Ex parte West Australian Newspapers Ltd
[2008] WASCA 209
•14 OCTOBER 2008
EX PARTE WEST AUSTRALIAN NEWSPAPERS LTD [2008] WASCA 209
| (2008) 38 WAR 177 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 209 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:127/2007 | 6 MAY 2008 | |
| Coram: | MARTIN CJ McLURE JA NEWNES AJA | 14/10/08 | |
| 43 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | WEST AUSTRALIAN NEWSPAPERS LTD |
Catchwords: | Corruption and Crime Commission (CCC) Investigation by CCC Public hearings Application by media outlet to broadcast videotaped interview played during public hearings Criminal Investigation Act 2006 (WA), s 121 and s 122 Corruption and Crime Commission Act 2003 (WA), s 152 Whether general discretion to make directions or whether discretion is constrained so that it can only be exercised in favour if the grant of access will positively advance the interests of justice or there are otherwise exceptional circumstances |
Legislation: | Corruption & Crime Commission Act 2003 (WA), s 139, s 140, s 152, s 154 Criminal Code Act Compilation Act 1913 (WA), s 570C, s 570F Criminal Investigation Act 2006 (WA), s 115 124 Evidence Act 2006 (NZ) Evidence Regulations 2007 (NZ), r 19 Interpretation Act 1984 (WA) Rules of the Supreme Court 1971 (WA), O 67 r 11 Summary Offences Act 1953 (SA), s 74F |
Case References: | Australian Competition & Consumer Commission v ABB Transmission & Distribution Ltd [No 3] [2002] FCA 609 Australian Securities & Investments Commission v Rich [2002] NSWSC 198 Australian Securities & Investments Commission; Re Richstar Enterprises Pty Ltd v Carey (No 2) [2006] FCA 407 Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Coull v Commissioner of Police [2006] WASC 136 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 Duport Steels Ltd v Sirs [1980] 1 WLR 142 Horsman v Commissioner of Police [2002] WASC 81 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Plutonic Operations Ltd v Done [2000] WASC 56 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Davis (1995) 57 FCR 512 Re Commissioner of Police; Ex parte Artemis International Pty Ltd [2006] WASC 56 Re Walsh [1971] VR 33 Rogers v Television New Zealand Ltd [2005] NZHC 476 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : EX PARTE WEST AUSTRALIAN NEWSPAPERS LTD [2008] WASCA 209 CORAM : MARTIN CJ
- McLURE JA
NEWNES AJA
WEST AUSTRALIAN NEWSPAPERS LTD
Appellant
ON APPEAL FROM:
For File No : CACV 127 of 2007
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : TEMPLEMAN J
Citation : RE CORRUPTION AND CRIME COMMISSION; EX PARTE WEST AUSTRALIAN NEWSPAPERS LTD [2007] WASC 201
File No : MCS 28 of 2007
Catchwords:
Corruption and Crime Commission (CCC) - Investigation by CCC - Public hearings - Application by media outlet to broadcast videotaped interview played
(Page 2)
during public hearings - Criminal Investigation Act 2006 (WA), s 121 and s 122 - Corruption and Crime Commission Act 2003 (WA), s 152 - Whether general discretion to make directions or whether discretion is constrained so that it can only be exercised in favour if the grant of access will positively advance the interests of justice or there are otherwise exceptional circumstances
Legislation:
Corruption & Crime Commission Act 2003 (WA), s 139, s 140, s 152, s 154
Criminal Code Act Compilation Act 1913 (WA), s 570C, s 570F
Criminal Investigation Act 2006 (WA), s 115 124
Evidence Act 2006 (NZ)
Evidence Regulations 2007 (NZ), r 19
Interpretation Act 1984 (WA)
Rules of the Supreme Court 1971 (WA), O 67 r 11
Summary Offences Act 1953 (SA), s 74F
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr K J Martin QC & Ms C Galati
Amicus Curiae : Mr G T W Tannin SC & Mr P D Lochore
Amicus Curiae : No appearance
Solicitors:
Appellant : Edwards Wallace
Amicus Curiae : Commissioner of Police
Amicus Curiae : No appearance
(Page 3)
Case(s) referred to in judgment(s):
Australian Competition & Consumer Commission v ABB Transmission & Distribution Ltd [No 3] [2002] FCA 609
Australian Securities & Investments Commission v Rich [2002] NSWSC 198
Australian Securities & Investments Commission; Re Richstar Enterprises Pty Ltd v Carey (No 2) [2006] FCA 407
Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Coull v Commissioner of Police [2006] WASC 136
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Duport Steels Ltd v Sirs [1980] 1 WLR 142
Horsman v Commissioner of Police [2002] WASC 81
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Plutonic Operations Ltd v Done [2000] WASC 56
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Davis (1995) 57 FCR 512
Re Commissioner of Police; Ex parte Artemis International Pty Ltd [2006] WASC 56
Re Walsh [1971] VR 33
Rogers v Television New Zealand Ltd [2005] NZHC 476
(Page 4)
- MARTIN CJ:
Summary
1 West Australian Newspapers Ltd (WAN) appeals from the decision of the first instance judge refusing to grant an application which would have permitted the Corruption and Crime Commission (CCC), if it thought fit to do so, to supply WAN with those portions of the videotaped police interview of Mr Simon Rochford conducted on 11 May 2006 which were played during a public hearing of the CCC on 31 July 2007, in order that WAN might publish those portions of the interview on its website. For the reasons which follow, I would allow the appeal and grant WAN's application. The effect of that course would be to leave it up to the CCC to determine whether or not WAN should be permitted to receive and publish the relevant portions of the interview.
