Andrew Weir Coull by his joint next friends Sheila Coull and Lorna Ann Cross v Commissioner of Police

[2006] WASC 136

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   ANDREW WEIR COULL by his joint next friends SHEILA COULL and LORNA ANN CROSS -v- COMMISSIONER OF POLICE [2006] WASC 136

CORAM:   MILLER J

HEARD:   27 JUNE 2006

DELIVERED          :   27 JUNE 2006

FILE NO/S:   CIV 2339 of 2005

BETWEEN:   ANDREW WEIR COULL by his joint next friends SHEILA COULL and LORNA ANN CROSS

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Application for supply of videotape recording of police interview ­ Interpretation of s 570F of the Criminal Code (WA)

Legislation:

Criminal Code (WA), s 570B, s 570C, s 570F

Result:

Application granted

Category:    B

Representation:

Counsel:

Applicant:     Mr T H Offer

Respondent:     Mr G J Dale

Solicitors:

Applicant:     Stephen Browne Lawyers

Respondent:     State Solicitor

Case(s) referred to in judgment(s):

Horsman v Commissioner of Police [2002] WASC 81

Plutonic Operations Ltd v Done [2000] WASC 56

Case(s) also cited:

Director­General of Education v Godfrey [2000] WADC 33

Re Commissioner of Police; Ex parte Artemis International Pty Ltd [2006] WASC 56

1. MILLER J:  This is a motion for an order that the respondent provide to the solicitors for the applicant a copy of a videotape recording of a police interview conducted with Corey Paul Makings ("Makings") on 17 October 2002.

2. A direction is sought from the Court that the copy of the videotape be used only in connection with an action the applicant has brought in the District Court in the matter of Coull v Makings Action No 710 of 2004.  The applicant is prepared to pay the reasonable costs of the copy of the videotape.

3. An affidavit in support of the application reveals that the applicant was injured in a motor vehicle accident on 3 October 2002, when the vehicle he was driving in Ennis Avenue, Rockingham came into collision with the vehicle driven by Makings. 

4. The applicant contends that the video‑recorded interview between police and Makings on 17 October 2002 is critical to his claim for personal injuries in that it may resolve issues relating to the question of liability. 

5. A medical report annexed to the affidavit of Mr Klein indicates that the applicant suffered severe head injuries in the accident.  They were major serious irreversible neurological injuries leaving him with a right hemiparesis and with an inability to manage his own affairs.  Secondly, and more seriously, he had a dementia secondary to the neurovascular accident that he suffered following his head injury and as a direct result of that injury.

6. The State Solicitor has indicated by a letter to the solicitors for the applicant dated 2 May 2006, that Makings would not be prosecuted in relation to the accident of 3 October 2002 and police officers who conducted the video record of interview with Makings have no objection to the release of the video. 

7. The application is made to me pursuant to the provisions of s 570F of the Criminal Code (WA) which provides that the Supreme Court may give directions (with or without conditions) as to the supplying, copying, editing, erasure, playing or broadcast of a videotape. In the absence of such a direction the applicant would be unable to gain access to the videotape and if he did he would commit an offence because he would be an unauthorised person who had in his possession a videotape contrary to the provisions of s 570B of the Criminal Code.

8. Under s 570C of the Criminal Code the broadcast of a videotape such as that in question is forbidden unless made under direction of the Court under s 570F.

9. In Horsman v Commissioner of Police [2002] WASC 81 McKechnie J (at [11]) held that the Supreme Court has jurisdiction to make general directions in relation to the use of videotapes such as that in question. His Honour said that the jurisdiction to make directions ought to be exercised for the interests of justice.

10. In Plutonic Operations Ltd v Done [2000] WASC 56 Master Sanderson made an order that a videotape should be produced and made available to an applicant who had brought an action against the person interviewed for conversion. He had been charged with stealing as a servant but was acquitted. The civil actions concerned essentially the same matters as those that arose in the criminal trial. Master Sanderson considered it to be clearly a case where production of the videotape should be ordered and considered that in any event the videotape was a discoverable document. Master Sanderson made no observations about the ambit of s 570F of the Criminal Code, which on its face would appear to be intended to apply to criminal proceedings. 

11. However, given the decision of McKechnie J in Horsman v Commissioner of Police, I accept that the question is the advancement of the interest of justice generally.  The interest of justice would be served in the present case by the applicant having access to the videotape and I therefore make orders in terms of the motion.