Collard v The State of Western Australia [No 2]
[2013] WASC 55
COLLARD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASC 55
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 55 | |
| Case No: | CIV:1772/2010 | 13 FEBRUARY 2013 | |
| Coram: | PRITCHARD J | 14/02/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application to film proceedings refused | ||
| B | |||
| PDF Version |
| Parties: | DONALD COLLARD SYLVIA RACHEL COLLARD GLENYS DALE COLLARD ELLEN THOMAS EVA JETTA WESLEY ROHAN COLLARD BEVERLEY ANNE HUMPHRIES DARRYL FREDERICK COLLARD BONNIE COLLARD MILLER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Leave to film proceedings Inherent jurisdiction of the court to control its own proceedings Supreme Court of Western Australia Consolidated Practice Directions 2009 Considerations relevant to exercise of discretion Whether reasonable need for recording to be made Absence of consent of some parties Potential impact on witnesses while giving evidence |
Legislation: | Nil |
Case References: | Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Hot Holdings v Creasey (2002) 210 CLR 438 Johnson v Johnson (2000) 201 CLR 488 Livesey v NSW Bar Association (1983) 151 CLR 288 Michael Wilson & Partners Ltd v Nicholls (2011) 282 ALR 685 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Macquarie University; ex parte Ong (1989) 17 NSWLR 113. Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 Vakuata v Kelly (1989) 167 CLR 568 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- SYLVIA RACHEL COLLARD
First Plaintiffs
GLENYS DALE COLLARD
Second Plaintiff
ELLEN THOMAS
Third Plaintiff
EVA JETTA
Fourth Plaintiff
WESLEY ROHAN COLLARD
Fifth Plaintiff
BEVERLEY ANNE HUMPHRIES
Sixth Plaintiff
DARRYL FREDERICK COLLARD
Seventh Plaintiff
BONNIE COLLARD MILLER
Eighth Plaintiff
AND
- THE STATE OF WESTERN AUSTRALIA
First Defendant
Catchwords:
Leave to film proceedings - Inherent jurisdiction of the court to control its own proceedings - Supreme Court of Western Australia Consolidated Practice Directions 2009 - Considerations relevant to exercise of discretion - Whether reasonable need for recording to be made - Absence of consent of some parties - Potential impact on witnesses while giving evidence
Legislation:
Nil
Result:
Application to film proceedings refused
Category: B
Representation:
Counsel:
First Plaintiffs : Mr G M G McIntyre SC & Mr J I Crabtree
Second Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Third Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Fourth Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Fifth Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Sixth Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Seventh Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
Eighth Plaintiff : Mr G M G McIntyre SC & Mr J I Crabtree
First Defendant : Mr R M Mitchell SC & Mr T C Russell
Non party : Ms A Bennetts
(Page 3)
Solicitors:
First Plaintiffs : Lavan Legal
Second Plaintiff : Lavan Legal
Third Plaintiff : Lavan Legal
Fourth Plaintiff : Lavan Legal
Fifth Plaintiff : Lavan Legal
Sixth Plaintiff : Lavan Legal
Seventh Plaintiff : Lavan Legal
Eighth Plaintiff : Lavan Legal
First Defendant : State Solicitor for Western Australia
Non party : Ms A Bennetts
Case(s) referred to in judgment(s):
Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hot Holdings v Creasey (2002) 210 CLR 438
Johnson v Johnson (2000) 201 CLR 488
Livesey v NSW Bar Association (1983) 151 CLR 288
Michael Wilson & Partners Ltd v Nicholls (2011) 282 ALR 685
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re Macquarie University; ex parte Ong (1989) 17 NSWLR 113.
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509
Vakuata v Kelly (1989) 167 CLR 568
(Page 4)
- PRITCHARD J:
(This judgment was delivered extemporaneously on 14 February 2013 and has been edited from the transcript.)
1 By an undated application made in writing and supplemented by oral submissions yesterday, Ms Anna Bennetts has applied for the leave of the court to film part of the proceedings in this trial. Ms Bennetts seeks to record the evidence of the plaintiffs and the closing submissions in the trial.1 For the reasons which follow, I have decided that the application should be refused.
2 Historically, hearings before the courts have not been recorded other than for the purpose of transcribing the proceedings. However, in more recent times in this State there have been occasions when cameras have been permitted into courtrooms to film proceedings.
