Australian Broadcasting Corporation v Victoria Police and Kehoe
[2020] VSC 410
•12 February 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2020 0565
| IN THE MATTER of an application under section 464JB of the Crimes Act 1958 to obtain and broadcast recordings and an application for the making of declarations in respect of VARE interviews | |
| BETWEEN: | |
| THE AUSTRALIAN BROADCASTING CORPORATION | Plaintiff |
| and | |
| VICTORIA POLICE | First Defendant |
| and | |
| PETER KEHOE | Second Defendant |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 February 2020 |
DATE OF JUDGMENT: | 12 February 2020 |
DATE OF REASONS | 3 July 2020 |
CASE MAY BE CITED AS: | Australian Broadcasting Corporation v Victoria Police & Kehoe |
MEDIUM NEUTRAL CITATION: | [2020] VSC 410 |
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COMMON LAW – Practice Court – Urgent application made by summons seeking declarations permitting Victoria Police to provide copies of VARE interviews to media outlet for airing on television program – Support of witnesses in VARE interviews to provision of interviews - Orders as to provision of police interviews of second defendant also sought pursuant to s 464JB of Crimes Act 1958 – Opposition by Victoria Police to provision of VARE interviews but not to provision of police interview of second defendant – Support by victim of sexual offending for provision of VAREs and police interview – No power to make declarations sought – Orders made for provision of police interview under s 464JB – Criminal Procedure Act 2009 ss 366, 367, 368, 368A, 420 – Criminal Procedure Regulations 2009 rr 5, 6, 7, 8, 9, 10, 11, 12 – Crimes Act 1958 ss 464JA, 464JB.
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APPEARANCES: | Counsel | |
| For the Plaintiff | Ms S Fitzgerald | Australian Broadcasting Corporation Legal |
| For the First Defendant | Mr S Payne | Legal and Prosecutions Specialists Branch, Victoria Police |
| For the Second Defendant as amicus curiae | Mr S Gillespie-Jones |
HIS HONOUR:
Introduction
By an Originating Motion dated 5 February 2020, the plaintiff initiated an application seeking a number of orders from the Court. These were:
(1)A declaration that Victoria Police may lawfully supply to the Plaintiff a copy, in audio-visual form, of the Video and Audio Recorded Evidence (VARE) of each of
a.PS[1] recorded on 10 September 2014 (‘the PS VARE’)
[1]Name initialised to protect the identity of a victim of sexual offending.
b.NO[2] recorded on 13 September 2014 (‘the NO VARE’)
[2]Name initialised to protect the identity of a child witness.
(2)A declaration that the Plaintiff may lawfully receive, copy, play, edit and publish each of the PS VARE and the NO VARE.
(3)Orders pursuant to section 464JB of the Crimes Act 1958 (Vic) that:
a.Victoria Police be directed to supply to the Plaintiff a copy of the audio-visual recording of the record of interview with Peter Kehoe recorded on 10 September 2014 (‘the Kehoe Recording’);
b.The Plaintiff be permitted to receive, copy, play, edit and publish the Kehoe Recording;
(4)Such further or other relief or orders as the Court sees fit.
The Plaintiff sought an urgent hearing of the proceeding and the matter came on before me in the Practice Court on 10 February 2020. I heard submissions on behalf of the plaintiff and each of the two defendants and reserved my decision until 12 February 2020. On that date, I indicated that I was not prepared to make the declarations sought. I made orders requiring Victoria Police to supply the interview of Mr Kehoe to the plaintiff and permitting the plaintiff to receive and air the interview. I indicated at the time that I would publish my reasons for refusing to make the declarations and making the orders in respect of the interview at a future time. These are those reasons.
Background
PS was a 15 year old student at a private school in Melbourne when he was the victim of sexual grooming by the second defendant, Peter Kehoe (‘Mr Kehoe’). As part of the police investigation which followed, PS took part in a process, known as a VARE[3] interview, with the police on 10 September 2014. NO, a witness to some of the conduct of Mr Kehoe, took part in a VARE interview on 13 September 2014. On 10 September 2014, Mr Kehoe was interviewed by police in an audio-visually recorded interview. He made no comment in the interview to the allegations put to him.
[3]Video and Audio Recorded Evidence.
In the course of the prosecution of Mr Kehoe in the Melbourne Magistrates’ Court in April 2015, the VARE of PS was played as his evidence-in-chief. He was cross examined by counsel on behalf of Mr Kehoe. The VARE of NO was also played. The interview of Mr Kehoe was not played. In due course, Mr Kehoe was found guilty. He received a community correction order with conviction. He did not appeal against that conviction.
Louise Milligan (‘Ms Milligan’) is an experienced investigative reporter with the Four Corners program, which for many years has been a fixture on the plaintiff’s television services. At the time of the application before me, Ms Milligan was in the process of producing a story for airing on Four Corners on 17 February 2020, that is, one week after this matter was argued before me. The story was to feature the case of PS who was said to be the victim of the first grooming offence prosecuted in Victoria. The story was also intended to deal with the response of the school to the allegations and prosecution, and the effect of the criminal process on PS. PS and NO and their families actively participated in the production of the story, and were supportive of the application by the plaintiff. I was informed that interviews with each of PS and NO would be aired on the program, and that each was desirous of the VARE previously conducted being made available and played, in part, on the program.
