewed on 20 December 2001 by Pauline Williams, a senior classifier employed by the Classification Board. She gave the film on the video tape cassette an "X" classification.
(b) The video tape cassettes entitled "Rocco's Real Italian Swingers" and "Prime Time Pussy No 2" were viewed on 11 December 2001 and 2 January 2002 respectively by Wendy Banfield, also a senior classifier employed by the Classification Board. She gave each of the films on those video tape cassettes an "X" classification.
125 There was no evidence before the learned Magistrate that Ms Williams or Ms Banfield had ever viewed the films the subject of the classification certificates. Also, there was no evidence that the classifiers who viewed the films the subject of the classification certificates, for the purpose of the original classification of those films by the Classification Board, had ever viewed the video tape cassettes, the subject of the amended complaints.
126 According to Mr Clark, when the Classification Board receives films from the police for classification which bear titles identical to films previously classified by the Classification Board, an "identicality check" is carried out. He said:
"We do an identicality check for these materials and we compare notes taken by the original classifiers with the notes taken by the person doing the second viewing."
127 There was no evidence before the learned Magistrate, however, as to the content of any notes taken by the classifiers who viewed the films, the subject of the classification certificates, for the purpose of the original classification of those films by the Classification Board.
(Page 38)
128 Also, there was no evidence before the learned Magistrate as to whether any of the films, the subject of the classification certificates, had been modified or not.
129 It should be noted that the film "Prime Time Pussy No 2", which was the subject of a classification certificate, was in DVD format, whereas the film "Prime Time Pussy No 2", which was seized from the premises at 353 Murray Street, Perth, was in VHS format.
130 Counsel for the appellants submitted, at the conclusion of the respondent's case, that there was no case to answer. The learned Magistrate upheld this submission. He said, relevantly:
"… I have come to the view that there is a gap in the prosecution case relating to whether these exhibits [that is, the video cassettes seized by the police] are identical to the films mentioned in exhibit 15 [that is, the classification certificates] and that that gap can't be cured by me sitting down and watching the videos, even if I were to glean from such a viewing that they had the same title, even if they went for the same length of time and had the same director and so on. And on that basis, I've come to the conclusion that there is not evidence upon which I could be satisfied that these are identical, satisfied beyond a reasonable doubt that these are identical with the films classified X, as per exhibit 15. And it seems to me therefore that on that basis the defendant has no case to answer.
I would add that there is a further problem which in my view has not been satisfactorily addressed even by Mr Clarke's [sic] evidence that it is a film that is classified regardless of the format in which it is presented to the Classification Board, and it is that a classification of a video cassette applies to a DVD, etcetera. Because one of the classifications that relating to 'Prime Time Pussy No. 2,' is in fact a classification of a film in DVD format and I think that makes the identicality problem even more difficult without direct evidence from someone who sat and viewed a film in whichever format it was, because I think it is by now notorious that films in DVD form often have material that is not on the VHS version and vice versa. I think I can take judicial notice of that and even that … DVDs are often so advertised as having extra features.
…"
(Page 39)
- The learned Magistrate therefore dismissed the amended complaints.
Appeal to the Supreme Court
131 On 15 August 2003, Pullin J (as his Honour then was) granted the respondent leave to appeal from the learned Magistrate's decision.
132 Johnson J heard the appeal. The learned Judge held that the learned Magistrate's decision was vitiated by error. Her Honour ordered that the appeal be allowed, the learned Magistrate's decision be set aside, and the matter remitted to the learned Magistrate for determination in accordance with her Honour's reasons.
133 The reasoning of the learned Judge, at [22] - [28], was, relevantly, as follows:
"Before I turn to address the primary issue of whether the learned Magistrate should have watched the films which had been tendered into evidence, it is necessary to accurately identify the element of the offence to which the certificates and the videotapes relate. In my view, there is no requirement to prove 'identicality'. The prosecution is required to prove to the requisite standard that each film is rated 'X'. That is the inference which is to be drawn by the Magistrate from the whole of the evidence available, taking that evidence at its highest. That inference is assisted by every piece of evidence of commonality between the films referred to in the s 25 certificate and the films tendered into evidence and any other evidence available to the Court. An alteration to a film may or may not change the classification of the film. Therefore, the mere possibility of an alteration of some type to the film tendered is not, of itself, sufficient to prevent the drawing of the relevant inference. Further, while in some cases variations between the information in the certificate and the details of the film may be fatal to the drawing of the necessary inference, minor variations may not reasonably preclude the drawing of the inference.