3 The court clearly has the power to permit as well as to prohibit the recording of proceedings before it. The source of that power necessarily lies within the inherent jurisdiction of the court to control its own process.2 The court also clearly has a discretion as to whether to permit its proceedings to be recorded and in any given case a range of different considerations may be relevant to the exercise of that discretion.
4 Some guidance in relation to the exercise of the court's discretion has been set out in the Consolidated Practice Directions of the court (Practice Directions).3 Under the Practice Directions, the starting point for the exercise of the court's discretion is that proceedings before the court may not be recorded,4 except with the leave of the court or a judicial officer.
5 The Practice Directions make clear that leave to record proceedings may be granted or refused at the discretion of the judicial officer. Although that discretion is unlimited, the Practice Directions set out various factors which are relevant to the exercise of the discretion, namely: 5
(Page 5)
- (a) the existence of any reasonable need on the part of the applicant, whether a litigant in person or connected with the press, radio or television, for the instrument to be used or any film or sound recording to be made;
(b) in a criminal or civil case in which a direction has been given excluding one or more witnesses from the court, the risk that any film or sound recording could be used for the purpose of briefing witnesses out of court; and
(c) any possibility that the use of any such instrument will disturb the proceedings or distract or worry any witnesses or other participants in the proceedings.
6 I have carefully taken into account the submissions made by Ms Bennetts in support of her application. A number of matters raised by Ms Bennetts provide support for the exercise of the discretion to permit recording of the present proceedings.
7 First, Ms Bennetts has advised me that she has the consent of at least some of the plaintiffs to film their evidence and the proceedings.
8 Secondly, the case is one of considerable public interest. There have been few cases involving legal action of the present kind in this country and this is the first such action to have been brought to trial in this state. Some of the legal principles involved are novel and the factual issues and the evidence are no doubt of considerable public interest.
9 Thirdly, Ms Bennetts kindly set up the camera which she proposed to use in the courtroom so that the Court and the parties' solicitors might see what would be involved in terms of the presence of the camera in the courtroom. I accept that in terms of its physical presence, the equipment would be unobtrusive.
10 However, these factors are, in my view, outweighed by a number of other factors which militate against the grant of leave to record the proceedings.
11 First, Ms Bennetts has not, in my view, demonstrated a reasonable need to record the proceedings. In her application and in her oral submissions, Ms Bennetts gave two reasons for wanting to film the hearing. First, Ms Bennetts says that she is a friend of the Collards, and that Mr Collard, in particular, wants her to film the proceedings as a record of what occurs.
(Page 6)
12 Secondly, Ms Bennetts said she is trying to make a film and write a book to tell the Collards' story. I observe that insofar as the plaintiffs wish to record or to tell their story, that can be done without the filming of their evidence. Furthermore, Ms Bennetts indicated that she does not presently have any agreement with any media outlet to broadcast any film which she may make in relation to this case. Instead, Ms Bennetts merely has the hope that any film she makes might be bought for broadcast. In fact, Ms Bennetts made clear that by filming the proceedings she hoped that any film she made would be more readily sold to a media outlet.
13 These considerations do not, in my view, amount to a reasonable need to record the proceedings.
14 The second factor which militates against the grant of leave to record the proceedings is that although Ms Bennetts has the consent of some of the plaintiffs to record the proceedings, she has not obtained the consent of them all. Ms Bennetts acknowledged that one of the plaintiffs has expressly refused to consent and Ms Bennetts has not discussed the matter with two of the other plaintiffs.
15 In addition, counsel for the defendant has indicated that he is not prepared to give his consent to being filmed in the course of the proceedings having regard to other concerns he raised in the course of his submissions about the merits of the application. The active objection of a party or of counsel to the filming of proceedings weighs against the exercise of the discretion to permit the filming of the proceedings.
16 I do not see that the absence of the consent of some plaintiffs, and of counsel would easily be accommodated in the present case. The evidence of the plaintiffs overlaps to some extent in that their evidence about their own experiences also touches on the experiences of the other plaintiffs. In addition, it would not be easy to film the proceedings in such a way as to exclude counsel for one of the parties.
17 Thirdly, the refusal of the consent of one plaintiff and the absence of consent by two others raises for consideration the third factor identified in the Practice Directions, namely the prospect that the filming of the proceedings might disturb, distract or worry those plaintiffs who have not consented to the filming of their evidence.
