Bissett v Deputy State Coroner
[2011] NSWSC 1182
•07 October 2011
Supreme Court
New South Wales
Medium Neutral Citation: BISSETT v DEPUTY STATE CORONER [2011] NSWSC 1182 Hearing dates: 4 October 2011 Decision date: 07 October 2011 Jurisdiction: Common Law Before: RS HULME J Decision: (i)I revoke the injunction granted by me in this matter on Tuesday 4 October 2011;
(ii) Upon the ground that this order is necessary to prevent prejudice to the proper administration of justice, I order that, until further order, there be no publication of the DVD depicting a walk through interview of the Plaintiff on 30 November 2009, except as an incident of proceedings in the Coroner's Court, or of the exercise of the functions of the Director of Public Prosecutions or to the Plaintiff's present or future legal advisers, providing however that this order shall not extend to restrain the publication of a transcript of the voices recorded on the said DVD.
(iii) Upon the ground that this order is necessary to prevent prejudice to the proper administration of justice, I order that, until further order, there be no publication of the DVD depicting a walk through interview of the Plaintiff on 30 November 2009 to or by the Second Defendant, providing however that this order shall not extend to restrain the publication of a transcript of the voices recorded on the said DVD.
(iv) Upon the ground that this order is necessary to prevent prejudice to the proper administration of justice, I order that until further order that the First Defendant be restrained form releasing to any person or organisation the DVD depicting a walk through interview of the Plaintiff on 30 November 2009, except for the purposes of its use in the Coroner's Court, to the person who produced the DVD in the Coroner's Court, to officers within the office of the Director of Public Prosecutions or to the Plaintiff's present or future legal advisers, providing however that this order shall not extend to restrain the publication of a transcript of the voices recorded on the said DVD.
Catchwords: Courts - evidence - non-publication order Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Cases Cited: DPP (NSW) v Alderman (1998) 45 NSWLR 526
DPP (NSW) v Attallah [2001] NSWCA 17 at [27]
Hogan v Australian Crime Commission (2010) 240 CLR 651
John Fairfax Publications Pty Ltd v Rich (unreported, Barrett J, 18 March 2002; BC 200200924)
The Queen v Rogerson [1991-1992] 174 CLR 268
R v Einfield (unreported, James J, 19 May 2008) at [128].
Einfield v R [2008] NSWCCA 2008; (2008) 252 ALR 375
The Queen v Rogerson [1991-1992] 174 CLR 268
Hogan v Australian Crime Commission (2010) 240 CLR 651Category: Interlocutory applications Parties: Sheree BISSETT
Scott Mitchell Deputy State Coroner
Australian Broadcasting CorporationRepresentation: Ms S Chrysanthou (Plaintiff)
Mr C Lonergan (First Defendant)
Mr M Lewis (Second Defendant)
Walter Madden Jenkins
NSW Crown Solicitor
Australian Broadcasting Commission
File Number(s): 2011/316070
Judgment
RS HULME J: By Summons filed on 4 October 2011 the Plaintiff seeks a number of orders against the Deputy State Coroner and the Australian Broadcasting Corporation directed to precluding the publication of a DVD on which has been recorded a "walk through" interview between the Plaintiff and police officers investigating the circumstances in which the Plaintiff, a police officer herself, fatally shot Adam Salter on 18 November 2009. Similar orders were sought in respect of a transcript of what is recorded on the DVD and a transcript of an interview conducted some time earlier than the "walk through".
The Deputy Coroner has been conducting an inquest into the death of Mr Salter. When Counsel assisting sought to tender the documents referred to in the preceding paragraph objection on behalf of the Plaintiff was made but overruled. An objection to the playing of the DVD resulted in a similar ruling.
On 30 September last after the DVD was played the ABC made application for access to it. This also resulted in objection on behalf of the Plaintiff who seems also to have sought a non-publication order.
