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  • Unreported Judgment

Gary Ian Cotterill v James Arthur Price

 

[1979] FC 62

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 12 of 1979

FULL COURT

BEFORE:

The Chief Justice

Mr. Justice Andrews

Mr. Justice Dunn

BRISBANE, 10 DECEMBER 1979

(Copyright in this transcript is vested in the Crown. Copies thereof must not he made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)

-----

GARY IAN COTTERILL

v.

JAMES ARTHUR PRICE

Ex Parte: GARY IAN COTTERILL

-----

ORDER

THE CHIEF JUSTICE: The order that will be given now to put the matter beyond doubt: the appeal should be allowed, the order dismissing the complaint should be set aside, all necessary adjournments be entered up and the case should be remitted to the Magistrates Court at Mt. Isa for hearing. We order that the appellant have costs of the appeal to be taxed.

MR. JUSTICE DUNN: I agree.

THE CHIEF JUSTICE: My brother Andrews has authorised me to say that he agrees with the pronouncement of those orders.

----

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 12 of 1979

FULL COURT

BEFORE:

The Chief Justice

Mr. Justice Andrews

Mr. Justice Dunn

BRISBANE, 23 AUGUST 1979

(Copyright in this transcript is vested in the Crown. Copies thereof must not he made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)

------

GARY IAN COTTERILL

v.

JAMES ARTHUR PRICE

Ex parte: GARY IAN COTTERILL

JUDGMENT

THE CHIEF JUSTICE: This appeal in my opinion should he allowed and the order dismissing the complaint should he set aside and the case should be remitted to the Magistrates Court, Mt. Isa. It should be ordered that all necessary adjournments be entered up and further ordered that the appellant pay the costs of the appeal to be taxed. I agree with the reasons about to be published by my brother Andrews.

MR. JUSTICE ANDREWS: In my view the appeal should be allowed, the order dismissing the complaint should be set aside, and the case should be remitted to the Magistrates Court, Mt. Isa, for hearing. I would order the entering up of all necessary adjournments and that the appellant pay the costs of the appeal to be taxed. I publish my reasons.

MR. JUSTICE DUNN: I agree with the reasons published and, the orders proposed.

THE CHIEF JUSTICE: The orders of the Court will be as proposed.

------

 

O.S.C. No. 12 of 1979

GARY IAN COTTERILL

-v-

JAMES ARTHUR PRICE

Ex parte: GARY IAN COTTERILL

_____________________

The Chief Justice,

Mr. Justice Andrews

Mr. Justice Dunn

_____________________

Judgment delivered by Andrews J. on 23rd August, 1979 the Chief Justice and Dunn J. concurring those reasons

_____________________

“THE APPEAL IS ALLOWED AND THE ORDER DISMISSING THE COMPLAINT SHOULD BE SET ASIDE AND THE CASE SHOULD BE REMITTED TO TILE MAGISTRATES COURT, MT. ISA. IT SHOULD BE ORDERED THAT ALL NECESSARY ADJOURNMENTS BE ENTERED UP AND FURTHER ORDERED THAT THE APPELLANT PAY THE COSTS OF THE APPEAL TO BE TAXED.”

_____________________

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 12 of 1979

GARY IAN COTTERILL

v.

JAMES ARTHUR PRICE

Ex parte: GARY IAN COTTERILL

JUDGMENT - ANDREWS J.

The respondent James Arthur Price was, proceeded against in the Magistrates' Court at Mt. Isa on 13th February 1979 on a complaint sworn by Gary Ian Cotterill, a police officer, pursuant to s. 12 A of the Vagrants Gaming and Other Offences Act 1931 as amended that on the sixth day of November 1978 at Mt. Isa aforesaid he had in his possession, apparently for the purpose of sale, obscene publications to writ twenty-six copies of “Oui” magazine, two copies of “Game” magazine, two copies of “Chic” magazine, one copy of “Cockade” magazine, two copies of “Blade” magazine, two copies of “Men Only” magazine, three copies of “Parade” magazine, one copy of “Elite” magazine, one copy of “Fiesta” magazine, one copy of “Club Land” magazine and one copy of “Club International” magazine contrary to the Act in such case made and provided.

The decision of the Stipendiary Magistrate was given at the end of the prosecution case in response to submissions recorded as follows:—

“Mr. Conroy addresses:

- submits, no case for the defendant to answer.

- refers to Allen's Police Offences of Queensland (3rd Edition) page 105-106.