18 Notwithstanding that some of the plaintiffs have given their consent to being filmed while giving their evidence, I remain concerned that the filming might nevertheless have an adverse impact on them in giving their evidence. That concern has two aspects. First, the evidence in this case
(Page 7)
- concerns very personal and highly traumatic events in which the plaintiffs were each involved. The oral evidence which the plaintiffs will give in court will be confined to their cross examination. The plaintiffs cannot predict with certainty what areas that cross examination may cover and consequently, they cannot anticipate how they will feel when giving their evidence and much less how they will feel if they are aware that their evidence is being filmed at the same time. Secondly, there are likely to be submissions made as to whether the Court should conclude that the evidence of the plaintiffs as to events such a long time ago can be regarded as reliable. In those circumstances, it would be most unfortunate if the manner in which the plaintiffs gave their evidence could in any way be adversely affected by the presence of a camera in the courtroom.
19 The fourth factor weighing against the grant of leave is that while Ms Bennetts indicated that she would take steps to ensure that the plaintiffs would own the film, when pressed, it did not appear that that would necessarily be the case. Ms Bennetts indicated that she intended to consult with the plaintiffs about any film that she produced, for example, but it appears likely that Ms Bennetts would retain control over the end product to a very large extent. In this respect, counsel for the plaintiffs submitted that any concern about whether the plaintiffs might be worried about the use of the footage taken of the proceedings could be allayed by the imposition of conditions on the use which might be made of that footage.
20 Although the Practice Directions contemplate that the grant of leave to film proceedings in court might be made subject to conditions as to the use of the footage taken, there is some room for doubt about the extent to which conditions could be imposed to effectively restrict what use is made of footage some time into the future, particularly in circumstances such as those in the present case, where there appears to be uncertainty about precisely what use might be made of that footage in due course. Moreover, there is room for doubt as to how such conditions could effectively be enforced.
21 A fifth consideration which militates against the grant of leave is that the trial is being conducted by way of the tender of witness statements as the evidence in chief of each of the many witnesses. It follows that much of what would be filmed by the presence of a camera in the court room would be confined to the cross-examination of the witnesses. This would give rise to the potential problem that viewers of any such footage would have an incomplete and possibly erroneous picture of the totality of the evidence.
(Page 8)
22 Sixthly, a concern that I have expressed on a number of occasions so far has been that the evidence of the plaintiffs contains a number of allegations about persons who will not be called to give evidence or who are not able to be called to give evidence, and who will lack the opportunity to respond in any meaningful way to those allegations.
23 The final consideration which I have taken into account, but to which I have ultimately not accorded any weight, is the submission made by counsel for the defendant to the effect that leave should be refused because there is the prospect that filming the proceedings might give rise to a reasonable apprehension by a fair-minded observer6 that the Court itself might be influenced by the presence of the camera in the courtroom. I am far from persuaded, having regard to the authorities in relation to the application of the test for the reasonable apprehension of bias,7 that such a test would be satisfied in this case. However, it is unnecessary to explore that point further because I am satisfied, having regard to the other factors to which I have referred, that my discretion should be exercised to refuse leave to film the proceedings in this case.
24 Leave to film the proceedings is refused.
______________________________________
1 In her application Ms Bennetts made reference to recording the evidence given by the expert witnesses, but she did not press that part of the application in the course of the hearing and I say no more about it.
2 See generally, Batistatos v Newcastle City Council[2006] HCA 27; (2006) 226 CLR 256.
3Supreme Court of Western Australia Consolidated Practice Directions 2009.
4 The manner in which this result is achieved is by a prohibition on bringing videos, cameras, tape-recorders or other recording instruments into the courtroom rather than a prohibition on the recording of the proceedings per se: see Supreme Court of Western Australia Consolidated Practice Directions 2009 [3.1.1].
5Supreme Court of Western Australia Consolidated Practice Directions 2009 [3.1.4] - [3.1.6].
6Johnson v Johnson (2000) 201 CLR 488 [11] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
7Johnson v Johnson; Ebner v Official Trustee in Bankruptcy(2000) 205 CLR 337; Michael Wilson & Partners Ltd v Nicholls (2011) 282 ALR 685; Hot Holdings v Creasey(2002) 210 CLR 438; Vakuata v Kelly(1989) 167 CLR 568; Livesey v NSW Bar Association(1983) 151 CLR 288; Minister for Immigration and Multicultural Affairs v Jia Legeng(2001) 205 CLR 507; Stollery v Greyhound Racing Control Board(1972) 128 CLR 509; Re Macquarie University; ex parte Ong(1989) 17 NSWLR 113.
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