Ex parte Seven Network Ltd
[2010] WASC 311
•3 NOVEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: EX PARTE SEVEN NETWORK LTD [2010] WASC 311
CORAM: MARTIN CJ
HEARD: 21 OCTOBER 2010
DELIVERED : 21 OCTOBER 2010
PUBLISHED : 3 NOVEMBER 2010
FILE NO/S: CIV 2659 of 2010
EX PARTE
SEVEN NETWORK LTD
Applicant
Catchwords:
Application for a direction under s 122 of the Criminal Investigation Act 2006 (WA) - Supply, possess and broadcast video record of interview - Interpretation of 'supply' - Public interest - Interests of interviewee - Turns on own facts
Legislation:
Criminal Investigation Act 2006 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr J D MacLaurin
Amicus Curiae : (Commissioner of Police) Mr J F O'Sullivan
Amicus Curiae : (Johnathon Lewis Leyshon) Mr P B Cassidy
Solicitors:
Applicant: Edwards Wallace Lawyers
Amicus Curiae : Western Australia Police Service
Amicus Curiae : Thames Legal
Case(s) referred to in judgment(s):
Curtis‑Miller v Parks [2004] WASC 223
Ex Parte West Australian Newspapers [2008] WASCA 209; (2008) 39 WAR 177
MARTIN CJ: (This judgment was delivered extemporaneously on 21 October 2010 and has been edited from the transcript.)
This is an application by Seven Network Ltd which is the producer of a television programme known as Sunday Night. It is a 60‑minute programme broadcast weekly which focuses on national public and current affairs.
The applicant is producing a segment which it intends to publish this Sunday, 24 October 2010, dealing with domestic violence and violence restraining orders. As part of the programme it is proposed to focus upon the case involving the murder of Ms Dianne Watson who was murdered on 19 January 2004 by Johnathan Lewis Leyshon who was the former partner of Ms Watson and who was the father of her son. Mr Leyshon was the subject of a violence restraining order taken out by Ms Watson. Mr Leyshon was tried, ultimately twice, for wilful murder and convicted and sentenced to life imprisonment with a direction that he serve a minimum of 20 years in prison and under strict security.
The application is for a direction under s 122 of the Criminal Investigation Act 2006 (WA) (the Act) to the effect that the Commissioner of Police (the Commissioner) supply to the applicant a copy of the video record of interview of Mr Leyshon, being the video record of interview which formed part of the evidence at each of his trials, and also for a direction permitting the applicant to possess a copy of that interview and also to broadcast it in the programme to which I have referred. The applicant does not presently have a copy of the video record of interview and would rely upon the Commissioner to supply such a copy if I were to make the order.
The applicant proffers an undertaking to use the record of interview only for the purposes of the programme which is to be broadcast this Sunday and further proffers the undertaking that any part of the video record of interview that is broadcast will be a fair and accurate reflection of the entire interview and will be accompanied by a caption containing words to the effect that the publication of the record of interview was only permissible by order of the Supreme Court or any other words that the court considered to be appropriate.
The affidavit of Ms Le Tourneau who is a producer of the programme leads me to conclude that the thrust of the programme will not be upon either of the trials of Mr Leyshon but, rather, upon the general subject of domestic violence and, in particular, domestic violence perpetrated against those who may have taken out restraining orders against the perpetrators. It is fair to infer from the terms of her affidavit that she has not seen the video record of interview, and is therefore unable to say with any specificity just how the video record of interview would advance the public interest in the depiction of that important subject.
The first question that arises for my consideration arises from the fact that the applicant does not have a copy of the video record of interview, nor is there any person who has a copy of that video record of interview willing to supply a copy to the applicant if permitted to do so by the court. Generally speaking, the position of the Commissioner in relation to applications of this kind is that if the court takes the view that it would be in the public interest for directions to be made under s 122 of the Act permitting possession and publication of a video record of interview, the Commissioner would take a similar view and cooperate by providing a copy of the video. I did not understand counsel for the Commissioner to be saying that this was necessarily a view that the Commissioner would take in this specific case, and certainly the Commissioner's position is not an undertaking to provide a copy of the video record of interview to the applicant if the court were to form the view that it is in the public interest for the interview to be broadcast. However, the fact that the Commissioner may supply a copy of the video record of interview to the applicant if the court were of the view that it is in the public interest to make directions under s 122 of the Act leads me to conclude that the determination of whether or not there is in fact power in the court to direct the supply of a video record of interview, contrary to the wishes of the holder of that video, should not be regarded as determinative in this case.
That is a question upon which different views have been expressed by different members of this court. In the case of Ex Parte West Australian Newspapers [2008] WASCA 209; (2008) 39 WAR 177 I expressed a view which was not necessary to express for the purposes of deciding that case, that s 122 of the Act would not generally override the property rights of third parties in the continued possession of a video record of interview (see [67]). Newnes AJA agreed with that view.
McLure JA, however, expressed a contrary view. Her Honour expressed the view that s 122 of the Act did give the court power to override property interests in the context of her construction of pt 11 of the Act which was to the effect that the powers conferred by s 122 of the Act could only be exercised in the positive advancement of the interests of the administration of justice. As an example, her Honour posited a circumstance in which the court might direct that a person supply a video record of interview to a co‑offender for the purposes of a trial that they were both facing (see [99]).
That was precisely the circumstance that confronted Miller J in the decision of Curtis‑Miller v Parks [2004] WASC 223 in which his Honour took the view that analogous provisions of the Criminal Code (WA) empowered the court to direct the supply of a video from one co‑offender to another and, to that extent, to override the property interests of each co‑offender in their copy of the video.
