Ex parte Seven Network Ltd - [2010] WASC 311

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…

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.

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Details

Case: [2010] WASC 311
Decision Date: 3 NOVEMBER 2010

CaseChat Overview and Summary

In the case of Ex parte Seven Network Ltd, the applicant sought a direction under section 122 of the Criminal Investigation Act 2006 (WA) for the production of a video recording of an interview with an individual. The application was opposed by the Director of Public Prosecutions (DPP), who argued that the making of such a direction would be contrary to the public interest and the interests of the interviewee. The case was heard in the Supreme Court of Western Australia.

The central legal issue before the court was the interpretation of the term "supply" in the context of the Criminal Investigation Act 2006 (WA). The court was required to determine whether the production of the video recording by Seven Network Ltd amounted to a "supply" of the video, as defined in the Act, and whether such an action was justified by the public interest in the circumstances of the case. Additionally, the court needed to weigh the interests of the interviewee against the potential public interest in the broadcast of the video recording.

The court held that the term "supply" in the Criminal Investigation Act 2006 (WA) should be interpreted in a manner consistent with its ordinary meaning, which encompasses the act of providing or delivering something to another person. In this case, the court found that the production of the video recording by Seven Network Ltd did not amount to a "supply" of the video, as there was no transfer of possession or control over the video. Instead, the court considered the specific facts of the case, including the nature of the interview, the identity of the interviewee, and the potential impact of broadcasting the video on the public interest and the interviewee's privacy. Ultimately, the court found that the making of a direction under section 122 of the Act would not be justified by the public interest in this case, and dismissed the application.

The Supreme Court of Western Australia dismissed the application for a direction under section 122 of the Criminal Investigation Act 2006 (WA) and ordered that the application be refused.

Orders