ABC v Victoria Police and Gardiner
[2020] VSC 599
•15 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2020 03409
BETWEEN:
| AUSTRALIAN BROADCASTING CORPORATION | Applicant |
| and | |
| VICTORIA POLICE | First respondent |
| and | |
| MAXWELL GARDINER | Second respondent |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2, 9 and 15 September 2020 |
DATE OF RULING: | 15 September 2020 |
CASE MAY BE CITED AS: | ABC v Victoria Police & Gardiner |
MEDIUM NEUTRAL CITATION: | [2020] VSC 599 |
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CRIMINAL LAW – Practice and procedure – Records of interview – Application by media to permit publication of parts of audiovisual records of interview – Relevant factors considered – Application granted – Crimes Act 1958 ss 464JA, 464JB.
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APPEARANCES: | Counsel | Solicitors |
| For the Australian Broadcasting Corporation | Mr H Hassan | ABC Legal |
| For Victoria Police | Mr S Payne | Victoria Police |
| For Maxwell Gardiner | In person |
HER HONOUR:
The Australian Broadcasting Corporation seeks orders under s 464JB of the Crimes Act 1958 (‘the Crimes Act’), to permit Victoria Police (the first respondent) to supply it with the audiovisual recordings of three police interviews with Maxwell Gardiner (the second respondent). The ABC wishes to use some of the footage from those interviews in two upcoming episodes of its ‘Australian Story’ program. Those episodes will focus on the experience of Dianne McDonald, who was stalked by Mr Gardiner following the breakdown of their relationship in 2015.
Section 464JA of the Crimes Act sets out a number of offences in relation to the unauthorised use of recordings made by Victoria Police of persons in police custody. In brief, it is an offence to possess, play, supply, copy or publish such a record of interview, other than to authorised persons or in specified circumstances. One such specified circumstance is where the court has made a direction under s 464JB of the Crimes Act. Section 464JB(2) provides that 'A court may give directions, with or without conditions, as to the supply, copying, editing, erasure, playing or publishing of an audio recording or an audiovisual recording.'
Section 464JB is drafted in broad terms, and does not purport to describe or limit the circumstances in which the court's discretion may be exercised.
After considering the history of the provisions and the relevant case law, in Director of Public Prosecutions v Williams (No 1)[1], I set out the following non-exhaustive list of factors which may be relevant in considering the exercise of the court's discretion under s 464JB:
[1](2015) 51 VR 408.
(a) The privacy of the interviewee, interviewers, and others mentioned in the interview;
(b) Whether the interviewee consented to the release;
(c) The attitude of other people affected by the interview;
(d) Whether any person (such as victims or children) would be adversely affected by release;
(e) Whether the record of interview disclosed graphic details of offending;
(f) Whether any criminal investigations or trials were ongoing;
(g) Whether release might undermine the integrity of the criminal justice process;
(h) The level of contemporaneous public interest in the case;
(i) Whether release would enhance the fair and accurate reporting of the case;
(j) The principle of open justice (where the record of interview had been played in open court); and
(k) The nature of the proposed publication.
The only other relevant legislative provision in this particular case is the Family Violence Protection Act 2008, which prohibits the publication of any particulars likely to lead to the identification of any person involved in proceedings or subject to orders under that Act, except in prescribed circumstances and with the consent of the adult victim. In this matter, Ms McDonald has provided her written consent in accordance with s 169B of that Act.
Before considering the list of relevant factors, it is convenient to begin with a brief consideration of how Mr Gardiner's records of interview came to be made, and what matters they deal with.
Dianne McDonald and Maxwell Gardiner met in October 2014, and began a relationship that lasted for a total of five months between late 2014 and early 2015. Ms McDonald ended their relationship in May 2015. Mr Gardiner did not accept that the relationship had ended, and continued to attend Ms McDonald's home and workplace after that time.
On 4 June 2015, Ms McDonald obtained an interim family violence intervention order against Mr Gardiner, which prohibited him from approaching her or her adult daughter, or publishing any material about her. A final 12-month intervention order was imposed in the following month.
Between June 2015 and June 2018, Mr Gardiner sent letters to people known to Ms McDonald, and hung posters in places she frequented, which contained images of Ms McDonald and lewd allegations about her sex life and alcohol consumption. Almost 40 such documents were disseminated by Mr Gardiner over that three-year period.
