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 prohibited.
3.All playing or broadcast be accompanied by a caption containing the words to the effect that the publication of the interview was only permissible by order of the District Court and that sentencing in the proceedings (if not yet concluded) has not yet taken place.
4.In any playing or broadcast sponsors names and logos appearing on the shirt worn by the accused be pixelated.
The application, though ex parte, was served on the Director of Public Prosecutions (DPP) and on the lawyer for Mr Newman.
At the hearing Newman was represented by Mr Dobson who informed the court that his client did not oppose the application and consented to the form of the directions sought.
Mr Sertorio was given leave to appear for the State as amicus curiae. The State indicated that it did not consider itself a party to the application and took no position with respect to it.

Nature of application

The application was brought in the criminal proceeding, State of Western Australia v Murray Edgar Newman (IND 741 of 2012), in Form 6 which is prescribed by reg 14 of the Criminal Procedure Regulations. Regulation 14 deals with applications to courts of summary jurisdiction. I took the view, prior to the hearing, that the application should be treated as an originating motion. At my direction the matter was numbered and entitled as above.
At the hearing Mr McCarthy on behalf of the applicants conceded that the form of the application was inappropriate, but submitted that it was open to the applicants to bring the application in the criminal proceeding as an application pursuant to r 51 of the Criminal Procedure Rules 2005 (CPR) using Form 1.
Rule 51 deals with applications by non‑parties to criminal proceedings for access to the record. Rule 51(1) provides:
A person who is not a party to a case may apply to the court for leave to inspect or obtain a copy of –
(a)the record, or the certified transcript of the record of any proceedings in the case; of
(b)any other record in the possession of the court in relation to the case, including documents (including those in electronic form) and other things tendered in evidence in the case.
Rule 51(2A) provides that the application may be made orally in some circumstances, but otherwise must be made in writing to the court and must set out the grounds of the application. Rule 51(2B) provides that the applicant need not give notice of the application to any party to the case unless so ordered pursuant to r 51(4B).
Rule 51(5) provides:
Subject to –
(a)any order made under the CPA section 171; and
(b)the Sentencing Act 1995 section 22; and
(c)any other order or written law that prohibits or restricts the publication or possession of the record to which the application relates,
a judge or registrar dealing with a written application, if satisfied the applicant has sufficient cause to be granted leave, may grant the application.
The Criminal Procedure Act 2004 (CPA) defines 'record':
'record' means any thing or process –
(a)on or by which information is recorded or stored; or
(b)by means of which a meaning can be conveyed by any means in a visible or recoverable form,
whether or not the use or assistance of some electronic, electrical, mechanical, chemical or other device or process is required to recover or convey the information or meaning.
This court has published a Circular to Practitioners GEN 2000/1, 'Requests By Media For Access To Court Records'. The circular has no legal effect. It merely purports to set out the practice of the court in relation to requests by media organisations for access to court records. The expression 'court records' would appear to have the same meaning as 'the record'.
The circular notes that the court has power by virtue of r 51 of the CPR to allow third parties access to court records in criminal cases. The circular adverts to the principles of open justice, observing that the facilitation of open justice needs to be balanced against other potentially competing interests. Clause 2.1 recites the instances in which the court, pursuant to CPR r 51(5), may not release information.
The circular otherwise sets out in cl 3 the procedure applicable to written applications and in cl 4 matters which are specific to the court's criminal jurisdiction. Clause 5 deals with matters in the civil jurisdiction.
The submission of the applicants is that an application for directions pursuant to s 122 of the CIA is covered by r 51 and can therefore be made in the criminal proceeding to which it relates. I do not accept that submission.
Rule 51(5)(c) subjects the operation of r 51 to 'any other order or written law that prohibits or restricts publication or possession of the record to which the application relates'.
The part of the record sought to be accessed in this case is the audiovisual recording of the interview of the accused by the police. The provisions of pt 11 of the CIA apply:
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.
(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;
(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).
(8)A person who commits an offence under this section is liable to a fine of $5 000.
121.Recorded interview, broadcast prohibited
A person must not broadcast an audiovisual recording of an interview or any part of such a recording unless the broadcast is made under a direction of a court given under section 122.
Penalty:
(a)for an individual, a fine of $12 000 and imprisonment for 12 months;
(b)for a body corporate, a fine of $100 000.
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, playing, or broadcast of an audiovisual recording of an interview.
In my view the procedure prescribed by r 51 of the CPR is not available where directions pursuant to s 122 are required before an audiovisual recording of an interview can be lawfully supplied or broadcast. There is a distinction between a direction which removes a statutory prohibition and one which confers a right of access. The procedure prescribed by r 51 applies to parts of the court record to which no statutory prohibition applies.
In my view, an application pursuant to s 122 of the CIA, by its nature ex parte, should properly be brought by originating motion supported by affidavit in accordance with O 54 of the Rules of the Supreme Court 1971. It is a civil proceeding.
Such applications may not necessarily relate to criminal proceedings. For example, in Barber v Commissioner of Police [2010] WADC 118 an application for s 122 directions was made by originating summons, joining the Commissioner of Police as the owner of the recording, by a person who had commenced a civil claim for damages against the interviewee. In Ex parte West Australian Newspapers Ltd [2008] WASCA 209; (2008) 38 WAR 177 and Ex parte Seven Network Ltd [2010] WASC 311, decisions which will be discussed in these reasons, the applications were by originating process. In the former, the directions were sought in respect of a recording of an interview that was played to the Corruption & Crime Commission (CCC). In the latter, directions were sought in respect of a recording used in criminal proceedings which had been concluded some years before the application.

