Eastley v McConnell

[2008] WADC 127

EASTLEY -v- McCONNELL [2008] WADC 127

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WADC 127
Case No:	CIV:981/2005	Heard:	18 AUGUST 2008
Coram:	MAZZA DCJ	Delivered:	18/08/08
Location:	PERTH
No of pages:	8	Judgment Part:	1 of 1
Result:	Application granted
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Parties:	KEVIN LEO EASTLEY CHRISTOPHER McCONNELL
Catchwords:	Civil procedure Application by plaintiff under the Criminal Investigation Act to possess and play audiovisual interview between defendant and the police Principles to be applied
Legislation:	Criminal Investigation Act 2006, s 118, s 120, s 122
Case References:	Coull v Commissioner of Police [2006] WASC 136 Horsman v Commissioner of Police [2002] WASC 81

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : EASTLEY -v- McCONNELL [2008] WADC 127 CORAM : MAZZA DCJ HEARD : 18 AUGUST 2008 DELIVERED : Delivered Extemporaneously on 18 AUGUST 2008 typed from tape and edited by Trial Judge FILE NO/S : CIV 981 of 2005 BETWEEN : KEVIN LEO EASTLEY

Plaintiff

AND

CHRISTOPHER McCONNELL
Defendant

Catchwords:

Civil procedure - Application by plaintiff under the Criminal Investigation Act to possess and play audiovisual interview between defendant and the police - Principles to be applied

Legislation:

Criminal Investigation Act 2006, s 118, s 120, s 122

Result:

Application granted

(Page 2)

Representation:

Counsel:

Plaintiff : Mr S V Phillips
Defendant : Mr D Williams

Solicitors:

Plaintiff : S V Phillips & Co
Defendant : Greenland Brooksby

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

Coull v Commissioner of Police [2006] WASC 136
Horsman v Commissioner of Police [2002] WASC 81

(Page 3)

1 MAZZA DCJ: This is an application by the plaintiff for orders relating to the production, possession and playing of an audiovisual recording of an interview made on 30 January 2002 between officers of the WA Police and the defendant. The application is neither consented to or opposed by the defendant or the Commissioner of Police.

2 At the time of the interview, the law governing such interviews was contained within s 570A to s 570H of the Criminal Code. Those provisions have since been repealed, and this application comes to be decided under the provisions of the Criminal Investigations Act 2006 ("CIA") which commenced operation on 1 July 2007.

3 The application is supported by an affidavit from the plaintiff's solicitor, Steven Vivian Phillips sworn, on 28 July 2008. I have also received a helpful outline of submissions from the plaintiff's counsel. The facts relevant to this application drawn are from a combination of the pleadings and Mr Phillip's affidavit.

4 The plaintiff has commenced an action in this Court for damages against the defendant for injuries said to have arisen out of a motor vehicle accident which occurred on 22 November 2001. The plaintiff, a motorcyclist, alleges that the defendant negligently drove his vehicle into the path of the plaintiff, causing the plaintiff to be thrown to the ground and seriously injured.

5 The defendant disputes that he is liable. The defendant's case is that the plaintiff is the author of his own misfortune because he was, amongst other things, speeding, manoeuvring around other vehicles, and ultimately crossed to the wrong side of the road. It is clear from the pleadings that there is a serious dispute as to the circumstances of the collision.

6 On 30 January 2002, the defendant was interviewed by two police officers. That interview was recorded on videotape. Notes taken by the police officers have been provided to the plaintiff. From those notes, which are not verbatim, there is no doubt that, in the interview, the defendant gave a version of how the collision occurred. It is said, by the plaintiff, that the notes indicate some inconsistency in the facts pleaded by the defendant and what he said to the police. I cannot, of course, make any findings as to this, but the possibility remains.

7 In these circumstances, and bearing in mind that the audiovisual interview is a discoverable document in the hands of the defendant, I accept Mr Phillips' submission that there is a legitimate forensic interest in both parties having access to the recording of the interview. This is

(Page 4)

because it is relevant to the issue of how the collision occurred and who was at fault. The questions for me to resolve are, does this Court have power to give the parties' legal advisors access to the recording? If so, should orders be made?