Although exactly what the coroner ordered is not completely clear, it seems that at about 5.10pm on 30 September 2011 he agreed to the ABC request but effectively imposed a non-publication order until 6.15pm that evening to give the Plaintiff some time to challenge his decision. Some 10 minutes before this deadline expired, I was telephoned in my capacity as duty judge and in the minute or so before 6.15pm I ordered:-
That until Tuesday next at 12 midday, there be no publication of the DVD featuring Sergeant Bissett which was the subject of the Coroner's order for non-publication until 6.15pm tonight.
I adjourned the proceedings until 9.00am on Monday 4 October. When the matter resumed, counsel for the Plaintiff indicated that she wished a continuation of the injunction. Counsel for the ABC opposed this. A full hearing of the application then took place. I extended the injunction up until midday on Friday, 7 October 2011 reserving my decision but indicating it would be handed down prior to that time.
The shooting of Mr Salter occurred in the morning of 18 November 2009. At about 4.15pm that day, there was a recorded interview between Sergeant Bissett and two detectives from the Homicide Squad. At an early stage of that interview, Detective Sergeant Gorman directed Sergeant Bissett pursuant to Clause 9(1) of the Police Regulations 2000 to answer questions asked of her and informed her that if she refused she might be subject to disciplinary action. He also informed her that she was required to answer questions truthfully. He invited comment and Sergeant Bissett responded to the following effect:-
Yes, before answering any questions in this record of interview I wish the following to be recorded. I believe that you are investigating a critical incident that I have been involved in. You have told me that you do not intend cautioning me and you have told me that I am directed to participate in this record of interview and to answer your questions. I wish it known that any answer I make and anything I do is not said or done of my free will but because I am compelled to do so, by your direction to me. I also wish it known that if you caution me I will exercise my privilege against self incrimination and not participate in this record of interview. I wish it understood that I will object to this record of interview and anything that derives from it being admitted into evidence or otherwise being used in any criminal, disciplinary, civil or any other proceedings that are to be taken against me. I will take the same objection in any such proceedings at which I am called as a witness or joined as a party or any such proceedings that are commenced by me or on my behalf. I will also object to any other person in any such proceedings giving evidence about the contents of this record or interview, or giving any evidence that derives from the information contained within this document.
Nevertheless the interview proceeded and Sergeant Bissett answered the questions asked. Then on 30 November Sergeant Bissett participated in a "walk through" interview at the scene of the shooting in the course of which she answered further questions and indicated the position of persons and, by description and demonstration, their actions at about the time of the shooting. Again soon after the commencement of the interview, Detective Inspector Oxford who was conducting it, informed Sergeant Bissett that he was directing her to answer questions and asked whether there was anything she wished to say. Sergeant Bissett said:-
Just that I have the same objection that I made when I was originally interviewed. The fact that I am under police direction and that I object to it being admitted into any courts.
Asked at the end of the interview whether she wished to add anything, Sergeant Bissett responded by saying:-
Just that under legal advice at the moment, I objection to this recording being given to the Coroner.
The evidence in the coronial proceedings concluded on the afternoon of 30 September 2011 when the proceedings were adjourned to Friday, 7 October 2011 for the purposes of submissions. With the exception of the transcripts and DVD to which I have referred, that evidence was not before me but it was common ground that before the Coroner the evidence provided conflicting versions of what occurred at the time of the shooting of Mr Salter and there was a suggestion that there had been a police cover-up. The Deputy Coroner did not require Sergeant Bissett to give evidence.
In the circumstances it is preferable that I say no more than necessary as to the possible or likely result of the coronial proceedings. There is however in both the DVD and the transcripts, evidence that the Plaintiff fired her pistol at Mr Salter deliberately. The deliberate firing of a pistol at someone clearly provides evidence of an intent to do at least grievous bodily harm and I am satisfied there are real, and not merely remote or fanciful possibilities that the Deputy Coroner will refer the matter to the Director of Public Prosecutions for consideration and that Sergeant Bissett will be charged with a serious criminal offence.
