Robinson v Vanston

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Send for Reporting

Not Restricted

No. 6825 of 1998

IN THE MATTER of Appeals under s.92 of the Magistrates' Court Act

D.G. ROBINSON and ORS	Appellants
v
T.M. VANSTON and ORS	Respondents

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22 June 1999
DATE OF JUDGMENT:	24 December 1999
CASE MAY BE CITED AS:	Robinson & Ors v Vanston & Ors
MEDIA NEUTRAL CITATION:	[1999] VSC 541

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Appeal – prosecutions under the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 – whether wrong test applied in determining guilt – whether material admitted in evidence met requirements of evidentiary provisions – content of the offences of offering or displaying a film or computer game for sale – content of the offences of possessing a film or computer game with the intention of selling etc the same.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr C. Waterstreet	Henty Jepson & Kelly
For the Respondents	Mr J.D. McArdle QC with Mr A. Lang	Office of Public Prosecutions

HIS HONOUR:

Background

On 28 August 1996 members of Victoria Police attended at 12 premises in and around Melbourne, at each of which a business operated under the name "Club X". At each premises a police officer purchased a copy of a videotape (a "film" for relevant purposes), and police seized other films (and in some instances, a computer game or games). The subject matter of the films is suggested by their titles. Thus, for example, "Hardcore" and "Anal Academy". Computer games seized included the title "Immoral Combat".

Charges were in due course laid against the 12 persons who had effected the sales of the films at the different premises. The charges were laid against pursuant to a number of provisions of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 ("the State Act"). Pertinent to the charges laid were provisions of the Classification (Publications, Films and Computer Games) Act 1995 (Cth) ("the Commonwealth Act").

Some 120 charges were laid in proceedings issued out of the Magistrates' Court on 13 August 1997. By proceedings issued on 5 December 1997 approximately 70 substitute charges were laid against the appellants. On 28 January 1998 the charges in respect of which substitute charges had been laid were withdrawn.

The original and substitute charges were in the same terms. The reason why the latter charges were initiated is explained later in these reasons.

The proceedings against the 12 defendants came on for hearing on 6 July 1998. The informant and the defendant were represented by very experienced counsel – the informant, indeed, by senior and junior counsel.

Eleven charges brought against a man named Stanfield were first heard. He pleaded not guilty to all charges. The informant adduced oral and written evidence. The defendant called no evidence, and his counsel announced that he was closing the defendant's case. Counsel then submitted that the informant had failed to prove its case. He raised a large number of matters. Senior counsel for the informant responded. The learned magistrate made certain oral rulings, found all of the charges proved, convicted Stanfield of them, and ordered him to pay fines.

Thereafter the learned magistrate heard the charges laid against the other defendants. He did so sequentially. Each of the defendants pleaded not guilty to the charges laid against him or her. The charges were in each instance heard in short form, documents being tendered and a little oral evidence being given. Submissions made in the Stanfield matters were adopted in each case; and the magistrate's "rulings" in Stanfield were also adopted. The magistrate found all charges proved against the defendants (other than a few which were withdrawn). He imposed, generally, convictions and fines.

The appeals

All of the defendants, save Stanfield, now appeal against the orders made by the learned Magistrate. They do so pursuant to s.92 of the Magistrates' Court Act 1989. Master Wheeler framed the following questions of law by his orders made on 7 September 1998:

"2.1Did the learned Magistrate err in treating the Appellant's submission that the prosecution had not proved its case as a 'no case' submission; (see paragraph 25-27 of the affidavit of Peter Godfrey Allaway sworn 13 August 1998 and the first and last paragraph of exhibit 'PGA1' thereto)
2.2Whether the learned Magistrate erred in accepting into evidence and acting on certificates issued under Section 87 of the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth of Australia ('the Commonwealth Act'), which included statements:

(i) that a film/computer game was unclassified at an earlier date than the date of the certificate;

(ii) that a film/computer game was classified subsequent to the earlier date (in (i) above);

(iii) that a film/computer game had been identified by a title cross check and confirmatory viewing;

(iv) about consumer advice;

(v) of verification of classification status;

(vi) of attachment of a copy of a Certificate under Section 25 of the Commonwealth Act in relation to both unclassified and classified films/computer games;

which went beyond matters permitted by that Section; (see pages 2 to 4 of exhibit "PGA1" to affidavit of Peter Godfrey Allaway sworn 13 August 1998).

2.3Whether the learned Magistrate erred in ruling that statements included in certificates issued by the Director under Section 87 of the Commonwealth Act and set out in 2.2(i) to (vi) above were proof of the matters in those statements receivable pursuant to Section 78 and/or Section 79 of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 of the State of Victoria ("the State Act"); (see pages 3 and 4 of exhibit "PGA1" to affidavit of Peter Godfrey Allaway sworn 13 August 1998).
2.4Whether the learned Magistrate erred in ruling that a certificate for the purpose of Section 78 of the State Act containing a statement asserting classification of a film/computer game was evidence of that classification notwithstanding
(i)evidence that the application for classification was defective; or
(ii)there was no evidence the form of application had been approved by the Director pursuant to Section 14(i) or Section 17(i) respectively of the Commonwealth Act;
(see pages 6 and 7 of exhibit "PGA1" to affidavit of Peter Godfrey Allaway sworn 13 August 1998).

2.5Whether the learned Magistrate erred in holding the Appellant as an employee was in possession of a film/computer game with the intention of selling or demonstrating it; (see pages 8 to 13 of exhibit "PGA1" to affidavit of Peter Godfrey Allaway sworn 13 August 1998).
2.6Whether the learned Magistrate erred in ruling that there was evidence that the Appellant was guilty of 'selling' films/computer games as included in the definition of 'sell' in both the State Act and the Commonwealth Act (save in the case of an actual sale).
2.7Whether the records of the Magistrates' Court of Victoria at Melbourne on 14 July 1998, inaccurately reflect the nature of the charges of which the Appellant was found guilty."

Question 2.7

It is convenient, before going further, to refer to question 2.7. The learned magistrate determined the charges brought against the various defendants pursuant to certain provisions of the State Act. Regrettably, extracts of orders initially provided by the Magistrates' Court (see s.18 of the Magistrates' Court Act) were in many instances erroneous. They asserted that the defendants had pleaded guilty to the charges laid. They frequently misstated the statutory provision pertinent to the particular charge, thus giving the impression that the magistrate had considered the charge by reference to the wrong provision of the State Act. This problem having been drawn to the attention of the Magistrates' Court by the appellants' solicitors, a number of revised extracts were produced. They were also flawed.

Before me there was debate whether question 2.7 was properly a matter for appeal. But in the end counsel agreed that the appeals should proceed on the basis of what has actually occurred in the Magistrates' Court. I agreed to that course, subject only to correct extracts of the orders made being prepared and submitted to me. Counsel undertook to procure such extracts; and eventually that was done.

That is all that need be said about question 2.7. In the circumstances, it need not be answered.

Question 2.1: Did the Magistrate apply the wrong test in determining guilt?

The appellant's solicitor, Mr Allaway, in his affidavit sworn 13 August 1998 recounts the sequence of events at the Magistrates' Court hearing. I have summarised certain matters relevant to the resolution of question 2.1 in paragraphs 6 and 7 of these reasons. The pertinent paragraphs of Mr Allaway's affidavit are those numbered 26, 27, 33, 34, 36, 37, 50, 51 and 52.

It is clear that counsel for Stanfield did not make a "no case" submission.

The learned Magistrate's oral reasons were transcribed. They are Exhibit PGA1 to Mr Allaway's affidavit. They show, on two occasions, that his Worship treated the situation as one calling for the resolution of a no‑case submission. Before me, senior counsel for the respondents conceded that the context of his Worship's second reference to this matter leaves no doubt that it was more than a slip of the tongue.

