Director of Public Prosecutions v Williams (Ruling no. 1)
[2015] VSC 107
•27 March 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0189
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANGELA MAREE WILLIAMS |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 December 2014 |
DATE OF JUDGMENT: | 27 March 2015 |
CASE MAY BE CITED AS: | DPP v Williams (Ruling no. 1) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 107 |
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CRIMINAL LAW – Evidence – Application by media for copy of record of interview – Application refused – General principles relevant to such an application discussed – Crimes Act 1958 s 464JB
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APPEARANCES: | Counsel | Solicitors |
| For Nine Network Australia Pty Ltd | Mr J-P Cashen | Kelly Hazell Quill |
| For the Offender | Mr L Hartnett | Bowman & Knox |
HER HONOUR:
The current application
Angela Williams was charged with the murder of her partner, Douglas Kally. At the time of his death in July 2008, Ms Williams and Mr Kally had been in a relationship for 23 years. They had two children together, Spencer and Simone.
Her trial began on 26 March 2014. On 9 April 2014, the jury found Ms Williams not guilty of murder, but guilty of the lesser offence of defensive homicide. In reaching the verdicts that it did, the jury must have accepted that Ms Williams killed Mr Kally against a background of his serious domestic violence towards herself and the children. On 27 June 2014, Ms Williams was sentenced to a term of imprisonment, which reflected the jury’s verdicts.[1]
[1]DPP v Williams [2014] VSC 304.
Immediately after the jury returned their verdicts, one of the television stations requested access to Ms Williams’ audio-visual record of interview with Victoria Police (“the ROI”). The defence opposed that application. I refused access on the basis that the ROI included matters which were personal and potentially distressing (not only to Ms Williams, but also to family members on both sides), particularly if edited selectively or taken out of context.
By summons dated 10 December 2014, Nine Network applies under s 464JB of the Crimes Act 1958 to access, copy, edit, play or publish a copy of the ROI. Nine Network wishes to broadcast portions of the ROI on the television program “A Current Affair”, as part of a report on this proceeding.
Since Ms Williams is directly affected by this application, she was given a chance to be heard, and was represented on the day of the application. Ms Williams strongly opposed the application.
Victoria Police did not appear, but advised in writing that it did not oppose the application.
The previous practice
Prior to the introduction of s 464JB, this court determined applications for access to records of interview under its general common law power to manage exhibits tendered before the court. Most applications for access were refused. In the case of DPP (Cth) v Thomas,[2] Cummins J explained the reasons for that practice as follows:
Generally speaking I am firmly of the view that videos or audios of accused persons who are in custody ought not be released to the media for playing on the news or other media programs. Of course, the answers by the accused in such circumstances are voluntary, otherwise the Court would not have admitted the answers in the first place. But the situation is coercive, namely the accused has normally been arrested and is giving voluntary answers in the context of being arrested.
More fundamentally I have traditionally declined such media requests because I have always considered there is a significant prospect that the playing of such visual items in particular, but also audio items, in the media has a significant antipathetic potential to the administration of justice in that it is quite likely that persons in the future might say to themselves, when asked whether they seek to exercise their important right of silence, that they would be prepared to exercise the right to speak for purposes of the criminal investigation and potential trial, but will exercise the right of silence because they do not want themselves to be on national television, including to their dear ones. I do not consider that is a fanciful prospect given the power of the media, particularly of television, in the community. So traditionally I have refused such applications and I do not resile from that in this ruling in any way.[3]
[2][2006] VSC 88 (Ruling No 15).
[3]At [3]-[4].
In that particular case, which involved terrorism charges, his Honour did in fact permit the release after verdict of the audio record of interview, in the exceptional circumstances of that case. Those exceptional circumstances had two aspects. The first was what his Honour described as the “huge public interest” in the operation of Australian law overseas, and its enforcement in the arrest and interviewing of Mr Thomas in Pakistan, not Australia. The second was that because Mr Thomas’ interview had been conducted by the Australian Federal Police in Pakistan, ordinary accused persons being interviewed in Australia were not likely to be affected in their decision as to whether or not to participate in an interview by the knowledge that Mr Thomas’s record of interview had been aired.