The applicants' submissions

The applicant submitted that the public interest in a fair and accurate reporting of legal proceedings justified the directions sought. Open justice means that members of the community are entitled to see the evidence adduced in court even if they cannot attend. Reliance was placed on the reasons of Martin CJ in Ex parte West Australian Newspapers Ltd and Ex parte Seven Network Limited in support of opposition that public interest in being able to view the recording was a legitimate basis for s 122 directions. Because s 122 applications were made infrequently it could not be concluded that the making of directions would have the effect of discouraging voluntary participation by suspects in police interviews.

Interviewee's position

The court was informed by the affidavit in support of the application that Mr Newman consented to the directions sought and that his lawyer had in fact signed a minute of consent orders. An annexed email from Mr Dobson to the prosecutor stated that he understood the law to be settled and to favour the applicants. At the hearing Mr Dobson indicated that Mr Newman had instructed him not to oppose the application. It was clear, however, from Mr Dobson's answers to questions by the court that Mr Newman had no interest in the directions sought being made and that his position was based on pragmatic considerations.
This application is not inter partes. Mr Newman is not a party, but he is entitled to be heard in regard to his interest in the matter. The court does not consider that his purported consent to the directions sought relieves the court from giving due consideration to the factors which bear on the discretion conferred by s 122. In my view there are public interest considerations involved which preclude the court from making the directions sought by consent.
As Mr Newman has not pointed to any interest he has in the making of the directions sought his concession carries little weight.

Amicus Curiae

Mr Sertorio for the State was only concerned to inform the court of the considerations relevant to the exercise of the court's discretion. He submitted that there were two issues to determine: first, whether the statutory prohibition should be removed and, second, whether access to material in question should be allowed. He observed that Mr Newman was yet to be sentenced and that there was still some potential for a re‑trial if the verdict was appealed.