The law
VAREs
Division 5 of Part 8.2 of the Criminal Procedure Act 2009 (‘the Act’) provides for the use of recorded evidence-in-chief of children and cognitively impaired witnesses in sexual offence and some other matters. The sections in the Division relevantly read as follows:
366 Application of this Division
(1) This Division applies to a criminal proceeding (other than a committal proceeding) that relates (wholly or partly) to a charge for -
(a) a sexual offence; or
(ab) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008; or
(b) an indictable offence which involves an assault on, or injury or a threat of injury to, a person; or
* * * * *
(d) any offences against section 23 or 24 of the Summary Offences Act 1966 if those offences are related offences to an offence specified in paragraph (a), (ab) or (b), despite whether any such related offences are withdrawn or dismissed before an offence against section 23 or 24 of the Summary Offences Act 1966 is heard and determined.
(2) This Division applies to a witness in a criminal proceeding referred to in subsection (1) if the witness is -
(a) a person under the age of 18 years; or
(b) a person with a cognitive impairment.
(3) In this Division, witness means a witness referred to in subsection (2).
367 Use of recorded evidence-in-chief
A witness may give evidence-in-chief (wholly or partly) in the form of an audio or audiovisual recording of the witness answering questions put to him or her by a person prescribed by the regulations for the purposes of this section.
368 Admissibility of recorded evidence-in-chief
(1) Subject to subsection (3), a recording referred to in section 367 is admissible as evidence in a summary hearing, special hearing or trial in the proceeding as if its contents were the direct testimony of the witness if -
(a) a transcript of it was served personally on the accused in accordance with section 391, or on the legal practitioner representing the accused in accordance with section 394 -
(i) in the case of a summary proceeding, at least 14 days before the contest mention hearing or, if a contest mention hearing is not held, the summary hearing;
(ii) in the case of a trial, at least 14 days before the day on which the trial is listed to commence or, if a special hearing is held, at least 14 days before that hearing; and
(b) the court is satisfied that the accused and the legal practitioner of the accused were given, in accordance with the regulations, a reasonable opportunity to listen to and, in the case of an audiovisual recording, view the recording; and
(c) at the summary hearing, special hearing or trial, the witness -
(i) identifies himself or herself and attests to the truthfulness of the contents of the recording; and
(ii) is available for cross-examination and re-examination.
(2) The admissibility of a recording of the evidence of a person under the age of 18 years is not affected only because the person attains the age of 18 years before the evidence is presented in a proceeding.
(3) The court may rule as inadmissible the while or any part of the contents of a recording and, if so, the court may direct that the recording be edited or altered to delete any part of it that is inadmissible.
(4) Subject to this section, a recording referred to in section 367 is admissible in evidence as if its contents were the direct testimony of the witness -
(a) in the proceeding; and
(b) unless the relevant court otherwise orders, in -
(i) any new trial of, or appeal from, the proceeding; or
(ii) another proceeding in the same court for the charge for an offence specified in section 366(1) or a charge for a related offence; or
(iii) a civil proceeding arising from the same facts as those on which the charge for an offence specified in section 366(1) is founded.
(5) The court, by order, may abridge any time fixed -
(a) by or under subsection (1)(a); or
(b) by any order abridging time made under this subsection
if the court considers that it is in the interests of justice to do so.
368A Court may order production of recording made under this Division in certain circumstances
(1) A court may order that a recording referred to in section 367 be produced for use in a proceeding (other than a proceeding referred to in section 368) before that court if the court is satisfied that it is in the best interests of the witness to do so.
(2) If a court makes an order under subsection (1), it must also specify-
(a) the persons who may view or listen to the recording; and
(b) when and where the recording is required to be produced; and
(c) if necessary, any requirements as to the destruction of the recording.
(3) In making an order under subsection (1), the court must have regard to the need to protect the privacy of the witness.
(4) In this section, court includes a tribunal if the complainant is the applicant in a proceeding before the tribunal.
Section 420 of the Act provides, in part:
(1) The Governor in Council may make regulations for or with respect to –
…
(ea) the making, use (including for training and evaluation purposes), possession, copying storage, access to and destruction of an audio or audiovisual recording referred to in…Part 8.2.
Part 2 of the Criminal Procedure Regulations 2009 (‘the Regulations’) sets out rules relating to the making, copying, dissemination, and destruction of what are termed Division 5 recordings. The regulations were made by the Governor in Council on 15 December 2009 and came into operation on 1 January 2010, that is, on the same day on which the relevant provisions of the Act came into operation.
The regulations relevantly provide as follows:
5 Who may ask questions
For the purposes of section 367 of the Act, the following persons are prescribed -
(a) a member of Victoria Police who has successfully completed a training course conducted by Victoria Police on the procedures for making a Division 5 recording and examining a witness;
(b) a person authorised in writing by the Chief Commissioner of Police who has successfully completed a training course conducted by Victoria Police on the procedures for making a Division 5 recording and examining a witness;
(c) if the questions are put to the witness in another State or the Northern Territory, a member of the police force of that State or Territory;
(d) if the questions are put to the witness in a Territory other than the Northern Territory, a member of the Australian Federal Police;
(e) a person on the panel established under section 389H of the Act who may be appointed as an intermediary for the witness.