It appears that the Magistrate, having given his "ruling", forthwith found all the charges proved against Stanfield. There is nothing which would indicate that he applied his mind in the interim to the difference between making a ruling (which he was not asked to make) that the defendant had a case to answer, and a finding of guilt on the criminal standard. It seems to me very unlikely that he did address his mind to the second of those matters, notwithstanding that he is a very experienced Magistrate, and notwithstanding the fact that a finding of guilt was very likely in light of the rulings he had made. I consider, in short, that the overwhelming likelihood is that Stanfield was convicted by application of the wrong test of guilt. That was an error of law.

The matter went unremarked by counsel at the time. There is nothing to indicate, however, that counsel for either party deliberately stood silent. It seems very probable that the significance of what the learned Magistrate said was not picked up. It is not necessary to consider whether the error could have been corrected.

Stanfield, however, does not appeal. The true question is, did the learned Magistrate determine the guilt of the other defendants by reference to the criminal standard, or by reference to the "no case to answer" test? That is so despite the restrictive framework of question 2.1, which on its face relates only to the Stanfield matter - and that incompletely.

Paragraphs 36-52 of Mr Allaway's affidavit deal with the course of events in the Robinson prosecution. That is the only matter involving another defendant which is described at length in the affidavit. In light of paragraphs 36 and 37 of that affidavit it may be treated as a template of what occurred in the other matters.

The account is not quite complete. I was told by senior counsel for the respondents, without objection, that in each case counsel for the appellants below had announced that his client would call no evidence, had closed his client's case, and then made submissions – adopting what had been said in Stanfield.

I consider, in the circumstances described in Mr Allaway's affidavit, supplemented by what I was told from the Bar table, that what occurred in substance was that, the particular defendant having closed his or her case, counsel said that all the submissions previously made were repeated, and that his Worship's manner of dealing with them should be taken to be repeated also; and that then his Worship found the charges proved.

It was not enough for his Worship to have reasoned that because he had given a ruling in Stanfield, and had found charges proved against that defendant, it followed that he should convict the particular defendant then before him. To do that must simply have perpetuated the error which began with Stanfield. Yet it seems very likely to me that this is what happened. The likelihood is so great, and the consequences of the likely error so serious, that in my opinion the only safe course is to conclude that the error did occur in the case of all the appellants.

In the event, the appeals must be allowed. It does not follow from what occurred that the appellants might not properly have been convicted of at least some charges. For reasons that emerge later in these reasons, I consider that all the charges should be remitted to the Magistrates' Court for re-hearing.

The question that arises is what consideration I should give to the other questions framed by the Master.

Questions 2.2 – 2.4 raise evidentiary issues. Not all of those issues will necessarily arise upon a re‑hearing. Whether some of them could possibly do so was debated. I have decided to address the issues generally. I think that it would be very undesirable to remit the matters for re-hearing without giving some guidance about them.

Questions 2.5 and 2.6 ask, in effect, whether the appellants could possibly have been convicted of certain charges. Those questions require answers. But because the evidence adduced on the re-hearing might not be identical with the evidence adduced at the earlier hearing, one answer (as will be seen) must be qualified.

The legislation

In order to understand the issues raised by questions 2.2 - 2.6 I need to refer to some of the provisions of the Commonwealth and State Acts.

The Commonwealth Act

The purpose of the Commonwealth Act is set out by s.3. It is to provide for the classification of, inter alia, films and computer games for the ACT. The section goes on to say that the Act is intended to form part of a Commonwealth/State/Territory scheme for the classification of "films and computer games and for the enforcement of those classifications". The Commonwealth Act itself contains no enforcement provisions.

The Commonwealth Act sets up a Classification Board ("the Board"). There is provision for a Director of the Board ("the Director"); and for a Deputy Director.

By s.4 of the Commonwealth Act the Board and the Director "may exercise powers and perform functions relating to the classification of films and computer games that are conferred on them under an arrangement between the Commonwealth and a State". There was no evidence before the magistrate whether any such arrangement had been entered into; let alone its terms. Before me, counsel for the respondents produced a copy of an agreement dated 28 November 1995 made between the Commonwealth and each of the State and Territories. He submitted that the legislative scheme pertaining to censorship in Australia is disclosed by the judgment of Merkel J in Brown v. Classification Review Board 145 ALR at 464 – 468. The agreement to which his Honour referred at 466, he said, is the agreement which he produced in the course of his submissions. By that stratagem he attempted to get the document, though not in evidence, before me.

I have looked at the document. Having regard to the way in which the appeals must be resolved I need not decide whether it could be properly got before me on these appeals; nor, if it could, whether it is an arrangement within s.4 of the Commonwealth Act. For reasons that I shall later explain the exercise by the Board and the Director of powers which are pertinent to the State Act do not depend on a s.4 arrangement. That said, recital I and clause 4 do no more than describe the different legislative roles assumed by the Commonwealth and the States – which is very apparent from the legislation; whilst clause 10 provides the States and Territories with a financial benefit with respect to s.87 "evidentiary certificates" and "applications for classification" "requested for use in enforcement proceedings by a State or Territory". That clause implies a use for s.87 certificates that I have reached independently.

Section 7 of the Commonwealth Act provides for classification of films "in ascending order". Thus: G, PG, M, MA, R (Restricted), X (Restricted), RC (Refused Classification). The section also provides for classification of computer games in ascending order. Thus: G, G(8+), M(15+), MA(15+), RC. Classification is required to be made in accordance with a code subjoined to the Act, and with classification guidelines determined by the Commonwealth and participating State or Territory Ministers.

Section 14 provides that an application for classification of a film must be in writing, be made in an approved form, be signed by the applicant, and be accompanied by a prescribed fee and an adequate written synopsis of the film.

Section 17 provides for the making of an application for classification of computer games. Broadly it follows s.14. But there are additional provisions; see sub-ss.(1)(e), (2), (3) and (4).

Sections 14 and 17 interrelate with s.10 which provides by sub-s.(1) that classifications of films and computer games "are to be made by the Board in writing on application". Other sections underline the fact that it is the Board, as distinct from the Director, which is obliged by the Act to undertake classification. On the other hand, by s.25 "The Director must issue a classification certificate for each …. film and computer game that is classified by the Board"; and by s.26 the Director must give written notice of a Board decision to the applicant. By s.28, the decision takes effect on the day on which notice of the decision is given. Notice must be given promptly. It may be effected by giving a copy of the classification certificate to the applicant. Provision for service is made by s.89. In the case of service by post, see also s.39 of the Acts Interpretation Act 1901 (Cth).

By s.27, a person may apply for a copy of a classification certificate or a s.26 notice.

The import of ss.25(1), 26(5) and 27(1) is that there is a single classification certificate in any case; from which copies may be taken. Sections 26(1) and 27(1) suggest that a master version of the s.26(1) notice is retained by the Director, from which copies may be taken.

The Commonwealth Act makes provision for reclassification of classified films and computer games; see s.38. Generally speaking, this must not occur within the period of two years commencing on the day of classification.

I should next refer to s.53. It provides that the Director may exercise certain powers conferred on him or her by a provision of a State law. There is included a power conferred by a provision of a State law that "is prescribed". It was not suggested to the magistrate that there had been any such prescription; nor was any such suggestion made to me.

Section 87 is headed "Evidentiary Certificates". It reads:

"The director may, on payment of the prescribed fee, issue a certificate about action taken under this Act."

By s.13(3) of the Acts Interpretation Act 1901 (Cth) a heading to a section of an Act is not to be taken to be part of the Act. But by s.15AB, material not forming part of an Act may be considered in order to assist ascertainment of the meaning of a provision. The material that may be considered specifically includes, by sub-s.(2)(a) "all matters not forming part of the Act that are set out in the document containing the text of the Act as printed … ". A heading to a section meets that description.

It is convenient now to note that other extrinsic material which may be considered includes (by sub-s.(2)(e)) an explanatory memorandum and (by sub-s.(2)(f)) a second reading speech.

