Parrella Enterprises Pty Ltd v Cannavan
[2006] QCA 35
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- Unreported Judgment
- Appeal Determined (QCA)
- Parrella Enterprises Pty Ltd v Cannavan[2006] QCA 35
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Parrella Enterprises Pty Ltd v Cannavan[2006] QCA 35
Reported at [2007] 1 Qd R 261
Parrella Enterprises Pty Ltd v Cannavan[2006] QCA 35
Reported at [2007] 1 Qd R 261
SUPREME COURT OF QUEENSLAND
CITATION: | Parrella Enterprises P/L v Cannavan [2006] QCA 35 |
PARTIES: | PARRELLA ENTERPRISES PTY LTD ACN 080 582 010 |
FILE NO/S: | CA No 275 of 2005 DC No 4427 of 2004 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 17 February 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 February 2006 |
JUDGES: | de Jersey CJ, Williams and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Application for leave to appeal refused |
CATCHWORDS: | CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST DECENCY AND MORALITY – OBJECTIONABLE PUBLICATIONS – PUBLICATION, DISTRIBUTION AND DELIVERY – where applicant convicted of one count of displaying for sale or selling an objectionable film and one count of selling prohibited publications – where the applicant was fined $4,000 with no conviction recorded EVIDENCE – WITNESSES – CROSS-EXAMINATION – WHEN PERMITTED AND IN GENERAL – ON WHAT MATTERS – whether applicant denied the opportunity to cross-examine the director of the Classification Board as to the process which led to classifications recorded in certificates – whether any challenge could more appropriately be directed to criminal law or administrative law – whether applicant’s rights to test nature of prosecution case in quasi-criminal proceeding were unduly restricted Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 11, s 42, s 44 Classification of Films Act 1991 (Qld), s 3, s 39, s 60 Classification of Publications Act 1991 (Qld), s 3, s 9, s 11, s 12, s 32, s 38 |
COUNSEL: | P J Dunning SC, with C Jennings, for the applicant W Isdale for the respondent |
SOLICITORS: | Nyst Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent |
- de JERSEY CJ: This is an application, under s 118(3) of the District Court of Queensland Act 1967 (Qld), for leave to appeal against a decision of the District Court given on 28 September 2005. A learned District Court Judge dismissed an appeal from a decision of the Magistrates Court given on 15 September 2004.
- The applicant was charged with one count of displaying for sale or selling an objectionable film, contrary to s 39 of the Classification of Films Act 1991 (Qld); and one count of selling prohibited publications, contrary to s 12 of the Classification of Publications Act 1991 (Qld). Each of those statutes is a Queensland Act. The applicant was convicted, and fined $4,000 with no convictions recorded.
- The Queensland Acts are complementary to the Classification (Publications, Films and Computer Games) Act 1995 (Cth). The Commonwealth Act sets up a procedure and criteria for the uniform national classification of films and publications. The classification of a film is made by an officer of the Commonwealth, and of a publication either by an officer of the Commonwealth or a State officer. It is the classification which determines whether a film is “objectionable”, or a publication “prohibited”, in terms of the charges brought against the applicant.
- At the hearing in the Magistrates Court, the prosecutor relied on certificates issued under the State Acts (s 60 Classification of Films Act, s 32 Classification of Publications Act), certifying the classifications of the publications and the film, warranting the finding that the film was objectionable and the publications were prohibited. The State Acts provide that a certificate signed by the appropriate person, that the relevant publication or film is of a specified classification, “is on its production in the proceeding evidence of the matters stated in the certificate”. There was no particular contention before the Magistrate that the certificates put into evidence – which occurred without objection, did not comply with the respective statutory provisions, or that the signatories lacked requisite authority.
- The issue which arose was whether the applicant should be permitted to cross-examine witnesses called by the prosecution as to the process which led to the classifications recorded in the certificates. The Magistrate refused to permit such cross-examination, on the basis that the only issue was whether or not the alleged classification had been made.