6 Information to be included in a Division 5 recording
In addition to any other requirement made by or under the Act, a Division 5 recording must include -
(a) the date on which, and the place at which, the recording is made;
(b) the times at which the recording is commenced and concluded;
(c) identification of all persons present during any part of the recording;
(d) the times at which any break in questioning commenced and concluded and the reason for the break.
7 Copies of a Division 5 recording
(1) The Chief Commissioner of Police may authorise copies to be made of a Division 5 recording and must ensure that the recording and all copies of the recording are kept in safe custody.
(2) If a copy of a recording is made, the Chief Commissioner must record -
(a) the date on which the copy is made; and
(b) the name and address of the person to whom the copy is given.
8 Transcript of a Division 5 recording
If a transcript of a Division 5 recording is made, a copy of the transcript must be given, as soon as is practicable, to the witness answering questions or to his or her parent or guardian.
9 Right of accused to listen to or view Division 5 recording
(1) If a Division 5 recording is made, the informant in the proceeding must give notice to the accused that the accused and his or her legal practitioner have the right to listen to and, in the case of an audiovisual recording, view the recording at a time and place agreed between the accused and the informant.
(2) If an accused and his or her legal practitioner wish to listen to and, in the case of an audiovisual recording, view the Division 5 recording, the informant must make the recording or a copy of it available for listening or viewing at the time and place agreed.
10 Record of persons listening to or viewing Division 5 recordings
If the accused or his or her legal practitioner listens to or views a Division 5 recording, the informant, or a person acting on behalf of the informant, must record the following information -
(a) the name of the person viewing or listening to the recording;
(b) the capacity in which the person is involved in the proceeding;
(c) the date on which and the time at which the recording is viewed or listened to;
(d) the name of the person who gave access to the person to view or listen to the recording.
11 Use of Division 5 recordings, copies or transcripts
(1) A Division 5 recording, a copy of a Division 5 recording or a transcript of a Division 5 recording may only be used -
(a) in, or in connection with, a proceeding referred to in Division 5 of Part 8.2 or in Part 8.2A of the Act; or
(b) in accordance with regulation 22.
(2) Except in accordance with Part 8.2 of the Act or these Regulations, a person must not have possession of, or access to, a Division 5 recording, a copy of a Division 5 recording or a transcript of a Division 5 recording.
12 Retention and destruction of recordings and copies
(1) If a Division 5 recording is made, the Chief Commissioner of Police must retain one copy of the recording in his or her safe custody.
(2) Subject to subregulation (1), if a Division 5 recording is made, the Chief Commissioner of Police must ensure that any copies made of the recording are destroyed or erased, no later than 6 months after the latest of the -
(a) conclusion of the proceeding; or
(b) expiry of any appeal period in relation to the charge; or
(c) conclusion of a proceeding of a kind referred to in section 374(2) of the Act.
Police interview
For many years, interviews of suspects by the police have been required to be recorded by audio recording or audiovisual recording. Section 464JA of the Crimes Act 1958 introduced a number of offences in relation to recordings made by Victoria Police under the Crimes Act.
S 464JA(1) provides a definition of the term authorised person and defines publish as meaning:
(a)insert in a newspaper or other publication; or
(b)disseminate by broadcast, telecast or cinematograph; or
(c)bring to the notice of the public or any member of the public by any other means, including by publication on the Internet;
A recording means a recording made in accordance with one of a number of provisions of the Crimes Act 1958.
Section 464JA(2) makes it an offence for a person other than the suspect or his or her legal practitioner, an authorised person, or someone engaged to transport the recording, to possess an audio or audiovisual recording.
Sub-section (3) of the provision makes it an offence for a recording to be played to another person unless for purposes connected with a civil or criminal proceeding and any inquiry before a court or tribunal, or other purposes set out in the sub-section.
It is also an offence to supply a recording to another person other than the suspect or his legal practitioner or an authorised person. Furthermore, it is an offence for a person other than an authorised person to copy a recording unless acting in accordance with the direction of a court under s 464JB.
Section 464JB(2) provides:
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.
In DPP v Williams(‘Williams’),[4] Hollingworth J dealt with an application by a media outlet to access, copy, edit, play or publish a copy of the police interview of a person who had been found guilty of manslaughter. Her Honour said of the legislation:
[4][2015] VSC 107 (‘Williams’).
[15] Parliament has created a statutory scheme by which the courts are the only bodies entrusted with the power to control who has access to, and what use may be made of, records of interview. That power may be exercised at any stage from the time of a person’s arrest, up to and including any trial, and beyond.
[16] Section 464JB is drafted in broad terms, and does not purport to describe the circumstances in which the court’s discretion may be exercised.
[17] Sections 464JA and 464JB were introduced into the Crimes Act by the Justice Legislation Miscellaneous Amendments Act 2009.