Regulation-making power, to return to the Commonwealth Act, is conferred by s.93. There are many matters which require prescription; see, for instance, ss.14(1)(d)(i), 17(1)(d), 27(2) and 87.

The State Act

I turn to the State Act. It was assented to on 5 December 1995 and was wholly in operation by 1 January 1996.

Its purpose is set out in s.1. Pertinently, it is to give effect to the Commonwealth/State/Territory scheme for the classification of films and computer games by "providing for the enforcement of classification decisions made under the Act".

Various terms are defined in s.3.

"Classification certificate" is defined to mean "a certificate issued under section 25 of the Commonwealth Act".

"Sell" is defined to mean:

" … sell or exchange or let on hire, and includes offer or display for sale or exchange or hire, agree to sell, exchange or hire and cause or permit to be sold or exchanged or hired, whether by retail or wholesale".

Section 15 of the State Act provides:

"A person must not sell an unclassified film or a film classified RC or X".

The penalty imposed by the section is variable. Its severity depends upon the classification or subsequent classification of the film. So, if the film is unclassified but is subsequently classified G, PG or M, the maximum penalty is 5 penalty units. But if the film is classified RC, or is unclassified but is subsequently classified RC, the maximum penalty is 240 penalty units or imprisonment for two years.

In the present case, it is convenient now to note, each of the appellants was charged with an offence against s.15. In each instance the offence was described as selling an unclassified film which was subsequently classified (as the case may be) X or RC. That was apparently done so as to specify a circumstance of statutory aggravation in the charge; see Kingswell v. The Queen (1985) 159 CLR 264 per Gibbs CJ, Wilson and Dawson JJ at 277-281. No point was taken by the appellants that the particular charges were incorrectly framed; and I think that there was no point to be taken.

Many sections of the State Act are similar in structure to s.15 in that they create offences for the sale or possession of publications, films and computer games the penalty for which offences varies according to classification or subsequent classification. Some instances are ss.12, 19, 20, 22, 23, 25, 30, 31, 36, 38, 41, 42, 44 and 45. Section 53 is a variation on the theme.

Having regard to the charges laid against the appellants I should refer to ss.23(1), 36(1)(a) and 45(1). Section 23(1) provides:

"(1) A person who possesses –

(a) a film classified RC or X; or

(b) an unclassified film which would, if classified, be classified RC, X, R or MA –

with the intention of selling or exhibiting the film is guilty of an offence."

The penalty (see sub-s.(4)) varies according to classification or subsequent classification.

Section 36(1)(a) pertinently reads:

"(1) A person must not –

(a) sell;
…

a computer game classified RC or an unclassified computer game which would, if classified, be classified RC.

Penalty: 240 penalty units or imprisonment for 2 years."

Section 45(1) is in these terms:

"(1)     A person must not possess –
(a)       computer game classified RC; or
(b)      an unclassified computer game -
with the intention of selling or demonstrating the computer game.
Penalty:
(c)if the computer game is subsequently classified MA (15+) - 60 penalty units or imprisonment for 6 months;
(d)if the computer game is classified, or is subsequently classified, RC - 240 penalty units or imprisonment for 2 years;
(e)in any other case - 30 penalty units."

Sections 15 and 36(1) are broadly comparable. One applies to films, the other to computer games. So also, ss.23(1) and 45(1) are broadly comparable. In each instance there is incomplete coincidence of the comparable provisions. But their broad thrust is not in doubt.

Section 79 provides that a prosecution for an offence against the Act in relation to a film or computer game

"that is unclassified at the time of the alleged offence -

(a) Must not be commenced until the film … or computer game has been classified: and

(b) Unless the contrary intention appears, may be commenced not later than 12 months after the date on which the film … or computer game was classified."

The point of s.79(a) is clear. It takes up a matter made relevant by, for example, ss.15, 23(1)(b) and (4), 36(1)(a) and 45(1)(b).

Section 78 is an evidentiary provision. Much argument in the present case was directed to it. I should set out so much of the section as is presently relevant:

"In any proceeding for an offence against this Act, a certificate signed or purporting to be signed by the Director or Deputy Director and stating that -

(a) A film or … computer game is classified as specified in the certificate; or

…

(c) a film or … computer game is not classified …

is evidence of, and in the absence of evidence to the contrary is proof of, the facts stated in it."

It can be seen from my synopsis of the Commonwealth and State Acts that the former provides for the Director issuing a certificate in the situations referred to in ss.25 and 87. Understandably, the Commonwealth Act being concerned with classification rather than enforcement, neither certificate is given by the Commonwealth Act evidentiary status in a prosecution under the State Act. On the other hand, the State Act does give evidentiary status to a certificate signed by the Director (or Deputy Director) where the certificate meets the description set out in s.78. That is compatible with the enforcement role of the State legislation.

The charges brought against the appellants; a summary

I should set out the generality of the offences allegedly committed by the various appellants. In summarising the charges brought against them I shall sometimes describe the matters alleged as matters of fact. Nothing turns on it.

Robinson was charged with 12 offences. They related to five films and one computer game. The prosecution alleged that four of the films were unclassified at the critical time, and that all were subsequently classified X. The computer game was allegedly unclassified but was later classified RC. One film was allegedly classified X at the critical time. Charges were laid in respect of each film under each of ss.15 and 23; and in respect of the computer game under each of ss.36(1) and 45(1). In respect of all but the film the subject of what I may conveniently call the actual sale, the charges of possession with intent to sell and sale (giving the latter event its extended meaning) were founded upon the same facts. Whether those charges, or any of them, could be sustained against the appellants is the subject-matter of questions 2.5 and 2.6. On the footing that the charges were maintainable, senior counsel for the respondents said, I think rightly, that ordinarily a court would not be asked to record a conviction upon both charges in respect of the one film or computer game. In a practical sense, not much turned on it. Where there were related charges in the case of other appellants (presumably also in the case of this appellant) the magistrate convicted and fined the appellant on one charge (and made a forfeiture order); and on the other charge convicted the appellant and discharged him or her.

Cannizzaro was charged with 12 offences relating to six films. The pattern of charges was the same as in Robinson. Four of the films were unclassified. Three were later classified X; and one RC. One film was allegedly classified X. The two charges in respect of the sixth film were inconsistent as to whether or not it was classified at the time of seizure.

Shepherd was charged with eight offences in connection with five films and one computer game. Two of the films and the computer game were unclassified and three classified. The two unclassified films were subsequently classified X; and the computer game was classified RC. The classified films were all classified X. In respect of one film and the computer game charges of sale and possession were laid. In respect of four films charges of possession only were brought.

Quing Yen was charged with 12 offences. They related to five films and one computer game which were unclassified and one film which was classified. The unclassified films were later classified X. The classified film also had that classification. The unclassified computer game was later classified RC.

Pople was charged with nine offences in relation to six films, four of which were unclassified but later classified X, and two of which were classified X. This appellant was only charged with a possession offence in respect of three of the films.

Dimieri was charged with ten offences in relation to six films, five of which were unclassified but later classified X, and one of which was classified X. This appellant also was only charged with a possession offence in respect of two of the films.

Lane was charged with nine offences in respect of five films and a computer game. Four films were unclassified but later classified X. One film was classified X. The computer game was classified RC. Lane was charged with a possession offence only in relation to two films and the computer game.

Hill was charged with ten offences in relation to four films and one computer game. Two films were unclassified but were later classified X. Two films were classified X. The computer game was allegedly unclassified but was later classified RC. With respect to one film only a possession charge was laid. A fifth film was the subject of a muddled charge, and no conviction was recorded.

Bayliss was charged with ten offences in connection with five films and one computer game. The latter and one film were said to be unclassified, and the other films were allegedly classified X (in two cases) and RC (in one case). The computer game was said to have been later classified RC, and the unclassified films were said to have been later classified RC. In the case of two films only a possession charge was laid. In the case of one of those films the charge was eventually withdrawn.