In my view, the primary issue is easily resolved. The films were received into evidence and the learned Magistrate ought to have viewed them. He fell into error in declining to do so. To determine whether there is a case to answer, a Court is required to consider all of the evidence. In circumstantial cases where it is the combination of all relevant pieces of evidence which falls for consideration, it is particularly important that every piece of
(Page 40)
- evidence is scrutinised. It is difficult to see how such an exercise can properly be conducted where one body of evidence is excluded from the exercise.
…
Once the submission of no case to answer was made, the learned Magistrate was required to examine the whole of the evidence to determine whether, taken at its highest, it was capable of proving beyond a reasonable doubt, each element of each offence. In this case, the only element in issue was whether each film was classified 'X'. The evidence available to the Magistrate in relation to each film was not simply the s 25 certificate and the film itself. Other available evidence was the location in which the film was found, the name and nature of the premises in which the film was found and the markings on the cover of the video cassette. Those markings included the 'X 18+' rating, the warning 'Restricted to adults 18 years and over (contains sexually explicit material)' and still photographs. In my view, the learned Magistrate could not and should not have reached the conclusion that he did without first viewing the films and considering all that material.
The final issue for consideration is the effect of a difference between the format of the classified film and the format of the film tendered into evidence. The classification certificate for 'Prime Time Pussy Number 2' identified the format as being in 'DVD'. The film tendered was in VHS format. The learned Magistrate dealt with this difference in the following way:
' … I think that makes the identicality problem even more difficult without direct evidence from someone who sat and viewed a film in whatever format it was, because I think it is by now notorious that films in DVD form often have material that is not on the VHS version and vice versa.'
...
In my view, the fact that the film is in a different format is a relevant consideration rather than a determining factor. The evidence of Mr Clarke [sic] was to the effect that the reference on the menu page to the format is not part of the classification process. It is the film itself and not the film in a particular
(Page 41)
- format which is classified. As with the evidence in relation to the other charges, the learned Magistrate should have considered the whole of the evidence including the fact that the film tendered was in a different format and including the evidence of Mr Clarke [sic] on the relevance of format to classification. In my view, it cannot be said that a change of format precludes the drawing of the inference that the film is classified 'X'."
Leave to appeal to this Court
134 On 17 May 2005 Wheeler and Pullin JJA granted the appellants leave to appeal to this Court.
Grounds of appeal
135 The grounds of appeal are these:
"1. The learned Judge erred in law in finding that the videotapes should have been viewed by the learned Magistrate.
2. The learned Judge erred in law in finding that the learned Magistrate erred in finding that the available evidence was incapable of establishing the charges beyond reasonable doubt.
3. The learned Judge erred in law in finding that the learned Magistrate erred in concluding that a different format from the format of the classified film Prime Time Pussy No.2 precluded proof beyond reasonable doubt.
4. The learned Judge erred in law in finding that the prosecution was not obliged to establish identicality between the film the subject of a certificate issued pursuant to s.25 of the Classification (Publications, Films and Computer Games) Act 1995 (Cth) and the film tendered which bore the same name."
The respondent's notice of contention
136 The respondent filed and served a notice of contention in which it alleged, relevantly:
(Page 42)
- "… even if it is found that there is a need to establish identicality … the learned Magistrate should still have looked at the evidence in determining whether the inference of identicality was reasonably open."
137 The respondent submitted, relevantly:
"If the learned Magistrate looked at the films and determined that certain identifying features of the films were the same as those given on the certificates issued under s 25 Classification (Publications Films and Computer Games) Act 1995 (Cth) (exhibit 15 at trial) he could have drawn (and should have drawn for the purposes of the no case to answer submission) the reasonably open inference that the films were classified X. Looking at all the evidence, once this inference were drawn, there was evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt, of the guilt of the accused.
In relation to the film 'Prime Time Pussy No 2' being a VHS format whereas the s 25 certificate related to the film in a DVD format, this is not fatal to the drawing of the relevant inference. …
Her Honour Johnson J was correct in saying that 'the fact that the film is in a different format is a relevant consideration rather than a determining one' (see paragraph 28). The learned Magistrate in looking at the film in VHS format may find that there are insufficient features in common between the film in the VHS format and those of the film in the DVD format to draw the inference that the film he is looking at is classified X. To decide this the learned Magistrate would need to look at the evidence."