- The District Court Judge held that while a certificate did not conclusively establish the classification, cross-examination concerning the process leading to the classification could be countenanced only if the intending cross-examiner first identified some particular, arguable flaw in the process, and that what is customarily termed a “fishing” cross-examination should not be permitted. No particular avenue for exploration had been identified before the Magistrate. Mr Dunning SC, appearing for the applicant, submitted that such a limitation unduly restricts the right of a defendant to a criminal or quasi criminal charge to test the prosecution case.
- Leave to appeal should not be granted because an appeal would enjoy no substantial prospect of success. That is because, there being no doubt about the fact of the subject classifications, then upon proof of the other elements of the charges, to which there was no challenge, convictions necessarily followed.
- The classifications were established by the production and tendering of the certificates in reliance on the evidentiary provisions of the Queensland Acts. As I have said, there was no objection to that tender. The certificates did not establish the classifications conclusively: it might, for argument’s sake, be open to a defendant, in an appropriate case, to establish that a certificate was produced fraudulently, or that it was a forgery, or that the signatory was in fact not authorized. But it did not fall to the prosecution, relying on the certificates, to establish compliance by the classifying authority with the process and the criteria for classification established by the legislation.
- As submitted by Mr Isdale for the respondent, the avenue for any challenge to the classification was by recourse to administrative law. In relation to the classification of films and publications by the Commonwealth, an “aggrieved” person may apply to a Review Board for a review of the classification (s 42 Classification (Publications, Films and Computer Games) Act); and for a State classification of a publication, a person adversely affected may appeal to an “appeal body” (s 11 Classification of Publications Act) . In each of those situations, the reviewing body is to proceed as if the initial decision-maker (s 44(1) Commonwealth Act, s 11(6) State Act). It may be, as Mr Isdale submitted, that, if still within the time limits prescribed for such review or appeal, the applicant could have sought the adjournment of the prosecution so that such a proceeding could be instituted elsewhere for the purpose of such a review or appeal. (No such proposal was put before the Magistrate.) Conducting a review or appeal of that character did not fall within the purview of the Magistrate’s jurisdiction on the hearing of the prosecution.
- The prosecutor did assert to the Magistrate, as Mr Dunning has pointed out, that the legislative process leading to the classification had been properly followed. But that was in truth irrelevant to the prosecution, which depended on proof only of the fact of a particular classification, and that was secured simply by the production and tender of the certificates provided for under the legislation, which as I have said occurred without objection from the applicant.
- Mr Dunning submitted that the text of the statutory prohibitions told against a view that the elements of the relevant offence are confined in the way the respondent contends for – that is, in the case of s 39 of the Classification of Films Act for example, to the sale etc of a film with the requisite classification. He pointed to the circumstance that s 39 refers to the sale of an “objectionable” film, rather than to the sale of a film with a particular classification. The section was obviously drafted that way for convenience, because there are a number of classifications which render a film “objectionable”. They are set out in the definition of “objectionable film” in s 3.
- Mr Dunning referred also to s 11 of the Commonwealth Act, prescribing the matters to be taken into account in making a decision on classification. They include, for example, “the standards of morality, decency and propriety generally accepted by reasonable adults”. When asked whether, in his submission, a Magistrate hearing such a prosecution could revisit that criterion, he sought to limit what the Magistrate might consider to the question whether the Classification Board had taken such standards into account. The problem with the submission is immediately apparent: that is whether what the Board did take into account may reasonably be characterized as “the standards of morality, decency and propriety generally accepted by reasonable adults”.
- There was no substance to the submissions made in support of the application.
- I would refuse the application for leave to appeal.
- WILLIAMS JA: The applicant seeks leave to appeal against its conviction for two offences. The first charge was a breach of s 39 of the Classification of Films Act 1991 (Qld) ("the Films Act") and the other was an offence against s 12 of the Classification of Publications Act 1991 (Qld) ("the Publications Act").
- Section 39 of the Films Act makes it an offence to "sell …an objectionable film." The expression "objectionable film" is defined in that Act as including "a film classified X 18+…". Section 3 of the Films Act makes it clear that "classified" is a reference to classified under the Classification (Publications, Films and Computer Games) Act 1995 (Cth). A certificate issued under the Commonwealth Act is referred to in the Films Act as a "classification certificate". Finally s 60 of the Films Act should be noted; it provides that in "a proceeding for an offence against this Act, a certificate signed . . . by the director stating that - (a) a specified film has been classified (and specifying the classification) … is on its production in the proceeding evidence of the matters stated in the certificate.