Hawe was charged with nine offences in connection with six films, one of which was classified X. The other films were, the charges asserted, subsequently classified X in all but one instance. The exception was a film later classified RC. In the case of two films only a possession charge was laid. In the case of one film an offence against s.15 only was laid.

Fernandez was charged with seven offences in connection with five films and one computer game. One film was classified X, four films were unclassified but later classified X, and the computer game was said to be unclassified but later classified RC. Only one s.15 charge was laid. In all cases a possession charge was brought.

All of the films were, according to the prosecution case, classified, or subsequently classified, X or RC. The computer games – one was the subject of charges brought against Bayliss, Fernandez, Hill, Lane, Quing Yen, and Shepherd, and one was the subject of charges brought against Robinson – were allegedly classified or subsequently classified RC.

The computer game the subject of charges against Bayliss, Fernandez, Hill, Lane, Quing Yen and Shepherd, was in five instances alleged to be unclassified on the relevant date; and in one case (that of Lane) alleged to be classified at that time.

The certificates

The Prosecutor relied upon certificates to prove that the films and computer games were, consonantly with the charges laid in the particular cases,

· Classified or unclassified at the date of the alleged offence;

· If unclassified, then subsequently classified RC or X.

Both in the Magistrates' Court, and before me, there was a substantial debate concerning the certificates. The course of events in the Magistrates' Court is disclosed by the affidavit of the appellant's solicitor to which I have earlier referred; see paragraphs 16 – 23, 24.4, 25, 27 – 28 and 31.

The issues raised in connection with the certificates in the Magistrates' Court – or, more accurately, some of them – find expression in questions 2.2 – 2.4 framed by the Master's Order. Some of those issues were argued before me; and as well other issues pertaining to the certificates. I shall deal with the various submissions that were made later in these reasons. But first I should set out the pertinent evidence that was before his Worship in the exemplar case; and make some general observations about the certificates that were put in evidence.

Shortly before 13 November 1996 Detective Senior Constable Iain Samson, who co‑ordinated the police work in connection with these matters, wrote to the Director.

He advised of the seizure of films and computer games on 28 August 1996, and of intention to commence prosecutions. He sought a "report for classification", and "also request (ed) that the below films and computer games be classified". Sent with the letter were films and computer games seized at the various addresses. The letter was in no particular form. Sections 14(1)(b) and 17(1)(b) of the Commonwealth Act are pertinent in that connection. The content of the letter implies that it was not accompanied by any fees; see ss.14(1)(d)(i) and 17(1)(d). It was not accompanied by any synopses of the films; see ss.14(1)(b) and (d). The computer game was not accompanied by any document complying with s.17(1)(e) or (2) of the Commonwealth Act.

No direct evidence was adduced before the Magistrate to show whether or not there were approved forms of application as at November 1996. There was some evidence of the existence of an approved form as at October 1997.

Certificates were issued over the hand of the Director on 5 May 1997. Characteristically they were headed:

"Section 87 – Certificate of Classification Status"

In the case of allegedly unclassified material they took this form:
"I, John Joseph Dickie, being the Director of the Classification Board … hereby certify that the videotape submitted to the Classification Board by the Victoria Police and described below was unclassified as at 28 August 1996, but has subsequently been assigned the following classification. A copy of the classification certificate is attached."
The attached classification certificate, omitting certain presently irrelevant parts, was in this form:

"I refer to your application dated the Eighth day of November 1996 for the classification of the undermentioned film.
I certify that the film has been assigned the classification as below:
…
Classification: X 18 + Restricted to Adults 18 years & over
Consumer advice: CONTAINS SEXUALLY EXPLICIT MATERIAL"

Unless the applicant was given notice of the decision other than by being given a copy of the classification certificate, the classification decision took effect on the day on which a copy of the certificate was given to the applicant.

I will deal with the form of certificates issued in the case of allegedly classified material a little later. For the moment I follow through the chronology of events in the context of unclassified material.

The ss.25 and 87 certificates having been received, charges were laid. As I noted earlier, proceedings were initiated on 13 August 1997. On the face of it, there was thus compliance with s.79(1)(a) of the State Act.

On 4 December 1997 the solicitor for the informants wrote to the appellants' solicitors. He said, inter alia,

"As a consequence of advice recently received relating to the procedure for issuing of classification certificates, it has been decided to have fresh Censor's certificates issued in relation to the films which are the basis of the charges against your clients.
In some instances, the issuing of the new certificates has also necessitated the issuing of fresh charges. In each instance, the fresh charge which has now been issued is identical to the charge it replaces in every respect … ; the only relevant difference is the date of issuing of the charge."

The new charges were laid in many but not all cases of films allegedly unclassified on 28 August 1996, but subsequently classified.

The new certificates arose out of action taken by Detective Samson in late October 1997. He wrote to the Director on 28 October, wishing "to have the following 65 films classified and identified (as detailed next to each film)." Identification was evidently sought in those cases where Detective Samson believed that the film had been classified as at 28 October 1996. Later in his letter he referred to "classification or identification"; and he requested that "in relation to the above mentioned films, certificates be issued under section 87 …. Or in relation to the unclassified material, that classification certificates be issued." The letter enclosed a cheque for provision of certificates. It was not suggested that the amount was other than an accumulation of prescribed fees payable under s.14(1)(d)(I).

Sent with the letter were synopses of the films. Described in each application for classification as "a detailed synopsis" the synopses were brief. Perhaps there was not a lot to say. The following is an exmple:

"A compilation of scenes featuring males and females in explicit sexual activities, with the emphasis on ejaculation."

In the case of the film to which I have just referred (I take it as an example) the Director issued a new certificate. Dated 21 November 1997, it was headed: "Section 87 – Certificate" and was relevantly in these terms:

"I, John Joseph Dickie, Director of the Classification Board … CERTIFY pursuant to section 87 of the Act that the action described in the schedule to this certificate has been taken by the Classification Board and that the schedule is an accurate summary of the action taken by the Classification Board in relation to the item described in the schedule.
SCHEDULE
…

ACTION:

Classified X

CONSUMER ADVICE:

Contains sexually explicit material

DATE CLASSIFIED:

12 November 1997

Dated: 21 November 1997"

The certificate did not attach a copy of the s.25 certificate (as the earlier s.87 certificate had done). But in fact a s.25 certificate was sent with the s.87 certificate. It was relevantly in the following form:

"I refer to your application dated the Sixteenth day of October 1997 for the classification of the undermentioned film. I certify that the film has been assigned the classification as below:
…
Classification: X 18 + Restricted to Adults 18 years and over
…
Dated this Twelfth day of November 1997"

The date of classification was stated in the Schedule to the s.87 certificate to be 12 November 1997. That corresponded with the date on the s.25 certificate.

Pausing for a moment, in respect of the two charges brought against Robinson in connection with the particular film the prosecution put into evidence two s.87 certificates and two s.25 certificates. That was not an uncommon situation in the course of the prosecution of these appellants.

In the particular case the earlier s.87 certificate certified that the film was unclassified as of 28 August 1996 – that is, the date of the alleged offences; but that it had been later classified. It did not itself certify when classification had occurred. The attached s.25 certificate, having referred to an application for classification made in November 1996, certified that the film had been classified X. The certificate itself was dated 5 May 1997.

The later s.87 certificate identified action taken – that is, classification. Its schedule showed that the film had been classified X on 12 November 1997. It did not contain any direct assertion that the film had been unclassified on 28 August 1996.

The later s.25 certificate referred to an application for classification dated 16 October 1997. It advised classification, and was dated, as I have said, 12 November 1997. Having regard to the stated date of application, the s.25 certificate could not have been referring to classification notified by the earlier s.25 certificate. The schedule to the later s.87 certificate emphasises that point.