The concern identified by Cummins J (about the possible effect of release on the willingness of other accused persons to answer police questions in interview) has been repeated by other judges, in cases which will be discussed shortly.
The Victorian legislation
In 2009, parliament introduced amendments to the Crimes Act, dealing with the digital evidence capture technology used by Victoria Police to record interviews with suspects in indictable crime matters. Those amendments came into effect on 1 November 2010.
Section 464JA of the Crimes Act creates a series of offences in relation to audio or audiovisual recordings made by Victoria Police under that Act. In general terms, it is an offence to possess, play, supply, copy, tamper with, or publish such a record of interview, other than to authorised persons or in specified circumstances.[4] Authorised persons include police and prosecuting authorities, suspects and their lawyers, other investigative agencies, courts and parliament.[5] Members of the media are not authorised persons.
[4]Sections 464JA(2) to (7).
[5]Section 464JA(1).
Records of interview are permitted to be played in various court, investigative or disciplinary proceedings,[6] or other specified circumstances. One of those specified circumstances is where the recording is played with the direction of a court under s 464JB.
[6]Section 464JA(3)(a) to (d).
The publication which is prohibited by s 464JA specifically includes publication in a newspaper, by broadcast or telecast, or by bringing to the notice of the public by any other means including by the internet.[7] Publication of all or any part of a record of interview is only permitted with the direction of a court under s 464JB.
[7]Section 464JA(1).
Section 464JB(2) provides that:
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.
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.
Section 464JB is drafted in broad terms, and does not purport to describe the circumstances in which the court’s discretion may be exercised.
Sections 464JA and 464JB were introduced into the Crimes Act by the Justice Legislation Miscellaneous Amendments Act 2009.
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 details and possibly graphic details of offences being made public unnecessarily.[8]
[8]Victoria, Parliamentary Debates, Legislative Assembly, 15 October 2009, 3689.
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 records 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 processes that may occur through the uncontrolled proliferation of records in interviews.[9]
[9]Ibid, p 3687.
Relevant authorities
In the second reading speech, the Minister noted that the provisions had been modelled on existing legislation in Western Australia, which he said had worked effectively.[10] It is therefore convenient to commence with a discussion of the WA legislation and authorities.
[10]Ibid, p 3690.
Part 11 of the Criminal Investigation Act 2006 (WA) creates a regime which governs the recording and use of records of interview. Section 121 provides that a person may not broadcast all or part of a record of interview unless the broadcast is made under the direction of a court under s 122. Section 122 provides that:
The Supreme Court, District Court, Magistrates Court or Children’s Court may give directions (with or without conditions) as to the supply, copying, editing, erasure, playing, or broadcast of an audiovisual recording of an interview.
As with s 464JB of the Victorian Act, s 122 is drafted in broad terms, and does not attempt to limit the circumstances in which the court’s discretion may be exercised.
The leading case on the interpretation of s 122 is the decision of the majority in the Western Australian Court of Appeal in Ex parte West Australian Newspapers Ltd.[11] That state’s Corruption and Crime Commission had conducted hearings into the propriety of an investigation and prosecution of Andrew Mallard (whose conviction for murder was ultimately overturned by the High Court). In the course of a police re-investigation of the murder, Simon Rochford became a suspect; he was interviewed by police. The Rochford record of interview was subsequently played in the CCC hearings.
[11](2008) 38 WAR 177.
A newspaper applied to the Supreme Court for directions under s 122, permitting the CCC to release parts of the record of interview, and the media to broadcast those parts. Mr Rochford was dead by the time of the application to the court.
At first instance, the judge followed earlier WA authorities and refused the application. According to those earlier authorities, in order to succeed an applicant had to show that the directions sought would positively advance the interests of justice, or that there were exceptional circumstances justifying the directions.
The majority[12] held that the words of s 122 did not import any such limitation, and the earlier decisions were wrong. They held that s 122 confers a general, unconstrained discretion on the court, to be exercised taking into account all relevant facts, matters and circumstances, including the subject matter, scope and evident legislative purpose of the WA Act. There was nothing in the WA Act which would exclude from consideration relevant aspects of the public interest, or legitimate private interests, or considerations such as the public interest in personal privacy (on the one hand) or in freedom of expression (on the other).[13]
[12]Martin CJ and Newnes AJA; McClure JA dissenting.