On 27 August 2015, Mr Gardiner was interviewed by police regarding some derogatory posters located at the Brighton Wine Larder. During that interview, he denied that he was responsible for the posters. This is the first record of interview sought by the ABC.
On 28 August 2015, he was charged with breaching the intervention order. He was convicted at the Broadmeadows Magistrates' Court on 1 September 2015 and fined.
In May 2016, Ms McDonald successfully applied for a variation to the intervention order to include three new addresses. That order was later served on Mr Gardiner. On 4 July 2016, a further final intervention order was imposed. That order is still in place, and expires in July 2027.
On 28 February 2017, Mr Gardiner was interviewed by police concerning allegations that he had, in October 2016, disguised his identity by wearing a balaclava and attending two wine bars to hang derogatory posters about Ms McDonald. He was also asked questions about whether he had sent derogatory letters about Ms McDonald and her recently deceased friend, to persons known to Ms McDonald.
During that interview, Mr Gardiner said he believed the intervention order had expired. He also denied knowing the location of the wine bars or anything about the posters. This is the second record of interview sought by the ABC.
In August 2017, the intervention order was varied to include Ms McDonald's work address. That varied order was served on Mr Gardiner in October 2017.
On 22 March 2018, Mr Gardiner was convicted of breaching the intervention order by following Ms McDonald in his car. On 5 June 2018, he was again convicted of breaching the order by attempting to approach Ms McDonald's daughter.
On 15 August 2018, a search warrant was executed at Mr Gardiner's home. During that search, police located a balaclava and a printout of an image that had appeared on some of the posters concerning Ms McDonald.
On 11 April 2019, Mr Gardiner was arrested and interviewed in relation to those incidents. He provided a ‘no comment’ record of interview. This is the third record of interview sought by the ABC.
Mr Gardiner was subsequently charged with stalking Ms McDonald and contravening the intervention order with the intent to cause harm or fear, as well as committing an indictable offence whilst on bail. A contested committal was listed in the Melbourne Magistrates' Court on 23 October 2019. However, the matter resolved on that day with Mr Gardiner pleading guilty to the offences.
During the plea hearing on 9 November 2019, the court was informed that Mr Gardiner had a history of breaching intervention orders, beginning in 1989.
On 20 February 2020, Mr Gardiner was sentenced to eight months’ imprisonment and a 24-month community correction order. He unsuccessfully sought to appeal that sentence in the County Court. He remains in custody at the time of this application.
The ABC relies upon three affidavits of Cheryl Hall filed in support of the application. Ms Hall is a highly-experienced, award-winning, senior producer and acting deputy editor for ABC News Victoria. Together with another experienced senior journalist, she has been working for some time on producing two episodes of Australian Story about Ms McDonald's experience of being stalked by Mr Gardiner.
Australian Story is a weekly, documentary-style, current affairs program broadcast on ABC television. In each episode, the subject tells their story in their own words, with context and balance provided using other interviewees and a range of audiovisual material. The two episodes will aim to explore how the legal system deals with stalking, the difficulties faced by Ms McDonald in pursuing her complaint, and the way in which the Victoria Police Family Violence Investigation Unit was able to eventually build a case against Mr Gardiner.
According to Ms Hall, the episodes will raise matters of substantial public interest, including the operation and adequacy of the justice system in relation to preventing and prosecuting stalking as a form of family violence and abuse, and whether current laws adequately recognise the impact of mental harm caused by stalking. Ms McDonald's case will be used as a case study for an examination of these issues.
Considerable research has been undertaken in relation to the proposed episodes. Ms Hall attended court for multiple hearings in the Magistrates' Court in 2019, and the County Court appeal in June 2020. In addition to interviewing Ms McDonald, the ABC has interviewed Detective Senior Constable Rebecca Norris of the Family Violence Investigation Unit, the Honourable Edward O'Donohue, who was Shadow Minister for Police Corrections and Community Safety at the time of the offending, and Professor Heather Douglas of the University of Queensland Law School, who is a legal expert in domestic violence and criminal justice.