The facts
2 Mrs Pamela Lawrence was brutally murdered in Mosman Park in May 1994. Andrew Mark Mallard was arrested and charged with her wilful murder. He was tried and convicted. His appeal to the Court of Criminal Appeal of this court was dismissed. Following a further reference of his case to the Court of Criminal Appeal of this court, an appeal to the High Court resulted in Mr Mallard's conviction being quashed in November 2005.
3 On 20 February 2006, the proceedings against Mr Mallard were discontinued by the Director of Public Prosecutions. However, at the time he discontinued the proceedings, the Director of Public Prosecutions advised the court that Mr Mallard remained the prime suspect in the investigation of the murder of Mrs Lawrence.
4 There was then a review of the investigation. Evidence which came to light in the course of that review caused the Director of Public Prosecutions to announce that Mr Mallard was no longer a suspect. The evidence was described by counsel assisting the CCC as including 'a perfectly preserved plaque of an unidentified palm print and another plaque containing unidentified fingerprints'.
5 The palm print was identified as being that of Mr Simon Rochford. He had been convicted of wilfully murdering his girlfriend some seven weeks after Mrs Lawrence was murdered. There were some similarities in relation to the murders of the two women, including, in particular, the form of weapon used.
(Page 5)
6 Mr Rochford was serving his sentence in Albany Regional Prison. On 11 May 2006, he was interviewed by police. The interview was recorded on videotape. During the course of the interview, Mr Rochford denied murdering Mrs Lawrence. However, he proffered no explanation for his palm print being found at the crime scene.
7 On 18 May 2006, there was a television broadcast naming Mr Rochford as a suspect under investigation for the murder of Mrs Lawrence. The following day Mr Rochford was found dead in his cell, apparently as a result of self-inflicted wounds. The circumstances of Mr Rochford's death are currently under investigation by the coroner.
8 The CCC announced that it would conduct an investigation pursuant to the provisions of the Corruption and Crime Commission Act 2003 (WA) (the CCC Act). The scope of the investigation was described by the CCC in the following terms:
Whether any public officer engaged in misconduct in connection with the investigation of the murder of Pamela Lawrence, the prosecution and appeals of Andrew Mark Mallard and other matters related to and touching upon these events.
9 The CCC decided to conduct public examinations in aid of its investigations. Section 139 of the CCC Act provides that an examination by the CCC is not open to the public unless the CCC decides to open the examination to the public pursuant to s 140 of the CCC Act. That section provides that:
(2) The Commission may open an examination to the public if, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, it considers that it is in the public interest to do so.
10 Accordingly, it may reasonably be inferred that the CCC concluded that it was in the public interest for its examinations to be opened to the public.
11 The public hearings of the CCC commenced on 31 July 2007. Counsel assisting the CCC gave a lengthy opening address. In the course of that address, he related the history of the matter. During the course of relating that history, he played what appears from the transcript of the CCC hearing to have been four portions of the videotaped interview of Mr Rochford in Albany Regional Prison.
(Page 6)
12 The murder of Mrs Lawrence, the subsequent conviction and discharge of Mr Mallard, and the death of Mr Rochford have become a cause célèbre. They have attracted much media and public attention. The public hearings of the CCC also attracted a great deal of media and public attention. It is the practice of the CCC to make the transcript of its public hearings available on its website. The transcript of the public hearing on 31 July 2007 was (and remains) published in this way. However, those transcripts do not include a transcription of the portions of the videotaped interview of Mr Rochford which were played during the course of the opening address.
13 The public hearing of the CCC on 31 July 2007 received significant attention in the media. At least two of the print media outlets (including WAN) reported a description of the portions of the interview of Mr Rochford which were played in the hearing room that day.
14 During the course of a public hearing on 6 August 2007, counsel assisting the CCC stated the CCC's position in relation to the provision of information and documents obtained in the course of the investigation to the public. Counsel assisting stated:
[T]he policy of the Commission in this particular matter, particularly an historical matter, is that wherever possible any document referred to or used in the course of the public hearings, and indeed in some cases in the private hearings as well, will be provided.
That's the general view that has been taken. It's in the public interest to do so and that's the intention. There are some obvious exceptions and I will go through those, if I may, Commission. The first is that in some cases there is a statute that actually prohibits the provision of some documents. When I say document I'm using that in the wider sense to cover video films, tape-recordings, plaques. Now, in particular there is a statute that prohibits the provision of the videotapes of records of interview that have been carried out.
It is not open to the Commission to provide those videotapes and they cannot be provided. In some situations it may be possible to provide transcripts or extracts of transcript. Where that can be done it will be.
