Ketsimur v Morerei [1987] PGNC 39; [1987] PNGLR 325; N633 (14 October 1987)

N633

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CAROLUS KETSIMUR

V

JOE MOREREI

Kieta
King AJ

14 October 1987

CUSTOMS - Offences - Possession of prohibited import - Prohibited film - Video tapes - Elements of offence - Proof of "importation" from overseas - Proof of absence of licence to import - Whether fact of non-manufacture in PNG can be judicially noticed - Customs Act (Ch No 101), s 149(1)(d) - Customs (Prohibited Imports) (Films) Regulations 1973, regs 3(1), 12(1).

EVIDENCE - Judicial notice - When may be taken - Whether fact of non-manufacture of video tapes in PNG can be noticed.

Under s 149(1)(d) of the Customs Act (Ch No 101) an offence is committed by a person who "unlawfully conveys or has in his possession any smuggled goods, prohibited imports or prohibited exports".

Under the Customs (Prohibited Imports) (Films) Regulations 1973, reg 12(1), the importation of a film is prohibited unless a licence has been issued in respect of it. Under reg 3(1) "film" is defined as meaning inter alia, "a video tape or video disc".

On appeal against conviction on a charge of being in possession of prohibited imports namely video tapes,

Held

(1) To establish the offence charged the prosecution was required to prove:

(a) that the subject matter of the offence, namely the video tapes, were imported into the country from overseas; and

(b) that there was no licence to import the tapes.

(2) In the absence of any evidence as to a licence to import the conviction should be quashed.

(3) A fact of which judicial notice may be taken must be "notorious" in the sense of being of a class so generally known as to give rise to the presumption that all persons are aware of it; in an appropriate case "all persons" can mean all persons in a particular area or locality, or all persons of a particular background, calling or profession.

Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 at 153, followed.

Quaere, whether the court could take judicial notice of the alleged fact that no video tapes were manufactured in Papua New Guinea.

Cases Cited

Holland v Jones [1917] HCA 26; (1917) 23 CLR 149; 23 ALR 165; [1917] VLR 392.
May v O’Sullivan [1995] HCA 38; (1955) 92 CLR 654.

Appeal

This was an appeal against conviction and sentence on a charge of having in possession prohibited imports namely video tapes, contrary to the Customs Act (Ch No 101), s 149(1)(d).

Counsel

J B Nanei, for the appellant.
M Peter, for the respondent.
Cur adv vult

14 October 1987

KING AJ: This is an appeal by Carolus Ketsimur (the appellant) against his conviction in the District Court on 31 March 1987 of an offence pursuant to s 149(1)(d) of the Customs Act (Ch No 101), namely, that he was in possession of a prohibited import.

After hearing the appeal in Kieta I reserved my decision.

No evidence additional to that before the District Court was led on the appeal, and it is possible to summarise the evidence shortly, as follows. On 1 October 1986 the appellant’s house was searched by three CIB police officers and two customs officials who were in possession of a search warrant. A number of video tapes was found and a sample of eleven of them taken away for screening. Two of these, entitled "John Holmes Adventurer" and "Coed Teasers", were found to depict explicit sexual acts of various kinds between males and females. Thereafter the abovementioned offence was charged against the appellant.

Section 149(1)(d) is as follows:

"149(1) A person who ...

(d) unlawfully conveys or has in his possession any smuggled goods, prohibited imports or prohibited exports,

is guilty of an offence."

The relevant penalty prescribed is a fine not exceeding K3,000.

The case against the appellant was that he was in possession of "prohibited imports" ie, the video tapes referred to. In order to see what constitutes "prohibited imports" it is necessary to go to the Customs (Prohibited Imports) Regulations. Item 82 in schedule 2 thereof makes "films" prohibited imports subject to Pt III of the Regulations. "Film" is defined in reg 3(1) of the Customs (Prohibited Imports) (Films) Regulations 1973 as meaning, inter alia, "a video tape or video disc", the definition having been so amended by Statutory Instrument No 39 of 1981 and published in the National Gazette of 4 March 1982.

(I should say here that it is not apparent to me, nor have I been able to discover by such research as I have under undertaken, what the respective significance of the Customs (Prohibited Imports) Regulations and the Customs (Prohibited Imports) (Films) Regulations 1973 (as amended by the 1981 change in the definition of "film" just mentioned) is. I have been able to find no separate Regulations entitled Customs (Prohibited Imports) (Films) Regulations, whereas there certainly exist Customs (Prohibited Imports) Regulations which contain the schedule I have referred to prohibiting films subject to Pt III and which contain a definition provision: reg 3. I assume that when amendments are made to these regulations relating only to films the additional word "films" in parentheses is included simply to indicate that restriction of subject matter and that the two titles are so explained. Certainly the parties to the appeal did not suggest otherwise and proceeded on the footing that the Customs Act (Ch No 101) itself and the Customs (Prohibited Imports) Regulations relating to films governed this matter. In the circumstances I shall also approach the matter in that way.)