- There was no substantial challenge to the fact that on 19 July 2001 the applicant sold a film and a certificate was before the court certifying that it had been classified under the Commonwealth Act as "X 18+".
- Section 12 of the Publications Act makes it an offence to "sell … a prohibited publication". The expression "prohibited publication" is defined as including a publication that is a "restricted publication"; that latter expression is then defined as a publication that is "classified … as category 1 restricted or category 2 restricted". Classified again means classified under the Commonwealth Act. Again there is an evidentiary provision (s 32) making a certificate stating that a publication has been classified (and specifying the classification) to be evidence of the matter stated therein.
- Again there was no challenge to the fact that on 19 July 2001 the applicant sold two publications and certificates were before the court certifying that each was a "Category 1 Restricted Publication".
- The cases were heard together in the Magistrates Court, and the applicant there sought to cross-examine witnesses called by the prosecution as to the process which led to the classifications in question being imposed. The Magistrate declined to permit cross-examination along those lines. On appeal to the District Court, the learned Judge hearing the appeal substantially confirmed the approach adopted by the Magistrate. It is from the latter decision that leave to appeal is sought.
- The contention of Senior Counsel for the applicant in this Court is that the applicant was denied the opportunity on a quasi criminal matter of testing the evidence underpinning the prosecution case.
- It is not clear to me what the applicant hoped to achieve by the cross-examination. When Senior Counsel was asked what was sought to be achieved by the cross-examination he replied: "I can't tell you that because I wasn't preparing the cross-examination but it … was hoped in some way or other to impugn the classification." He then went on to submit that if the Magistrate did not "think the requirements for classification" had been met, the prosecution would not have proved its case.
- In my view there is no substance in the submission. In each case there was a sale of an item having a specific classification which made its sale an offence. The act of selling an item bearing such a classification was made an offence by the Queensland Acts. It would be beside the point that a Magistrate (or other judicial officer in Queensland) considered that there was insufficient evidence to support the classification in fact attributed to the item pursuant to the Commonwealth legislation. In the first instance it was for the appropriate person or body under the Commonwealth Act to make the classification and that was, at least in part, an exercise of discretion. An interested person dissatisfied with that classification had an avenue of appeal under the Commonwealth Act. But once the classification was made (and the appeal process concluded or not pursued) it was not open to a court in Queensland to question whether there was evidence supporting that classification or generally reviewing the process leading to that classification. The classification gained its validity and effectiveness from the provisions of the Commonwealth Act and that was the end of the matter. It is the opinion of the appropriate person or body under the Commonwealth Act and not that of a Queensland judicial officer which results in there being a lawful classification.
- That to my mind disposes of the submission made on behalf of the applicant that there was an obligation on the prosecution to establish that the items met "the requirements of classification under the Commonwealth Act."
- The applicant would have no prospect of success on an appeal and in the circumstances the application for leave to appeal should be refused with costs.
- KEANE JA: The applicant seeks leave to appeal from a judgment of the District Court given on 28 September 2005 dismissing an appeal to that court by the applicant from a decision of the Magistrates Court given on 12 November 2004. In the Magistrates Court, the applicant was convicted of two offences, the first being a breach of the proscription, in s 12 of the Classification of Publications Act 1991 (Qld) ("the COP Act"), of the sale of prohibited publications. The second offence was a breach of the proscription, in s 39 of the Classification of Films Act 1991 (Qld) ("the COF Act"), of the sale of an objectionable film. The applicant was fined $4,000.
- By reason of the provisions of s 118(3) of the District Court of Queensland Act 1967 (Qld), leave to appeal is required. In order to address the question whether leave should be granted, it is necessary to consider whether the applicant has reasonable prospects of success on appeal and whether the orders sought to be challenged cause substantial injustice to the applicant.[1] For these purposes, it is necessary to refer briefly to the legislation under which the applicant was prosecuted.