Principles

The leading case with respect to the construction of s 122 and the considerations relevant to the exercise of the court's discretion when dealing with an application of this kind is Ex parte West Australian Newspapers Ltd.
In that case the Court of Appeal by majority (Martin CJ & Newnes AJA, McLure JA dissenting) allowed an appeal from an order dismissing an application for orders permitting the supply and broadcast of an audiovisual recording of an interview of one Simon Rochford by a police officer with respect to the homicide of Mrs Pamela Lawrence.
It is well known that Mr Andrew Mallard was convicted of the murder of Mrs Lawrence and served 11 years imprisonment before his conviction was quashed by the High Court in 2005. In a cold case investigation in 2006 the police found evidence implicating Rochford who was then interviewed as a suspect. Soon after being interviewed, and following a news broadcast naming him as a suspect, Rochford, then a sentenced prisoner in respect of another murder, was found dead in his cell, apparently having committed suicide.
In 2007 the CCC commenced an inquiry into the investigation and prosecution of Mr Mallard and portions of the audiovisual recording of Rochford's interview were played during a public hearing. West Australian Newspapers sought directions pursuant to s 122 permitting publication of portions of the interview on its website.
Part 11 of the CIA, to which reference has been made, deals with police interviews of suspects. Section 121 prohibits the broadcasting of an audiovisual recording of an interview unless it is done under a direction made pursuant to s 122. Although the CCC had power to disclose official information (as defined by s 152 of the Corruption and Crime Commission Act 2003), it was necessary for a s 122 direction to be made by a court having the jurisdiction to do so before the CCC could exercise its own discretion as to whether to disclose the information. The power to make directions pursuant to s 122 is confined to the Supreme Court, District Court, Magistrates Court and Children's Court.
The judge at first instance dismissed the application on the grounds that the directions sought would not further the interests of justice. The Court of Appeal divided over whether the exercise of the discretion to permit the broadcast of the record of interview was limited to circumstances where the interests of justice would be positively advanced by doing so, or exceptional circumstances.
Martin CJ found that s 122 conferred a general discretion to be exercised by taking into account all relevant facts and circumstances, including the subject matter, scope and legislative purpose of the Act, holding that there was nothing in the Act which would exclude from consideration legitimate public or private interests: [69]. At [68] his Honour held:
Of course much will depend upon the particular circumstances in which the direction sought pursuant to s 122. If the direction is sought that the consent of the interviewee, and there is no prospect of any further investigation or court proceedings arising from the subject matter of the interview, and depending upon the purpose for which the direction is sought, it may well be possible to conclude that the discretion is properly exercised in favour of making a direction, notwithstanding that there would not be no positive advancement of the interests of justice, if other legitimate private or public interests are served.
At [69] his Honour observed that a prominent consideration would be the likely effect of the proposed direction on the administration of justice:
If, on balance, it is properly concluded that the direction sought would impact adversely upon the administration of justice, powerful considerations indeed would be required to justify the exercise of the discretion in favour of access. When assessing the extent to which the direction sought might impact upon the administration of justice, regard will probably be taken of the desirability of encouraging voluntary participation in video‑recorded interviews. However, there will be circumstances in which it can safely be concluded that the making of a direction sought would not have any adverse impact upon the rate of participation in such interviews – such as, e.g., the direction is actively supported by the interviewee.