[13]At [64].
Martin CJ (with whom Newnes AJA agreed) said that the general purpose of Part 11 of the WA Act was to enhance the quality of confessional evidence given in criminal proceedings.[14] Cast in more general terms, the purpose of Part 11 was to enhance the administration of criminal justice, in particular that aspect of the administration of justice that relates to criminal investigations.[15] Courts should consider those purposes when exercising the discretion under s 122.
[14]At [54].
[15]At [55].
The Chief Justice went on to note that the legislative restrictions on records of interview were far greater than on other evidence gathered in a criminal investigation (such as crime scene photographs, or the results of forensic procedures). After considering possible explanations for that difference in treatment of types of evidence, his Honour concluded:
In my opinion the fundamental distinction between the evidence obtained by making an audiovisual recording pursuant to Pt 11, and evidentiary material gathered in the exercise of the general powers conferred by the Criminal Investigation Act, is that the former requires the consent and co-operation of the suspect. … [I]t is I think reasonable to infer that the legislature may, at least in part, have been motivated by a concern that if it were to become commonplace for video recorded interviews to be supplied to the media against the wishes of the interviewee, this could discourage voluntary participation in video records of interview, to the detriment of the administration of justice.[16]
[16]At [62].
These various statements of general principle made by the majority are equally apposite in construing s 464JB of the Victorian Act.
In the WA Newspapers case, the court found that:
(a) Publication in that case could not adversely affect the administration of justice;
(b) There was no pending investigation and no trial that publication could compromise; and
(c) It was in the public interest for the CCC to have the capacity to release the record of interview, if it determined that to be in the public interest.
Those matters were held to outweigh the countervailing consideration that disclosure might discourage other prospective suspects from participating in video recorded interviews with police. That countervailing consideration was said to be speculative, because the interviewee, Mr Rochford, was already dead, and his attitude towards publication was unknown.
Martin CJ refused an application for directions under s 122 in the later case of Ex Parte Seven Network Ltd.[17] The media applicant in that case sought access to a record of interview of a man convicted of murdering his former partner six years earlier. The applicant wanted to show extracts from the record of interview as part of a program about domestic violence and restraining orders.
[17](2010) 205 A Crim R 360.
Martin CJ refused the application in the Seven Network case because:
(a) There was no contemporaneous public interest in the man’s trial;
(b) The program was on general topics, so releasing the recording would not enhance the reporting of court proceedings;
(c) The interviewee opposed the directions. This factor was relevant (because release despite opposition could discourage voluntary participation in interviews), but not determinative; and
(d) The man’s eight year old son could be adversely affected, even though his guardians supported the application and said they would make sure he did not see the program. Granting the application would significantly increase the risk of feedback to the child after publication, and the child may later see the segment on the internet.
Nine Network says that the starting point for the present application should be the principle of open justice. That principle helps to maintain the integrity and efficiency of the courts, and the public’s confidence in the administration of justice.
At the core of the open justice principle is the notion that all proceedings should be held in public. So, ordinarily, any member of the public who wishes to attend a hearing, and see or hear what is going on, is entitled to do so, provided the person behaves appropriately and the court is not already filled to capacity.
The principle has also been invoked in support of applications for access to court documents. For example, in Herald & Weekly Times Ltd v Magistrates’ Court of Victoria,[18] the Court of Appeal recognised that, given the way modern committals generally proceed, unless access to the hand-up brief is made available, a reporter will frequently find it impossible to understand what is taking place during a committal hearing, and thus to produce a report that is fair and accurate.[19]
[18](2000) 2 VR 346.
[19]At [7].
Similar reasoning was adopted by Finkelstein J in Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3)[20], a case concerned with public access to statements of agreed facts and outlines of submissions in civil proceedings. In that case, his Honour held that there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. However, Finkelstein J was only purporting to describe the position in civil proceedings. Further, as his Honour himself acknowledged, even in civil proceedings the presumption of access applies “unless the interests of justice require a different course.”[21]
[20](2002) ATPR 41-873.