The ABC wants to show extracts from the records of interview for several reasons. They contain a record of Mr Gardiner's conduct and demeanour when confronted with allegations of his offending, and will allow the ABC to tell the story accurately and comprehensively. Australian Story's editorial style is such that the program does not use a narrator or commentator, employ actors to portray other persons, or perform re-enactments. Given the first-person style of the program, having the transcript of the interviews without the actual recordings would be of little use to the ABC.
When the application first came before me on 2 September, Mr Gardiner was not sure whether he was going to be able to get legal representation. He also informed me that he had longstanding mental health issues, and was currently in the psychiatric ward of the custodial facility in which he is being held.
Accordingly, I adjourned the application for one week, to enable Mr Gardiner to see whether he could obtain legal representation, and to allow him to put before the court whatever material he wanted to provide by way of evidence as to his mental health issues. Court staff made contact with Mr Gardiner’s former solicitors and Victoria Legal Aid, to see if they could assist Mr Gardiner.
Mr Gardiner was unable to obtain legal representation and ultimately made submissions on his own behalf. However, his former solicitors provided the court with a copy of all of the mental health reports which had been tendered and relied upon at his 2019 plea hearing. With Mr Gardiner's consent, the court forwarded that material to the ABC and Victoria Police, the first respondent.
Dr Praveen Das, Mr Gardiner's treating psychiatrist at Forensicare, also provided a report as to Mr Gardiner's current mental health and the possible effect of publication of the records of interview on Mr Gardiner. Mr Gardiner and the court were greatly assisted by Dr Das and Forensicare producing that report so quickly.
At my suggestion, Victoria Police provided the ABC with the transcripts of the records of interview, to enable the ABC to consider precisely which parts of the recordings it might want to publish, and to enable all parties to make more informed submissions about whether or not the recordings should be released. The ABC then filed and served a second affidavit, which attached the transcripts of the records of interview, and identified by page number the particular pages which it sought to publish.
The application came back before me on 9 September. Victoria Police did not oppose the application. Mr Gardiner did oppose it. After hearing lengthy argument from all parties, I decided to authorise the release of the recordings to the ABC, for the purposes of playing, copying and editing only.
However, I did not make orders permitting any publication of the recordings until the parties had had a chance to attend to a matter which Mr Gardiner had raised, and which I thought had merit. Mr Gardiner was concerned that some of the transcript pages identified by the ABC included contentious allegations, which he had vehemently disputed, and for which he was never charged and convicted.
I accepted that there was potential unfairness in allowing the publication of allegations of, and his responses to, uncharged acts such as those. So I directed the ABC to file and serve a version of the transcripts which highlighted the specific passages, not merely the page numbers, upon which it wished to rely, so that I could hear submissions and then determine whether or not they included uncharged acts.
On 15 September I heard further submissions on that aspect. Mr Gardiner objected to several questions and answers in the second and third recordings, as a result of which certain deletions have been made from the highlighted passages in the transcript.
I am going to make orders permitting the ABC to publish the parts of the recordings that correspond with the highlighted portions of the transcripts, as amended at the hearing on 15 September. I propose to do so having regard to the following matters.
There are many factors which favour publication of the parts of the recordings which I have approved. First, Ms McDonald, the victim of Mr Gardiner's offending, and a person whose privacy would be directly affected by publication, is very supportive of the application. She endured years of harassment and stalking by Mr Gardiner, and wants her story to be told. Mr Gardiner's repeated denials of wrongdoing to police are part of her story.
Secondly, apart from Ms McDonald and Mr Gardiner, there are no other persons who would be directly adversely affected by release of the recordings.
Thirdly, Victoria Police does not oppose publication, and there are no privacy concerns in relation to the interviewing police.
Fourthly, there are no ongoing criminal investigations or trials, which may be prejudiced by publication.
Fifthly, the records of interview do not disclose graphic details of offending of the sort that may be unsuitable for general publication.
Sixthly, publication of the relevant parts would not be likely to undermine the integrity of the criminal justice process. The parts of the recordings which may be published concern matters in respect of which Mr Gardiner either pleaded guilty or was found guilty by a magistrate. The ABC is not trying to undermine the correctness of a jury verdict, for example, by inviting the public to assess the offender's demeanour for themselves.