- submits no evidence the defendant had the books in his possession apparently for the purpose of sale.

- submits no evidence that books are obscene.

- relevant sections punitive and must be strictly proven.”

In an affidavit read by leave on behalf of the respondent Mr. Conroy swore inter alia as follows:—

“3. The submissions which are referred to on page 6 of the record of proceedings before this Honourable Court, made by me at the conclusion of the Complainant's evidence were that there was no case for the Defendant to answer in the light of those authorities which were referred to in ‘Allans Police Offences of Queensland’ (Third Edition, pages 105 and 106).

“4. My submissions were twofold:—

  1. There was no evidence that the Defendant had the books ‘in his possession’, apparently for the purposes of sale, and
  1. There had been no evidence adduced before the Court at any stage that the books were obscene.

5. In support of those submissions I argued before the said Magistrate that the sections as they were of a penal nature therefore must be strictly proved.

6. In the course of his submissions the Crown Prosecutor, Sergeant Allan Walls, referred the said Magistrate to the fact that there had been an earlier Proceeding in respect of the Defendant showing cause as to why the books the subject of the present charge should not be destroyed on the basis that they were obscene. The said Magistrate replied that he had sat in those earlier proceedings and further he had not made a finding that the books were obscene but had merely ordered their destruction on the basis that the Defendant had not shown cause.

7. The said Magistrate then went on to dismiss the complaint on the basis of my submission that there was not sufficient evidence to establish that the Defendant had the books in his possession apparently for the purposes of sale.”

The decision and reasons were as follows:

“I agree with Mr. Conroy that the evidence is not sufficient to establish that the defendant had the books in his possession apparently for the purpose of sale and on this point alone the charge must fail.

I hold there is no case for the defendant to answer and I dismiss the complaint.”

It appears clear from the above material that the Stipendiary Magistrate made no finding as to obscenity.

It was argued for the respondent that the Stipendiary Magistrate's decision should be treated as a finding on the facts and on the basis that he was not satisfied upon the evidence beyond a reasonable doubt as to possession by the respondent.

The appellant submitted that the decision amounted to a ruling that there was in law no case to answer.

In my view he has ruled that there was no evidence to support a case that the respondent had the subject books (or any of them) in his possession.

To hold otherwise would be to ignore the record of Mr. Conroy's submissions as explained and confirmed in his affidavit.

If paragraph 7 of the affidavit is urged as assisting in an interpretation by us of the reasons and decision which supports the respondent's case before this court it seems to me to depend not upon what Mr. Conroy submitted to the Magistrate but rather on his interpretation of what he said.

We were referred to statements in Paterson v. Martin (1966) 116 C.L.R. 506 as supporting a submission that the Stipendiary Magistrate in this case came to a decision on the facts. That was a case in which a magistrate was invited to draw certain inferences from facts before him as to which he said “I decline the invitations. I will not draw the inference and I am not willing to arrive at the conclusion that the defendant was the driver.” As to this, Barwick C.J. said at p. 510

“It is clear from the magistrate's reasons for dismissing the complaint that he had not held that no inference that the applicant was the driver could be drawn, but had said that he would not draw that inference.

Even if the unwillingness of the applicant to answer questions could, in the circumstances support an inference that he was the driver of the vehicle, a matter to which I shall return later, the magistrate, in my opinion, was not bound to draw that inference and could not properly be directed to do so. His refusal to infer that the applicant was the driver was not, even on that assumption, an error of law. It was submitted that the magistrate was in error in not holding that there was a prima facie case and thereafter using the failure of the defendant to give evidence as material upon which an order of conviction could be made. It may be that, on the assumption that it could be inferred that the applicant was driving the vehicle, the magistrate might have held that the possibility of such an inference together with the other evidence made out a prima facie case, leaving the question as to whether or not he would draw the inference till later in the proceedings. But, even so, in my opinion, he was not entitled, in considering whether he would draw that inference, to have regard to the failure of the defendant to rive evidence. Of course, if he was prepared to draw that inference, he could regard the applicant's failure to give evidence as of some consequence. But if he was unwilling to draw the inference at the conclusion of the Crown case, he was entitled, in my opinion, to hold that a case, even prima facie, had not been made out against the applicant. Consequently, assuming that the unwillingness of the applicant to answer in the circumstances warranted an inference that the applicant was the driver of the vehicle, the Full Court, in my opinion, was in error in a radical respect in directing the magistrate to convict the applicant. That the magistrate had expressly indicated his unwillingness to draw the inference serves but to emphasize the incorrectness of the course taken by the Supreme Court.”

