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:

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.

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.

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading An Application by Nine Network Australia Pty Ltd

Details

AGLC: An Application by Nine Network Australia Pty Ltd [2016] VSC 158
Case: [2016] VSC 158
Decision Date: 18 March 2016

CaseChat Overview and Summary

Nine Network Australia Pty Ltd applied to the County Court of Victoria for an order to permit the filming of a police interview. The application was brought pursuant to section 464JB of the Crimes Act 1958, which allows for the filming of an interview in certain circumstances. The interview in question involved an individual who had been charged with serious criminal offences. The individual's privacy and the public interest in the dissemination of information about the criminal justice system were central to the court's considerations.

The court was required to balance the privacy rights of the individual against the public interest in allowing the filming of the interview. The primary issue was whether the public interest in filming the interview outweighed the individual's right to privacy. The court also needed to consider whether the application met the criteria set out in the legislation, including whether the filming would not cause undue distress to the interviewee or compromise the investigation.

In reaching its decision, the court considered the principles established in previous cases concerning the filming of police interviews. It noted that the legislation requires a careful balancing of the competing interests. The court examined the potential benefits of the filming, including the public's right to be informed about the criminal justice system and the potential deterrent effect of the interview on others. The court also considered the nature of the offences, the age and mental state of the individual, and the potential for distress caused by the filming. Ultimately, the court determined that the public interest in allowing the filming outweighed the individual's privacy rights.

The court granted the application, allowing Nine Network Australia Pty Ltd to film the police interview. The court issued an order permitting the filming, subject to certain conditions designed to protect the privacy of the interviewee and ensure that the filming did not cause undue distress.

Orders