His Honour went on to find that the publication of portions of the video record of interview shown to the CCC could not impact adversely upon the administration of justice as there was no pending investigation or trial which publication of the material could compromise.
With respect to the construction of pt 11 of the CIA, his Honour found that prohibitions were imposed upon the possession, supply and use of recordings of interviews which were not imposed in relation to other evidentiary material, such as photographs of crime scenes, search videos and forensic evidence: [59].
At [62] his Honour observed that the fundamental distinction between recordings of interviews and other evidence obtained in criminal investigations was found in the legal necessity of voluntariness with respect to an interview:
It 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 common place for video‑recorded interviews to be supplied to the media against the wishes of an interviewee, this could discourage voluntary participation in video records of interview, to the detriment of the administration of justice.
His Honour held that publication would not impact adversely on the administration of justice. The public interest in not discouraging suspects from participating in audiovisually recorded interviews did not bear on the exercise of the discretion because the interviewee, Rochford, was deceased and his attitude unknown. In those circumstances his Honour held that it would be speculative to assert that the making of the directions sought would discourage future participation by others in police interviews.
McLure JA found that the scope of the discretion conferred by s 122 was to be ascertained by reference to the text and purpose of the section in the context of pt 11 as a whole. Her Honour held at [95] that the relevant statutory objects informing and limiting the scope of the discretionary power were as follows:
(1)To ensure there is no disclosure of an AVR that may prejudice the efficient and proper investigation or prosecution of indictable criminal offences in this State;
(2)To minimise the risk of prejudicing the voluntary participation of suspects in an interview that is the subject of an AVR;
(3)To protect the privacy of suspects unless disclosure is justified for the efficient and proper investigation and prosecution of indictable offences or other proper purpose. This is exemplified by s 124 which only permits an AVR of an interview with a suspect to be used for teaching purposes if a suspect has been convicted and all reasonable measures are taken to prevent identification of the suspect from the AVR. The limitation applies notwithstanding the death of the suspect.
Her Honour held at [96] that the consent of the suspect would be a weighty factor in satisfying the second and third objects, noting that no consent had been given by the deceased. Her Honour observed that in the absence of consent it was necessary to consider whether the disclosure has the capacity to affect suspects as a class, not just the individual suspect the subject of the decision.
Her Honour concluded that the public interest reflected in the scheme as articulated in the three statutory objects she identified would only be outweighed if the proposed direction would further the efficient and proper investigation and prosecution of indictable offences or a similar public purpose.
In the result her Honour declined to make the sought direction for the following reasons [106]:
The determination of the guilt or innocence of Mr Rochford is a matter outside the scope of the Mallard inquiry and indeed outside of the jurisdiction of the CCC. The only issue before the CCC was the fact of and basis for his eventual status as the prime suspect in the murder of Mrs Lawrence. Those matters have been fully reported in the mass media. The appellant's evidence in support of its application suggests it wishes to publish the AVR on its website in order to enable the general public to make an assessment of Mr Rochford's guilt or innocence. The fact that the AVR was played by the CCC for a different purpose and in a broader context substantially reduces the weight to be accorded to that publication. It does not outweigh the statutory object of protecting the privacy of suspects particularly prior to conviction and the related aim of limiting disclosure to minimise the risk of prejudicing the voluntary participation of suspects in recorded interviews by investigative authorities. That conclusion is reinforced when the broadcast is to be published to the world at large on the internet.
The ratio of the decision of the majority in Ex parte West Australian Newspapers Ltd is found in the resolution of the question posed in [50]. The discretion conferred by s 122 is not fettered by a requirement that the discretion can only be exercised if the direction sought will positively advance the interests of justice or in exceptional circumstances.
The decision appears to rest on the following propositions:
1.Section 122 confers a general discretion to be exercised in accordance with the subject matter, scope and purpose of pt 11 of the CIA: [53].
2.The general purpose of pt 11 is to enhance the quality of confessional evidence by encouraging audiovisual recordings of police interviews: [54].
3.It is essential for a court in considering a direction sought pursuant to s 122 to consider the extent to which the direction sought will enhance or detract from the administration of justice: [55].
4.It may be inferred from the provisions restricting the possession, supply and use of audiovisual records of interview that the legislature intended not to discourage voluntary participation in such interviews: [62].
5.If a s 122 direction is sought with the consent of the interviewee and there is no prospect of any further investigation or court proceedings arising from the subject matter of the interview, then, depending on the purpose for which the direction is sought, the discretion may be properly exercised if legitimate private or public interests are served, notwithstanding that there will be no positive advancement of the interests of justice: [68].
7.If the direction sought would impact adversely upon the administration of justice, powerful considerations would be required to justify the exercise of the discretion: [69].
The court has been referred to two decisions in which Ex parte West Australian Newspapers Ltd has been applied.
In Ex parte Seven Network Ltd Martin CJ dismissed an application under s 122 for the supply, possession and broadcast of an audiovisual recording of an interview of a person convicted of the murder of his partner which was proposed to be used in a news programme about domestic violence and violence restraining orders.
His Honour declined to exercise his discretion to make the sought directions for four reasons. First, the trial of the interviewee was completed some years before and there was no contemporary public interest in that proceeding. Second, the proposed news programme was about domestic violence and violence restraining orders. It could not be shown 'clearly and demonstrably' that the public interest would be enhanced by making the recording available. Third, the interviewee opposed disclosure of the recording. Although his Honour found that the interviewee's opposition was not determinative, it was relevant because it impacted on the public interest in encouraging voluntary participation in video records of interview. Fourth, the court was unable to ensure by any order that the interests of the interviewee's young son, whose mother was the victim, could be protected. His Honour concluded that the interests of the child was the most significant consideration bearing on the exercise of his discretion.
I have been referred also to a transcript of proceedings on 29 November 2013 before Simmonds J in The State of Western Australia v Attwell (INS 69 of 2013) which records his Honour's ex tempore decision to make directions pursuant to s 122 to permit the broadcasting of an audiovisual record of interview at the conclusion of the trial of the matter.
The interviewee was convicted of attempting to procure the murder of another following trial by jury. A significant aspect of the prosecution case was the audiovisual record of interview. The application made on behalf of a group of media organisations which had covered the trial was opposed. His Honour referred to Ex parte West Australian Newspapers Ltd and Ex parte Seven Network Ltd. He exercised his discretion to make the directions sought by the media applicants, notwithstanding the opposition of the interviewee, on the basis, it seems to me, that the record of interview was a significant part of the evidence and that there was intense contemporary public interest in the trial. His Honour adverted to the public interest in encouraging voluntary participation in police interviews, but nevertheless rated the public interest in the reporting of the trial as a more weighty consideration, adverting to the principle of open justice. His Honour observed that the interviewee's objection was a matter for consideration, but was not determinative.
It is significant that in neither Ex parte West Australian Newspapers Ltd nor Ex parte Seven Network Ltd was the court dealing with an application for directions which would permit the release of an audiovisual recording of an interview to the media for the purpose of enhancing the fair and accurate reporting of a trial in which it was tendered in evidence. In the Attwell case the directions were sought and granted for that purpose, but that decision turns on its particular circumstances and is not authoritative.

