DPP v McGoldrick

JurisdictionIreland
JudgeDenham J.
Judgment Date24 June 2005
Neutral Citation[2005] IECCA 84
Docket Number[CCA No. 192 of 2004]
CourtCourt of Criminal Appeal
Date24 June 2005

[2005] IECCA 84

THE COURT OF CRIMINAL APPEAL

DENHAM J.

HERBERT J.

GILLIGAN J.

APPEAL NO. 192/2004
DPP v McGOLDRICK
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

And

DAVID McGOLDRICK
APPLICANT

COPYRIGHT & RELATED RIGHTS ACT 2000 S140(1)

COPYRIGHT & RELATED RIGHTS ACT 2000 S139

SIMPLE IMPORTS LTD & SEVEN IMPORTS LTD v REVENUE COMMISSIONERS & ORS 2000 2 IR 243

CONSTITUTION ART 40.5

COPYRIGHT & RELATED RIGHTS ACT 2000 S143

COPYRIGHT & RELATED RIGHTS ACT 2000 S132

CRIMINAL LAW

Search warrant

Information - Bad in form - Reference to incorrect section - Validity - Whether evidence obtained admissible - Whether minor defect - Test - Whether provisions of statute strictly met - Misleading, unclear and ambiguous - Copyright and Related Rights Act 2000 (No 28), ss 140 and 143 - Constitution of Ireland 1937, Article 40.5 - Appeal allowed, conviction quashed (192/2004 - CCA - 24/6/2005) [2005] IECCA 84; [2005] 3 IR 123 People (DPP) v McGoldrick

Facts: The applicant was convicted of copyright offences. The prosecution was grounded on the seizure by the Gardai of video recordings in the home of the applicant pursuant to a search warrant issued by a District judge. The applicant applied for leave to appeal on grounds of the invalidity of the warrant and the admission of hearsay evidence.

Held by the Court of Criminal Appeal (Denham J; Herbert and Gilligan JJ): in treating the application for leave to appeal as the hearing of the appeal and allowing the appeal that the information and the warrant contained errors in the printed forms such as to render them misleading, unclear and ambiguous. The information and warrant did not strictly meet the provisions of the Constitution. The errors were not mere technical errors.

Reporter: R.W.

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24th day of June, 2005 by Denham J.

Denham J.
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1. This is an application for leave to appeal against conviction by David McGoldrick, the applicant.

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2. The applicant was tried by the Dublin Circuit (Criminal) Court for offences of infringing copyright on four counts as follows:

Count 1. Statement of Offence
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Infringement of copyright contrary to section 140 (1) of the Copyright and Related Rights Act, 2000.

Particulars of Offence
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David McGoldrick, on the 9 th day of August 2002 at 48a Dunmore Lawns, Kingswood, Tallaght in the County of the City of Dublin did unlawfully have in his possession for the purposes of trade 5 video cassette recordings of the motion picture "Spiderman" without the consent of the copyright owner thereof, namely Columbia Pictures Industries, Incorporate, and at the time of such possession knew that such recordings were infringing copies of the said work.

Count 2. Statement of Offence
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Infringement of copyright contrary to section 140(1) of the Copyright and Related Rights Act, 2000.

Particulars of Offence
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David McGoldrick, on the 9 th day of August 2002 at 48a Dunmore Lawn, Kingswood, Tallaght in the County of the City of Dublin did unlawfully have in his possession for the purposes of trade 10 video cassette recordings of the motion picture "Scooby Doo" without the consent of the copyright owner thereof, namely Time Warner Entertainment Incorporated, and at the time of such possession knew that such recordings were infringing copies of the said work.

Count 3. Statement of Offence
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Infringement of copyright contrary to section 140(1) of the Copyright and Related Rights Act 2000.

Particulars of Offence
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David McGoldrick, on the 9 th day of August 2002 at 48a Dunmore Lawn, Kingswood, Tallaght in the County of the City of Dublin did unlawfully have in his possession for the purposes of trade 5 video cassette recordings of the motion picture "Gold Member - Austin Powers" without the consent of the copyright owner thereof, namely New Lines Production Incorporated, and at the time of such possession knew that such recordings were infringing copies of the said work.

Count 4. Statement of Offence
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Infringement of the copyright contrary to section 140(1) of the Copyright and related Rights Act, 2000.