Nor do I need to say much about the detail of the evidence which is the subject of these proceedings. Although taken in totality it is exculpatory, if particular parts of it are rejected, the balance can properly be regarded as inculpatory.
On behalf of the Plaintiff it was submitted that, in light of her objections stated at the beginning of the interviews on 18 and 30 November 2009, the content of those interviews would not be admissible over objection in the course of any criminal proceedings against her. Counsel for the Defendant did not challenge this submission and certainly a number of provisions of the Evidence Act, including s 90, provide grounds for arguing that the DVD and the transcripts of the interviews should not be admitted in any trial of the Plaintiff. However, when regard is had to the decisions in DPP (NSW) v Alderman (1998) 45 NSWLR 526 and DPP (NSW) v Attallah [2001] NSWCA 17 at [27] it may well be that the submission is incorrect. That said, given the extent of the discretions or exercises in judgment likely to be involved in any decision whether to admit into evidence what the Plaintiff said in the two interviews, it is appropriate to proceed on the basis that there is a substantial possibility that the records of the two interviews would not be admitted in any trial.
As advanced in the Plaintiff's submissions, the application to this Court is based upon the terms of the Court Suppression and Non-publication Orders Act 2010 which, so far as is presently relevant, provides:-
6. In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
7. A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:-
(a) ...
(b) Information that comprises evidence, or information about evidence, given in proceedings before the court.
8(1) A court may make a suppression order or non-publication order on one or more of the following grounds:-
(a) The order is necessary to prevent prejudice to the proper administration of justice,
(b) ...
8(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
14(1) With leave of the appellate court, an appeal lies against:
(a) A decision of a court (the "original court" ) to make or not make a suppression order or non-publication order, or
(b) ...
14(4) On an appeal under this section, the appellate court may confirm, vary or revoke the order or decision subject to the appeal and may make any order or decision under this Act that could have been made in the first instance.
14(5) An appeal under this section is to be by way of re-hearing, and fresh evidence or evidence in addition to, or in substation for, the evidence given on the making of the decision may be given on the appeal.
The "appellate court" within section 14 is the Supreme Court.
On behalf of the Plaintiff, it was submitted that the proper administration of justice would be prejudiced by publication of the material the restraint of which is now sought because, that publication, of in her submission inadmissible material, would be calculated to prejudice the Plaintiff in the event of any charge being brought. Counsel submitted that the situation was a fortiori in the case of the DVD the images upon which were, so it was contended, more likely to impress themselves upon, and be retained in, the memory of any viewer. Counsel also submitted that if the DVD was given to the ABC at this stage and publication permitted, it would be open to that organisation and other news media to repeat the publication at any future time and any further attempt by Sergeant Bissett to stop that re-publication be met with the argument that the material was already in the public domain
Mr Lewis, counsel for the Defendant, submitted that as this material had been admitted into evidence by the coroner, the principles of open justice meant that there should be no restraint on publication. Reference was made to the decision of the High Court in Hogan v Australian Crime Commission (2010) 240 CLR 651, remarks of Barrett J in John Fairfax Publications Pty Ltd v Rich (Unreported, 18 March 2002; BC 200200924), to the Agreement in Principal Speech, Court Suppression and Non-publication Orders Bill, Legislative Assembly, debates, 29 October 2010, p27195 and to s 6 of the Act.
Mr Lewis also submitted that the Plaintiff's concerns were purely hypothetical at this time. He submitted that the Plaintiff's case was that (as transcribed):-
... There may be a potential juror at a potential future time suffering potential prejudice which may cause potential prejudice general to the Plaintiff.
It followed, he submitted, that there was no "proper administration of justice" at this time which could be prejudiced by publication.
In The Queen v Rogerson [1991-1992] 174 CLR 268 at pages 277-8, Mason CJ said:-
It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed. That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible. In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceedings before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency. ... Action taken to prevent the institution of a prosecution is as much an interference with, or impairment of, the administration of justice as action taken to obstruct the conduct of a prosecution after it has been commenced.