The legislation
- The COP Act establishes a regime under which, amongst other things, the sale of "prohibited publications" is proscribed by s 12 of that Act. The expression "prohibited publication" is defined in s 3 of the COP Act to include "a restricted publication", which is, in turn, defined relevantly to mean "a publication that is … classified as category 1 restricted". Section 4 of the COP Act provides that, if a classification has been made under the Classification (Publications, Films and Computer Games) Act 1995 (Cth) ("the Commonwealth Act"), then that classification has effect for the purposes of the COP Act, but that if there are different classifications under the COP Act and the Commonwealth Act, the latter classification does not have any effect for the purposes of the COP Act.
- Under s 9(1) of the COP Act, the function of classification of publications is carried out by an official designated as "the publications classification officer", who may classify a publication as, inter alia, "category 1 restricted". By s 9(2), the publications classification officer is required "to make a classification under subsection (1) applying the relevant provisions of the Commonwealth Act as if they were provisions of this Act". Section 11 of the Act provides for an appeal against a decision classifying a publication by a person "whose interests are adversely affected by the decision" to the Publications Appeal Tribunal established by s 3 of the Classification of Publications Regulation 1992 made pursuant to s 38(3) of the COP Act.
- I pause here to note that, under the Commonwealth Act, the classification of publications and films is required by s 9 to be made in accordance with the National Classification Code and the classification guidelines determined by the Minister. Under s 10, classifications of publications and films are to be made by the Classification Board. Under s 42 of the Commonwealth Act, the Classification Board's decisions in this regard may be reviewed by the Review Board upon the application of any "person aggrieved by the decision" to classify the film. A person who is desirous of selling a publication or film but is unable to do so because of its classification would clearly be "a person aggrieved" within the meaning of s 42 of the Commonwealth Act.
- Section 32(1) of the COP Act provides that, in proceedings for an offence under this Act, a certificate signed or purporting to be signed by the publications classification officer stating that a "specified publication has been classified (and specifying the classification) … is on its production in the proceeding evidence of the matters stated in the certificate".
- The COF Act, by s 39, proscribes the sale of "objectionable films" which includes, inter alia, films classified "X" under the Commonwealth Act. Under the COF Act, the State has no classification function separate from the Commonwealth. The State does, however, have enforcement functions. Section 60 of the COF Act provides that, in a proceeding for an offence against this Act, a certificate signed by the director of the Classification Board established under the Commonwealth Act, or purporting to be signed by the director "stating that a specified film has been classified (and specifying the classification) … is on its production in the proceeding evidence of the matters stated in the certificate".
- The offences created by s 12 of the COP Act and s 39 of the COF Act do not require proof of a valid decision to impose a particular classification. Rather the charge will be made out if the fact of classification can be established. It is not necessary for the prosecution in every case to lead evidence to establish that the decision to classify was properly made.
The proceedings below
- In the course of the presentation of the prosecution's case before the Magistrate, certificates were tendered pursuant to s 32 of the COP Act and s 60 of the COF Act respectively. These certificates were apt, it was accepted, to establish the fact of the classification of the publications and film in question. There was no objection to the tender of these certificates on the ground of form or relevance.
- The applicant's complaint is that, in the proceedings before the Magistrate, it was denied the opportunity to cross-examine the director of the Classification Board as to the steps taken by that Board in deciding that the film in question should be classified "X". The Magistrate rejected this attempt on the basis that the certificate which purported to be signed by Mr Clark, as director of the Classification Board, established beyond the possibility of argument that the film was indeed classified "X".
- On appeal to the District Court, the applicant succeeded in persuading the District Court that the Magistrate was in error on the footing that a certificate tendered under either s 32 of the COP Act or s 60 of the COF Act is only prima facie evidence of the matters stated in it and may be contradicted. The learned District Court judge was disposed to regard the reference in the COP Act and the COF Act to publications or films that are classified as if that reference was to publications or films that have been "regularly classified". The applicant's appeal to the District Court failed because the applicant's wish to cross-examine was characterised as a "fishing expedition". The applicant asserts that this approach involves an error of law in wrongly confining the applicant's right of cross-examination.