So there are two judges of the court, Miller J and McLure JA, who take the view that the power does extend to override property interests, albeit in the context of their limited view as to the purposes for which the power is conferred by the Act, namely, a power being limited to the positive advancement of the interests of the administration of justice. By contrast, there are the obiter views which I have expressed, and with which Newnes AJA has agreed, which would suggest that there is no power to override third party property interests in a case such as this.
As I have indicated, because of the position generally adopted by the Commissioner, it does not seem to me that the resolution of those competing views would be determinative of this case and that I should proceed to go on and indicate the manner in which I would exercise the discretion under s 122 of the Act, assuming that there is power to direct supply. As I indicated in the decision which I gave in WA Newspapers, when that discretion falls to be exercised, it will fall to be exercised by reference to a wide range of circumstances and considerations arising from the particular facts and circumstances of each individual case (see [64]).
There are several facts and circumstances that are relevant to the exercise of the discretion in this case. Firstly, the trials of Mr Leyshon were each completed several years ago. There is no contemporary public interest in the trial proceedings and, therefore, this is not one of those cases in which directions are sought for the publication of a video record of interview in the context of a trial which is either under way or recently completed and in which there is an existing public interest. It is also the case, because of that, that the court itself no longer has the video record of interview which has been returned to the police and so this is not one of those cases in which the court is effectively being asked to provide access to evidence which it has in its possession in the context of a trial either running or recently completed.
The second factor that is relevant is that because of the focus of the programme to which I have referred, this is not one of those cases in which the making of directions to allow access to the video would significantly enhance the public interest by enhancing the publication of a report of court proceedings. As I have indicated, the focus of the programme that is to be presented will not be upon the court proceedings involving Mr Leyshon, although it is reasonable to infer that some reference will be made to them, but rather, it will be upon the broader subject of domestic violence and, in particular, the relationship between victims of domestic violence and the limited capacity of violence restraining orders to protect those victims. That is a very important issue and I do not by any means diminish the importance of the public interest in the provision of information to the public on that subject. However, the problem that confronts the applicant is that, not having seen the video record of interview, it is very difficult for Ms Le Tourneau to explain to the court, or to provide cogent evidence of, just how the public interest in the provision of information on that important subject would be enhanced by a direction enabling broadcast of the interview.
The highest it could be put, given that Ms Le Tourneau has not herself seen the video record of interview but is reliant upon a description of that interview given to her by others, is that the extent to which access to the video would enhance the public interest in the provision of information on this important topic is at this stage speculative. Therefore, this is not one of those cases in which it can clearly and demonstrably be seen that the provision of a direction under s 122 of the Act would enhance the public interest by, for example, enhancing the extent to which court proceedings are reported and made available to the public.
The third relevant fact is that Mr Leyshon 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 it 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.
The next matter that is of importance, and indeed in this case, of critical importance, are the interests of Mr Leyshon's eight‑year‑old son to which Mr Leyshon points through his counsel. The child is a child of a father who murdered his mother in quite brutal circumstances. Ms Le Tourneau says in her affidavit, and I accept, that despite being a baby at the time of his mother's murder the child will require psychological support for many years. In those circumstances it seems to me that the court must be very sensitive to the interests of that child in the tragic circumstances in which he now finds himself.
The child's guardians, who are the victim's parents, support the application for supply of the video record of interview and have filed affidavit evidence which satisfies me that they would take steps to prevent the child from watching the programme on Sunday night when it is broadcast. I also accept the submission made in support of the applicant to the effect that whatever I do in relation to this application there will be a segment broadcast on Sunday which will refer to the brutal murder of this child's mother by his father and which is likely to have some impact upon him, such as through interaction with friends in the schoolyard the following day.
I accept that the determination of this application will not prevent the risk of some adverse impact upon the child as a result of the programme, but it does seem to me that if I were to grant the approval sought, the risk of adverse impact upon the boy would be increased due to the greater impact of the programme because of the visual depiction of the child's father that would form part of the programme. It would seem to me that allowing the approval sought would significantly increase the risk of some form of feedback to the child either the following day or in the period after the publication of the programme. I accept that the risk of that occurring may not be high, but because of the interests of the child, I think the court should be appropriately sensitive to that risk and should not countenance a situation in which there would be any material increase in the risk of the child being adversely affected by events of that kind.
It also seems to me that whatever steps might be taken by the court, and whatever legal provisions might prevent republication of the broadcast, in a practical sense, once there is a national broadcast of this video record of interview on Sunday evening, there is a very real chance that the images will be retained in some form and made available somehow, perhaps on the internet, for some time to come. Again, I accept that the risk of this may not be great given the legislative provisions that exist, but because of the appropriate sensitivity of the court to the interests of this child, in my view the court should not take any step which would create a material risk of that occurring. It is a notorious fact that once matters have been broadcast, it is possible for them to be digitally recorded and placed on the internet where they will be retained and accessible in permanent form virtually indefinitely. There is a limit to what the court can do to prevent that from occurring in a practical sense.
So bringing all those considerations together, it seems to me that there are very limited factors that support the making of an order under s 122 of the Act in this case because it is difficult to see a clear and demonstrable public interest that would flow from enabling the applicant to broadcast the video. By contrast, there are significant considerations that seem to me to point against the making of the order, the most significant of which is the interests of Mr Leyshon's son and the practical inability of the court to ensure by any order that those interests could be protected. That latter consideration seems to me to be the determinative consideration in this case.
So for those reasons, even assuming that I have the power under s 122 of the Act to direct supply of the video record of interview to the applicant in this case, it is not a power that I would exercise for the reasons that I have given. For those reasons, I will dismiss the application.
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