In order to convict Robinson of the two charges brought against her in respect of this film the magistrate had to be satisfied to the criminal standard that the film had been unclassified on 28 August 1996 but that it had subsequently been classified X. All other asserted problems with the certificates apart, it was contended for the particular appellant that there was a necessary inconsistency in the certificates which must have left the Magistrate uncertain just what the situation had been as at 28 August 1996.

I go to the form of certificates issued in cases where a film was allegedly classified as at 28 August 1996. An instance is the film Red Devil Pepper 666 #5. The Director issued a document headed "Section 87 – Verification of Classification" on 5 May 1997. It said this:

"I, John Joseph Dickie, being the Director of the Classification Board … hereby certify that the videotape submitted to the Classification Board by the Victoria Police and described below had been assigned the following classification as at 28 August 1996. The material has been identified by way of a title cross check and a confirmatory viewing, and a copy of the original classification certificate is attached.
TITLE: RED DEVIL PEPPER 666 #5
CLASSIFICATION: RC"

The attached section 25 certificate was headed "Certificate for a Film for Sale or Hire Refused Classification. " It relevantly said this:

"I refer to your application dated the Twenty-Third day of October 1995 for the classification of the undermentioned film.
I certify that the decision of the Classification Board for this film is detailed below:
Title: RED DEVIL PEPPER 666 #5
…
Classification: RC REFUSED CLASSIFICATION"
The certificate was dated 5 June 1996.

A second s.87 certificate was issued on 21 November 1997. It said this:

"I, John Joseph Dickie, Director of the Classification Board … CERTIFY pursuant to section 87 of the Act that the action described in the schedule to this certificate has been taken by the Classification Board and that the schedule is an accurate summary of the action taken by the Classification Board in relation to the item described in the schedule.
SCHEDULE
TITLE:  RED DEVIL PEPPER 666 #5
…
ACTION:  Classified RC
DATE CLASSIFIED:                   24 November 1995"

The later s.87 certificate was not accompanied by a copy of the s.25 certificate. The classification date did not correspond with the date of the s.25 certificate attached to the first s.87 certificate. It does not necessarily follow that there was inconsistency. It is possible that notice of the Board's decision was given other than by service of a copy of the classification certificate. But if notice was given by service of a copy of that certificate, then there was inconsistency. For the second s.87 certificate certified that there had been classification on a date prior to the date of the classification certificate; and it appears to me that classification must be taken to refer to the date upon which a decision as to classification takes effect.

Not in every case did the documentation fit the profiles of the two examples that I have taken. Nor was a classification certificate always attached to a later s.87 certificate. At least once the s.87 certificate and the s.25 certificate did not fully coincide as to classification. Generally speaking, however, the documents did fit the profiles of the two examples; and counsel argued the appeals on the broad footing that those examples raised issues which were picked up by questions 2.2 – 2.4.

Questions 2.2 – 2.4

In the Magistrates' Court counsel for the appellants made a very large number of submissions in connection with the certificates to which I have referred. Some of the submissions went to matters of individual detail. Most of them were submissions of generality. The submissions of both types are set out in paragraphs 28 and 31 of the affidavit of the appellants' solicitor sworn 13 August 1998.

It is quite clear that the issues raised by questions 2.2 – 2.4 do not address all the matters raised at first instance. It is also clear that the issues raised by counsel for the appellants in argument before me addressed matters neither put below nor properly arising under questions 2.2 – 2.4. It is clear again that some arguments put on appeal could not sit with arguments put at first instance. The circumstances would ordinarily have justified my refusing to deal with some of the points argued on appeal; see Mond v Lipshut [1999] VSC 103 and Emer v Queen Victoria Women's Centre Trust [1999] VSC 1115; and, in one connection, the principle in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418.

That said, having regard to the way in which I have decided to deal with the appeals, I will address the points which were argued before me, and in doing so address most of the matters put below. I need not refer to the reasoning of the learned Magistrate. I intend no disrespect by not doing so.

I first highlight the main arguments concerning the certificates which were put for the appellants in the Magistrates' Court.

As I understand the solicitor's affidavit, it was first contended that the Director was only empowered to give certificates under ss.25 and 87 of the Commonwealth Act. The contents of those certificates were specified, respectively, by the two sections. In the case of s.87, the certificate must refer to "action taken under this Act". Such action was limited to action described in particular sections of the Act. Action was to be contrasted with lack of action. Various matters had been wrongly included in a s.87 certificate which counsel in the Magistrates' Court used as an exemplar. In that connection counsel referred to matters raised by questions 2.2(i), (ii), (iii), (iv) and (vi). He submitted "that if a s.87 certificate dealt with matters other than action taken under the Commonwealth Act, those matters were not admissible as evidence".

This first submission, then, concerned the form of ss.25 and (particularly) 87 certificates; and the consequence if a certificate went beyond what was permitted. The submission touched upon, but in a tangential way, the question whether a copy of s.25 certificate attached to a s.87 certificate was part of the latter certificate; and if it was, then its effect.

The second submission focussed upon the circumstance that, in some instances, there were two s.87 certificates and two s.25 certificates in evidence in respect of the one film. That was said to lead to a situation where the learned Magistrate could not be satisfied of the true situation on the date of the alleged offence, there being an unexplained inconsistency in the documents as to when classification had taken place.

The third submission was that the s.25 and s.87 certificates dated May 1997 were invalid and so inadmissible because the application procedure had been defective; see s.14 of the Commonwealth Act.

The fourth submission was that there was no evidence that the application form used in seeking classification on the later of the two occasions was in accordance with the requirements of s.14. So the certificates issued in November 1997 "were not evidence of their contents".

The fifth submission was that a s.25 or s.87 certificate could only be evidence of matters permitted under s.78 of the State Act. Section 78 only permits, relevantly, certification that a film is or is not then classified.

The matters which counsel for the appellants raised on the appeal were these:

First, certificates given under ss.25 and 87 are not per se admissible in a prosecution under the State Act. The giving of certificates in this case was not an exercise of power conferred by a provision of a State Act; see s.54 of the Commonwealth Act. Nor was it an exercise of power conferred by an agreement made under the State Act. The certificates which were given in this case did not purport to be given under s.78 of the State Act. Section 78 of the State Act did not confer power on the Director to give a certificate.

Second, a s.87 certificate must refer to action taken; not to action not taken. That is to be compared with what a s.78 certificate must state – that is, that a film is or is not classified.

Third, the s.87 certificates did not convey s.78 material. They contained impermissible material. The question did not arise whether a s.87 certificate which contained s.78 material but also impermissible material should be received.

Fourth, copy s.25 certificates attached to s.87 certificates were not admissible under s.78. Further, they were not part of the s.87 certificates.

Fifth, a certificate that a film has been assigned a classification on a date subsequent to the date of an alleged offence is not a statement that on the date of the alleged offence the film was unclassified.

Sixth, in the absence of a proper application for classification, classification could not be granted; and a s.25 certificate could not be evidence of anything.

Seventh, s.25 and s.87 certificates issued in November 1997 assumed that earlier alleged classification, advised by certificates in May 1997, had been "void". Yet all the certificates had been tendered, this creating an inevitable conflict.

The Director's powers and duties are set out by the Commonwealth Act. A law of a State or Territory may expand those powers and duties in specified ways; see 53 of the Commonwealth Act. In the present case there was no evidence of pertinent expansion. The Director's powers may also be expanded by an arrangement made pursuant to s.4 of the Commonwealth Act. No such arrangement was proved in the Magistrates' Court hearing; and the document produced to me, had it been in evidence, would not have carried the matter further.

Counsel for the appellants submitted that unless the Director was given power to provide a s.78 certificate – whether by the application of s.4 or s.53 of the Commonwealth Act – a certificate which he or she provided could not have evidentiary effect. Senior counsel for the respondents, whilst specifically not contending that s.78 conferred (or could confer) additional power on the Director, submitted that by s.78 evidentiary force is given to a certificate which the Director is empowered to provide under the Commonwealth Act. In that context he referred to ss.25 and 87 of the Commonwealth Act.

