Sportingbet Australia Pty Limited v de Veaux
[2006] NSWSC 421
•12 May 2006
CITATION: Sportingbet Australia Pty Limited v de Veaux [2006] NSWSC 421 HEARING DATE(S): 10 May 2006
JUDGMENT DATE :
12 May 2006JURISDICTION: Common Law JUDGMENT OF: Michael Grove J at 1 DECISION: APPEAL DISMISSED CATCHWORDS: APPEAL FROM LOCAL COURT - TIME FOR COMMENCING PROCEEDINGS BY COURT ATTENDANCE NOTICE - PUBLISHING ADVERTISEMENT OF PREPAREDNESS TO PROVIDE BETTING INFORMATION - "PUBLISH" DEFINED BY STATUTE TO INCLUDE "CAUSING TO PUBLISH" - OFFENCE NOT COMPLETE UNTIL ACTUAL PUBLICATION - TIME RUNS FROM COMMISSION OF COMPLETED OFFENCE LEGISLATION CITED: Crimes (Local Courts and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
s30(1(a)(i) Racing Administration Act 1998PARTIES: Sportingbet Australia Pty Limited v Paul de Veaux FILE NUMBER(S): SC 13230/05 COUNSEL: P. Boulten SC (Plaintiff/Applicant)
R. Cogswell SC with C. Lonergan and G. Pulsford (Crown/Respondent)SOLICITORS: Addisons (Plaintiff/Applicant)
I.V. Knight (Crown Solicitor)LOWER COURT JURISDICTION: Local Court LOWER COURT FILE NUMBER(S): 84929/04/86 LOWER COURT JUDICIAL OFFICER : G. Cocks LCM LOWER COURT DATE OF DECISION: 06/27/2005
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
MICHAEL GROVE J
Friday 12 May 2006
13230/05 - SPORTINGBET AUSTRALIA PTY LIMITED v PAUL DE VEAUX
JUDGMENT
1 HIS HONOUR: This is an appeal by Sportingbet Australia Pty Limited pursuant to the Crimes (Local Courts Appeal and Review) Act 2001 against a finding of guilt at Gosford Local Court of publishing an advertisement indicating willingness to provide betting information, an offence contrary to s 30(1)(a)(i) of the Racing Administration Act 1998. In lieu of penalty, orders were made without proceeding to conviction pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.
2 The facts are not in dispute. In December 2003 a Mr Moxey, a sales manager of Showcase Publications Pty Limited contacted the Gosford Race Club and it was agreed that a “souvenir” programme for the Gold Cup Race Meeting would be produced by Showcase Publications, which would sell advertising space and produce the programme without cost to the race club.
3 In January 2004, following discussion with Mr Moxey, Ms Harrington, an employee of the appellant, completed a faxed purchase order and returned it to Showcase Publications confirming an order for “advertising for Gosford Gold Cup” describing the order as consisting of F/P (full page), “outside back and application”, and in full colour. Ms Harrington despatched the order to Showcase on 9 January 2004. The content of the advertisement was not detailed in the purchase order.
4 It can be noted that the pro forma purchase order included “terms of payment, upon receipt of proofs or publication”. Showcase Publications sent an invoice to the appellant on 15 May 2004 for $1,500 plus GST. It was paid by the appellant on or about 4 June 2004.
5 A copy of the programme was tendered by consent (Exhibit A in the appeal). That what appears in the advertisement on behalf of the appellant breaches s 30(1)(a)(i) was not contested.
6 The printed programmes were delivered to the Gosford Race Club shortly prior to the close of business on Friday 14 May 2004 and a number of them were distributed at the race course on Sunday 16 May, which was the day of the running of the Gosford Gold Cup.