At pages 280-282 Brennan and Toohey JJ made remarks to similar effect. See also R v Einfield (unreported, James J, 19 May 2008) at [128].
In Einfield v R [2008] NSWCCA 2008; (2008) 252 ALR 375 the Court of Criminal Appeal had occasion to consider the expression "course of justice" and similar expressions. Although that consideration has no direct application here, in light of it I see no reason to draw any distinction between "the course of justice" and "the administration of justice". By parity of reasoning with what was said in The Queen v Rogerson , the proper administration of justice may be prejudiced even before proceedings are instituted or it is uncertain whether they will be.
However there remains the question whether a suppression or non-publication order can be said to be "necessary" to prevent prejudice when it is not known whether there will ever be relevant proceedings. How can it be said that there is or will be prejudice which it is necessary to prevent, if no proceedings are ever instituted? "Necessary" in this context, is a strong word - Hogan v Australian Crime Commission at [30]
The answer lies in the fact that the proper administration of justice involves taking account of matters that may never occur. It involves taking account of possibilities, e.g. that persons who may become jurors may read something, that such persons may be influenced, that they may not be able to put a matter out of their minds. To take an example of information, very prejudicial to an accused person but inadmissible in a forthcoming trial and certain to be the subject of considerable newspaper publicity on the day before the trial commences, one would not require evidence that it would be read by the persons, as yet unselected, who were to become jurors in the trial before one could conclude that an order was necessary to prevent prejudice.
Thus I am satisfied that the circumstances are such that there is power to make an order under s8 of the Court Suppression and Non-publication Orders Act 2010. I turn to the question of whether an order should be made.
To be taken into account is the nature of the medium the publication of which the Plaintiff seeks to suppress. Insofar as the material consists of transcripts, publication of their contents is likely to take the same form as publication of other aspects of the evidence before the Deputy Coroner, i.e. in printed form in newspapers or by being summarised or repeated orally by a news reader or the like. It is likely to have no greater weight than the publication of other aspects of the evidence before the Deputy Coroner. The information on the DVD however falls into a different category. For in its inherent nature it will be appreciated not simply by one sense, but two - hearing and sight.
After watching the DVD I observed that there was nothing at all of particularly dramatic impression on the DVD. Nevertheless there are scenes that may not readily be forgotten, e.g. the Plaintiff pointing out the position on Mr Salter's back that she aimed for. Furthermore, one may reasonably infer that the DVD's contents are calculated to impress themselves more on any audience than a reading or hearing of any transcripts. What otherwise is the rationale for much of the content of television? Why does one see television camera crews waiting so long outside the Supreme Court for video shots of persons thought to be of some public interest? I have no doubt that publication of the contents of the DVD is significantly more likely to be remembered than mere publication of the transcripts of the interviews or extracts therefrom.
In the result, the conclusion at which I have arrived is that the publication of the transcripts of both interviews is unlikely to prejudice the proper administration of justice and the application to restrain that publication should be refused. Because of what I perceive to be the significantly greater likely impact and the likelihood of the detail of its contents being remembered, publication of the contents of the DVD is liable to prejudice the proper administration of justice, and that publication should accordingly be restrained. I am satisfied that such restraint is necessary to prevent prejudice to the proper administration of justice.
In arriving at the conclusion expressed in the last sentence of the immediately preceding paragraph, I have taken account not only of the matters to which I was and have referred, including s 6 of the Act, but also of what the members of the High Court said in Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30] - [33]. That approach means that I am not engaged in some balancing exercise, weighing the possibility of prejudicing the proper administration of justice and comparing that possibility with the public interest in the openness of Court proceedings and/or media organisations being able to publish evidence given and/or the public being able to view such evidence.
However, against the possibility that some balancing of prejudice to the administration of justice and the public interest in the ABC being free to publish the material the publication of which is sought to be restrained, is required, it is appropriate to add the following.
