IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION
CRIMINAL MISCELLANEOUS CASE NO.: 040 OF 2007

BETWEEN:

THE STATE
Applicant

AND:

SETH RIZWAN ALI
Respondent

Counsel: Ms. S. Puamau – for the State 
Mr. Maharaj – for the Respondent 

Date of Hearing: Friday 31st August, 2007
Date of Decision: Friday 7th September, 2007

APPEAL DECISION

Background

[1]	A trial commenced in the Magistrates Court at Suva on the 4th of October 2006 which eventually led to a judgment delivered on the 12th of March, 2007. In that judgment the learned Magistrate acquitted the respondent for one count of dealing with infringing objects, contrary to Section 121(1)(d)(i) of the Copyright Act 1999.

[2]	The State took an overly long time to consider their position about that judgment and now seek leave of the court to file an appeal that is out of time by some 49 days.

[3]	That application is opposed.

The Indicative Appeal

[4]	The indicative appeal filed with the application submits the following grounds against the decision of acquittal:

(a). That the learned trial Magistrate erred in fact and in law in failing to consider Section 30(2)(a) of the Copyright Act in determining the question of proof of infringing copies of the copyrighted work and question: namely "Voqa Ni Delaidokidoki Volume 3".

(b). That the learned trial Magistrate erred in fact and in law in failing to properly consider the issues that needed to be addressed in ascertaining whether the respondent had the adequate mens rea to commit the offence: namely whether he ought reasonably to have known that he had been dealing with an infringing copy.

Leave to Appeal Out of Time

[5]	The relevant Legislation is found in Section 310 of the Criminal Procedure Code. That Section was discussed at length in The State v Patel [2002] FJCA 13; AAU0002U.2002S (15 November 2002) where their Lordships adopted criteria detailed by the New Zealand Court of Appeal in R v Knight [1995] 15 CR NZ 332 at 338.

[6]	In Knight the court observed that the strength of the proposed appeal, the practical utility of the remedy sought, the length of any delay, the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice together with the absence of prejudice to the respondent were all relevant considerations.

[7]	The grant of leave for this appeal hinges around the first consideration.

The Strength of the Proposed Appeal

[8]	Prosecutions under Section 121(1)(d)(i) of the Copyright Act 1999 have until recently been quite rare. Accordingly, the body of Law about the Act and its practical application is scarce.

[9]	In those circumstances the application of such novel legislation to particular prosecutions is never an easy task; particularly when there is little by way of guideline judgment to assist the presiding judicial officer.

[10]	My task is to decide whether or not the likely State appeal has an outstanding chance of success. That task does not require me to make final determinations about the appeal but to assess the relative strength of the appellant’s case.

[11]	The State submits that the Prosecution evidence including importantly the record of interview (Exhibit 1) contain admissions that the accused was in the business of making copies of original works for customers. These facts when added to the evidence of the composer (Kitione Vunasasari), that all songs from the subject album were stored on the hard drive of the respondent’s computer (a fact that was not challenged by the defence at the first trial) must mean that there was a strong prima facie case to answer.

[12]	The strength of that case is assisted by the further evidence from the Groups Manager of an admission made by the accused that he was "dubbing" the subject album.

[13]	At trial the evidence went yet further still as the accused when confronted by the composer about making infringing copies of the subject album admitted he was selling infringing copies of the subject album and pleaded that the matter not be reported to the police.

[14]	This body of evidence was reinforced by the accused’s statement to the police. In particular Questions 24 to 27 where he admitted selling at least 2 copies of the subject album to customers for $20.00 each.

[15]	In the circumstances the absence of any infringing copy exhibit was not a sufficient reason to justify a reasonable doubt over whether the State had proved that infringing copies had been offered for sale. It will be a matter for the appeal judge to determine whether that preponderance of that evidence was so overwhelming that the learned Magistrate fell into error by making the finding that he did.

[16]	However, for the purposes of assessing the strength of the State’s case I find this evidence was sufficient to prove beyond reasonable doubt that the respondent was in the business of dealing with infringing copies. And further that he produced and sold copies of the subject album contrary to the provisions of the statute.

[17]	I am satisfied that there was sufficient evidence to prove that the subject album was an original work that had been published. The group had established a contract with South Pacific Recordings granting exclusive rights to duplicate and distribute the subject volume. That evidence was never challenged at trial.

[18]	Accordingly the learned Magistrate’s assessment of whether the evidence was capable of satisfying the requirements of Sections 36, 17, 18, 19 and 20 of the Copyright Act 1999 may well have been in error as there was ample evidence to prove both originality and publication of the subject album, the dubbing and then sale of infringing copies of this artistic work.

Length of Delay and Reasons for Delay

[19]	The State was one month and 19 days outside the time limit for filing an appeal.

[20]	I am satisfied that the State knew of the learned Magistrate’s decision on the day it was delivered but that in the absence of any guideline judgments on this novel legislation some care had to be taken over a review of the record and notes of evidence.

[21]	In that regard I agree with the submissions of learned counsel that this novel legislation required a cautious rather than robust approach by the Director who had to assure himself that an appeal was sustainable.

[22]	I am satisfied that the additional 1 month and 19 days was a reasonable period of time within which the Director could direct that the appeal be filed.

Overall Justice

[23]	I am further satisfied that although this Prosecution relates to events several years ago nonetheless the matters of principle that the Copyright Act establishes are particularly important. Fiji possesses a rich and diverse artistic and cultural heritage. The music and oral traditions of the country are an integral part our society. Accordingly some thoughtful guidance on the application of such novel legislation will in my view enhance the administration of justice and not detract from it.

[24]	The accused was on bail throughout the course the entire prosecution period. The matter only came on for hearing in late 2006 with the determination in March of 2007. I find there is little prejudice to the accused in having his case submitted to appeal.

Conclusion

[25]	For the reasons expressed in this judgment I am satisfied that the State should have leave to file their appeal out of time. Leave is granted for the State to file the appeal and serve in on the respondent on or before Friday the 14th of September 2007.

[26]	In the interest of justice I do not believe it appropriate that I determine the substantive matter. Accordingly I am transferring this file to my brother Justice Mataitoga for his Lordship’s consideration. The appeal will be called before my brother Judge on Friday the 28th of September at 9.30am.

[Gerard Winter]
JUDGE

At Suva
Friday 7th September, 2007

Solicitors
Office of the Director of Public Prosecutions, Suva - for the Applicant
Maharaj Chandra & Associates, Barristers & Solicitors, Suva – for the Respondent.