Pala v Reginam [1978] FJSC 32; Criminal Appeal 020 of 1978 (22 September 1978)

SUPREME COURT OF FIJI
Appellate Jurisdiction

Criminal Appeal No. 20 of 1978

Between:

1. LILADHAR PALA s/o Bhanji Pala
2. RAMANLAL PALA s/o Girdhar Lal Pala
3. DHIRAJ LAL PALA s/o Mohan Lal Pala
Trading as Pala Brothers)

and

REGINAM

JUDGMENT

On the 7th February 1978 at Suva Magistrates Court appellants were convicted after trial of exhibiting a film approved by the censor, contrary to section 9(1) and section 20(1)(a) of the Cinematographic Films Act 1971 hereinafter called the Act), the particulars of offence being the appellants on the 2nd August 1977 exhibited certain of a film titled "Confessions of a Driving Instructor" had not been approved by the censor.

The relevant portions of the Act are:-

Section 4.(1) "... no person shall exhibit, or cause or permit or suffer to be exhibited, any film unless he as the holder of a licence, hereinafter referred to as an exhibitor's licence, issued under the provisions of this section and valid in respect of the exhibition of such film at the premises specified in such licence."

Section 9.(1) "No person shall exhibit any film ... unless and until such film has been approved by the censor for public exhibition."

Section 11.(1) "The censor may require any film in respect of which his approval is sought under the provisions of this Part of this Act to be exhibited before him for the purpose of censorship, ... "

Section 12.(1) "Without unreasonable delay, the censor shall, in respect of any film for which his approval is sought under the provisions of this Part of this Act, either -

(a) approve the film for public exhibition; or

(b) refuse to approve the film for public exhibition, either unconditionally, or until such alterations or excisions as he may specify have been made to the film:"

Section 20.(1) "Any person who -

(a) exhibits, or causes or permits or suffers to be exhibited, any film in contravention of any of the provisions of this Part of this Act ...

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding two hundred dollars in respect of each offence."

It is common ground that the appellants own a cinema and hold an exhibitor's licence, that on the 27th June 1977 for the purpose of censorship the then Chief Censor, together with a film censor named Mrs. Barrett (hereinafter called the censor), viewed a film entitled "Confessions of a Driving Instructor" (hereinafter called the film), that it was approved for public exhibition by the appellants, and that subsequently the film vas publicly screened on a number of occasions at the cinema owned by the appellants.

The prosecution of the appellants arose from the fact that on the 2nd August 1977 as a result of complaints from the public the censor attended a public screening of the film and, according to her testimony, observed that it contained nude sex scenes which had not been screened when she viewed the film on the 27th June, and which had not been, and would not have been, approved for public exhibition. In particular, she described in evidence one scene in which a woman undressed and lay naked on top of a man, another in which a man unbuttoned a woman's blouse and fully exposed her naked breasts, and another in which a man lay on top of a naked woman.

The censor's assertion that no nude sex scenes had been included in the private screening on the 27th June was corroborated by the evidence of the Chief Censor.

At the trial, defence counsel appeared to adopt two conflicting approaches. On the one hand, in cross-examination of the censor, defence counsel alleged that in asserting that the scenes she saw on the 2nd August had not been screened on the 27th June she was trying to save face, and in submissions to the trial Magistrate defence counsel elaborated on this approach, contending that the film shewn on the 2nd August was in all respects identical to that screened on the 27th June, and that because of public complaints the censor was trying to save face before the Film Board and trying to save her own skin by maintaining otherwise. That is to say, the censor was deliberately lying when she testified that the scenes she saw on the 2nd August had not been screened on the 27th June. On the other hand, defence counsel also submitted to the trial Magistrate that the scenes which the censor described as having been shewn on the 2nd August had come out of her own imagination, which had run amok, and which had invented non-existent nude sexual scenes only hinted at in the film.

However the appellants, when put on their defence, called no affirmative evidence whatsoever in support of either of these allegations. The second appellant apparently did not see the screenings on the 27th June or the 2nd August, his testimony being concerned with the usual procedures adopted and the difficulties involved in making cuts to films and re-inserting edited portions, and amounting to a general denial that portions of a film not shewn to a censor would be shewn to the public. The third appellant had never seen any screenings of the film in question and his testimony amounted to little more than a general denial of the charge. The remaining evidence for the defence was that of a witness (hereinafter called the third defence witness) who went to a public screening of the film in July 1977, on which occasion he did not see any nude sexual scenes; and the evidence of three character witnesses.

The defence introduced into the trial a considerable amount of irrelevant material to which I do not propose to refer.

The appellants have appealed against conviction on seven grounds.

1. That the learned trial Magistrate misdirected himself on the onus of proof in holding that the defence had not established that the censor "changed her mind or had it altered for her and was using the extra scenes story as an excuse to save face".