[21]At [7].
Nine Network also referred to the decision of Beach J in The Herald & Weekly Times Ltd v The Magistrates’ Court of Victoria.[22] That case concerned the interpretation of s 126(1)(b) of the Magistrates’ Court Act 1989, which empowered a magistrate to make a suppression order if it was necessary to do so in order not to prejudice the administration of justice. His Honour held that, having regard to the fact that the provision was designed to derogate from the open administration of justice, it should be construed narrowly.[23]
[22][1999] 2 VR 672.
[23]Beach J cited with approval from the comments by Kirby P in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55.
Nine Network argued that s 464JB of the Crimes Act was also designed to derogate from the principle of open justice, and should therefore be construed narrowly. I do not accept that s 464JB was designed for that purpose, or should be construed in that way. Sections 464JA and 464JB govern how records of interview are to be treated, and who may have access to them, from the moment of their creation onwards. Some records of interview may eventually be shown in court, if a trial proceeds, others may not. The courts’ power to permit access to persons other than authorised persons is not limited to cases where the record of interview has been played in court; open justice considerations would have no role to play in such an application. Of course, if the media does apply for access to a record of interview that has in fact been played in court, then open justice considerations would have a role to play in that particular application. But it does not follow that the provisions must be construed on the basis that they were designed to derogate from the open justice principle.
I note that in the WA Newspapers case, Martin CJ observed that where a record of interview had been presented as evidence in open court, the principles of open justice may be a significant consideration in s 122 applications. However, the CCC hearings in that case had not been held in open court, so open justice had little or no relevance in that case. His Honour’s comments are consistent with my view that open justice considerations may or may not be relevant in a particular case, depending on whether the recording has been played in open court.
The parties were only able to locate one case in which access had been granted under s 464JB, in the four years since the relevant provisions were introduced into the Victorian Act. In R v Camilleri[24], Lasry J made orders under s 464JB permitting Victoria Police to supply the ABC with copies of Mr Camilleri’s records of interview, and permitting the ABC to use all or some of those records of interview.
[24]Unreported, Supreme Court of Victoria, 10 October 2014 (S CR 2012 0081).
In 2013, Mr Camilleri pleaded guilty to the murder of Prue Bird in 1992. Ms Bird’s body had never been found, a matter which understandably caused great distress to her family. Mr Camilleri told police in his interviews with them that he had buried Ms Bird’s body near the body of another man who he had killed. There was obviously significant public interest in locating Ms Bird’s body.
Mr Camilleri opposed the release of the records of interview, on the ground that they contained admissions of guilt of the other murder, for which he had not been charged. Lasry J noted that even if Mr Camilleri were charged and tried for that other murder, the records of interview would likely be before the jury hearing that case in any event. Any possible unfairness in that later trial could be resolved by an appropriate judicial direction. Finally, Lasry J said that the Prue Bird case was of significant public interest, and releasing the records of interview was consistent with the principles of open justice.
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 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.
In each case, the court must consider for itself whether those (or any other) factors are relevant in that case and, if so, what weight to give to the relevant factors.
Relevant considerations
I turn to consider the facts and arguments in this case, in the light of the above observations.
The ROI having been played during Ms Williams’ trial, I accept that the open justice principle is a very relevant consideration here. In this case, there is no risk that the release of the ROI to the media would endanger any ongoing police investigations or criminal proceedings. Both of those matters support Nine Network’s application.
Nine Network points out that the ROI is the property of Victoria Police, and Victoria Police does not oppose its release in this case. That may be so, but parliament has not left it to the police to decide who can have access to a person’s record of interview; that task has been given to the courts. Certainly, the attitude of the police may be very persuasive in some cases – for example, where the police oppose release on the ground of potential prejudice to a current investigation or prosecution. But the fact that the police do not oppose release does not, of itself, carry much weight in this case.
