FEDERAL COURT OF AUSTRALIA Lai-Ha v McCusker [2000] FCA 493 COPYRIGHT – application by way of appeal from a conviction in the Local Court for offences under the Copyright Act 1968 (Cth) – nature of appeal – whether appeal in strict sense – whether appeal a hearing de novo Copyright Act 1968 (Cth), ss 131A, 131B, 131C, 132(1)(b), 132(2A)(b) Olsen v Hutchison (1992) AIPC ¶90-928 considered KAM LAI-HA v LEANNE McCUSKER & MARY STELLA JERRAM N 203 OF 2000 EMMETT J SYDNEY 4 APRIL 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 203 OF 2000 BETWEEN: KAM LAI-HA APPLICANT AND: LEANNE McCUSKER FIRST RESPONDENT MARY STELLA JERRAM SECOND RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 4 APRIL 2000 WHERE MADE: SYDNEY THE COURT: 1. Orders that the second respondent be removed as a party to the proceedings. 2. Directs the first respondent to file and serve, no later than 18 April 2000, a copy of the record of the proceedings before the Local Court comprising the transcript of oral evidence, exhibits, reasons for judgment and orders. 3. Directs the applicant to file and serve, no later than 30 May 2000, any affidavits intended to be relied on in support of any application to adduce further evidence. 4. Directs the applicant to file and serve, no later than 27 June 2000, an outline of contentions in support of the appeal and application for leave to adduce further evidence. 5. Directs the first respondent to file and serve, no later than 11 July 2000, an outline of contentions in reply. 6. Directs the applicant, if the applicant wishes to do so, to file and serve, no later than 18 July 2000, any contentions in reply. 7. Fixes the matter for hearing for two days commencing 24 July 2000 at 10.15am. 8. Lists the matter for directions 9 June 2000 at 9.30am. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 203 OF 2000 BETWEEN: KAM LAI-HA APPLICANT AND: LEANNE McCUSKER FIRST RESPONDENT MARY STELLA JERRAM SECOND RESPONDENT JUDGE: EMMETT J DATE: 4 APRIL 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 I have before me an application by way of appeal from a conviction for offences under the Copyright Act 1968 (Cth)("the Act"). The offences relate to conduct prohibited by sections 132(1)(b) and 132(2A)(b) of the Act, both of which are contained in Division 5 of Part V of the Act. Section 132(1) provides as follows: "A person shall not, at a time when copyright subsists in a work: ……………………… (b) sell or let for hire, or by way of trade offer or expose for sale or hire, an article; ……………………… if the person knows, or ought reasonably to know, the article to be an infringing copy of the work." Section 132(2A) provides as follows: "A person shall not, at a time when copyright subsists in a work, have in his or her possession an article for the purpose of: ……………………… (b) distributing the article for the purpose of trade, or for any other purpose to an extent that will affect prejudicially the owner of the copyright and the work; or ……………………… if the person knows, or ought reasonably to know, the article to be an infringing copy of the work." The applicant was convicted of offences under those provisions on 14 April 1999 in proceedings before a magistrate of the Local Court in Sydney. 2 In an affidavit filed on behalf of the applicant, the grounds of the appeal are outlined in paragraph 4 as follows: "i. The Learned Magistrate in the Local Court did not have jurisdiction to hear and determine the offences charged in this cases in that the Court was not 'a Court of competent' jurisdiction within the meaning of the Copyright Act, as provided for under the provisions of Section 132(7) of the said Act. ii. The Search Warrant issued under Section 3E of the Crimes Act (C'lth) 1914, was invalid iii. The things seized pursuant to the Authority of the said Warrant should not have been admitted into evidence. iv. (a) The video an/or conversations recorded therein and as transcribed in the aide-memoire of the statement of Detective Senior Constable Leane McCusker of 21 January 1999 were not admissible or otherwise should not have been admitted on a discretionary basis. (b) The admissions of the evidence of conversations was estopped by reason of a decision between the same parties wherein the said evidence was held by LCM J Wahlquist on 28 May 1999 in the Local Court Downing Centre. v. In respect of the charges of possession (17 counts) under the provisions of Section 132(2A)(a) of the Act there was no evidence of possession in the Applicant/ Appellant or otherwise possession was not proved beyond a reasonable doubt and the convictions were otherwise unsafe and unsatisfactory on all the evidence. vi. The evidence in respect of the charges 10,1 and 16 February 1998 was not admissible (pp. 28-30 transcript) against the Applicant/ Appellant. vii. The Magistrates findings and convictions entered in respect of the charge mattes [sic] under the provisions of Section 132(1)(b) were unsafe and unsatisfactory. viii The sentences imposed by the Magistrate were too severe and or did not take into consideration the financial circumstances of the appellant under the provisions of Sections 16A and 16C of the Crimes Act (Cmlth) 1914.." 