At p. 516 Menzies J. speaking of the decision of the Full Court of W.A. appealed from said:

“A direction to a magistrate - who has plainly and not unreasonably said that he is not satisfied beyond reasonable doubt - to convict on the footing that he is so satisfied is not, I think, an order that we should allow to stand.”

At p. 516 Windeyer J. said:

“Section 34 of the Traffic Act, 1919-1964 (W.A.) provides that the owner of a motor vehicle must, when required by a police officer, give any information which it is in his power to give which may lead to the identification of any person who was driving the vehicle when an offence under the Act is alleged to have been committed. Therefore the owner cannot say that he has a right to remain silent when asked who was the driver. He is bound to answer, for he is liable to a penalty of ten pounds if he does not. Nevertheless if, in defiance of the law and its sanction, he refuses to answer any question, I cannot think that the necessary and only inference is that lie was himself the driver at the time, it may he that in some circumstances such an inference might be drawn from Iris silence. But the circumstances of this cane do not I think reasonably lead to such an inference Still less is it one that must be drawn.”

It is clear that the decision of the magistrate in Paterson v. Martin was a decision on the facts.

The position is different here.

The evidence with which we are concerned is to the effect that the complainant on 16th November 1978 went to premises at Kt. Isa known as McCarthy's Newsagency; that in company with another police officer he went to an office at the back of the shop where he spoke to a woman named Mrs. Price; that he went to the front of the shop to the area which is open to the public during trading hours and from a centre display stand took possession of fifteen magazines (being some of those mentioned in the complaint) which he took, to the rear of the store, where shortly afterwards he spoke to the respondent who said he was the manager; that he told the respondent he had taken possession of the said fifteen magazines (describing them as to numbers and names) and asked him “Do you have any more similar books here” to which Price replied “Yes. Those ones there,” indicating a pile of “Oui” magazines on a counter in the storeroom and said “I have got some more older copies here too.”

I pause to say that properly punctuated the last mentioned passage should road “I have, got some more - older copies here too.” I mention this because we were asked to interpret the words as indicating to the effect that books previously mentioned were older and these latter were more so.

The evidence went on that Price then produced twenty-eight more magazines (describing them as to numbers and names). What appears as an error in the evidence in that the two totals add up to forty-three books while the complaint relates to forty-two is explained by the omission by error of the magazine “Film World” from the complaint.

However the evidence proceeded to the effect that Price was asked “Were these books kept here to sell?” and replied “Yes there is a demand for them here.”

S. 52 of the Vagrants Gaming and Other Offences Act provides:

“This Act shall be read and construed with end as an amendment of and in addition to ‘The Criminal Code’ and the Gaming Acts respectively:

Provided, that nothing in this Act shall be construed to prejudice or limit the provisions of ‘The Criminal Code’ and the Gaming Act.”

In the Criminal Code the term “have in possession” includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.

Here there is evidence that Price was the manager of the shop and physically present when Cotterill visited it; that he discussed, the purpose of having the boobs in the show including those on the display stand; that in effect he knew which were current and which were older issues; that the books were under his control at the relevant times. For him to be in possession of the books it is not necessary that he be in exclusive control over them. The evidence could reasonably support an inference that Price had knowledge of the presence of the book in the shop at the material times and that he was intentionally exercising control over them as manager of the shop. There is evidence tending to prove possession by him.

In my view the Stipendiary Magistrate should not have ruled that there was no case in law to answer on the question of possession. I have already said that I would hold that he did this.

The magazines were not before us. The Stipendiary Magistrate has neither ruled nor made findings as to obscenity.

In my view the appeal should be allowed, the order dismissing the complaint should be set aside and the case should be remitted to the Magistrates Court at Mt. Isa for hearing. I would order the entering up of necessary adjournments and that the appellant have coots of the appeal to be taxed.

Nothing which I have said should be construed as an intimation as to how questions of fact should be decided on the hearing of the matter.

Close

Editorial Notes

  • Published Case Name:

    Gary Ian Cotterill v James Arthur Price

  • Shortened Case Name:

    Gary Ian Cotterill v James Arthur Price

  • MNC:

    [1979] FC 62

  • Court:

    QSC

  • Judge(s):

    Andrews, J., Dunn, J

  • Date:

    10 Dec 1979

Litigation History

No Litigation History

Appeal Status

No Status