It is clear, then, that to ascertain the nature of the prohibition on video tapes as "prohibited imports" one must go to Pt III of the Regulations, and even clearer that to form the subject matter on which the alleged offence depends the video tapes must be "imports". That is to say, in my opinion, they must be shown to have been imported into the country from overseas, rather than say, by a weakening of the meaning of "import", brought into the North Solomons Province from another province of Papua New Guinea. This conclusion is, I think, inescapable when one bears in mind that the provisions of a National Act and Regulations are in question, not those of a provincial government. The only possibly relevant provision of Pt III of the Regulations is reg 12 of Div 2, which is as follows:

"12(1) The importation of a film is prohibited unless a licence has been issued in respect of it."

There is an immediate problem which strikes one about applying this regulation in the case of an alleged offence of possession of a prohibited import. The regulation seems by its plain terms directed to something else, namely, the activity of importing films. However, despite the apparent difficulty in regarding it as playing a part in creating the legal elements of the offence alleged here, both parties proceeded in argument on the basis that it did so. On closer consideration I think counsel were correct in that approach. It is justified on this basis: as already mentioned Item 82 (supra) makes films prohibited imports subject to Pt III of the Customs (Prohibited Imports) Regulations. In Pt III the only restrictive provision relating to films is reg 12. If the words in Item 82 "subject to Part III" are to have any meaning, as they must because otherwise the legislature would not have put them there, then reg 12 must be incorporated in some rational fashion as an ingredient of an offence charged under s 149(1)(d) of the Act. And in my opinion its operation in that context is simply this: the person charged with possession need not have a licence relating to the film (or video tape), but if when originally imported there was a licence in respect of it, it is not illegal later to be in possession of the film (or video tape). Once the film or tape was legally brought into the country, it is thereafter not a prohibited import and it is not a breach of s 149(1)(d) to be in possession of it.

The grounds of appeal argued may now shortly be stated. They were first, that the conviction was bad because there was no evidence that the video tape was imported or that it was imported without a licence; secondly, that no final address from the appellant’s counsel was heard by the magistrate thus denying natural justice and invalidating the conviction; and thirdly, that if the conviction was good the fine was too severe. I mention the third ground, which was not pressed by the appellant, only because the respondent argued that if the conviction was good I should increase the penalty.

The short summary of the evidence above and a detailed perusal of the depositions shows that there was no evidence that the video tape was imported. There was absolutely nothing to indicate where it came from. There is no evidence at all relating to whether or not there was a licence to import the tape if it were in fact an import. The depositions do, however, show that a "no case" submission was made at the close of the prosecution evidence on the basis that the elements of the offence had not been proved. One submission is recorded which tends to suggest that the point that the video tape had not been shown to be an "import" was taken, namely a submission that no inference was to be drawn from the nationality of the actors in the film. However, I think it fair to say that the depositions do not make it completely clear what points were taken, although counsel for the appellant assured me that he did argue that there was no evidence that the video tape had been imported. The depositions do disclose, and the respondent conceded, that after the learned magistrate had rejected the "no case" submission, be proceeded to convict without hearing a final address from the appellant’s counsel.

The respondent’s counsel on the appeal argued that it was well known and did not require proof that no video tapes were manufactured in this country so that the mere fact that the appellant was in possession of video tapes established that he was in possession of "imports", and that it was for him to show that there was a licence complying with s 12(1) of Div 2 of Pt III of the Regulations. These submissions throw up two difficult questions, first, whether it is a notorious fact that all video tapes in this country are brought in from overseas so that judicial notice could be taken of the fact that they are all "imported", and secondly, whether on the true construction of the regulation it was for the prosecution to establish that there was no licence relating to the import of the tapes or for the appellant to show that there was. Possibly there is a further question, namely whether an imported video tape must be commercially imported or whether it is sufficient if the tape is brought in privately by an individual, but I can shortly dispose of that matter by saying that it was not argued and that if it had been, I would have inclined to the view that the Act and Regulations, like those elsewhere, apply to commercial traders as well as private individuals unless some clear distinction is made, and that the mention of a licence would not, without more, compel the conclusion that only commercial traders were affected. Final determination of this point can await a case in which it squarely arises and is fully argued.