In my opinion the submission made by the respondents is undoubtedly correct. There is no reason in principle why, in connection with an enforcement proceeding, the State Act should not give evidentiary force to a certificate which the Commonwealth Act empowers the Director to provide. This was, evidently, the intended purpose of s.87 certificates; see the explanatory memorandum circulated by the Attorney-General which, referring to clause 87 of the Bill, said this:

"This clause provides that the Director may … issue a certificate about action taken under the Act. Provisions as to the evidentiary weight which such certificates will carry will be a matter for the complementary State and Territory Legislation".

The heading to s.87, extrinsic material like the explanatory memorandum, conveys a similar intendment. The most obvious evidentiary use of certificates issued under that section would be in respect of offences created by State or Territory enforcement legislation.

The next matter to consider is what matters are given evidentiary force by the application of s.78. According to the submission made for the appellants, a certificate can have evidentiary force only in respect of the facts (or any of them) set out in sub‑paragraphs (a) – (d) of the section. Senior counsel for the respondents submitted, to the contrary, that if a certificate deals with one or more of the facts set out in the sub‑paragraphs, then it is evidence of all the facts certified.

In my opinion the appellants' submission is correct. The natural reading of the section is that "the facts stated" in the certificate is a reference to such of the facts set out in sub-paragraphs (a) – (d) as are stated in that certificate. Taken to its extreme, the respondents' submission would mean that s.78, whose evident role is to simplify proof of particular matters in a criminal proceeding, could permit proof by the envisaged certificate of any element of the offence alleged, even though that element was unrelated to the subject-matter of the certificate specifically identified by the section. That could not be so. It could no more be the case in less extreme situations.

It does not follow, however, that tender of a certificate containing material which meets the requirements of s.78 should be rejected because it also contains material not satisfying the requirements of that section. Some material which is extraneous for s.78 purposes may be a required part of a particular certificate; see, for example a s.25 certificate, which must include the matters set out by s.25(2). If a s.25 certificate contains material admissible under s.78, which I later conclude is the case, I see no reason why the document should not be admitted as to part under that section. I add that, for the most part, extraneous material contained in a s.25 certificate would simply be of no significance to prosecution of an offence under the State Act.

I go to the submission that, to be admissible under s.78, a certificate must state that a film is classified or that it is not classified; that is, the certificate must state a situation current when the certificate is given. I refer also to the corollary submission; that is, that a certificate stating that a film was or was not classified on some date prior to certification could not be a certificate for the purposes of s.78.

The grammar of s.78 strongly favours the contention that a certificate for the purposes of that section must state a then existing situation. The Parliament must be taken not to have been unaware of the distinction between the present and past tenses. Sub-paragraph (d), in part, contemplates a statement of fact touching on past action. Sub-paragraphs (a) – (c), by contrast, on their face deal with a state of fact existing at the time of certification; and none other.

It is obviously unsatisfactory, where a prosecution will necessarily involve proof of the state of affairs on the date of the alleged offence, and in some cases of a changed state of affairs (that is, classification) thereafter, that s.78 does not squarely give evidentiary significance to certification of the situation existing at critical times. The Victorian Parliament's purpose in enacting the State Act is clear indeed: see s.3(a) and the many sections which create offences. Section 78 should be seen as a provision facilitating the carrying of Parliament's purpose into effect. The section should be given a construction, so far as possible, consistent with achieving that purpose. The simple fact is, however, that the section is unambiguous; and that relevantly it does not address the past. The construction of s.78, I add, cannot be affected by what a certificate given under s.25 or s.87 of the Commonwealth Act may permissibly address.

At the Magistrates' Court hearing some material was introduced pertaining to a proposed amendment, in 1997, of s.87 of the Commonwealth Act. The amendment, as I understand it, did not proceed. Any such amendment, unless compatible with s.78 of the State Act, would not be useful; and s.78 is itself in need of amendment.

It does not follow from what I have said that a s.25 certificate is not admissible as evidence of an offence. If it is alleged that a film was classified on the date of an alleged offence, a certificate of earlier classification could properly stand as evidence of classification on the crucial day. There is nothing to the suggestion that, because s.25(2) of the Commonwealth Act does not refer to a certificate being dated, the inclusion of a date is non-permitted surplusage. To create a certificate but not to date it would be to create a document that was meaningless. A dated certificate speaks of a situation current at the time of its date – that is, that a film has then been classified.

Although the s.25 certificates referred to films having been classified, it does not follow that they did not certify a then current situation. Provisions of the Commonwealth Act to which I have referred tell to the contrary. Moreover, since the giving of a copy certificate may stand as notice under s.26(1), it seems to me open to conclude, absent other evidence, and having regard to provisions of the Commonwealth Act to which I earlier referred, that the particular decision took effect at the expiry of an ordinary course of post after the date of the certificate.

If it is alleged, on the other hand, that a film was not classified on a particular date, a s.25 certificate later dated may, I consider, stand as evidence that the film was not classified on the crucial day; but that it was later classified, and when.

In my opinion s.25 certificates, in the two circumstances described, would meet the requirements of s.78. They would provide some evidence of matters pertinent to proof of the different offences; and at the same time provide evidence of matters made relevant by s.79(1)(a) and (b) of the State Act. It would of course be open to a defendant to adduce contrary evidence of the matters for which such a certificate would otherwise stand.

I add this. Classification certificates adduced in evidence referred to the date on which application for classification was said to have been made. Such a certificate should not be received into evidence in reliance upon s.78 in a way that treated that statement as part of the evidence so received.

I turn to s.87 certificates. I agree with the submission of the appellants' counsel that such a certificate must address action taken; not inaction. I do not agree, however, that "action" is confined in the way proposed by the submission made for the appellants below. I consider that the noun encompasses administrative action which does not find expression in particular sections of the Commonwealth Act.

To say what may be set out in a s.87 certificate does not, however, take things very far. Such a certificate is not per se admissible in a State enforcement proceeding. Its admissibility depends, in Victoria, upon s.78 of the State Act. It follows that, except to the extent that such a certificate meets the requirements of s.78, its content is given no evidentiary effect by that section.

The critical portion of the s.87 certificates which were put in evidence in the present matters addressed the question whether a particular film had been classified or was unclassified on the date of the alleged offence; and, in the latter situation, when the film had been classified, and what the classification was. This was in substance a recital of past events. It might be said that the assertion of past classification implied that there was classification current when the certificate was given. That argument would not have the same force as it does in the case of a s.25 certificate. Moreover, it would only address part of the subject matter of the s.87 certificates.

Some of the s.87 certificates had attached to them copy s.25 certificates. The latter certificates, for reasons outlined, did speak of the then current situation.

Subject to the possible argument that those s.87 certificates which had copy s.25 certificates attached to them were to the extent of the s.25 certificates capable of constituting evidence for the purposes of s.78, in my opinion the s.87 certificates were inadmissible.

It may be that a s.87 certificate could be drafted in a fashion which, by incorporating a s.25 certificate, or notice given under s.26 of the Commonwealth Act, would meet the requirements of s.78. That would be to no point in the case of a s.25 certificate, which I consider would be admissible in any event. There might be point to a s.87 certificate if it sought to incorporate a notice of another kind given under s.26 of the Commonwealth Act. I raise but do not decide the question whether such a notice, depending on its form, might independently satisfy the formal requirements of s.78.

This is a convenient point at which to say something about the appellants' submission that s.78 does not authorise the receipt of copy documents. The argument was addressed to the copy certificates appended to the s.87 notices; but it seems likely, having regard to provisions of the Commonwealth Act to which I have earlier referred, that all the s.25 certificate were copies.

