An Application by Nine Network Australia Pty Ltd

[2016] VSC 158

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2016 0028

IN THE MATTER OF an s 464JB of the Crimes Act 1958

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IN THE MATTER OF an application by Nine Network Australia Pty Ltd.

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2016
DATE OF RULING:	18 March 2016
CASE MAY BE CITED AS:	An Application by Nine Network Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 158

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CRIMINAL LAW – Evidence – Media Application for Police Interview – Exercise of discretion – Relevant principles – Privacy of individual – Public interest – Crimes Act 1958 s 464JB.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. Quill	Macpherson Kelley
For the Dr Craig Minogue	Mr A. Palmer Ms E. Clarke	Stary Norton Halphen

HIS HONOUR:

1. Section 464JA of the Crimes Act1958 (‘the Act’) prohibits a person from publishing an audio or audio-visual recording unless the court directs otherwise under s 464JB of the Act. In this application, the Nine Network Australia Propriety Limited (‘Channel 9’) seek permission to access a discrete and relatively short part of an audio-visual recording of an interview between police and Craig Minogue conducted on 17 February 2012.  Channel 9 also seeks permission to publish this portion of the audio video in its 60 Minutes program, scheduled for this Sunday 20 March 2016.

1. This application concerns a very confined object.  There is no statutory prohibition upon Channel 9 publishing a transcript of the impugned exchange. Nor is there any  statutory prohibition upon them publishing a picture of Dr Minogue, or using an actor to voiceover the transcript.  It follows that this application concerns only access to, and the publication of, the audio-visual recording of a very small portion of what was a much longer interview.

1. It follows, in my view, that any public interest said to attach to the access and publication of that record must be demonstrated either not to exist in the means of publication already available to Channel 9 (through transcript, photo, voiceover et cetera), or to be enhanced to a significant extent by publication of the audio-visual product.

1. The short background to the application is as follows.  Craig Minogue was found by a jury with another to be responsible for the March 1986 bombing of the Russell Street Police Station.  One police officer, Angela Taylor, was killed and 22 others were injured to varying degrees.  In 1988, Craig Minogue was convicted of murder and sentenced to life imprisonment with a minimum of 28 years’ imprisonment.  As I understand it, Dr Minogue is still serving that sentence, and he will be eligible for parole later this year.

1. In February 2012, police were investigating the 1992 disappearance and alleged murder of Ms Prue Bird.  I understand that police sought permission from a Magistrate to interview Craig Minogue and he consented to that process.  During the interview, an exchange occurred over the course of about 30 seconds or a minute in which Dr Minogue admitted being rightly convicted of the Russell Street Police Station bombing.  The audio-visual recording of that exchange is the subject of this application. I reproduce the transcript of that exchange:

POLICE OFFICER 1:  Because you were rightfully convicted of it – let’s not bullshit each other here.

MINOGUE:Um, yeah, let’s not bullshit each other.  I was rightfully convicted.

POLICE OFFICER 1:  Correct, yeah.

MINOGUE:But, you know, it takes um – it takes a while to come to terms with that.

POLICE OFFICER 1:  Mm.

MINOGUE:It takes a while to admit it.  Um, you know, I remember, you know, I got to the stage where, you know, I actually thought well, you know.  I’ve got to stop saying that I’m innocent of the bombing.  And I’ve got to – you know, but then comes a thing well, how do I tell people…

POLICE OFFICER 1:  Mm

MINOGUE:…after having, you know, maintained my innocence for so long.  But when you’re accused of something really bad, um, it’s a natural reaction, you don’t want to um, stick your hand up and say yeah, I did it.  So (inaudible) it takes a while.  Um, you know, I was um – I committed my crimes between the ages of 20 and 23.  Looking back I was a pretty immature young man.  Um, but, you know, I’ve matured over those years and I’ve grown and I’ve moved on.

And this is one of the reasons why this is such a, um, you know, just such a sickening event for me, that these tiny lits [sic] – little bits of incidental information, ah, and these coincidences are being – you know, given far too much weight.

POLICE OFFICER 2:  How long did it take you to deal with, ah, the fact that you were convicted of the Russell Street bombing?

MINOGUE:Um, well it’s – you know, it doesn’t come on one day.  It’s a process.

1. Sections 464JA and 464JB were introduced into the Crimes Act in 2009.  The object was to control the dissemination and publication of ‘sensitive information’, including details of police investigators, suspects, victims, third parties, and graphic or disturbing information relating to offending conduct.[1]

   [1]Second Reading Speech for the Legislation Miscellaneous Amendments Act 2009, Victoria, Parliamentary Debates, Legislative Assembly, 15 October 2009, 3689 (Minister for Police and Emergency Services, Mr Cameron).

1. In common law times, courts were generally reluctant to release police interviews or portions of interviews because it was thought that to do so would discourage others from participating in police interviews for fear of subsequent publication.  In my view, this remains a factor relevant to the exercise of my discretion.

1. In the DPP v Williams (Ruling No.1)[2] (‘Williams’), Hollingsworth J set out a non-exhaustive list of factors which could be relevant to the exercise of the court's discretion under 464JB.

   [2][2015] VSC 107.

1. They are:

(a)   the privacy of the interviewee, interviewers, and others mentioned in the interview;

(b)   whether the interviewee consents 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 the release;

(e)   whether the record of interview discloses graphic details of offending;

(f)     whether any criminal investigations of trials are ongoing;

(g)   whether release may undermine the integrity of the criminal justice system;

(h)   the level of contemporaneous public interest in the case;

(i)     whether release will enhance the fair an accurate reporting of the case;

(j)     the principle of open justice (where the record of interview has been played in open court); and

(k)   the nature of the proposed publication.[3]

[3]Williams, at [43].