Particulars of Offence
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David McGoldrick, on the 9 th day of August 2002 at 48a Dunmore Lawn, Kingswood, Tallaght in the County of the City of Dublin did unlawfully have in his possession for the purpose of trade 10 video cassette recordings of the motion picture "Stuart Little Two" without the consent of the copyright owner thereof, namely Columbia Pictures Industries Incorporate, and at the time of such possession knew that such recordings were infringing copies of the said work.

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3. Thus in essence it was alleged that the applicant had unlawfully at his home possession for the purposes of trade thirty video cassette recordings without the consent of the various copyright holders, and at the time of the possession he knew that the recordings were infringing copies of the relevant works. The video cassettes consisted of five recordings of the motion picture 'Spiderman' (Count No. 1), five recordings of the motion picture 'Gold Member - Austin Powers' (Count No. 2), ten recordings of the motion picture 'Scooby Doo' (Count No.3), and ten recordings of the motion picture 'Stuart Little Two' (Count No. 4). The applicant was convicted unanimously by the jury on the four counts of offences contrary to s. 140 of the Copyright and Related Rights Act, 2000 and sentenced to four concurrent periods of eighteen months imprisonment suspended upon entering a bond to keep the peace and be of good behaviour for a period of three years.

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4. The offence is set out in the Copyright and Related Rights Act, 2000, hereinafter referred to as 'the Act of 2000'. Section 140(1) of the Act of 2000 provides:

"140.-(1) A person who, without the consent of the copyright owner -"

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a (a) makes for sale, rental or loan,

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b (b) sells, rents or lends, or offers or exposes for sale, rental or loan,

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c (c) imports into the State, otherwise than for his or her private and domestic use,

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d (d) in the course of a business, trade or profession, had in his or her possession, custody or control, or makes available to the public, or

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e (e) otherwise than in the course of a business, trade or profession, makes available to the public to such an extent as to prejudice the interests of the owner of the copyright,

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a copy of a work which is, and which he or she knows or has reason to believe is, an infringing copy of the work, shall be guilty of an offence."

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5. Section 139 of the Act of 2000 makes provision for presumptions including the following:-

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2 "139.-(1) The presumptions specified in this section shall apply in any proceedings, whether civil or criminal, for infringement of the copyright in any work.

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(2) Copyright shall be presumed to subsist in a work until the contrary is proved.

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(3) Except as otherwise provided in this section, where the subsistence of the copyright in a work is proved or admitted, or is presumed under subsection (2), the plaintiff shall be presumed to be the owner or, as the case may be, the exclusive licensee of the copyright, until the contrary is proved.

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(4) Where-

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a (a) a name purporting to be that of the author of a work or of the owner or exclusive licensee of the copyright, as the case may be, appears on copies of the work, or

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b (b) a copy of a work bears or incorporates a statement, label or other mark indicating that a person is the author of the work or the owner or exclusive licensee of the copyright, as the case may be, that name, statement, label or mark shall be admissible as evidence of the fact stated or indicated which shall be presumed to be correct, unless the contrary is proved."

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6. The prosecution case was grounded on the seizure by members of the Garda9 Síochána of video recordings in the home of the applicant. A search warrant was issued by a District Judge on 9 th August, 2002. Pursuant to that warrant members of the Garda Síochána entered the dwelling of the applicant for the purposes of searching it. They seized the video recordings in issue, interviewed the applicant, and then arrested him.

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7. Mr. Fagan and Mr. Pyne, employees of the Irish National Federation Against Copyright Theft Limited, testified that they examined the videos and stated that they believed them to be infringing copies. Mr. Michael Hinkson, solicitor, gave evidence that he was authorised by a power of attorney from the copyright holders to give evidence on their behalf in criminal proceedings. He gave evidence that it was his view that the copyright holders had not given consent to the applicant to possess infringing copies of their works. The learned trial judge ruled that the search warrant was valid and therefore the evidence seized was admissible. The learned trial judge also accepted the validity of the power of attorney and permitted the evidence of Mr. Hinkson.

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8. The applicant applied for leave to appeal against his conviction on the following grounds:

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(i) The learned judge admitted evidence prejudicial to the applicant that he should not have so admitted;

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(ii) The learned judge failed to vindicate the rights of the applicant through the exclusion of evidence obtained in breach of the rights of the applicant;

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(iii) The learned judge deemed admissible evidence obtained in contravention of the rights of the applicant including his Constitutional rights and the learned judge did so absent extraordinary excusing circumstances;

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(iv) The learned judge failed to pay any or any sufficient attention to the principles of law in relation to the requirements for a valid search warrant and in particular those principles set out by the Supreme Court in Simple Imports Limited v. Revenue Commissioners [2000] 2 I.R. 243...

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