3 The appeal is brought pursuant to section 131B of the Act. That section is contained within Division 4A of Part V of the Act. Section 131B provides as follows: "(1) Subject to subsection (2), a decision of a court of a State or Territory (however constituted) under this Part is final and conclusive. (2) An appeal lies from a decision of a court of a State or Territory under this Part: (a) to the Federal court of Australia; or (b) by special leave of the High Court, to the High Court." 4 Section 131B is contained between sections 131A and 131C which confer jurisdiction on the Supreme Court of a State or Territory and on the Federal Court respectively with respect to "actions" under Part V. The expression "action" in Part V is defined in section 114 as meaning "a proceeding of a civil nature between parties". It is at least arguable that section 131B is concerned only with "actions" and not with criminal proceedings. Accordingly, I raised with counsel for the parties in the proceeding before me the question of the Court's jurisdiction. That is a matter that will require further argument and determination before finally determining the proceeding. 5 The proceeding was listed today for the purposes of hearing argument as to the nature of the appeal, assuming that the Court has jurisdiction under section 131B. That question has arisen because the applicant foreshadowed an intention to adduce further evidence beyond that which was before the Local Court. 6 Counsel for the respondent, the Commonwealth Director of Public Prosecutions, has indicated that the adducing of further evidence will be opposed. Accordingly, the question arises as to whether the proceeding is an appeal by way of re-hearing or a hearing de novo. It appears to be accepted that if the matter is by way of re-hearing, then further evidence would be adduced only in the exceptional circumstances in which evidence would be admissible on such an appeal. That is to say it would generally be necessary to indicate that the evidence was not available at the trial to the party now seeking to adduce it and would not have been ascertainable on reasonable inquiry. On the other hand, if the hearing is regarded as being de novo, then the evidence would be at large and either party would be free to call such evidence as it saw appropriate. 7 Because of the reservations which I have concerning the Court's jurisdiction under section 131B, it is undesirable that I express a firm view at this stage concerning the nature of an appeal under that section, assuming that it confers jurisdiction. However, I consider that it is desirable to express the provisional view that I have reached after hearing brief argument from the parties. 8 There appears to be no decision of this Court in which the question of the nature of the appeal has been given full attention. In Olsen v Hutchison (1992) AIPC ¶90-928 Neaves J considered an appeal under section 131B(2). There does not appear to have been any question raised as to the jurisdiction of the Court. In the course of his Honour's reasons, his Honour said (at page 38,708): "Before this Court the matter proceeded, correctly as it seems to me, on the basis that an appeal under s. 131B(2) of the Act is an appeal in the strict sense and is not a hearing de novo." It is apparent from that observation that the nature of an appeal under section 131B was not in issue before his Honour. Therefore his Honour's observation should not be taken as an informed view as to the nature of a proceeding under section 131B, assuming an appeal from a decision of a Local Court under Division 5 falls within that provision. 9 If section 131B does apply to a conviction for an offence, it would also permit an appeal by way of special leave direct to the High Court. It seems to me to be inconceivable that the Parliament would have intended that an appeal from a Local Court to the High Court would be a proceeding de novo. Since the appeal to the Federal Court is of the same nature as the appeal to the High Court, my provisional view is that the proceeding must be by way of appeal in the strict sense and not a hearing de novo. 10 Accordingly, I propose to give directions for the parties to prepare the case for hearing on the basis that it is to be heard as an appeal in the strict sense. I also propose to give directions for the filing of such evidence as is intended to be relied on in support of any application to adduce further evidence on the hearing of that appeal. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 26 April 2000 Counsel for the Applicant: Mr J C Papayanni Solicitor for the Applicant: W. Chan & Co Counsel for the Respondent: Ms M Cinque Solicitor for the Respondent: Director of Public Prosecutions (Commonwealth) Date of Hearing: 4 April 2000 Date of Judgment: 4 April 2000