Section 78 speaks of certificates being evidence of certain matters; not copy certificates. The Evidence Act 1958 recognises the distinction, for it has much to say about the circumstances in which copies of documents may be got into evidence. I think that if a copy s.25 certificate was sought to be put in evidence by reference to s.78, it would not be admissible unless the requirements of the Evidence Act were satisfied. The definition of "business" in s.3(1) of the Evidence Act might make s.53B(1) of that Act relevant. Perhaps, also, s.53N would be pertinent.

The situation is not clear in the case of an original s.87 certificate to which a copy s.25 certificate is attached. Perhaps the copy certificate should be regarded as part of the original s.87 certificate. In the event, these prosecutions must be re-heard; and the evidence to be adduced will not necessarily be identical to the evidence adduced at the earlier hearing. The doubtful issue now under discussion simply need not arise.

I turn to the issue whether the earlier s.25 certificates were invalid and inadmissible because there was evidence of non-compliance with the application procedure required by ss.14 and 17 of the Commonwealth Act; and whether the later s.25 certificates were invalid and inadmissible because there was no evidence that the procedures followed were those mandated by those sections.

I deal shortly with the second of those matters. There was nothing to the submission advanced for the appellants. The evidence permitted a conclusion that the proper procedures had been followed. The application forms tendered in evidence appeared on their face to be documents created by the relevant authority, filled in by Detective Samson. They referred to tender of the prescribed fee. It was not necessary for the prosecution to go so far as to adduce discrete evidence that the form on which applications had been made was the form approved by the Director in writing; or that the fee paid was the prescribed fee.

Turning to the earlier s.25 certificates, the evidence was clear that classifications were made after applications were submitted in no particular form, no fees being paid, and no synopses of films or details of computer games being provided. There was no evidence one way or the other whether forms or fees had then been respectively approved or prescribed by the Director. At least it is clear that there was non‑compliance with ss.14(1)(d)(ii) and 17(1)(e) and (2).

The particular certificates, at the hearing from which the present appeals are brought, were admitted into evidence after objection was withdrawn. Yet submissions were thereafter made which challenged their admissibility. That conduct probably reflects forensic choices made at the time. It does not decide the issue which has been raised.

Again, it might well be that on the re-hearing the prosecution will not seek to adduce the earlier certificates in evidence. It is not clear to me that it would be necessary to make such tender. Moreover, in the earlier hearing the course that was taken created the potential for conflict. But, again, the issue which has been raised stands apart from the likely future course of the prosecutions.

Focussing, then, on the matter of principle, the making of a decision upon an application for classification is an administrative act. Prima facie it should be open to challenge by administrative law process. That should not prevent it being subject to collateral challenge, as to which see Ousley v The Queen (1997) 192 CLR 69 at 98-99 per McHugh J.

A collateral challenge may be directed to showing that a pre-condition to the exercise of statutory power was not in fact present. Ousley was such a case. So was DPP v Head [1959] AC 83. In those two cases the outcome differed because the existence or otherwise of facts preliminary to an exercise of power was differently determined.

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841, relied upon for the respondents, was not a collateral challenge to an administrative decision. Moreover, it was concerned with the manner of exercise of power in the context of statutory provisions one of which involved policy issues, rather than with the question whether the circumstances invested the Authority with jurisdiction to act. A good deal of what the majority (McHugh, Gummow, Kirby and Hayne JJ) said is not squarely in point. Their Honours did, however, address broader issues. They said this:

"Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory."
and
"In R v Loxdale, Lord Mansfield CJ said '[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory'. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non‑compliance unless there has been 'substantial compliance' with the provisions governing the exercise of the power."
and
"In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid … a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'."
and
"Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act."

The purpose of the Commonwealth Act is to provide for the classification of, inter alia, films and computer games. Common sense, as well as the statute, dictates that the precursor to classification is an application for classification. Sections 14 and 17 provide for the making of a written application. The import of s.19(1)(2)(3) is that a copy of the film or computer game the subject of application need not be forwarded with the application; but see the exceptional circumstance provided for by s.17(2).

In the circumstances which I have described it seems to me to be of fundamental importance to achieving classification of a film or computer game consistently with the scheme of the Commonwealth Act that there be compliance with s.14(1)(d)(ii) or s.17(1)(e)(v) as the case may be. The title of a film or computer game might be innocuous, by contrast with its content. I think that it would be difficult, on the other hand, to provide a synopsis or description of game play which could sanitise highly objectionable material in a way that would head off action by the Board under s.19.

I do not think it could be said that there would be public inconvenience if a classification decision made in the context of an application in which there was non‑compliance with such of s.14(1)(d)(ii) or s.17(1)(e) as applied in the particular case was treated as invalid. It might very well be said, to the contrary, that there could be great public inconvenience if such a decision was left standing.

In my opinion, then, the Board's decisions made upon applications unsupported by a synopsis or game play were shown by the evidence to be invalid; and the s.25 certificates recording the decisions made were deprived of their presumptive evidentiary value.

It remains to say that I would not regard decisions made by the Board as being invalidated by demonstrated non-compliance with the requirements of s.14(1)(d)(i) or s.17(1)(d); and probably I would reach the same conclusion in the case of demonstrated non‑compliance with the requirements of s.14(1)(b) or s.17(1)(b).

Questions 2.5 and 2.6: Possession with intention to sell, and sale.

Each of the appellants, as I said, earlier, was charged with and convicted of the sale of the particular film which was the subject of what might be called the actual sale. The appellants were also charged with and convicted of the sale of films and/or computer game which were not the subject of actual sale, but which were, according to the prosecution case, sold by their being offered for sale or display; see the definition of "sell" in s.4 of the State Act. They were, again, charged with and convicted of offences of possessing a film with the intention of selling or exhibiting the same; or of possession a computer game with the intention of selling or demonstrating the same. See ss.23(1) and 45(1). Often, charges were laid against a particular defendant under ss.15 and 23(1) in respect of the same film, and under ss.36 and 45(1) in respect of the same computer game.

According to the submissions of counsel for the appellants in the Magistrates' Court his clients could not be convicted of offences under ss.23(1) and 45(1) because they were not in possession of the films or computer games. That, in turn, was because they were employees, and so did not have exclusive physical control of the articles. They had custody, but not control. Any intention to sell resided in the employer.

Further according to the submissions below, the appellants could not be convicted of offences of selling articles not the subject of actual sale, because the definition could only operate where there was an intention to sell; and any such intention was the intention of the employer, not the appellants.

A further submission advanced for the appellants was that if anything was offered for sale, it was only the empty cassette covers which were on display in the "Club X" stores. They were "advertisements", not "films"; see the definitions of "advertisement" and "film" in s.5 of the Commonwealth Act and s.3 of the State Act (the same point could be made in respect of computer games).

Those submissions were repeated and expanded upon on the appeals. Contrary argument was advanced for the respondents.

Each of the submissions advanced for the appellants depended to greater or less extent upon findings of fact. It cannot be said that on a re-hearing the evidence would be precisely the same in the case of any appellant. Nonetheless, if it could be said that on no view could there be a conviction on particular charges, those matters should not be remitted for re-hearing.

Given that there might be variation in or supplementation of evidence on a re‑hearing, it is necessary to briefly describe the evidence that was adduced on the hearing from which the present appeals are brought in order to understand the issues raised by questions 2.5 and 2.6. I do so by referring to the evidence in the Stanfield matter.

When a policeman, Constable Magher, attended the "Club X" premises at 60‑62 Spencer Street, Melbourne he spoke with Stanfield, who was one of four persons – that is, other than customers and the policemen – then on the premises. Photographs were put into evidence. They showed, inter alia, the exterior of the premises, the showroom with its shelving, display cabinet and cash register. The photographs unmistakably suggested that the premises were a shop at which goods were for sale as well as for exhibition in private booths. Photographs of a notice board in a room at the rear of the premises, as well as the contents of several books dealing with sales procedures and prices, underlined what was otherwise evident.