The legislation
15 The legislation to which counsel assisting was referring is pt 11 of the Criminal Investigation Act 2006 (WA). As the proper construction of that part is at the heart of this appeal, it is appropriate to set out its provisions in full:
115. Interpretation
- In this Part -
- 'CCC' means the Corruption and Crime Commission established under the Corruption and Crime Commission Act 2003;
'CCC officer' has the meaning given to the term “officer of the Commission” by the Corruption and Crime Commission Act 2003 section 3;
'interview' means an interview with a suspect by a police officer or a CCC officer or any part of such an interview;
'ombudsman officer' means -
(a) the Parliamentary Commissioner for Administrative Investigations appointed under the Parliamentary Commissioner Act 1971;
- (b) the Acting Commissioner or the Deputy Commissioner appointed under that Act; or
(c) an officer appointed under section 9(1) of that Act;
'suspect' means a person suspected of having committed an offence, whether or not he or she has been charged with the offence.
- 116. Interviews, conduct of
(1) An interview may be conducted by remote communication.
(2) An interpreter, if needed for an interview, may participate by remote communication.
117. Recorded interview to be made available to the suspect
(1) If an audiovisual recording is made of an interview and the suspect is charged with an offence to which the interview relates, a copy of the recording must be made available to the suspect or the suspect's lawyer within 14 days after the suspect is so charged or, if that is not practicable, as soon as practicable after that period.
(2) No person is entitled to a transcript of an audiovisual recording of an interview, or any part of such a recording.
(3) A court must not order that such a transcript be made unless satisfied that -
- (a) words spoken in the interview cannot be understood satisfactorily; and
(b) it is practicable to prepare such a transcript.
- (4) Subsections (2) and (3) do not prevent a person from making a transcript of an audiovisual recording of an interview and supplying a copy of it to any person.
118. Admission in serious case inadmissible unless recorded
(1) In this section -
'admission' means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;
'adult' means a person who has reached 18 years of age;
'child' means a person who is under 18 years of age;
'reasonable excuse', for the absence of an audiovisual recording of an admission, includes -
(a) the admission was made when it was not practicable to make an audiovisual recording of it;
(b) equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c) the suspect did not consent to an audiovisual recording being made of the admission;
(d) the equipment used to make an audiovisual recording of the admission malfunctioned.
(a) a child charged with an indictable offence, irrespective of whether, if an adult were charged with it, it could be dealt with by a court of summary jurisdiction; or
(b) an adult charged with an indictable offence that cannot be dealt with by a court of summary jurisdiction.
(3) On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -
- (a) the evidence is an audiovisual recording of the admission; or
(b) in the absence of an audiovisual recording of the admission -
(i) the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii) the court decides otherwise under section 155.
- (4) Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.
119. Recording admitted as evidence, jury may play
If an audiovisual recording of an interview is admitted as evidence in a trial, the jury is entitled to play the recording during its deliberations.
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 10)
- (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.
123. Recordings to be retained by the police and CCC
(Page 12)
- (1) If an audiovisual recording is made of an interview, the Commissioner of Police or the CCC, as the case requires, must keep the recording or a copy of it in safe custody for at least 5 years.
(2) If the Supreme Court is satisfied there is good cause to keep an audiovisual recording of an interview for more than 5 years, it may order the Commissioner of Police or the CCC to keep the recording for an additional period set by the Court.
(3) The Commissioner of Police or the CCC, in writing, may authorise a person to erase audiovisual recordings of interviews in accordance with this section.
124. Recordings may be played for teaching purposes
(1) In this section -
'prescribed person' means -
(a) a police officer or police trainee;
(b) a CCC officer;
(c) a lawyer or a person training to become a lawyer; or
(d) a person prescribed for the purposes of this section.
(2) An audiovisual recording of an interview may be played to a prescribed person for the purposes of instruction if -
(a) the suspect has been convicted of a charge to which the interview relates;
(b) all legal proceedings in relation to the subject matter of the interview have been concluded; and
(c) all reasonable measures are taken to prevent the identification of the suspect from the recording when it is played.
(Page 13)
17 The other legislative provision which is relevant is s 152 of the CCC Act:
152. Disclosure by the Commission or its officers
(1) In this section -
'Commission lawyer' means -
(a) a legal practitioner appointed to assist the Commission; and
(b) a person who assists, or performs services for or on behalf of a legal practitioner appointed to assist the Commission in the performance of the legal practitioner’s duties assisting the Commission;
- 'court' includes a tribunal, authority or person having power to require the production of documents or the answering of questions;
'official information', in relation to a relevant person, means information acquired by the person by reason of, or in the course of, the performance of the person’s functions under this Act;
'produce' includes permit access to;
'relevant person' means a person who is or was -
(a) an officer of the Commission; or
(b) a Commission lawyer.
(a) make a record of any official information; or
(b) disclose any official information.
- Penalty: Imprisonment for 3 years and a fine of $60 000.
(3) Despite subsection (2), a relevant person may make a record of official information -
(a) under or for the purposes of this Act;
(b) otherwise in connection with the performance of the person’s functions under this Act.