7 Prosecution was commenced by issue of a Court Attendance Notice on 12 November 2004. The details of the offence were specified as follows:
“Description of Offence:
On or after 14 May 2004 in and around Gosford in the State of New South Wales, the Defendant did publish an advertisement indicating that the Defendant was and is prepared to provide betting information or, alternatively, to bet on any race to be held at a race meeting or, alternatively, that was otherwise designed to induce a person to obtain betting information contrary to s 30 of the Racing Administration Act 1998 .
Date of Offence:
On or after 14 May 2004
Place of Offence:
Gosford in the State of New South Wales
Short Particulars:
On or after 14 May 2004 the Defendant did cause to be published an advertisement in a promotional magazine for the Gosford Gold Cup Racing Carnival 2004, which included an application to open a betting account and included the words ‘ Sportingbet Australia takes racing bets online and over the phone with a leading range of betting options ”.
8 Despite the expression of alternatives in the description of offence it was made clear at the hearing in the Local Court that the prosecution relied only on the allegation concerning preparedness to provide betting information.
9 The short point of the appellant is that the commencement of proceedings on 12 November 2004 was out of time and hence the prosecution was barred.
10 The Racing Administration Act stipulates no particular time for commencement of proceedings for an offence but does provide that any such be dealt with summarily before a Local Court constituted by a magistrate sitting alone (s 35). In the absence of any stipulation, s 179 of the Criminal Procedure Act 1986 applies and, accordingly, the proceedings “must be commenced not later than six months from when the offence was alleged to have been committed”.
11 The contention of the appellant is that its potentially punishable act of “causing to be published” (as particularized) was performed on 9 January 2004 when Ms Harrington despatched the order and that it cannot be criminally responsible for the acts of others (Showcase Publications and/or the Gosford Race Club) which were done in May.
12 The Racing Administration Act has an express provision defining “publish” for its purposes, namely:
“ publish means disseminate, exhibit, provide or communicate by oral, visual, written, electronic or other means (for example, by way of newspaper, radio, television or through the use of the Internet, subscription TV or other on-line communications system), and includes cause to be published”.
13 Where, as here, the prosecution relies upon that part of the definition as includes “cause to be published” the elements of the charge “did publish an advertisement” include both the facts of causation and publication. The fact of publication is not, as submitted, merely a non elemental matter requiring proof but it is an ingredient of the charge.
14 The causative act of Ms Harrington in despatching the purchase order did not amount to performing a complete offence that the appellant “did publish” an advertisement. As pointed out during argument, a prosecution which proved that causative act but did not prove an actual publication would be bound to fail. To say that the latter is a, presumably collateral, matter of proof ignores the elemental nature of publication.
15 It is plain that the extension of the definition was designed to accommodate situations where the entity which performs physical dissemination is not the same entity as caused it to happen. As the Crown Advocate, Mr Cogswell SC remarked in support of this construction, the contrary which was proposed by Mr Boulten SC would have the consequence that, provided a person desiring to cause a forbidden publication “put in his order” more than six months before scheduled print and/or distribution, liability would by that simple device be avoided. The terms of the legislative definition do not require any construction beyond the ordinary meaning of words to perceive that the situation of separated causative act and actual publication is comprehended.
16 An offence contrary to s 30(1)(a)(i) is not complete until there is a publication and in this instance there was no error by the learned magistrate in holding that a completed offence occurred, as pleaded, on or after 14 May 2004. The statute does not create an offence of engaging in a causative act simpliciter. The offence created is to “publish” and the definition extends the meaning of this to “cause to be published” which patently involves the actual occurrence. The commencement of the prosecution was therefore “in time”.
17 There is no call upon the facts of this case to investigate issues concerning continuing offences or possible discriminations in the nature of causative acts. That there may have been intermediate technical publications between January and May, for example, by despatch of proof copies is irrelevant. The prosecution alleged that the publication by the appellant was that which involved the distribution of the programme on the weekend of the Gosford Gold Cup Race Meeting “on and after 14 May 2004”.
18 The appeal is dismissed. The appellant is ordered to pay the respondent’s costs of the appeal.
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