Prospects on appeal
- While it may be true that the certificates in question have only prima facie effect, that effect is to establish, unless the contrary is proved, that the publications and film were in fact classified as certified. It may be possible, as the Magistrate correctly observed, to demonstrate that this proposition, ie that the publications and films were classified as certified, was untrue and that, in truth, one or more of them had not, as a matter of historical fact, been certified. It may be possible, for example, to show that the certificates were themselves procured by fraud or mistake. It is apparent that this was not the purpose for which the applicant sought to cross-examine Mr Clark. Rather, the cross-examination which was not permitted related to whether the classification decision had been duly made by the agency authorised to classify the film. That was an inquiry which was entirely irrelevant to the determination of the charges against the applicant, in that the charges against the applicant did not require proof of a valid decision to classify, but merely proof of the fact that classification had occurred.
- In my respectful opinion, and contrary to the view which commended itself to the learned District Court judge, it is irrelevant on the prosecution of a contravention of s 12 of the COP Act or s 39 of the COF Act to establish that a decision to apply a particular classification to a publication or a film should not have been made or was not regularly made. Such a challenge to the merits of, or the processes leading to, a decision to classify may be made under the appeal or review provisions provided by the COP Act and the Commonwealth Act respectively.
- The applicant has no reasonably arguable basis for contending that the decision below is erroneous, even though the correctness of that decision is established by a process of reasoning different from that followed by the learned District Court judge.
Substantial injustice
- Further, in my respectful opinion, the applicant has been caused no substantial injustice by the course of the proceedings below. The basis on which the applicant says that it is aggrieved is that it "was denied the opportunity to test the central issue in the proceedings. That was whether the statutory prescriptions and proscriptions for classification of the magazines and the film the subject of the proceedings had been adhered to, such that it could be held beyond reasonable doubt that they were of a character that came within the offence provisions".
- In this regard, a number of points may be made. First, the applicant's complaints in relation to the limits on cross-examination apply only to the prosecution in respect of the objectionable film. They have no bearing on the prosecution in respect of the prohibited publications.
- Secondly, the extent to which the applicant has been exposed to substantial injustice depends on its prospects of demonstrating that the classifications, on either of them, are the product of an invalid decision. No basis for thinking that the applicant has any such prospect has been established. At no stage has the applicant sought to adduce any evidence to show that the classifications were invalid. Thus, there is no reason to think that the prosecution would not succeed again if the matters were to be remitted to the Magistrate.
- Thirdly, whether or not the validity of the classifications is able to be challenged upon a prosecution, it is clear that there are statutory mechanisms for such a challenge. This circumstance may be said to be a compelling factor indicating that it is unlikely that collateral challenges of the kind now in question can be made to classification decisions, but its present relevance is that it tends to show that, to the extent that the applicant was apt to suffer any prejudice as a result of a wrong decision to classify, it had a remedy. The applicant has not sought to pursue this remedy. The applicant's claim is for leave to appeal to remedy the consequences of its own lack of diligence in the protection of its rights. That claim is less than compelling, especially when the applicant does not trouble to identify any basis for thinking that it might succeed.
Conclusion and orders
- The legislative requirement of leave is designed to ensure that cases which have already had the benefit of a trial and one level of appeal do not become a disproportionate burden on the administration of justice. It is for this reason that the Court has made it clear that it is unwilling to grant leave to appeal for the purposes of s 118(3) unless the applicant for leave can demonstrate that there are reasonable prospects of success on appeal, and that the decision sought to be overturned causes real injustice to the applicant. The point which the applicant seeks to agitate on appeal is without substance. In any event, the orders made below have not been shown to cause any real substantial injustice to the applicant.
- The application for leave to appeal should be dismissed.
Footnotes
[1] See Hockley v Sowden [2000] QCA 9; Appeal No 10317 of 1999, 3 February 2000; Pickering v McArthur [2005] QCA 294; Appeal No 4013 of 2005, 16 August 2005, esp at [3].