(Page 14)
- (4) Despite subsection (2), official information may be disclosed by a relevant person if it is disclosed -
(a) under or for the purposes of this Act;
(b) for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act or any other prosecutions or disciplinary action in relation to misconduct;
(c) when the Commission has certified that disclosure is necessary in the public interest;
(d) to either House of Parliament or to the Standing Committee;
(e) to any prescribed authority or person; or
(f) otherwise in connection with the performance of the person’s functions under this Act.
(5) A relevant person is not authorised to disclose operational information under subsection (4)(d) or (e) unless the Commission has certified under subsection (4)(c) that disclosure is necessary in the public interest.
(6) Despite subsection (2), a relevant person may disclose the fact that an allegation has been received or initiated by the Commission or the details of an allegation.
(7) A relevant person cannot be required to produce or disclose any official information in or to any court except for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act.
(8) This section also applies to the Commission as if references to official information were references to all information acquired by the Commission by reason of, or in the course of, the performance of the Commission’s functions under this Act.
18 It seems relatively clear that the videotape of the interview of Mr Rochford, and the portions to which WAN seek access, are 'official information' within the meaning of that section, with the consequence that the portions of the videotape could only be provided by the CCC to WAN if the CCC certified that disclosure was necessary in the public interest. However, because of the prohibitions upon supply and broadcast of the
(Page 15)
- interview contained in pt 11 of the Criminal Investigation Act, a certificate by the CCC to that effect would be of no avail unless this or another court gave directions authorising the supply and broadcast of those portions of the interview pursuant to s 122 of the Criminal Investigation Act.
WAN's application
19 In the legislative framework I have set out, there was no point or purpose to be served in the CCC making a determination as to whether or not disclosure of the portions of videotape interview would be in the public interest unless and until directions of a court had been made to enable effect to be given to such a determination. WAN applied to this court for such directions, authorising the CCC (subject to s 152 of the CCC Act) to supply it with the portions of the interview which were played during the public hearing of the CCC on 31 July 2007, and further authorising WAN to possess those portions of interview and to broadcast them.
20 WAN's application was supported by affidavits providing evidence of the history which I have set out above. An affidavit of Mr Sean Cowan, a journalist employed by WAN, was also tendered. He deposed that he was present at the hearing of the CCC on 31 July 2007 when parts of the police interview with Mr Rochford were played. He describes the portions of interview and expresses the belief that:
[T]he interview provides a unique insight concerning the reaction of the person now considered to be the prime suspect, to the questions put to him.
21 Mr Cowan further deposes that although he produced a written report of the proceedings on 31 July 2007, which appeared in WAN's newspaper the following day, in his view the impression obtained from watching the interview was 'impossible to fully convey by the written word'. Mr Cowan also expresses the view that:
Given that Mr Rochford is deceased and will never stand trial for the murder of Pamela Lawrence, I believe members of the general public should have the opportunity, if possible, to see for themselves how Mr Rochford reacted to the charge that it was he who was responsible for the death of Pamela Lawrence, by viewing his demeanour when responding to the questions put to him by the police in the 2006 interview, which interview was played at the CCC hearing.
22 WAN also tendered an affidavit of Mr Paul Armstrong, the editor of one of the newspapers it publishes. He deposed that if WAN's application
(Page 16)
- were successful, WAN would broadcast the relevant portions of the Rochford interview, or perhaps extracts of those portions, on its internet website, as part of its coverage of the hearings of the CCC. Mr Armstrong further deposed:
9. The matters the subject of the Mallard Inquiry are of great public importance. The Inquiry is arguably the most searching look at the operations of the WA police and the WA justice system.
10. As editor of The West Australian, I believe it of the utmost public importance that openness and accountability extends to every aspect of the case and that the public be as fully informed as possible as to what is being revealed by the CCC.
11. In my view, the inability of most members of the general public to be present in the CCC hearing room on 31 July 2007 and 1 August 2007 should not inhibit the general public from being able to see and hear for themselves all the evidence presented to the CCC in the most coherent fashion which is capable of being presented to the public. It is my view that whatever is said in the Inquiry, and shown in the Inquiry room, should be made available to the Western Australian community, if that is possible. The applicant through its newspaper, and on-line newspaper, has the capacity to provide the means by which the public can be more fully informed.
12. A refusal of access to the police record of interviews in all the circumstances of this case, produces the same effect as the making of an order suppressing the video evidence. Such a restriction is, in my view, contrary to the public interest in this matter, particularly given that Mr Rochford is deceased and as a result will never face trial for the murder of Pamela Lawrence, and that the CCC revelations concerning Mr Rochford has effectively now exonerated Mr Mallard from any suggestion of involvement in her murder, let alone remaining as a 'prime suspect'.
(Page 17)
The decision at first instance
24 The judge at first instance set out the history of the matter and the application. After referring to the relevant legislation, he referred also to previous decisions dealing with ch LXA of the Code, being Horsman v Commissioner of Police [2002] WASC 81; Plutonic Operations Ltd v Done [2000] WASC 56, and Re Commissioner of Police; Ex parte Artemis International Pty Ltd [2006] WASC 56. He drew from those decisions the proposition that before WAN's application could be granted, it would be necessary for WAN to establish either that the interests of justice required the release of the video portions, or that exceptional circumstances justified their release. His Honour construed the requirement that release serve the interests of justice as requiring that release be necessary for the avoidance of injustice [29] in a particular case [24].