The test governing the determination of a no case submission in criminal trials
138 The test to be applied by a trial Judge or Magistrate in determining a submission of no case to answer at the close of the prosecution case has been considered and discussed in numerous authorities. It is sufficient to mention May v O'Sullivan (1955) 92 CLR 654, R v Bilick (1984) 36 SASR 321 and Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482. In May, Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ said, at 658:
(Page 43)
- "When, at the close of the case for the prosecution, a submission is made that there is 'no case to answer', the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted."
- In Bilick, the Full Court of the Supreme Court of South Australia considered the application of the test in a case which depends on circumstantial evidence. King CJ (with whom Mohr J agreed) said, at 337:
"The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial Judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council [in Haw Tua Tau v Public Prosecutor [1981] 3 WLR 395] in which the direct 'evidence' is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? That, as it seems to me, was the question which the learned trial Judge was required to answer in deciding on the submission of no case to answer."
See also Morrison at 489 - 491.
(Page 44)
The resolution of the appeals to this Court
139 The provisions of the Commonwealth Act and the Western Australian Act to which I refer in resolving these appeals were in force as at the time of the commission of the alleged offences.
140 Section 81(2) of the Western Australian Act creates two distinct offences. First, by s 81(2)(a), relevantly, a person must not possess or copy an "unclassified film that would, if classified, be classified X" with the intention of selling the film or the copy, or exhibiting the film or the copy in a public place. Secondly, by s 81(2)(b), a person must not possess or copy "a film classified X" with the intention of selling the film or the copy, or exhibiting the film or the copy in a public place. Section 81(2)(a) relates to an unclassified film, whereas s 81(2)(b) relates to a classified film.
141 If a person is charged under s 81(2)(b), the person must have possessed or copied a "film" which, at the time of the commission of the alleged offence, was classified "X". The "film" will be classified "X", at the time of the commission of the alleged offence, if:
(a) it has been classified "X" by the Classification Board (or the Classification Review Board); and
(b) the classification "X" is current at the time of the commission of the alleged offence.
142 A "film" which is classified "X" may cease to be so classified if it is reclassified by the Classification Board (or the Classification Review Board) and given a less restrictive classification.
143 Also, if a "film" classified "X" is "modified", it becomes unclassified when the modification is made: see s 21(1) of the Commonwealth Act and s 32(1) of the Western Australian Act. At the material time, s 32(1) provided, relevantly:
" … if a classified film … is modified, it becomes unclassified when the modification is made."
- The term "modified" was not defined in the Western Australian Act (or the Commonwealth Act). The ordinary meaning of "modify" is:
"Make partial or minor changes to; alter without radical transformation."
(Page 45)
- See The Shorter Oxford English Dictionary, 5th ed, 2002, at 1807. In my opinion, the term "modified" in s 32(1) should be given its ordinary meaning. Any partial or minor change or alteration to a classified film constitutes a modification for the purposes of that provision. The change of status from classified to unclassified is automatic and immediate. My construction of s 32(1) promotes its apparent purpose or object, namely, the protection of the integrity of the classification system established under the legislation. See, for example, ss 73, 77(1), 80 and 81 of the Western Australian Act in relation to activities concerning unclassified films.
144 I am therefore of the opinion that the learned Judge was, with respect, in error, in holding, at [22], that:
" … An alteration to a film may or may not change the classification of the film. …"
145 I have mentioned that, at the material time, the term "film" was defined, relevantly, to include:
"a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced …"
146 The appellants were charged under s 81(2)(b). The respondent was therefore required to prove that, at the time of the commission of the alleged offences, the visual images on the video tape cassettes were classified "X". The dates of commission of the alleged offences were 27 September 2001, in the case of the video tape cassette entitled "Carnal Instincts", 18 October 2001, in the case of the video tape cassette entitled "Rocco's Real Italian Swingers", and 31 October 2001, in the case of the video tape cassette entitled "Prime Time Pussy No 2". It was irrelevant to the offences charged that the visual images on the video tape cassettes the subject of the amended complaints were, subsequent to their seizure, classified "X". The respondent did not allege that the visual images on the video tape cassettes were unclassified at the material time. The appellants were not charged under s 81(2)(a).
147 Proof of the respondent's allegation that, at the time of the commission of the alleged offences, the visual images on the video tape cassettes were classified "X", required the respondent to satisfy the learned Magistrate, beyond reasonable doubt, that:
(Page 46)
- (a) those visual images were a copy of, or identical with, visual images which the Classification Board (or the Classification Review Board) had classified "X"; and
(b) the classification "X" was current at the time of the commission of the alleged offences.
