Ex Parte - [2014] WADC 12

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: EX PARTE WEST AUSTRALIAN NEWSPAPERS LTD & CHANNEL 7 PERTH PTY LTD [2014] WADC 12

CORAM: STAUDE DCJ

HEARD: 24 JANUARY 2014

DELIVERED : 31 JANUARY 2014

FILE NO/S: CIVO 9 of 2014

MATTER :In the matter of an application pursuant to s 122 of the Criminal Investigation Act 2006

EX PARTE
WEST AUSTRALIAN NEWSPAPERS LTD & CHANNEL 7 PERTH PTY LTD
Applicants

Catchwords:

Procedure - Criminal Investigation Act 2006 s 122 - Application for directions as to broadcast of an audiovisual recording of interview - Nature of application - Whether s 122 application can be made in criminal proceedings to which the interview relates - Criminal Procedures Rules 2005r 51 - Public interest considerations

Criminal Investigation Acts 122 - Application for directions as to broadcast of an audiovisual recording of interview - Open justice principle - Relevant considerations - Relevance of interviewee's consent - Public interest considerations - Whether media publication serves public interest in fair and accurate reporting of criminal trial - Whether media publication of audiovisual recording of interview will deter participation of suspects in police interviews

Legislation:

Criminal Investigation Act 2006
Criminal Procedure Act 2004
Criminal Procedure Rules 2005

Result:

Application dismissed

Representation:

Counsel:

Applicants:     Mr A McCarthy
Murray Edgar Newman :     Mr T Dobson
The State of Western Australia
(Amicus Curiae)           :     Mr B Sertorio

Solicitors:

Applicants:     Tony McCarthy
Murray Edgar Newman :     Terry Dobson Legal
The State of Western Australia
(Amicus Curiae)           :     Director of Public Prosecutions

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

Barber v Commissioner of Police [2010] WADC 118
Ex parte Seven Network Ltd [2010] WASC 311
Ex parte West Australian Newspapers Ltd [2008] WASCA 209; (2008) 38 WAR 177
Re, Hogan; Ex Parte West Australian Newpapers Ltd [2009] WASCA 221
Russell v Russell (1976) 134 CLR 495

STAUDE DCJ:

Introduction

On 18 December 2013, upon a verdict of guilty by a jury, Murray Edgar Newman was convicted of unlawfully doing grievous bodily harm to Brett Daniel Marris on 10 November 2012.
The prosecution case included an audiovisual recording of an interview with Newman conducted by two investigating police officers on 15 November 2012. In the interview Newman admitted punching Marris to the face and spoke of the circumstances leading him to commit that act.
By application dated 19 December 2013 West Australian Newspapers Ltd and Channel 7 Perth Pty Ltd (the applicants) seek the following directions:
1.Pursuant to s 122 of the Criminal Investigation Act 2006 (CIA) the media applicants be permitted to be supplied with, copy, edit, play and broadcast the audiovisual recording of the accused's police interview (exhibit 5), such playing and broadcast being limited to:
1.1News reporting of a fair and accurate report of these proceedings on television, in print or on the applicants' online news services; and
1.2A fair and accurate reflection of the entirety of the interview.
2.Re‑publication of the interview on social media sites, Facebook, YouTube and Twitter is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ex Parte and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] WADC 12
Decision Date: 31 JANUARY 2014

CaseChat Overview and Summary

The applicant, a television production company, sought directions under section 122 of the Criminal Investigation Act 2006 to broadcast an audiovisual recording of an interview with a suspect in a criminal case. The application was made during the criminal proceedings to which the interview related. The court had to decide whether the application could be made during the criminal proceedings and what public interest considerations should be weighed in determining whether to allow the broadcast.

The court considered the relevant provisions of the Criminal Investigation Act 2006 and the Criminal Procedures Rules 2005. It noted that section 122 of the Act allows for applications for directions regarding the broadcast of an audiovisual recording of an interview, but the court had to determine whether such an application could be made during the criminal proceedings to which the interview related. The court also had to consider the open justice principle and the public interest considerations, including the relevance of the interviewee's consent and whether the media publication would serve the public interest in fair and accurate reporting of the criminal trial. The court had to weigh these considerations against the potential deterrent effect on suspects' willingness to participate in police interviews.

The court held that the application could be made during the criminal proceedings to which the interview related. It noted that the open justice principle was a fundamental aspect of the Australian legal system, but it was not absolute and had to be balanced against other public interest considerations. The court found that the interviewee's consent was not a relevant consideration in this case, as the applicant did not have the interviewee's consent to broadcast the recording. The court also found that the media publication would not serve the public interest in fair and accurate reporting of the criminal trial, as the recording did not contain any significant new information that would assist the jury in understanding the case. Furthermore, the court found that the media publication would deter participation of suspects in police interviews, which was a significant public interest consideration.

The court made an order refusing the applicant's application for directions to broadcast the audiovisual recording of the interview. The court found that the public interest considerations outweighed the open justice principle in this case, and that allowing the broadcast would deter suspects from participating in police interviews, which was a significant public interest consideration. The court also noted that the recording did not contain any significant new information that would assist the jury in understanding the case, and that the media publication would not serve the public interest in fair and accurate reporting of the criminal trial.

Orders