25 The judge at first instance drew a distinction between the broader public interest, to which Mr Armstrong had referred in his affidavit, and the furtherance of the interests of justice. While he concluded that release of the material sought would not result in any injustice to Mr Rochford, he considered that to be irrelevant, because in his view it was necessary for WAN to establish that release of the material would further the interests of justice [37]. In response to submissions put by WAN relying upon the principle of open justice, referred to by Le Miere J in Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133, the trial judge observed that in his view that principle had been satisfied by the videotapes having been played in open court.
26 At [59] the judge at first instance gave two answers to WAN's argument based on the broader public interest identified in the affidavits of Mr Cowan and Mr Armstrong. In his view, furtherance of that public interest provided no basis for the exercise of the discretion conferred by s 122 of the Criminal Investigations Act. He went on [59]:
[A]nd I do not think it can be said to be in the public interest for documents to be made public when their publication is prohibited by statute. That is to say, in passing the relevant legislation, parliament must be taken to have formed the view that such publication is not in the public interest.
27 The judge at first instance also thought that there would be difficulties in granting WAN's application by reason of the provisions of s 152 of the CCC Act. However, counsel for the Commissioner of Police,
(Page 18)
- who appeared again at the hearing of the appeal to oppose WAN's application, conceded, properly in my view, that there was nothing in that section that would prevent the orders sought by WAN, and that issue need not be considered further.
The issues raised by the appeal
28 Two central issues are raised by this appeal. The first is the proper construction and effect of pt 11 of the Criminal Investigation Act, and in particular, whether the judge at first instance was correct to follow and extend previous decisions at first instance to the effect that an applicant for directions under s 122 must establish that those directions would advance the interests of justice by avoiding injustice in a particular case, or that there are exceptional circumstances justifying the direction sought. The second issue is, having regard to the proper construction and effect of pt 11 of the Criminal Investigation Act, do the circumstances of this case justify the grant of WAN's application?
The previous Western Australian cases
29 This case appears to be the first application pursuant to s 122 of the Criminal Investigation Act. There appear to have been a number of applications brought pursuant to s 570F of the Code, which was the approximate equivalent provision under ch LXA of the Code prior to its repeal. However, the majority of the applications brought under that section have been resolved ex tempore and involved relatively non-contentious circumstances - commonly being applications by one accused person for a copy of the videotaped record of interview of a co-accused, or occasionally, applications to permit use of tapes for the purposes of education and instruction.
Plutonic Operations v Done [2000] WASC 56
30 The first decision in which reasons were published appears to be the decision of Master Sanderson in Plutonic Operations Ltd v Done. That case concerned an application by the former employer of a person who had been charged with stealing as a servant but acquitted after trial in the District Court. The former employer had commenced proceedings against the former employee for conversion, arising from essentially the same facts as had been the subject of the criminal trial in the District Court. The Master's reasons are concerned almost exclusively with the question of whether the Supreme Court had jurisdiction to make the order, given that the criminal proceedings had been disposed of in the District Court.
(Page 19)
31 After concluding that the Supreme Court had jurisdiction, he had no hesitation in making the order for inspection. He appears to have been strongly influenced by the observation that it might have been open to the applicant to have applied for discovery of the tape from a third party in the course of the proceedings against the former employee (Rules of the Supreme Court 1971 (WA), O 26A r 5), or to apply for the early return of a subpoena to compel production of the tape. The Master does not appear to have given any consideration to the question of whether those provisions of ch LXA of the Code, which prohibited the supply or possession of videotaped interviews, might have precluded an application for discovery or for production under subpoena. At all events, the case sheds very little light upon the issues presently under consideration.
Horsman v Commissioner of Police [2002] WASC 81
32 The case of Horsman concerned an application by the father of a young man who had died as a result of a motor vehicle accident. He applied for a copy of a video record of interview conducted by police officers with his son three days prior to his death. The application was supported by an affidavit which stated that the video was the only audiovisual record which the family had of the deceased, and would be used only for family and sentimental purposes.
33 After referring to the provisions of ch LXA of the Code, McKechnie J observed [10] - [13]:
The purpose of such restrictions is not hard to see. A person who gives an interview to a police officer which is videotaped, has expressly or impliedly consented to that tape being viewed by persons in the authorised person category under s 570B and more importantly to that videotape being viewed in open court if charges are laid. There can not be implied a consent to have a tape broadcast to a wider audience, or indeed to be supplied to any person beyond the authorised persons mentioned.
Section 570F gives the court jurisdiction to make directions. The jurisdiction to make directions ought to be exercised for the interests of justice. The decision in Plutonic Operations Ltd v Done was made to advance the interests of justice. Another example where directions might be made is the supply of the videotaped record of interview of one defendant to another defendant in a case where there is a joint charge or trial.
Having in mind the general restrictions on the supply of videotaped records of interview under Chapter LXA, it will be an exceptional case where the court would exercise its discretion under s 570F other than to advance the interests of justice.