The expression public interest has a number of connotations. On the one hand there is the public interest, i.e. benefit, in court proceedings being conducted in the open so that decisions can be seen to be rational, the result of evidence and reasoning and the results a demonstration of justice. A further advantage is that those involved in the proceedings know that their conduct is liable to public scrutiny. On the other there is public interest in the sense of the public being interested or curious about a person, evidence or topic who or which is a subject being dealt with in proceedings. Of course, commonly the public interest in both senses will be served in the one report.
Rarely in applications of the nature of that with which I am concerned is attention given to the difference yet I venture to suggest that public interest of the first type I have mentioned is by far the most important. Public interest of the second type is not uncommonly the product of the media itself which chooses what court proceedings and what aspect of any court proceedings will be brought to the public's attention and in fact by ignoring the vast bulk of court proceedings - I venture to suggest well over 99% - contributes to the result that the public hear little of what transpires in courts. Claims by the media that the public interest demands that non-publication orders should not be made should be considered in light of the fact that the media itself elects not to publish nearly everything that occurs and the selection of what is published is commonly not the most important.
The remarks just made are not intended to be a criticism of the media that as businesses have their own interests to serve. The remarks are made simply to put in context the claim that the public interest requires that there be publication. In that connection it is also relevant to bear in mind that the public interest will often not be damaged if publication is delayed. In a situation such as that here the fact that the Coronial inquest was last week rather than a month or two hence is probably the result of the interplay of a number of factors which could easily have been slightly different and delayed the inquest for some time. Had such a delay occurred, then the publication of information from the inquest would have been similarly delayed: it is difficult to see that that if that occurred, there would have been any, or any significant, diminution in public interest.
Were I to indulge in any balancing exercise, I would take the view that the public interest required that there be no prohibition of the transcripts of the Plaintiff's interviews, both because of their relevance to Mr Salter's death and because of the nature of the interrogation of her in the walk around video. As I said during the course of the hearing, " I have never seen and interviewing officer so disposed to help a person being interviewed as I have seen in that video". I would also take the view that nothing required a permanent prohibition on publication of the DVD but that its publication should be delayed until it becomes apparent that no trial of the Plaintiff is likely in the foreseeable future or such a trial had been held.
I should also add this. I acknowledge that my decision not to restrain publication of the transcripts of the interviews somewhat weakens the case for restraining the publication of the visual contents of the DVD. Nevertheless, I have explained why I regard the transcripts and the DVD as falling on opposite sides of the dividing line of necessity.
Accordingly, subject to any matters of detail that the parties may wish to raise, the appropriate orders seem to be:-
(i) I revoke the injunction granted by me in this matter on Tuesday 4 October 2011;
(ii) Upon the ground that this order is necessary to prevent prejudice to the proper administration of justice, I order that, until further order, there be no publication of the DVD depicting a walk through interview of the Plaintiff on 30 November 2009, except as an incident of proceedings in the Coroner's Court, or of the exercise of the functions of the Director of Public Prosecutions or to the Plaintiff's present or future legal advisers, providing however that this order shall not extend to restrain the publication of a transcript of the voices recorded on the said DVD.
(iii) Upon the ground that this order is necessary to prevent prejudice to the proper administration of justice, I order that, until further order, there be no publication of the DVD depicting a walk through interview of the Plaintiff on 30 November 2009 to or by the Second Defendant, providing however that this order shall not extend to restrain the publication of a transcript of the voices recorded on the said DVD.
(iv) Upon the ground that this order is necessary to prevent prejudice to the proper administration of justice, I order that until further order that the First Defendant be restrained form releasing to any person or organisation the DVD depicting a walk through interview of the Plaintiff on 30 November 2009, except for the purposes of its use in the Coroner's Court, to the person who produced the DVD in the Coroner's Court, to officers within the office of the Director of Public Prosecutions or to the Plaintiff's present or future legal advisers, providing however that this order shall not extend to restrain the publication of a transcript of the voices recorded on the said DVD.
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Decision last updated: 19 October 2011
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