Observations

Mr Newman at the time of his interview was a young man of not quite 19 years. He was not legally represented. He was duly cautioned to the effect that he was not required to answer any questions but that what he did say would be recorded and could be used in evidence in court. The caution was appropriately detailed and made clear the purpose for which the interview was sought and what use could be made of the recording. I have no reason to think that Mr Newman had in mind that the recording of the interview might be used other than in court.
It seems to me that even where an interviewee consents to or does not oppose a s 122 direction, unless the interviewee has a legitimate personal interest in publication, as might conceivably be the case where the answers are self-serving or reveal mitigatory circumstances, the court must be mindful of the deterrent effect that the broadcast of such interviews may have on those who may find themselves suspects in a criminal investigation.
The decisions to which I have referred in these reasons do not expand upon this particular consideration. Surely, if suspects are informed, as they would be by a competent lawyer, and ought to be by an investigating officer, that the recording of the interview sought by the police may be ordered to be released to the media and made accessible on a media website, that risk will be factor in their decision whether to participate. It is one thing that the interview may be used in evidence in a court, but quite another that it may end up on the internet.
I do acknowledge, though, that Martin CJ in Ex parte West Australian Newspapers observed at [73] that Rochford's death rendered that consideration speculative because his attitude was unknown, and elsewhere at [69] that 'active support' for a s 122 direction by an interviewee may outweigh that consideration. By 'active support' I take his Honour to mean something more than a mere concession of its application.
In Ex parte Seven Network Ltd the interviewee opposed the media application, yet, as I have noted, his opposition was not a critical consideration. His Honour was of the view that as s 122 applications were made infrequently, the risk of media publication would not become generally known so as to be likely to affect participation in interviews significantly. At [15] ‑ [17]:
[The interviewee] opposes disclosure and has appeared through counsel to indicate his opposition to disclosure, publication and broadcast of the video record of interview. It seems to me that his opposition is relevant, although not determinative. It is relevant because it impacts upon the public interest in encouraging voluntary participation in video records of interview to which I referred in the decision in WA Newspapers [see [62]].
If it were to become commonly known that notwithstanding opposition by interviewees courts would make orders overriding interviewees' interests (in particular their interests in the privacy of the interview which they conducted with police) by allowing those interviews to be broadcast, there is a possibility – and I put no higher than that – that voluntary participation in video records of interview may reduce.
I do, however, accept that there are practical considerations of the kind to which the applicant points, which suggest that it would be unwise to overstate the significance of this factor. I accept that the relative infrequency with which these applications are brought is such that it is unlikely that it would become generally known that interests of interviewees are overridden by the courts in granting publication orders to such an extent that it would be likely to have a significant impact on voluntary participation in police interviews. So while it does seem to me to be a relevant factor, it would be a mistake to place too much significance on it in a practical sense.
As I have noted previously, McLure JA in Ex parte West Australian Newspapers gave significance to the interviewee's consent, describing it as a weighty factor: [96].
The experience of this court is that audiovisual recordings of interview are to be found in most prosecution briefs. They often play a crucial role in the prosecution case. They may also be relied on by the defence to prove the accused's version of events where the accused elects not to give evidence. Participation in such interviews is not likely to be encouraged by the knowledge that the interview may end up on the internet.
This particular interest of justice is of conspicuous importance having regard to the specific legislative protection of police interviews of suspects in pt 11 of the CIA.
Against it must be weighed the public interest in the fair and accurate reporting of legal proceedings. That is the only public interest deposed to by Ms Natasha Boddy on behalf of the applicant: affidavit sworn 20 January 2014.
The trial of Mr Newman was thoroughly covered by a number of print and broadcast media. The audiovisual recording of the police interview of Mr Newman was played in court. A number of witnesses, including Mr Newman, gave evidence. No request has been made by any journalist for access to the recording in order to view it for the purpose of ensuring an accurate report of its contents. With such an application the court would have no difficulty as recordings played in court are sometimes distorted or otherwise difficult to understand.
The point is that there has been an opportunity to report on the contents of the recording during the course of the trial. In my opinion it has not been demonstrated that release of the recording is necessary for the fair and accurate report of the proceeding in which the interview was tendered.
The application of the open justice principle is limited. The ordinary rule is that court proceedings are conducted in public and in open view: Russell v Russell (1976) 134 CLR 495, 520; Re, Hogan; Ex Parte West Australian Newpapers Ltd [2009] WASCA 221, [31] (McLure P, Owen & Miller JJA agreeing). The ordinary rule is silent on the issue of the provision of court documents and exhibits to non-parties: Re, Hogan [31] (McLure P).
It does not apply in this jurisdiction to generally permit the broadcast of the testimony of witnesses in court. Although it is not the evidence of the suspect as such, an audiovisual recording of an interview by its nature is akin to viva voce evidence. To permit the broadcast of police interviews, but not the testimony of witnesses, would not enhance fair and accurate reporting of court proceedings because it would give undue prominence to one form of oral evidence over another.
As long as it is the practice of courts in this jurisdiction generally not to allow the broadcast of witnesses' evidence in court there seems to be no justification for permitting the broadcast of recorded interviews of the accused. It cannot be in the interests of fair reporting, or in the interests of justice, to broadcast the police interview of an accused, but not other oral evidence given at trial.
Exhibits such as photographs and CCTV footage fall into a different category of evidence. Unlike an audiovisual recording of an interview, such evidence, objective in nature and essentially pictorial, is not protected by legislation.