[18] In the second reading speech for the amending Act, Mr Cameron, the Minister for Police and Emergency Services, said:
The offences are necessary, as records of interview often contain a great deal of sensitive information about the circumstances of an alleged offence and the identity and details of persons, including police investigators, suspects, victims and third parties. Clearly, in relation to some offences, there will be graphic or disturbing information that should not be freely disseminated to others who are unconnected with the criminal justice processes. The bill seeks to preserve the integrity of the process and to protect against personal detail and possibly graphic details of offences being made public unnecessarily.[5]
[19] In the statement of compatibility, it was necessary to consider the extent to which the amending Act was compatible with the Charter of Human Rights and Responsibilities Act. In that context, it was said that:
Restricting the proliferation of these records is reasonably necessary to protect the privacy of persons connected with police interviews, such as the identity of victims and witnesses which may be revealed during the course of an interview, as well as the identities of the interviewee and police investigators themselves. As the records of interview now incorporate a visual medium, it is much easier for a person’s identity to be revealed than on the older audio-only analogue recordings. There is also the possibility that trials may be jeopardised if jurors are exposed to material published on the internet, especially if such record have been manipulated or doctored using digital editing software. Accordingly, I consider that these provisions are reasonably necessary for the protection of public order by preventing the corruption of investigative and judicial process that may occur through the uncontrolled proliferation of records in interviews.[6]
[5]Victoria, Parliamentary Debates, Legislative Assembly, 15 October 2009, 3689.
[6]Ibid, p 3687.
Her Honour noted that s 464JA and JB had been modelled on existing legislation in Western Australia. She dealt with the relevant authorities. She then stated:
Having regard to the decisions in WA and here, as well as the extrinsic legislative materials, the following is a non-exhaustive list of factors which may be relevant in considering the exercise of the court’s discretion under s 464JB:
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 or trials are ongoing;
g)Whether release may undermine the integrity of the criminal justice process;
h)The level of contemporaneous public interest in the case;
i)Whether release will enhance the fair and 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.[7]
[7]Williams (n 4) [43].
Her Honour indicated that in each case, the court must consider for itself the relevance of the above or any other factors, and the weight to give to the relevant factors.
The affidavit material
The Court was provided with an affidavit of PS in which he indicated that he was supportive of the production of the documentary by Four Corners, had participated in an interview with the program, and was desirous of his VARE interview being provided and made available to the plaintiff for airing on the program. He indicated that he had participated in the program because he wanted to inform the community about the type of offence to which he was subject. He stated that it was important to him to use his own experience to educate other children and adults who may be as naive as he was. His VARE interview would enable the public to see how young and vulnerable he was at the time of the offending.
An affidavit of Ms Milligan set out some of the background to the making of the story and her connection with PS and his mother, and also with NO. She stated that she believed that the VARE footage would powerfully communicate the age, vulnerability and innocence of the two boys at the time of the grooming offence in a way that even the publication of the transcript would not do. As for the police interview, that would demonstrate that Mr Kehoe ‘presented to the world as an ordinary, respectable and trustworthy person’. It would be capable of having a strong educative function. Ms Milligan asserted in the affidavit that there were compelling public interest reasons for telling the story, and doing so in the way which would best assist the public’s understanding of its subject matter.
The plaintiff’s submissions
VARE interviews
Ms Fitzgerald pointed out that the recordings are a piece of evidence tendered in criminal proceedings. Unlike recordings made for use as the evidence-in-chief of a complainant in family violence offence proceedings, there were no offence provisions contained in the Act at the time it was proclaimed, and nor were any such provisions introduced subsequently. She submitted that general principles relevant to the release and publication of evidence adduced in a criminal trial therefore govern the release of VAREs. She submitted that the common law principles of open justice, the right to a fair trial under common law and under the Charter of Human Rights and Responsibilities (‘the Charter’) and the Charter right of freedom of expression were relevant to determining whether the VAREs should be released. As the VAREs contained the evidence of children, s 17(2) of the Charter may be engaged, and the Court should consider what is in the best interests of the children, taking into account their views.
In respect of the Regulations, she submitted that the plain meaning of regulations 11 and 12 appears to conflict with s 368A of the Act, which allows a court to order that Division 5 recordings can be used in proceedings other than those referred to in s 368. She went on to submit that in order to read the regulations consistently with the Act, they should be interpreted as allowing for an order of the court to provide otherwise. This would involve reading in the words ‘unless there is an order of a court to the contrary’ in regulations 11(1) and 12(1). She submitted that Charter considerations would warrant this approach, which would be an ‘orthodox method of interpretation’ required by s 32 of the Charter.
Ms Fitzgerald further submitted that if the regulations could not be interpreted compatibly with the right in s 15(2) of the Charter then they would be invalidated by s 32(3).
In her oral submissions before me, Ms Fitzgerald submitted that Parliament did not intend, in passing the relevant provisions of the Act, that the court ‘would lose its inherent jurisdiction to manage evidence tendered in a trial, with respect to this form of evidence’. What she described as the general common law open justice principles relevant to the release and publication of evidence adduced in a criminal trial would govern the release of the VAREs because they are a piece of evidence adduced in a criminal trial. To the extent that the regulations would stop the court having the discretion to allow the evidence-in-chief of the witness tendered in open court to be release, that would conflict with the Open Courts Act 2013 and the regulations should be read down.
Ms Fitzgerald submitted that in the above circumstances, the law was clear that the regulations would not prevent the VAREs being provided to the plaintiff. She urged me to exercise my discretion to make the declarations sought.
In respect of the relief sought, Ms Fitzgerald pointed out that the jurisdiction to make a declaration is very wide. There was a real dispute as to the meaning of the applicable law in this case, affecting the interests of the plaintiff, which would be resolved by the making of the declarations sought. In the circumstances, it would be appropriate for the declarations to be made.
