Lai-Ha v McCusker [2000] FCA 1173

FEDERAL COURT OF AUSTRALIA Lai Ha v McCusker [2000] FCA 1173 COPYRIGHT – appeal from conviction by Local Court of New South Wales for offences under ss 132(2A)(a) & 132(1)(b) of the Copyright Act 1968 (Cth) for possession and letting for hire of infringing copies of cinematographic films – whether Copyright Act 1968 (Cth) confers jurisdiction on Federal Court to entertain appeal – nature of appeal – whether an appeal stricto sensu, an appeal by way of re-hearing or an appeal de novo – whether to admit additional evidence EVIDENCE – whether evidence before Local Court should have been excluded pursuant to ss 90 & 138 of the Evidence Act 1995 (Cth) – whether material seized beyond terms of search warrant should have been excluded – where issue of exclusion of material seized pursuant to search warrant not raised before Local Court – where search warrant not tendered before Local Court – where no evidence tendered on appeal to explain why search warrant not tendered before Local Court – whether admissions in English language by defendant recorded in video recording of purported execution of warrant admissible – whether defendant under arrest during execution of search warrant within meaning of the Crimes Act 1914 (Cth) ss 23F & 23G – whether copy of video or transcript should have been furnished to defendant – whether evidence before Local Court that defendant in possession of video cassettes for purposes of section 132(2A)(a) of the Copyright Act 1968 (Cth) – whether evidence before Local Court that defendant let for hire video cassettes CRIMINAL LAW – search warrant – whether search warrant valid – whether warrant fairly described an offence under section 132 of the Copyright Act 1968 (Cth) – whether seizure of items in purported execution of search warrant not authorised by law Copyright Act 1968 (Cth) ss 131A, 131B, 132 Federal Court of Australia Act 1976 (Cth) ss 22, 24, 27 Acts Interpretation Act 1901 (Cth) s 15AB Crimes Act 1914 (Cth) ss 3E, 23B, 23F, 23G, 23V Evidence Act 1995 (Cth) ss 90, 138 Administrative Decisions (Judicial Review) Act 1977 (Cth) Grierson v R (1938) 60 CLR 431 referred to Tsintris v Roads and Traffic Authority of NSW (1991) 25 NSWLR 68 referred to Ex parte Currie; Re: Dempsey (1968) 70 SR(NSW) 1 referred to Orr v Holmes (1948) 76 CLR 632 referred to R v Ireland (1970) 126 CLR 321 applied Walkling Ltd v Robinson (1929) 29 Cox CC 131 referred to KAM LAI-HA v McCUSKER N 203 OF 2000 KAM LAI-HA v McCUSKER & ANOR N 606 OF 2000 EMMETT J 27 JULY 2000 SYDNEY