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- The private interests of the applicant, though understandable, are not such that would lead me to make a direction. Therefore the application fails.
- This decision is the source of the proposition that an applicant for access to a video record of interview must satisfy the court that the grant of access will positively advance the interests of justice, or be 'an exceptional case'. In the circumstances of that case, there could be no suggestion that the provision of access to the video would have interfered with the course of justice in relation to the specific subject of the video, because the interviewee was deceased.
34 The published reasons do not reveal why it was thought appropriate to impose a fetter upon the apparently unlimited discretion conferred by s 570F of the Code, to the effect that the applicant must satisfy the court that access would positively advance the interests of justice, or otherwise 'be an exceptional case' (whatever that means). Constraints cast in those terms do not appear from the language of the statute, nor do they flow in any logical sense from the observations made with respect to the ambit of the implied consent to subsequent use given by the interviewee. No process of statutory construction is revealed by the published reasons. Rather, the decision appears to constitute the imposition of a judicially devised policy, which is not derived from, or sustained by, the words of the statute.
Coull v Commissioner of Police [2006] WASC 136
35 In the case ofCoull v Commissioner of Police an application was made by a person who was seriously injured in a motor vehicle accident for access to the video record of the interview of the other driver involved in the accident. By the time the application was brought, there was evidence to the effect that the other driver would not be charged with any offence arising from the accident. After referring to the decision of McKechnie J in Horsman, Miller J accepted that 'the question is the advancement of the interest of justice generally' [11]. Because the applicant wanted access to the videotape for the purpose of civil proceedings against the other driver, Miller J concluded that the grant of access was in the interests of justice and acceded to the application.
Re Commissioner of Police; Ex parte Artemis International Pty Ltd [2006] WASC 56
36 In thecase ofReCommissioner of Police; Ex parte Artemis International Pty Ltd the producer of a documentary relating to the prosecution of Mr Mallard sought access to the video record of interview conducted with Mr Mallard by police officers in June 1994. The
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- application was brought after the High Court had quashed Mr Mallard's conviction and the Director of Public Prosecutions had discontinued the prosecution of Mr Mallard in terms which made it clear that he remained the prime suspect for the murder of Mrs Lawrence. The inquiry by the CCC had also been announced.
37 Johnson J reviewed the statutory framework provided by ch LXA of the Code and then observed [18]:
I consider the above summary of ch LXI [sic] and the analysis of the provisions contained in it, support the decision of McKechnie J in Horsman v Commissioner of Police … that the jurisdiction to make directions under s 570F ought to be exercised in the interests of justice. I also concur with McKechnie J's view that it will be an exceptional case where the Court would exercise its discretion under s 570F other than to advance the interests of justice.
- With respect, the process of reasoning leading from the enunciation of the statutory framework to the conclusion that use of the video must advance the interests of justice or the case must otherwise be 'exceptional' is not revealed.
38 Her Honour further stated [19]:
[H]aving considered the terms of s 570F in the context of ch LXA and the available authorities, it is apparent to me that the starting point of any application is that the use of videotaped records of interview is generally restricted to the criminal justice system. It is only where the Court is satisfied that it is in the interests of justice to depart from that position that an order under s 570F should be made.
- No reference is made to 'exceptional' cases, in this portion of the reasons. Nor is the logical process by which one moves from the 'starting point' to the conclusion revealed. With respect, while it is apparent from the restrictions imposed upon access to, and use of, recorded interviews that any adverse impact upon the administration of justice would be a weighty consideration against the exercise of the discretion, it by no means follows, as a matter of logic, that a positive advancement of the administration of justice must be established before the discretion could be properly exercised in favour of access.
39 Her Honour also referred to policy considerations in the following passage of her reasons [33]:
Public dissemination of videotaped interviews may also have the effect of deterring people questioned by the police from participating in a videotaped record of interview because the contents may be disseminated
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- to the public rather than simply to those involved in the trial process. In Rogers v Television New Zealand Limited consideration was given to the evidence of a witness, a prominent barrister, on the likely effect of release of a videotaped interview to the media. The following is an extract from the judgment outlining her comments (at [61] and [62]):
'She states that it would be of concern if videotaped statements of accused person were released to the media. She says that the videotaping of statements are generally seen as desirable both for the prosecution and for the defence … She says that were it to become permissible or common practice for the Police to hand over such videotaped interviews to the media, she would be obliged to advise that possibility to clients and that this would undoubtedly affect their decision whether to make a statement or video, or indeed whether to make a statement at all.'
Such a result is clearly not in the interests of justice.
40 After weighing the competing considerations for and against the grant of access, her Honour concluded that the possibility of compromise to the ongoing investigation of Mr Mallard as a result of publication of the record of interview compelled the conclusion that the application should be refused. Her Honour also took into account the prospect that publication of the record of interview could compromise the pending inquiry by the CCC.
Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining & Energy Union of Workers[2007] WASC 133
41 Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining & Energy Union of Workers was not concerned with an application for access to a video record of interview but with applications by the media for access to affidavits tendered in civil proceedings before the court. Le Miere J observed that the court has an inherent power to make material admitted into evidence or produced to the court available on request: Australian Competition & Consumer Commission v ABB Transmission & Distribution Ltd [No 3] [2002] FCA 609 [6] (Finkelstein J). In Western Australia rules have been made to facilitate the provision of material on the court file (see Rules of the Supreme Court, O 67 r 11).
42 The media applicants relied upon the principle of open justice, as enunciated by Barrett J in Australian Securities & Investments Commission v Rich [2002] NSWSC 198 [9]:
[D]ecisions about access to documents in court files are to be determined first and foremost by reference to principles of open justice and the due
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- administration of justice that require an appropriate measure of cooperation by the court with those sections of the media which seek to report proceedings before the court. Those principles focus most sharply on the situation where a trial has taken place or is at least in progress. The proceedings which must be open and to which access in the public interest must be guaranteed are proceedings that actually take place in court. It is in that context that the court has an undoubted and clear role to play in assisting the media to obtain a full and fair understanding of what has transpired so that informed reporting can occur without incomplete appreciation of source materials and in a way which enables the various matters which have come out in court, whether or not actually spoken aloud, to be understood in the full context of the case.
43 Le Miere J adopted and endorsed the open justice principle. He referred to the policy considerations supporting arrangements which encourage media reporting of court proceedings by reference to the following passage from the decision in R v Davis (1995) 57 FCR 512, 514:
Whatever [the media's] motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.
44 Le Miere J concluded [46]:
The principle of open justice does not require that all documents on the court file should be open to inspection to any person. The principle applies to the judicial process not to the court file. In general, the Court should favour allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence, whether in the course of a trial or an interlocutory hearing. There may be reasons for refusing to exercise the court’s discretion in favour of access but in the absence of any good reason to refuse access the principle of open justice favours access. All the more so when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is contrary to the principle that court proceedings should be conducted publicly and in open view.
- The applicants were granted access to the affidavits.
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Other jurisdictions
45 The principle of open justice has, of course, been the subject of decisions in many jurisdictions. The position in the Federal Court was recently summarised conveniently by French J (as his Honour then was) in Australian Securities & Investments Commission; Re Richstar Enterprises Pty Ltd v Carey (No 2) [2006] FCA 407 [16] - [20]:
The principles governing access to affidavits which have been received into evidence were discussed recently by Sackville J in Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394, a judgment which was delivered on 5 October 2005. The point of departure adopted by his Honour was the proposition stated by the Full Court in R v Davis (1995) 57 FCR 512 at 514:
'Whatever [the media’s] motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.'
His Honour referred to other authorities to like effect.
Open justice was described in John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101 by Spigelman CJ as a principle and not 'a free-standing right'. Access by non-parties to documents filed in proceedings in the court is governed by the provisions of O 46 r 6. There is a general right to search and inspect documents in the class set out in O 46 r 6(2) unless the Court or a judge has ordered that the document is confidential. The list of documents specified in subr 6(2) does not extend to affidavits filed in the proceeding. Subr 6(3) requires that the leave of the court or a judge be given before a non-party can inspect such documents. No distinction is made in that respect between affidavits which have been filed and not read in evidence and affidavits which have been read in evidence. Nevertheless, it is clear that there will be a far stronger case for access by the public to affidavits which form part of the evidence before the court than there will be to affidavits which are not in evidence.
I agree, with respect, with the following observation by Sackville J in Seven Network at [27]:
'… unless the interests of justice require otherwise, this Court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence. I say "ordinarily" because the circumstances of each case
- will vary and the exercise of the discretion under FCR O 46 r 6 will have to take into account the particular circumstances of the case. I agree … that a convenient touchstone for determining the question of access by non-parties is whether the documents or other material have been admitted into evidence. In general, the application of this principle will serve the interests of open justice. In particular, access to the documentary evidence can be expected to be helpful to a person seeking to understand or explain the proceedings, or to evaluate the court's determination of the issues arising the proceedings (cf Evidence Act 1995 (Cth), s 55, s 56 (stating the test of relevance)).'
- His Honour went on to say that in exercising the discretion conferred by O 46 r 6(iv) he considered that considerable weight should be given to the principle of open justice.
In that case, however, his Honour recognised that there was a significant risk that if non-confidential exhibits were released to the media as soon as they were admitted into evidence some parties might be subjected to a forensic disadvantage. Thus the publication in the media of the substance of some exhibits might deprive a party of a legitimate forensic advantage when it came to cross-examination of particular witnesses.
In connection with ex parte proceedings, I refer also to the observation by Austin J in Rich (at [26]):
'The principle of open justice entails, in my view, that when the Court makes quite significant orders on an ex parte application, the basis for the making of those orders must be available so that the court is accountable for what it has done after it has considered the information provided to it. In my view, that is so important a consideration that, unless there is some specific or obvious prejudice of another kind, the mere consideration of prematurity, in the sense that the plaintiff’s evidence has not been tested or answered, is insufficient to prevent the Court from making available to outsiders, including in particular the media, the affidavits relied upon in ex parte circumstances leading to significant relief.'