148 If the visual images on the video tape cassettes were not a copy of, or identical with:
(a) the visual images the subject of the classification certificates; or
(b) some other visual images which the Classification Board (or the Classification Review Board) had classified "X",
- then, as at the time of the commission of the alleged offences, the visual images on the video tape cassettes would not have been classified "X" or at all. In other words, at the material time the visual images on the video tape cassettes would have been unclassified.
149 The provisions of s 32(1) of the Western Australian Act, in relation to modifying a classified film, did not, either in their terms or in their application to the amended complaints or the proceedings against the appellants, cast any onus upon the appellants. Section 32(1) did not operate by way of exception, exemption, excuse, qualification or exculpation in relation to the prohibition contained in, or the offence created by, s 81(2)(b). I am unable to discern, in s 32(1) or any other provisions of the Western Australian Act, a legislative intention to impose on a person charged under s 81(2)(b) with possessing (as distinct from copying) a film classified "X", any onus in relation to whether the film the subject of the charge is not, or may not be, a copy of or identical with a film which the complainant alleges was, at the material time, classified "X". This is not a matter which will necessarily be within the peculiar knowledge of a person charged (as the appellants were charged) under s 81(2)(b) with possessing (as distinct from copying) a film classified "X". See and compare the observations of Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257 - 259. In my opinion, the appellants did not bear any onus of proving, or adducing any evidence to the effect, that:
(a) the visual images the subject of the classification certificates had been, or may have been, modified; or
(b) the visual images on the video tape cassettes were, or may have been, modified versions or variants of the
- visual images the subject of the classification certificates.
150 I have mentioned that:
(a) Detective Sergeant Corry, Senior Detective Douglas and Mr Clark had never viewed any of the films the subject of the classification certificates or any of the video tape cassettes the subject of the amended complaints;
(b) there was no evidence that Ms Williams or Ms Banfield, the senior classifiers employed by the Classification Board who classified the video tape cassettes after they were seized, had ever viewed the films the subject of the classification certificates;
(c) there was no evidence that the classifiers who viewed the films the subject of the classification certificates, for the purpose of the original classification of those films by the Classification Board, had ever viewed the video tape cassettes the subject of the amended complaints; and
(d) there was no evidence as to the content of any notes taken by the classifiers who viewed the films, the subject of the classification certificates, for the purpose of the original classification of those films by the Classification Board.
- Those omissions were, in combination, of critical significance in relation to the proof of the respondent's case.
151 Also, there was no evidence before the learned Magistrate as to the likelihood or feasibility, within the market for films classified "X" or otherwise, of modifications being made to classified films.
152 If the learned Magistrate had viewed the video tape cassettes, the viewing may have revealed that each video tape cassette had characteristics identical with those set out in the classification certificate relating to the film with an identical title. For example, the video tape cassette entitled "Carnal Instincts" may have had a "running time" of 71 minutes, may have contained sexually explicit material, and may have represented that its director, production company and country of origin were identical with those set out in the classification certificate relating to the film entitled "Carnal Instincts".
(Page 48)
153 In my opinion, however, it would not have been reasonably open to the learned Magistrate to be satisfied, by inference and beyond reasonable doubt, from:
(a) any identical characteristics of the kind referred to in par 152 above;
(b) the name and nature of the premises at 353 Murray Street, Perth, including the type of goods offered for sale, and the markings on the covers of the video tape cassettes; and
(c) the other evidence before him,
- that the visual images on each video tape cassette were a copy of, or identical with, the visual images on the film, the subject of the classification certificate, with an identical title.
154 No doubt, the learned Judge was, with respect, correct in observing that a court must consider all of the evidence in determining whether a no case submission should succeed or not. But, in my opinion, in the circumstances of this case, even if the learned Magistrate had viewed the video tape cassettes, the appellants could not lawfully have been convicted of the offences with which they were charged. In summary:
(a) it was not (and would not have been) reasonably open to the learned Magistrate to be satisfied, by inference and beyond reasonable doubt, that the visual images on any or all of the video tape cassettes were a copy of, or identical with, the visual images the subject of any or all of the classification certificates; and
(b) therefore it was not (and would not have been) reasonably open to the learned Magistrate to be satisfied, by inference and beyond reasonable doubt, that, at the time of the commission of the alleged offences, the visual images on the video tape cassettes (or any of them) were classified "X".
Conclusion
155 The decision of the learned Magistrate to uphold the appellants' submission of no case to answer, and to dismiss the amended complaints, was correct. The learned Judge was, with respect, in error in setting aside his decision.
156 I would allow the appeals.
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