8 Section 118 of the CIA provides that subject to certain exceptions where a person is suspected of committing an indictable offence, any admissions made by the person are inadmissible unless recorded by audiovisual means. Section 120 and s 122 of the CIA are in the following terms:

"120. Recordings of interviews, possession etc. restricted

(1) In this section —

"authorised person” means any of the following, acting in the course of duty —

(a) a police officer;

(b) a person authorised for the purposes of this Part by the Commissioner of Police;

(c) the DPP or a person acting under the authority of the DPP;

(d) a lawyer acting for or representing the State;

(e) a CCC officer;

(f) the Parliamentary Inspector;

(g) an ombudsman officer;

(h) a court or a person acting at the direction of a court;

(i) a coroner or a person acting at the direction of a coroner;

(j) a person prescribed to be an authorised person.

(Page 5)

(2) A person who is in possession of an audiovisual recording of an interview commits an offence unless the person —

(a) is an authorised person;

(b) is the suspect or the suspect’s lawyer;

(c) has possession of the recording in a sealed package as part of his or her duties as a person engaged by a person referred to in paragraph (a) or (b) to transport it; or

(d) was served with the recording under the Criminal Procedure Act 2004 section 35, 42, 61 or 95.


(3) A person who plays an audiovisual recording of an interview to another person commits an offence except when —

(a) the recording is played for purposes connected with the prosecution or defence of, or legal proceedings relating to, a charge to which the interview relates;

(b) the recording is played for purposes connected with proceedings before a coroner;

(c) the recording is played for purposes connected with proceedings under the Police Act 1892 to remove a member, as that term is defined in section 33K of that Act;

(d) the recording is played under a direction of a court; or

(e) the recording is played under section 124.


(4) Subsection (3) does not apply to any of the following when acting in the course of duty —

(a) a police officer;

(Page 6)

(b) a CCC officer;

(c) the Parliamentary Inspector;

(d) an ombudsman officer.

(5) A person who supplies, or offers to supply, an audiovisual recording of an interview to another who is not —

(a) an authorised person;

(b) the suspect or the suspect’s lawyer;

(c) a person engaged by a person referred to in paragraph (a) or (b) to transport it; or

(d) a person who is required to be served with it under the Criminal Procedure Act 2004 section 35, 42, 61 or 95,

commits an offence unless the person is acting under a direction given under section 122.


(6) A person, other than an authorised person, who copies any part of an audiovisual recording of an interview, or who permits another person to make a copy of any part of such a recording, commits an offence unless the person is acting under a direction given under section 122.

(7) An authorised person who erases an audiovisual recording of an interview commits an offence, except when the person is acting under —


(a) a direction given under section 122; or

(b) an authorisation given under section 123(3).

122. Recordings, court may give directions as to supply etc.

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,

(Page 7)

playing, or broadcast of an audiovisual recording of an interview."

9 For obvious good public policy reasons, both the possession of an audiovisual recording and its playing are restricted to certain persons in certain circumstances. It is an offence for an unauthorised person to possess an audiovisual recording, and it is an offence for an audiovisual recording to be played in other than authorised circumstances.

10 Section 120(1) makes it clear that neither the plaintiff nor his legal advisors are specifically authorised persons who have the right to possess or play the audiovisual recording without the permission of a court. Of course, the defendant is in the same position. However s 120(1)(h) allows a person acting at the direction of a court to be an authorised person who may have the right to possess and play an audiovisual recording.

11 In my opinion, a court has a wide discretion as to who it may authorise to possess and play an audiovisual recording. The guiding principle is the advancement of the interests of justice. As to this, see Coull v Commissioner of Police [2006] WASC 136, per Miller J (as he then was) and Horsman v Commissioner of Police [2002] WASC 81 per McKechnie J. Although these decisions were in relation to the repealed Criminal Code provisions, it seems to me that on this point they remain apt. It does not matter that these are civil proceedings. The wording of the statute is wide enough, it seems to me, to cover both civil and criminal proceedings. Section 122 of the CIA specifically allows the District Court to make the orders sought by the plaintiff.

12 In this case, in light of the legitimate forensic purpose I have identified, it seems to me it is in the interests of justice for both parties to possess a copy of the audiovisual recording and have the ability to play the audiovisual recording to their clients and, if necessary, any experts that they may retain. However, the recording cannot, without the leave of the court, be given any wider publication.

13 For those reasons, I propose to make the following orders:

(1) The Commissioner of Police forthwith provide the solicitors for the plaintiff and the defendant with a copy of the audiovisual recording of the interview between the police officers and the defendant on 30 January 2002.

(Page 8)

(2) Each party is permitted to play the recording to their respective clients and any expert they retain for the purposes of preparing for trial.

(3) At the conclusion of the proceedings, each party shall return the recording to the Commissioner of Police.