Seventhly, the nature of the proposed publication is to include extracts from the recordings in a respected documentary program on a topic of substantial community interest, namely family violence. Australian Story is not a sensationalist program. Allowing Mr Gardiner's account to police to be published is consistent with the program's editorial style, which is to use people's own voices.
Finally, although the cases against Mr Gardiner are over, and there is no evidence of any contemporaneous public interest in this particular case, there is contemporaneous public interest in the important topic covered by these episodes, namely the insidious and ongoing problem of family violence. The 2016 report of the Royal Commission into Family Violence described stalking in the context of family violence as a problem that is not well understood. The ABC aims to educate the public about stalking through these episodes.
Those are the factors in favour of publication.
Although the records of interview were referred to in the prosecution plea opening for the 2019 charges, they were not tendered or played in open court. Accordingly, open justice principles are not significant in this case. They may be regarded as a neutral factor.
Mr Gardiner opposes the publication of any part of the recordings. This is not a case where there is any suggestion that he would not have spoken to police had he known the interviews might be made public. In any event, he made no admissions to any wrongdoing in the interviews.
The primary basis for his objection is that he is concerned for his and his family's safety, if sensitive information about him is made public as part of the Australian Story program. However, I am not going to permit publication of Mr Gardiner's residential address, or the name of the correctional facility in which he is currently being held. Furthermore, there is nothing in the relevant parts of the recordings which discloses sensitive information about him or his family members.
It seems clear that, notwithstanding the various court findings and his own pleas, Mr Gardiner still does not accept that he has done anything wrong in relation to Ms McDonald, who he still describes as ‘the alleged victim’. On the contrary, he feels that he is a victim, who has been harassed and threatened by Ms McDonald and her supporters. He expresses persecutory beliefs about people following or threatening him, some of which appear to be based in reality,[2] and some in his mind.
[2]Victoria Police confirmed that a man had indeed been convicted in September 2017 for stalking and making threats against Mr Gardiner if he did not stay away from Ms McDonald.
Mr Gardiner expressed concern that his safety may be threatened, if his voice and face are made public through the publication of the recordings on Australian Story. But his face is going to be made public in any event, as the ABC have footage of him arriving at court for one of his hearings. There is no basis for thinking that allowing his voice to be broadcast would constitute any realistic threat to his personal safety.
It is clear from the various reports provided to the court that Mr Gardiner developed PTSD, depressive disorder and generalised anxiety disorder, after he was involved in a car accident in December 2015. He has been treated for those conditions over a number of years with medication and counselling. Although I have not seen the magistrate’s sentencing remarks, there is medical evidence that some of the symptoms of those conditions may have played a role in his offending, by affecting his judgment and decision-making.
However, there is no evidence to suggest he was unfit for interview by police on the relevant occasions. Having viewed each of the recordings myself, Mr Gardiner appears as lucid and capable of putting forward his position as he was before me.
Since July of this year, Mr Gardiner has been in the subacute mental health unit at the corrections facility in which he is being held, due to his mental health history. Dr Das, his treating psychiatrist, said that 'From a clinical perspective the release of tapes and the ensuing program can be considered a stressor which could possibly exacerbate anxiety and/or adversely affect mood.'
The ABC proposes to make these two episodes, and to tell the story of Ms McDonald and Mr Gardiner, whether or not I release the recordings. The mere showing of the episodes (even without the recordings) may possibly exacerbate Mr Gardiner's anxiety and/or adversely affect his mood. However, the portions of the recordings that are proposed to be played are not sensational or sensitive, and there is no evidentiary basis for thinking that their publication would add substantially to any anxiety he might otherwise experience due to the fact that details of his offending are going to be broadcast on national television against his wishes. The medical evidence falls a long way short of justifying withholding publication of the relevant extracts from the recordings for medical reasons.
For these reasons, the factors in favour of permitting publication substantially outweigh the factors against that course.
The final observation I would wish to make relates to the third recording, which consisted of a ‘no comment’ record of interview. The ABC does not seek to publish the parts of the record of interview in which Mr Gardiner answered ‘no comment’. The only parts that are sought to be published are the introduction and conclusion. Had it sought to publish the ‘no comment’ answers, I would have refused to allow that, for the reasons expressed by Lasry J in The Queen v Reed-Robertson[3].
[3][2016] VSC 236.
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