Conclusions

It has not been shown 'clearly and demonstrably' that the release of the audiovisual recording of Mr Newman's police interview will enhance the fair and accurate reporting of his trial.
On the other hand, the release of the interview for the purpose of it being broadcast in an edited manner or in its entirety will impact adversely on the administration of justice.
If the order sought were made in this and similar cases, lawyers would be bound to advise their clients that as a possible consequence of participation in an interview the recording of it may be broadcast and posted on an internet site. Police officers acting properly in their role as investigators would also feel an obligation to warn of this particular risk, lest they be accused of misleading a suspect as to the use to which an audiovisual recording of interview may be put.
The submission made on behalf of the applicants is that s 122 applications are so rare that suspects are not likely to be deterred from participating in interviews by the risk of eventual publication. Yet it is also the applicants' submission that as a matter of principle they should have access to this type of evidence in every case for the purpose of fair and accurate reporting. The applicants do not contend that this case is special or unusual. The logical consequence of the applicants' submission is that media release of police interviews should be routine. The authorities to which I have referred do not support that proposition.
The court is also of the view, having regard to the subject matter, scope and purpose of pt 11 as a whole, that the privacy of the participants is a relevant and pertinent consideration. While it is proposed that publication on social media be prohibited, it is unreasonable in my view to expect that that order would guarantee any protection to Mr Newman, or the interviewing officers for that matter, from potential abuse of the recording. This is yet another countervailing consideration.
No public interest has been demonstrated that would justify, in my opinion, the voluntary interview of Mr Newman, which was but one aspect of the evidence at trial, being released for television, print and online publication.
For these reasons the application is dismissed.