To deal with the first prosecution argument, it is convenient to call to mind shortly what the nature of a fact must be before a court can take judicial notice of it without its being strictly proved. The concept is simple. A fact of which judicial notice may be taken must be "notorious" in the sense of being of a class so generally known as to give rise to the presumption that all persons are aware of it: Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 at 153; D Byrne, J D Heydon, Cross on Evidence (3rd Aust ed, 1986) at 112. The reference to "all persons" need not literally mean "everybody": in an appropriate case it can mean all persons in a particular area or locality, or all persons of a particular background, calling or profession: Cross (supra) at 101. Whilst the concept of judicial knowledge is easy to express, it is often less easy to apply to a given fact, and in my opinion it is not a simple matter, as the prosecution contends, to conclude that the video tapes of which the appellant had possession were imports because they were video tapes. The depositions show that the learned magistrate had the advantage of seeing the tapes, which were physically tendered in evidence, and that he may have had them screened. The tapes were not available to me and on this aspect of the case, rather than decide affirmatively one way or the other, I would prefer to remit the matter to the District Court for further consideration and if need be further evidence. It may be that there is no other conclusion than that all video tapes, both those containing film when first obtained and those initially blank onto which film is recorded or "pirated", come into this country from overseas. It may be that the physical nature of the tapes clearly shows that they came from overseas so that no further evidence is needed. It may be that neither of these possibilities is the case and that some evidence in relation to the origin of the tapes is necessary. The position is so uncertain that I would not feel able to decide this question on the material before me, yet I feel that the learned magistrate could probably do so, if need be after a further hearing.

Hence, as I have said, I would remit this aspect of the case to the District Court rather than attempt to decide it on an unsatisfactory basis. But it remains to consider the next point, the construction of reg 12(1).

The argument is a brief one. Does the regulation require the prosecution to show that there was no licence to import the tapes in order to establish the offence, or does it merely require the prosecution to establish that the video tape was an import and then cast the burden on the appellant to show that there was a licence in order to avoid conviction? The question is to be answered after construing the regulation according to an ordinary and natural reading of its words. In my opinion, so reading the regulation, it creates one simple offence, namely importing a video tape without a licence. There is no offence unless there is no licence, and so it must be for the prosecution to prove that there was no licence. The regulation does not purport to create an offence, and then raise a proviso or saving clause to the effect that it shall be a defence if a licence was obtained. If the wording were something like that, it may be that the proper construction would mean that the onus of showing that a licence was in existence passes to the person charged, but that is not the wording. The regulation is shorter and in my opinion succinctly incorporates the lack of a licence as a primary ingredient of the offence. I would add that this reading of the regulation should cause no excessive difficulty of its application in practice, since one would expect the relevant authority, the Chief Censor, to maintain a list of persons to whom licences are issued, and that it would be easier for the prosecution to check that list than for someone in the position of the appellant, who may not have been the original importer, to discover whether an import licence was issued in respect of the tapes.

There is no doubt on the evidence contained in the depositions that the prosecution did not establish that there was no licence and it follows that the conviction is bad in law and should be quashed.

Having reached that conclusion it is unecessary for me to give effect to my earlier conclusion that on the first point the matter should be referred back to the District Court, nor to consider the remaining grounds of appeal. Nonetheless the clear failure to hear a final address was so basic an omission that I cannot leave this case without reference to it. A finding that there is a prima facie case made out by the prosecution after a "no case" submission by the defence at the close of the prosecution evidence is not a final determination. The defence is always then entitled to put a final and somewhat different argument, namely that the prima facie case is not one which actually goes the necessary further step and establishes guilt beyond reasonable doubt. An accused person may have a prima facie case made out against him and still ultimately be acquitted on the basis that there remains a reasonable doubt as to some material part of the charge: May v O’Sullivan [1995] HCA 38; (1955) 92 CLR 654. The accused person’s final address directed to that issue should therefore always be heard.

I should conclude on this topic by saying that the prosecution submitted that even though there was no opportunity given to the appellant’s counsel to make a final address to the learned magistrate, no substantial miscarriage of justice took place in the circumstances of this case. It is not necessary for me to decide this question, but I should say that the right to a final address is an elementary part of the requirement of natural justice which entitles an accused person to a full hearing, not a mere formality, and I would be slow to be convinced that in any case the denial of that right did not constitute a substantial miscarriage of justice.

The orders I make are these:

1. Appeal allowed.

2. Conviction quashed.

3. Each party to pay own costs of the appeal and of the District Court proceedings.

Orders accordingly

________________________

Lawyer for the appellant: J B Nanei.
Lawyer for the respondent: M Peter.