There was some electronic and print media coverage of the proceeding around the time of the trial and sentencing process. But the trial finished almost one year ago, and Ms Williams was sentenced some nine months ago. Although Nine Network’s counsel argued that the case is still of “great public interest”, there is no evidence of any media reporting about the case since shortly after sentence was passed. Whilst the media (including Nine Network) obviously is free to decide what programs it wishes to run, and when, there is no evidence of broad and ongoing public interest in this particular case.[25]
[25]The amount of media coverage of this case stands in stark contrast to the Thomas case before Cummins J, and the Camilleri case before Lasry J, both of which are discussed elsewhere in this ruling.
Nine Network argues that the ROI relates to a matter of broader public interest (namely, the offence of defensive homicide), which Nine Network says is not widely understood in the community. However, the offence of defensive homicide has been abolished recently;[26] this is likely to be one of the last cases (if not the last case) in which anyone is tried for that offence. Nine Network did not explain why the community needs to be educated about a now defunct offence. In any event, the nature of the offence, and its relevance to this case, can be reported on fairly and accurately by reference to the trial and plea transcript and sentencing reasons (all of which have already been made available to the media).
[26]Crimes Amendment (Abolition of Defensive Homicide) Act2014.
There is no doubt that any homicide is a serious matter, and there is a general public interest in the fair and accurate reporting of serious offences such as homicides. Nine Network goes on to argue that because Ms Williams was charged with murder, but the jury only found her guilty of defensive homicide, the public need to be able to “assess her demeanour” for themselves, “to truly understand the decision reached by the jury.” It seems that “A Current Affair” intends to produce a program which essentially will invite its viewers to second-guess the correctness of the jury’s verdicts, based on what necessarily will only be extracts from the ROI chosen by the show’s producers.
The ROI runs for just over 2 ½ hours. It formed only a small portion of the evidence at a trial that ran for 11 days. The prosecution repeatedly urged the jury to find that Ms Williams was lying in the ROI, and to find that she did not really believe that she was acting in self-defence when she killed Mr Kally. The jury had the benefit of seeing and hearing all of the evidence, in order to determine matters of credibility. It is clear from the verdicts that the jury was not persuaded by the prosecution arguments. Even if “A Current Affair” devoted an entire half-hour program to the Williams case, they could never show more than a small amount of the ROI, and summarise an even smaller proportion of the other evidence, which the jury considered at the trial.
To engage in such an exercise, in order to invite the public to assess for themselves the correctness of the jury’s decision, has the potential to undermine unfairly the jury’s verdicts in a way that would be inimical to the interests of justice.
Ms Williams opposes the release of the ROI. That is a relevant, albeit not determinative factor, for the reasons given earlier.
I do not agree with Nine Network’s argument that further reporting, including of the ROI, will not be detrimental to any person. There are a number of people who may be adversely affected by further reporting, the most significant of whom are the children of Ms Williams and Mr Kally. Indeed, Ms Williams’ primary reason for opposing the release of the ROI is to protect her children.
Although Spencer and Simone are in their twenties now, they both came across in the witness box as younger than their years in terms of personal maturity. It is clear from the way they gave their evidence, and behaved in court thereafter, that they are very protective of their mother and deeply distressed at what happened between their parents. That is not surprising given that, as well as being first-hand victims of their father’s violence, they also witnessed his violence towards their mother over many years. Since Ms Williams was sentenced, they have no doubt started to get on with rebuilding their lives.
In the ROI, Ms Williams discussed the circumstances of the killing, and the background of family violence. She was often tearful and distressed during the interview. To have some or all of their mother’s ROI played on television (and, possibly later, on the internet) and subject to public comment by friends or strangers, would potentially bring back painful memories and cause them further distress.
Public awareness of the insidious problem of domestic violence is increasing. The media has an important role to play in raising that awareness. If victims of domestic violence wish to come forward and tell their stories publicly, that is a matter of personal choice. But if victims of domestic violence do not wish to have the details of their private lives exposed to public scrutiny, care needs to be taken to ensure that those victims are not further traumatised by unnecessary publicity.
The attitude of members of Mr Kally’s family to this application is not known to the court. Some of them may be distressed by another public examination of the circumstances surrounding the death of their relative. Some of them may be supportive of the proposed television program. The court simply does not know their position.
Having weighed up the countervailing arguments in this case, I am not persuaded that the ROI should be released to Nine Network. The application will be refused.
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