Robinson v Vanston - [1999] VSC 541

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Robinson v Vanston

Details

AGLC: Robinson v Vanston [1999] VSC 541
Case: [1999] VSC 541
Decision Date: 24 December 1999

CaseChat Overview and Summary

In Robinson v Vanston, the appellant sought to appeal against his conviction and sentence for breaches of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Cth). The appeal centred on whether the trial judge applied the correct legal test in determining guilt and whether the material admitted in evidence satisfied the requirements of the Act's evidentiary provisions. The respondent argued that the evidence was sufficient to establish the appellant's guilt beyond reasonable doubt.

The primary legal issue was whether the trial judge correctly applied the statutory provisions in determining the appellant's guilt. The appellant contended that the trial judge applied the wrong legal test, focusing on the objective classification of the material rather than the subjective intent of the person involved in the alleged offences. The appellant also argued that the evidence did not meet the requirements of the Act's evidentiary provisions, as the material was not representative of the actual content that was offered or displayed for sale. The respondent maintained that the trial judge correctly applied the law and that the evidence was sufficient to establish the appellant's guilt.

The court found that the trial judge applied the correct legal test in determining the appellant's guilt. The court held that the objective classification of the material was not the primary consideration in determining guilt, but rather the subjective intent of the person involved in the alleged offences. The court also found that the evidence was sufficient to establish the appellant's guilt beyond reasonable doubt, as it was representative of the actual content that was offered or displayed for sale. The court further held that the content of the offences of offering or displaying a film or computer game for sale and possessing a film or computer game with the intention of selling them were the same.

The appeal was dismissed, and the appellant's conviction and sentence were upheld.

Orders