This ground of appeal is based on what is, regrettably, a common practice of removing from its context a small portion or a sentence of a judgment and claiming that it constitutes a misdirection. The duty of the English Court of Criminal Appeal was stated quite clearly by the then Lord Chief Justice in 1909 (R. v. Stoddart 2 Cr.App.R. 217 at 246) and I can do no better than to repeat the words which are of equal relevance today and apply equally to this Court:-

"This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice. Its work would become well-nigh impossible if it is to be supposed that, regardless of their real merits or of their effect upon the result, objections are to be raised and argued at great length which were never suggested at the trial and which are only the result of criticism directed to discover some possible ground for argument."

Reading the judgment of the trial Magistrate as a whole, it is perfectly clear that the trial Magistrate did not shift the onus of proof and that there was no misdirection.

2. That the learned trial Magistrate erred in law and in fact in holding that "[the third defence witness'] evidence was not relevant and/or helpful".

This sentence again has been taken out of context. Defence counsel had submitted that a finding that the censor had told the truth necessarily involved a finding that the third defence witness had told lies - an untenable proposition which the trial Magistrate dealt with in the following way:-

"[The third defence witness'] evidence is, in retrospect, not considered relevant and/or helpful - the issue here is what was seen by [the censor] on the 2nd August - what was seen by [the third defence witness] I must declare and hold in no way discredits [the censor]. The submission that to support [the censor] means to disbelieve [the third defence witness] is not I believe correct and is rejected."

The trial Magistrate's approach to the evidence of the third defence witness cannot be faulted in the circumstances of this case.

I might add, in parenthesis, that at the trial the prosecution proposed to call a witness who, like the third defence witness, had also seen a public screening of the film in July 1977; and the learned Director of Public Prosecutions informed this Court that it was anticipated that the witness would testify to having seen nude sexual scenes of the sort described by the censor as having been screened on the 2nd August. However the trial Magistrate queried the admissibility of her testimony and as defence counsel thereupon objected to her giving evidence as to what she saw on a date different to the 2nd of August the prosecution did not adduce any evidence from her. In my view the evidence of this witness was admissible for the purpose of rebutting the defence contention that nude sexual scenes were a figment of the censor's imagination; and the approach adopted by the trial Magistrate to this witness was hardly consistent with his allowing evidence from the third defence witness as to what he saw at a public screening of the film in July. However, as this operated in favour of the defence, it does not go to the grounds of appeal.

3. That the learned trial Magistrate failed to make any positive finding on the evidence adduced by the defence and failed to balance the testimony of the defendants with that of the main prosecution witness.

I fail to understand this ground of appeal as in his judgment the trial Magistrate quite clearly took into account the evidence of the second and third appellants and their witnesses and, having done so, came to the firm conclusion that the censor's evidence was reliable and true. I reiterate that not one shred of affirmative evidence was called by the defence as to what scenes were screened on the 2nd August.

4. That the verdict is unreasonable and cannot be supported on the whole of the evidence.

This is a ground of appeal that is constantly being raised without the slightest prospect of success. This Court has pointed out time without number that before it can succeed an appellant must shew that there was no evidence on which the trial Magistrate could reach the conclusion which he did reach if he properly directed himself (Kamchan Singh v. The Police (1953) 4 F.L.R. 69). In the circumstances of this case, where there was direct evidence from the censor as to what was screened on the relevant dates and no direct evidence to the contrary. this ground of appeal is nothing ;short of frivolous.

5. That the evidence before the Court did not warrant a conviction, and the learned trial Magistrate erred in law in holding to the contrary.

This appears to be another way of raising the previous ,ground of appeal and my observations thereon apply with equal force.

6. That the learned trial Magistrate erred in convicting the appellants although there was no evidence that they "exhibited" the film.

The prosecution evidence, which was accepted by the trial Magistrate, established that at a cinema owned by the appellants there was exhibited a film in respect of which the appellants were the holders of an exhibitor's licence, which exhibition contravened the provisions of section 9(1) of the Act. Section 20(1)(a) of the Act provides that it is an offence for any person to exhibit, or cause or permit or suffer to be exhibited, any film in contravention of, inter alia, section 9(1) of the Act; which wording covers the appellants even if they did not know what was being screened.

7. That the particulars of offence were defective in that they did not set out what parts were not approved by the censor.

On the hearing of the appeal counsel for the appellants was asked to suggest in what way the offence could have been more fully particularised, and he submitted that the film could have been seized so as to enable the particulars to conclude with the words "as contained in the film in the custody of the Court", and so as to enable the film to be screened at the trial.

Certainly I think it desirable in cases of this nature for the prosecuting authorities to take custody of the film in question and to produce it as an exhibit - and in any future cases I trust that this procedure will be adopted. However, the absence of the film is not fatal. The censor's evidence as to the scenes which were screened on the 2nd August and which had not been approved for public exhibition was quite detailed, and there is no suggestion that the appellants were in any way embarrassed in their defence by the lack of particulars in the formal charge.

For the reasons given the appeal is dismissed.

Clifford H. Grant
Chief Justice

Suva,
22nd September 1978.