1. Mr Quill, solicitor for Channel 9, swore an affidavit on 9 March which contained the following assertions:

(1)the accused was interviewed by police on 17 February 2012;

(2)during this interview the accused for the first time admitted that he was rightly convicted for the Russell Street bombing.  Up until this time the accused had maintained that he was innocent and wrongly convicted;

(3)the Victoria Police support Channel 9’s application;

(4)Channel 9 seeks access to the impugned recording as part of a report for the current affairs program 60 Minutes (‘the 60 Minutes report’).

1. The 60 Minutes report will focus on the events surrounding the Russell Street bombing, the roles of those responsible, the impact upon the victims and their families, the views of investigating police, and a potential link between the murder of Ms Prue Bird in 1992 and those responsible for the Russell Street bombing.

1. In short compass, Channel 9 argued that there is an immense public interest in the recording.  In discussion Mr Quill accepted that the part of his affidavit asserting that the 2012 police interview was the first time Dr Minogue admitted guilt in relation to the Russell Street bombing was inaccurate and predicated upon mistaken instructions. It is now common ground that Dr Minogue has publicly confessed his part in the Russell Street bombing since about 2009.  If it is necessary, I unreservedly accept this explanation from Mr Quill.  Mr Quill modified this part of his submissions to contend that the impugned passage was the first occasion on which Dr Minogue has been visually recorded confessing to the Russell Street bombing, and that there was still a real public interest attached to the publication of the vision of this event.

1. Channel 9 further argued that the impugned recording does not contain any graphic details, nor does it contain information that would undermine the justice process or any ongoing criminal trial.  The fact that the police support the application is also relied upon, and the applicant argued that these factors tip the scales in favour of releasing the recording.

1. The respondent, through Mr Palmer, relied on an affidavit sworn by the Dr Minogue.  It contended that the preponderance of factors referred to by Hollingworth J (which factors I gratefully adopt) in Williams weighs heavily in favour of refusing the application.

1. In short, the respondent argued:

(1)that he is entitled to the same level of privacy as other citizens. Both his application for parole, and his privacy if released on parole, may be adversely impacted by the release of the recording;

(2)he does not consent to the release of the recording.  Had he known that the recording would be sought to be published he would not have consented to be interviewed in 2012;

(3)there is still some prospect of future criminal proceeding in the Prue Bird matter which may be prejudiced by the release of the recording;

(4)it is factually incorrect to assert that this is the first occasion on which he has admitted his guilt.  I have dealt with this aspect earlier in these reasons;

(5)the principle of open justice does not impact upon this judgment because the recording has not been used or exhibited in any criminal trial thus far;

(6)the prohibition around publishing an audio or audio-visual recording under s 464JA does not apply to a transcript of that recording. Channel 9 has this transcript and may use it in the feature story as it sees fit.

1. With regard to these submissions, the respondent contends that there is no residual public interest in the release of the audio visual recording.  In oral submissions Mr Palmer developed the proposition that where a prisoner is in custody and where permission needs to be sought from a Magistrate to interview that prisoner, that permission and the prisoner’s response to the application may be coloured by the fact that there is the prospect of future publication of any interview that is conducted.

Analysis

1. I have decided to refuse this application for the following reasons:

(a)   The respondent was interviewed in custody in 2012. He voluntarily participated in the interview. He deposes that, had he known that the  ‘privacy of the interview room would end up being exposed and the visual broadcast media then [he] would not have participated in the interview.’

Whilst there is a respectable argument that the respondent lost any realistic prospect of a private life by his admitted crimes of the 1980s, there is, in my view, an associated broader public interest in preserving the privacy of the interview process.[4] 

[4]At least up until the interview becomes an exhibit in a criminal trial and the principal of open justice gains traction.

1. It is in the public interest that those being interviewed about criminal offences feel that they can answer questions freely.  Any person interviewed has the right to silence, and often it is a finely balanced decision as to whether that person will exercise that right.  It is undesirable that external factors, such as the prospect of subsequent publication of the audio visual product, be allowed to contaminate that fine balance. 

1. In my view, the public interest in the respondent’s admissions to the Russell Street bombings is very high.  The public had an acute interest in this case which, persists to this day.  This was an horrendous offence that constituted an attack upon public order.  The public interest in Dr Minogue’s various confessions since 2009 remain equally high.  A man who protested his innocence at his 1988 trial and made allegations of conspiracy and corruption against his perceived adversaries has recanted and confessed, but there is nothing much new in Channel 9’s proposed revelations. - The respondent confessed six years ago, that is, about three years prior to the subject police interview. 

1. In my view, the very real and persisting public interest in Mr Minogue’s confession is adequately catered for in the transcript of the impugned passage, which Channel 9 already has.  Put another way, there is no, or very little, further public interest served in releasing the audio visual recording.  What might make for good Sunday night entertainment does not necessarily serve the public interest. 

1. Mr Quill, in his very able submissions, emphasised the fact that this was the first time that police had actually supported the release of an audio visual recording.  The fact of that support is certainly a factor that is relevant to my discretion.  However, it ought be observed that this discretion statutorily resides with this Court and not with the Victoria Police. 

1. I do not consider the prospect of a future trial in which the impugned passage may be exhibited as a weighty factor.  The passage is, in my view, essentially benign.  It has never been played as an exhibit in open court and the principal of open justice has little or no work to do.  In my view, there is nothing in the impugned passage which is of a graphic nature, nor would, as far as I can judge, any person other than the respondent be affected by the release of the recording. These are, however, absences of factors that might mitigate against the release of the recording, they are not positive factors that militate in favour of its release.

1. In all the circumstances, I am not persuaded that I should grant this application, and it is refused.