Police interview
Ms Fitzgerald submitted that many of the considerations as canvassed in the matter of Williams do not apply when, as here, the accused person has been charged and convicted of the relevant offence, the victim consents to being identified and is supportive of the interview being released.
By reference to a number of the matters contained in the non-exhaustive list of considerations in Williams, Ms Fitzgerald submitted that the privacy of the interviewer was not an issue as Victoria Police did not oppose release. The privacy of the interviewee should not prevent release because he has been prosecuted and convicted and the offence about which he was interviewed is a matter in the public realm. As for the privacy of the complainant, he was supportive of release, as were his mother and NO. The interview would disclose no graphic details of the offending and would not impinge on any ongoing criminal investigation or trial. Nor would it undermine the integrity of the criminal justice process by discouraging the active co-operation of accused persons in interviews. Mr Kehoe did not actively co-operate, answering no comment as was his right. The airing of a portion of the no comment interview would not serve to discourage alleged offenders in future from cooperating with police. Whilst there was no contemporaneous public interest in the criminal trial to consider, the program would promote public discussion of a matter of public interest, particularly in light of the Royal Commission into Institutional Responses to Child Sexual Abuse. The playing of the interview would enhance fair and accurate reporting of the case and serve to illustrate how ‘ordinary’ offends such as Mr Kehoe may appear and seem, which would assist in breaking down erroneous preconceptions about child sex offenders. The proposed program would be a thoughtful, non-sensationalist documentary aimed at promoting public discussion rather than merely entertaining.
Ms Fitzgerald submitted that a consideration of the above factors would strongly weigh in favour of the Court giving directions to allow the supply, copying, editing and publishing of the interview. It would be wrong to view the considerations spoken of by Hollingworth J as hurdles at which the plaintiff’s application might stumble or fall. They are non-binding and non-exhaustive considerations, and a consideration of them, would point clearly in the direction of the interview being provided, as would the public interest.
The first defendant’s submissions
VARE interviews
The initial position of the first defendant as indicated in the first outline of submissions by Mr Payne was that regulation 7 would authorise the Chief Commissioner of Police to authorise the making of copies of the recordings as had been requested by the plaintiff. At that time, it was indicated that Victoria Police would not oppose the application for the provision of the VAREs. It was pointed out, however, that there was a tension between the request for copying and the requirement for all but one copy to be destroyed as dictated by the regulations. The first defendant reserved its position on the matter.
A second outline filed before the hearing indicated that the fist respondent now opposed the making of the declarations sought in respect of the VAREs. It was submitted that unlike in the case of police interviews of suspects, there was no statutory regime in relation to the release of VAREs. This, it was submitted, was a deliberate act by the legislature given the highly sensitive nature of the content of such recordings and the desirability of ensuring that confidence in that system of obtaining admissible evidence from children and others is not undermined by the potential for such recordings to be released and published.
It was submitted that had parliament intended for there to be a mechanism for the release of VAREs, there would be one. There was not. Rather, the regulations instituted very strict controls on the possession and use of such recording. The parliament had impliedly excluded any other permissible use or circumstance of availability.
Mr Payne submitted that:
the jurisdiction of the Court to grant declaratory relief of the kind sought by the Plaintiff with respect to [the] VARE recordings…has been ousted by the express and implied language of the Parliament in the Criminal Procedure Act 2009 and the Criminal Procedure Regulations 2009.
In submissions before me, he contended that there was no conflict between the Regulations and the Act. Regulation 11(2) is ‘crystal clear’, he submitted, is wholly consistent with the Act, and is a ‘definitive statement which…knocks any discretion (to make the declarations sought) out of the ballpark’.
On the question of inconsistency relied on by the plaintiff, Mr Payne submitted that the requirement of the Regulations for all copies to be destroyed is not inconsistent with the ability of a court under s 368A to order the use of a recording in another proceeding. The original would still be in existence and available to be provided if required.
It was submitted that the ‘proceeding’ envisaged by regulation 11(1)(a) could be a proceeding in s 368A, which is a proceeding provided for in Division 5.
The fact of there being a clear mechanism set out in the Regulations for dealings with VAREs, and there being no inconsistency between those mechanisms and the Act itself, dictated, submitted Mr Payne, that declaratory relief would not be open. There would be no discretion for me to exercise in that regard.
In the alternative, Mr Payne submitted that even if there was an inconsistency between the Act and the Regulations, and even should the discretion arise for the making of the declarations, I should decline to do so. VARE interviews are ‘sacrosanct’, as indicated by how they are taken, used, retained, and destroyed. They are, he submitted, a unique beast. Even in circumstances where it was the strong desire of PS and NO to have their VAREs made available to the plaintiff, there was a greater public interest in withholding the VAREs. They contain methodology and remain a ‘very intimate thing’ in spite of the wishes of the complainants. Were the VAREs to end up on night time television, it may shake public confidence in the proposition that such interviews conducted between the police and children would be used only for court purposes, and would not be aired on television.
Police interview
The first defendant did not oppose the making of a direction by the Court requiring Victoria Police to provide a copy of the interview and the transcript to the plaintiff.
The second defendant’s submissions
Mr Gillespie-Jones for the second defendant opposed the making of the declarations and the release of the interview.