Constable Magher gave evidence of his conversation with Stanfield. It is perfectly clear that Stanfield essayed a knowledge of what the shop had to sell, and made recommendations. He directed Constable Magher's attention to several cassette boxes on the shelving, describing the content of the films in the course of a sales pitch. He, Stanfield, treated the boxes as being the films – whether or not the films were actually inside the boxes at the time.

Constable Magher observed, as he said, "videos" on the shelves and in a storeroom.

Detective Senior Constable Wholohan gave evidence about certain entries in the books that he had inspected at the premises. He said that a number of instructions to staff were apparently signed by Stanfield.

The police evidence thus far left it open to conclude that Stanfield was in charge of the premises. Several references to commission in the books inspected by Detective Wholohan suggested the possibility that Stanfield was not the owner of the premises.

Detective Samson, the informant in Stanfield's case, gave viva voce evidence. In cross‑examination he was asked: "Of course all these defendants are employees of Club X?" He answered: "Yes, they are". It is not clear to me how Detective Samson was able to give that evidence, notwithstanding that Stanfield had said he was an employee when questioned by the witness. Apparently counsel for the respondents neither objected to the question, nor to the admissibility of the answer.

The answer, other matters apart, was imprecise. Apparently it referred to the 12 defendants. The employment arrangements in each case, if employer there was, were not necessarily the same. But even if they were, or Detective Samson believed them to be the same, they were not described.

Against that factual background, I consider the submissions of the appellant.

The State Act refers to sale and possession with intention of selling. It cannot be supposed that the concepts are co-extensive. In principle, "selling" where it appears in ss.23(1) and 45(1) should have a meaning compatible with the definition of the verb "sell" in s.4. That tends to underline the difference in the circumstances addressed by ss.15 and 36 on the one hand and ss.23(1) and 45(1) on the other. It seems to me that ss.15 and 36 are particularly apt in the case of material which is on show – on shelving or in a display case, and that ss.23(1) and 45(1) are particularly apt in the case of material which is not displayed for sale, but is on hand, ready for sale – for example, material in a storeroom. It may be that the situation differs according to whether the stored material is simply additional copies of material on display, or other material altogether. I think it would be undesirable to go into such refinements at present.

It is not clear to me whether, in the case of each appellant, a particular film (or computer game) that was the subject of both sale and possession charges was found by the police in a showroom; or rather in a storeroom. If it was the latter, I doubt that charges under ss.15 or 36 could have been made out. If it was the former, it seems to me that charges laid under those sections were appropriate; but that charges under ss.23(1) or 45(1) were, even if open in law, inappropriate.

I consider there is nothing to the appellant's argument that, if the various appellants were employees, they could not offer or display for sale films or computer games. If, as counsel for the appellants conceded, his clients could sell a film (which on the reasoning he adopted, involved them having an intention to sell) why could they not offer to sell a film, or display a film for sale? It seems to me plainly wrong to say that only the supposed owner of each shop could have the necessary intention.

Counsel for the appellants referred to ss.80 and 81 in pursuing his "possession" argument. Even if those sections assist that argument, a matter to which I will advert a little later, I do not think that they aid the argument now under consideration; rather the contrary. Sub-section (2) of each of those sections takes as its starting point the conduct (impliedly the criminal conduct) of an employee, and provides that the employer shall for the purposes of a prosecution be taken also to have engaged in that conduct - subject to the employer establishing exculpatory matters. Sections 15 and 36 create archetypical offences.

I next consider that there is nothing to the appellants' argument that if they offered or displayed anything for sale, it was the "advertisements" constituted by the cassette boxes, not the films.

Constable Magher's conversation with Stanfield reveals the substance of the situation, even if the boxes on the shelves were empty. It is fanciful beyond words to suggest that either the appellants or any prospective customer understood that what was being offered or displayed for sale, at a price exceeding $50 in at least some instances, was an empty cassette box.

I come to the question of possession with intention of selling or exhibit/demonstrating. Taking as an exemplar the Stanfield matter, I do not doubt that it was open to conclude from the evidence to which I have referred that Stanfield in fact intended to sell whatever films or computer games were on the premises. Sections 23(3) and 45(4) are proof of intention in cases to which they apply. But they are not the only means of proof of relevant intention. The critical question is whether Stanfield possessed the films or games with that intention.

"Possession" in the criminal law has proved to be an elusive concept. Texts and authorities abound. Adjectives used to describe different types of possession – "physical", "actual", "de facto", "constructive", "legal", and so on – have at times tended to obscure rather than reveal the key elements of the concept in the case of particular legislation. The situation has been complicated by statutes which, in effect, have set up a rebuttable presumption of possession in given circumstances (see, for example, the legislation considered in R v Clarke and Johnston [1986] VR 643). Observations made in the context of such legislation must be treated with much care. Again, though the matter may be considered debatable, a distinction has been drawn between the meaning of the legislative phrase "actual possession" (as to which see Moors v Burke (1919) 26 CLR 265 at 275) and a case in which the legislature has simply used the word "possession"; see R v Maio [1989] VR 281 at 285-286, and 288. Further again, it has been said that the word "possession" may have different content depending upon whether the statute "exposes the person concerned to arrest or to onerous obligation in the way of furnishing an explanation as to its origin". There it was likely that a restricted meaning would be given to the word; see R v Van Swol [1975] VR 61 at 64, where Gowans J, for the Court, observed that the word "is capable of a very extended meaning" even in the criminal law. Another situation that has intruded into the debate has focussed upon the allegation in particular cases of joint or shared possession arising out of concert or common purpose.

Moors set up what is taken to be the classic common law definition of (actual) possession in the criminal law; that is, that a person must have "in actual fact and without the necessity of taking any further step the complete present personal physical control of the property to the exclusion of others not acting in concert … whether … by having the property in his present manual custody or by having it where he alone has the exclusive right or power to place his hands on it and so have manual custody when he wishes".

The concept of exclusivity proposed in Moors has been departed from in later cases, using one or other point of asserted difference in the legislation under consideration. Van Swol and Maio are two instances. But one notion preceded Moors; and it has persisted: that is, that a servant has custody, not possession, of his or her employer's goods; see Stephen, a Digest of the Criminal Law, 7^th ed, p.298; Gillies, Criminal Law, 4^th ed, p.796; Smith v Webb (1896) 60 JP 517, Hofstetter v Thomas [1968] VR 199 at 204 (inferentially, in obiter dicta), Bayly v Scarica [1990] VR 731 at 736.

It appears to me that, regardless whether possession charges were apt in the case of the particular appellants, it might very well be the case that if the appellants were employees they should not be convicted of such changes. However, it also appears to me that the circumstances must be made clear by evidence before the legal question could be satisfactorily determined. A number of questions might stand enquiry. Thus, where were the films or computer games the subject of the possession charges found in each instance? What evidence of employment was there in each instance? Was there evidence upon which a conclusion might be reached that a particular appellant was a manager (a matter adverted to by Cave J in Smith v Webb, supra)? Bear in mind also that a relationship is to be determined upon a consideration of all relevant circumstances. It is not determined by what one or even both parties to the relationship choose to call it.

I have not so far adverted in the present context to ss.80 and 81 of the State Act, called in aid by the appellants' counsel. I doubt that the sections do aid his argument. On one view they do it considerable harm. Certainly they do not require a conclusion that the possession charges must fail.

In the event, I consider that the possession charges, along with the other charges, must be remitted for re‑hearing.

O R D E R S

Subject to anything that counsel may say as to form I shall make orders in accordance with these minutes:

1.Appeals allowed
2.Set aside the final orders made in the Magistrates' Court on 14 July 1998
3.Remit each of the matters for re-hearing by the Magistrates' Court.

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Robinson v Vanston [1999] VSC 541

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SUPREME COURT OF VICTORIA
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ACTION:	Classified X
CONSUMER ADVICE:	Contains sexually explicit material
DATE CLASSIFIED:	12 November 1997
Dated: 21 November 1997"

[1999] VSC 541

24 December 1999