Holder, Raymond v Searle, Bradley William (No 1) [1997] FCA 1157

Holder, Raymond v Searle, Bradley William (No 1) [1997] FCA 1157

Although some numbered counts in the summonses would be out of time if treated as separate offences, the prosecutor should be permitted to amend because the proposed informations and summonses could be instituted and issued at the time of the application, the subject matter of the offences was substantially the same as originally formulated, and granting leave was not unfair to Mr Searle. Section 133(2) was construed as imposing a cap on fines for offences involving multiple articles, and Federal Court proceedings under s 132 were treated as proceedings on summary conviction for penalty purposes. Leave was therefore granted to amend the information in QG 188 of 1996 and the summonses in...

Jurisdiction
Australia
Judgment Date
23 September 1997
Procedural Posture
Criminal Prosecution for Alleged Offences Under the Copyright Act 1968 (cth) / Applications for Leave to Amend an Information and Summonses; Ex Tempore Reasons for Granting Leave
Outcome
Leave to amend granted; costs reserved.
Legal Topics
['leave to Amend Information for Offence' 'leave to Amend Summons' 'disconformity Between Information and Summons' 'principal Liability and Accessorial Liability' 'limitation Issue Under S 133 of the Copyright Act 1968 (cth)' 'federal Court Summary Prosecution for Copyright Offences']
['practice and Procedure' 'copyright' 'criminal Law'] ['leave to Amend Information for Offence' 'leave to Amend Summons' 'disconformity Between Information and Summons' 'principal Liability and Accessorial Liability' 'limitation Issue Under S 133 of the Copyright Act 1968 (cth)' 'federal Court Summary Prosecution for Copyright Offences']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Prosecution for Alleged Offences Under the Copyright Act 1968 (cth) / Applications for Leave to Amend an Information and Summonses; Ex Tempore Reasons for Granting Leave

Legal Issues

  1. 1 ['Whether leave should be granted in QG 188 of 1996 to amend the information so as to allege that Mr Searle was liable as principal rather than knowingly concerned in an offence by B.W. Searle Pty Ltd.' 'Whether leave should be granted to amend the summonses in QG 187 of 1996, QG 188 of 1996 and QG 189 of 1996 to remove disconformity between the offences specified in the informations and the summonses.' 'Whether the offences as framed in numbered counts in the summonses would be out of time having regard to s 133 of the Copyright Act 1968 (Cth).' 'How s 133(2) of the Copyright Act 1968 (Cth) operates where an offence relates to multiple articles.' 'Whether proceedings in the Federal Court for offences under s 132 of the Copyright Act 1968 (Cth) are proceedings on summary conviction for the purpose of penalty provisions.']

Ratio Decidendi

Although some numbered counts in the summonses would be out of time if treated as separate offences, the prosecutor should be permitted to amend because the proposed informations and summonses could be instituted and issued at the time of the application, the subject matter of the offences was substantially the same as originally formulated, and granting leave was not unfair to Mr Searle. Section 133(2) was construed as imposing a cap on fines for offences involving multiple articles, and Federal Court proceedings under s 132 were treated as proceedings on summary conviction for penalty purposes. Leave was therefore granted to amend the information in QG 188 of 1996 and the summonses in...

Court Disposition

Leave to amend granted; costs reserved.

Orders

  • ['The Court grants leave to amend the summons in QG 187 of 1996.' 'The Court grants leave to amend the information for offence and the summons in QG 188 of 1996.' 'The Court grants leave to amend the summons in QG 189 of 1996.' 'Costs be reserved.']