VARE interviews
In contending that the Court should not be prepared to make the declarations sought in respect of the VARE interviews, Mr Gillespie-Jones informed me that late last year, there was a confidential settlement of legal proceedings between PS and Mr Kehoe. A deed of release was signed by PS containing a non-disclosure and non-disparagement clause. It was submitted that the conduct of PS and his mother in co-operating with Four Corners in the production of the program was indicative of an intention to breach the non-disparagement clause. The content of the VARE interview of PS would tend to disparage Mr Keogh. The concurrence by PS in the endeavour of the plaintiff to acquire the VARE would itself amount to disparaging Mr Keogh. I should not make the declarations sought because the intended use of the VARE interviews would itself constitute a breach of the clause, and potentially point to liability of PS and the plaintiff for the tort of conversion. The Court, therefore, should not, by providing declaratory relief to the plaintiff, encourage or facilitate the commission of that tort. As the plaintiff was asking the Court to provide the ‘indulgence of a declaration’, they should have to show that the result of the declaration being made would not amount to a breach of the deed. They had not done so.
In addition to relying on the above basis for resisting the making of the declarations, Mr Gillespie-Jones adopted the submissions made by the first defendant in resisting the granting of the declaratory relief.
Police interview
Mr Gillespie-Jones opposed release of the police interview of Mr Kehoe on the basis of what he submitted should be the result of a consideration of the factors spoken of by Hollingworth J in Williams. In this case, he submitted, the applicant did not consider at the time of taking part in it that his interview would end up on national television. Mr Kehoe opposed release of the interview. It was submitted that Mr Kehoe was concerned for his safety should the interview be aired. Mr Gillespie-Jones submitted that the case was of no contemporaneous interest to the community. Were the interview released, it may have the result of discouraging people from taking part in police interviews. The interview was not played in court, and there was no application of the principles of open justice to the recording.
Mr Gillespie-Jones drew my attention to the decision of King J in R v Hemming (‘Hemming’),[8] in which her Honour refused applications by media outlets for the release of the police interview of a man who had been sentenced for a shocking double murder. In the course of the judgment, her Honour stated:
It is my view that there is no general public interest in this audio-visual recording of the interview between Mr Hemming and the police being released. The contents of the interview have always been available to be utilised for programs of such vague and general nature as has been suggested her. What is being sought is the release of the audio-visual to enhance the ‘interest factor’ for television viewing, that is to give the public to (sic) chance to ‘see and hear a murderer’. I do not accept that is a matter of public interest.[9]
[8][2015] VSC 351 (‘Hemming’).
[9]Ibid [31].
Mr Gillespie-Jones described that passage as setting out the rationale of Hemming and submitted that the rationale should apply to the present case.
Analysis
The procedure set out in Division 5 of Part 8.2 of the Act permitting the use of a VARE interview as the evidence-in-chief of children and cognitively impaired individuals in criminal proceedings was not introduced out of the blue by the legislature, and nor were the provisions controlling the use of such recordings made out of the blue by the Governor in Council. Very similar provisions, by way of both statute and regulations, became law in the State of Victoria as long ago as 1994, a full fifteen years before the coming into effect of the relevant provisions of the Act and the Regulations now under consideration.
By the passage of the Crimes (Sexual Offences) Act 1991, which was assented to on 16 April 1991, and the relevant portions of which came into effect on 20 December 1994, Parliament inserted into the Evidence Act 1958 a provision, s 37B, in very similar terms to the current ss 366 to 368 of the Act. As with the current provisions, the principal purpose of s 37B was to permit the evidence-in-chief of a child or cognitively impaired person to be given in the form of a recording of the witness answering questions from a prescribed person. These recorded interviews became known as VATEs[10]. They were the forerunner of VAREs.
[10]Video and audiotaped evidence.
As the above dates reveal, these provisions were a long time coming into effect after the passing of the legislation. In the Second Reading Speech in the Legislative Assembly on 13 March 1991, the then Attorney-General Mr Kennan said of the Bill upon which the above act was based that its main purpose was to reform procedural and evidentiary rules in order to increase the access of victims to the criminal justice system. The introduction of VATEs was one of a raft of changes introduced by the Act. The purpose of that introduction, as revealed by the Attorney, was, in conjunction with other changes, to ease the stress on child and cognitively impaired complainants. The option provided of the recording of the interview of the witness being permitted into evidence would save the witness from having to recount the allegations in detail and would present the court with the freshest possible account of the alleged events.
Amendments to the Bill flagged by the Attorney on 26 March 1991 were designed, amongst other things, to tighten control over VATEs by ensuring that a transcript of, rather than an actual copy of, the VATE be provided to the defence. In addition, a provision was introduced which would insert into s 152(2) of the Evidence Act 1958 a power for the Governor in Council to make regulations for ‘the making, use, possession, storage, access to and destruction of’ the recordings.
In accordance with that power, the Governor in Council, did, indeed make regulations governing the use of VATEs. These were the Evidence (Recorded Evidence) Regulations 1994 (‘the old regulations’), which came into effect on the same day as the new s 37B of the Evidence Act 1958 came into effect, that is, 10 December 1994.
These regulations were in very similar terms to the current Regulations. There are two notable exceptions to that. The first is that while limiting the use to be made of the recording to legal proceedings referred to in s 37B of the Evidence Act 1958, the old regulations permitted the witness to consent in writing to ‘any other use to which the recording or a copy of the recording may be put’.
The second is that in the old regulations, the recording and all copies were to be destroyed by the Chief Commissioner of Police within 6 months after the conclusion of the proceeding or the expiry of any appeal period, or, if a person had consented to some other use, the end of that use.
The current Regulations require the retention of one copy of the recording, no doubt in connection with some possible use under s 368A, and do not permit the subject of the VARE interview to consent to any use outside that envisaged in Division 5 of Part 8.2 or 8.2A[11] of the Act.
[11]These provisions relate to ground rules hearings and intermediaries.
In my view, this brief analysis of the history of VARE and VATE interviews reveals that ever since the introduction of the procedures in 1994, Parliament in enacting the respective provisions fully understood the need for there to be strict rules in place governing the use of the recordings, which, after all, would represent an often graphic and confronting process whereby a child or cognitively impaired person would give, for the first and only time in detail, and typically in an audio-visually recorded format, an account of a sexual attack upon him or herself, or a physical attack upon him or herself or another person.
In 1994, as in 2010, this was accomplished by means of regulations which were introduced by means of specific provisions in the respective Acts giving power to make such regulations to the Governor in Council.
When the Act was passed in 2009 and then came into effect on 1 January 2010, Parliament had the knowledge that for some 16 years, similar procedures had been in place by virtue of s 37B of the Evidence Act 1958, and that those procedures had been enabled to work by the regulations passed at the same time.
There is no question that in 1994, it was the intention of Parliament that the making, use, possession, editing, storage, access to and destruction of the recordings be very strictly controlled. This was achieved by means of the making of regulations by the Governor in Council.
There is equally no doubt that the intention of Parliament at the time of the introduction of VARE interviews was exactly the same. The Act was assented to on 10 March 2009 and the relevant provisions concerning the use of VARE interviews came into operation on 1 January 2010. In the Act, the legislature saw fit to authorise the Governor in Council to make regulations about all manner of things including the matters set out in s 420(1)(ea). The long lead time between the Royal assent and the operation date of the relevant provisions enabled ample opportunity for proper thought to be given to the measures necessary to be contained in the Regulations to safeguard the integrity of the system of VARE interviews. The Regulations were made by the Governor in Council on 15 December 2009 and came into operation on 1 January 2010, that is, on the same day as the relevant parts of the Act itself came into operation.
When the Regulations were made, they were in very similar terms to the old regulations, but with the differences I have already mentioned, making them even more strict.
The very fact of the legislature providing for the use of audio or audiovisual recordings of the accounts given by certain classes of individuals, namely, children and persons with a cognitive impairment made it abundantly clear, as the legislature well understood, that provisions would need to be put in place to ensure that such recordings were appropriately obtained, retained, safeguarded, used, and in due course, destroyed. That to my mind is precisely what was sought to be achieved by the making of the Regulations. True it is that the Regulations were not the product of the will of Parliament itself, but the contention made on behalf of the plaintiff that Parliament did not intend, in passing the relevant provisions of the Act, that the court ‘would lose its inherent jurisdiction to manage evidence tendered in a trial with respect to this form of evidence’ cannot be sustained. Parliament knew of the need to tightly control the use, copying and access to the sensitive material contained in VARE interviews. To my mind, the Regulations were entirely in accordance with the will of the Parliament.
I reject the plaintiff’s contention that regulations 11 and 12 are in any way inconsistent with the provisions of the Act, in particular s 368A, and should therefore either be read as if other words appeared in each of the regulations or be considered to be invalidated.
To my mind, those two regulations are entirely consistent with the intention of Parliament to tightly control the use and access to such recordings, as had been the practice in this State for many years before the passing of the Act or the making of the Regulations.
As for the particular reliance on the terms of s 368A to make good the claim of inconsistency, I do not believe it succeeds. Section 368A is part of Division 5 of Part 8.2 of the Act, and therefore, a proceeding contemplated by s 368A would be ‘a proceeding referred to in Division 5 of Part 8.2’ as indicated in regulation 11.
In support of the contention that common law principles as to the release of evidence applied to the VARE interviews, Ms Fitzgerald made the submission that the Regulations seemingly applicable to such interviews are inconsistent with the provisions in the Act relating to such recordings, and should therefore either be read in a way which would be consistent with the Act, or considered to be invalidated.
As I have already indicated, I do not accept that the Regulations are inconsistent with the Act as asserted by Ms Fitzgerald.
Looking at the combination of the Act and the Regulations, it is clear that it was not the intention of Parliament to leave open the prospect of VARE interviews being made available for publication on a television program, even with the consent and support of the interviewed person.
Insofar as Ms Fitzgerald contended that the VARE interviews in this case were items of evidence tendered in a criminal proceeding, and that as a result, the ‘general principle relevant to the release and publication of evidence adduced in a criminal trial’ should govern their release, I have found that Parliament through its lawmaking powers has overridden any such principle as it may apply to the VARE interviews. In any event, I consider that it would not be correct to view these interviews as merely items of evidence adduced in a criminal proceeding. These were interviews conducted by the police with two young children in respect of criminal offending against one of the children. Long before the interviews were played in Court and actually became evidence, they had a particular status that demanded that any access to them be strictly controlled. Parliament sought to ensure that such control would be exercised by means of a combination of the Act and the Regulations.
I do not believe that it would be lawful for Victoria Police to supply a copy of the interviews of PS and NO to the plaintiff as sought in this proceedings. Nor do I believe that it would be lawful for the plaintiff to receive and play the interviews. Both of those things would be in direct contravention of r 11 of the Regulations. In those circumstances, without any need to consider the circumstances in which declaratory relief may be available, it would neither be open nor appropriate for me to make the declarations sought.
Having reached that conclusion, it is unnecessary for me to finally decide whether or not I would accept the contentions made by Mr Gillespie-Jones in connection with a possible breach of the non-disparagement clause. On the available material, however, I can indicate that if it had been legally open to me to make the declarations, the considerations raised by Mr Gillespie-Jones would not, to my mind, have stood in the way of the declarations being made had I reached the view that it would be appropriate for me to make them.
I should not leave the topic of the declarations sought in respect of the VARE interviews without noting that I do not consider that my refusal to make the declarations would interfere in any way with PS’s right to freedom of expression, with any other legal right possessed by him or another, or with the open court principle.
Turning to the police interview, in considering whether or not I should release the interview, I had regard to the circumstances of this case, and in particular, to the non-exhaustive list of factors outlined by Hollingworth J in Williams.
In respect of the issue of the privacy of participants and others mentioned, Victoria Police did not oppose release of the interview, and did not seek to assert any claim to privacy of the interviewing member. PS did not oppose, and indeed, was supportive of release. As for Mr Kehoe, he did oppose release for reasons spelt out by Mr Gillespie-Jones. Amongst other things, it was asserted on his behalf that he did not consider at the time of taking part in the interview that it would end up on national television. That is no doubt true, but nor did he consider that he was taking part in a process that was and would remain private. He was no doubt, in accordance with the law, informed that anything he said may be given in evidence. In the event, he exercised his right to make no comment. Mr Kehoe was prosecuted for and convicted of his offending. The circumstances of his crime became a matter in the public realm, as did his name and appearance. Whilst the no comment interview was not played during the contested hearing, it is difficult to see what harm would be done to Mr Kehoe by a small portion of that interview being played in the context of a program about his crime. He would prefer the program was not going to air, but the fact is he has no ownership of the recording of his police interview.
Insofar as Mr Kehoe was said to be concerned for his safety should the interview be aired, no basis for such a concern was placed before the Court. The plaintiff made it clear that the address of Mr Kehoe which appeared in the interview would not be revealed, and in any event, he had changed addresses by the time of the application. To my mind, there was no reason at all to suppose that Mr Kehoe’s personal safety would be endangered in any way by the release and airing of the interview.
Turning to the fourth factor listed in Williams, there is nothing to indicate that any person would be adversely affected by the release. The sole victim of the offending was a child at the time who now, as an adult, and with the concurrence of his mother, supported the release of the interview.
Nor would the interview disclose any graphic details of the offending.
As to the next matter, the criminal investigation and resultant prosecution have long since concluded.
In respect of the question whether the release might undermine the integrity of the criminal justice system in the way seemingly contemplated by Hollingworth J, by discouraging the active co-operation of accused persons in police interviews, Mr Kehoe did not co-operate, in that he exercised his right to make no comment in the interview. It is difficult to see how the airing of a small portion of the interview confirming that fact could discourage those who may be minded to co-operate with investigating police from answering questions in a police interview.
As to the issue of the level of contemporaneous public interest in the case, there was none to consider, but it was anticipated and hoped by the plaintiff that the program itself would promote public discussion of a matter of great public interest, namely, the relatively new offence of grooming children for sexual purposes, and the way in which the school attended by the child had responded to the investigation in this case.
In respect of the issue of fair and accurate reporting of a case, it seems to me that as there was to be a renewed focus on the crime in question and its perpetrator, the airing of the interview in the way proposed could only serve to enhance the fair and accurate reporting of the matter, and certainly would not hinder it.
As the interview was not played in court, I did not consider that the principle of open justice had a part to play in my deliberations.
The final matter for consideration, at least insofar as the list of factors in Williams is concerned, was the nature of the proposed publication. In this case, it was asserted on behalf of the plaintiff that the program in prospect would be a thoughtful, non-sensationalist documentary aimed at promoting public discussion rather than simply entertaining. I accepted that that was so, which placed the situation in this case in contrast to some of the other cases seen by this Court. In Hemming, for example, King J, in dealing with the assertion by media outlets that the release of the interview in that case was in the public interest, stated:
What is being sought is the release of the audio-visual to enhance the ‘interest factor’ for television viewing, that is to give the public a chance to ‘see and hear a murderer’. I do not accept that is a matter of public interest.[12]
[12]Hemming (n 11) [31].
I did not consider that the request of the plaintiff for the release of the interview in this case could be viewed in that fashion. There was a legitimate purpose for the requested release, in keeping with the desire to tell an intelligible story about a topic of some obvious interest to the community.
Having weighed the competing arguments in this case, I was persuaded that it was appropriate that the police interview of Mr Kehoe be released to the plaintiff in the terms set out in my orders.
Conclusion
For the reasons stated above, I declined to make the declarations sought by the plaintiff.
I made the orders sought in respect of the police interview of the second defendant.
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