47 I respectfully agree entirely with these endorsements of the open justice principle. That principle may be a significant consideration in a case in which an application is made for directions permitting access to,
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- and use of, a recorded interview which has been presented as evidence in open court. However, it is of little or no relevance to this case, because the relevant proceedings were not proceedings in open court, but proceedings of the CCC, which are governed by specific statutory provisions vesting decisions with respect to public access in the CCC, not the court.
48 Most jurisdictions now have legislation encouraging the video recording of confessions to police. The research of the parties and the court suggest that in only two analogous jurisdictions (other than Western Australia) are there specific provisions prohibiting the use or publication of such video recordings. One such jurisdiction is South Australia, where s 74F of the Summary Offences Act 1953 (SA) prohibits the playing of a videotape containing an interview except for purposes related to the investigation of an offence, legal proceedings to which the interview is relevant or with the permission of the court before which the videotape or audiotape had been tendered in evidence. I have been unable to find any cases specifically dealing with the grant of permission in South Australia.
49 The other jurisdiction which limits the use to which video records may be put is New Zealand, where regulations made under the Evidence Act 2006 (NZ)limit the uses to which video records of interview may be put. However, the New Zealand regulations only apply to video records of a complainant's evidence (Evidence Regulations 2007 (NZ), r 19). These regulations came into force on 1 August 2007. The decision in Rogers v Television New Zealand Ltd [2005] NZHC 476 to which Johnson J referred in ReCommissioner of Police; Ex parte Artemis International Pty Ltd precedes the introduction of those regulations. Further, the case of Rogers would not be subject to the regulations as it did not involve the video record of a complainant's evidence. Instead it related to a video record of a person who had been charged by police. For interest, it can be noted that in Rogers the tort of invasion of privacy was relied upon to restrain the publication of a video record which had not been played in court.
The construction issue
50 As I have already observed, the proper construction of pt 11 of the Criminal Investigation Act is at the heart of this appeal. The essential question is whether, in the context of pt 11, s 122 gives the Supreme Court a general discretion to make directions with respect to the supply, copying, playing, broadcast etc of a video record of interview, to be exercised having regard to all relevant facts and circumstances, or whether
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- that discretion is constrained so that it can only be exercised in favour of the grant of access if such a grant will positively advance the interests of justice or there are otherwise exceptional circumstances.
51 There are of course many principles of statutory construction. All acknowledge that the starting point for any process of construction is the language of the relevant provision, viewed in the context of the statute as a whole, having regard to the general purpose and the policy of the legislation (see for example Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]). Having regard to the approach taken in some of the cases to which I have referred, it is salient to emphasise that the process is one of construction of the language used by the Parliament, not one of reconstruction by reference to language which the court thinks the Parliament might or should have used (see, Project Blue Sky (384)). Nor is the process of statutory construction an occasion for the imposition of judicially divined policy (see, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, 304 - 305 (Gibbs CJ), 310 (Stephen J) and Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157 (Lord Diplock)). Rather, it is the task of the court to ascertain and give effect to the policy of the Parliament evident in the language which it has used, or which can be gleaned from admissible aids to construction such as those taken into account pursuant to s 19 of the Interpretation Act 1984 (WA) (see Re Walsh[1971]VR 33, 38 - 39 and Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 [23]).
52 It is also pertinent to note that cases concerning the resolution of statutory ambiguity involve quite different considerations. In those cases the task of the court is to identify which of two or more alternative meanings is to be preferred. Whichever meaning is chosen, its source is, of course, the language of the statute and the focus of debate will naturally and inevitably be on the words used. This is not a case involving statutory ambiguity. In cases which do not involve ambiguity there is a risk that propositions of policy may be propounded as propositions of construction without specific reference to the words actually used. It is of the utmost importance to remember that the focus is, and must always be, upon the words used in the statute.
53 It is clear that there are no express terms in s 122, or in pt 11, which would constrain the power of the court to give directions with respect to the supply and broadcast of videotaped records of interview in the manner suggested in the previous cases and by the trial judge in this case. Section 122 of the Criminal Investigation Act is expressed in terms apt to
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- confer a general discretion in unconfined terms - constrained only by the limits to be implied by the subject matter, scope and purpose of the statute (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 [15]). By a series of decisions at first instance, adopted and to some extent advanced by the trial judge in this case, the courts of this state have imposed constraints upon the judicial discretion conferred by the statute in terms which are not found in the express language of the statute. If those decisions are correct, they must therefore be sustained by conclusions to be drawn from the subject matter, scope and purpose of the legislation - in this case to be found in the general language and structure of pt 11 of the Criminal Investigation Act.
54 The general purpose of pt 11 of the Criminal Investigation Act is clear enough. It is to enhance the quality of confessional evidence given in criminal proceedings. It follows the general form of ch LXA of the Code, which was enacted at a time at which criminal trials were commonly bedevilled with arguments as to the veracity and admissibility of evidence of oral and written confessions given by police officers. The advent of modern technology, in the form of video recording, has facilitated the production of the best evidence of any confession. It has significantly reduced the evidentiary disputes with respect to the admissibility of such confessions and incidentally increased the number of early pleas of guilty. So, a legislative purpose of encouraging audiovisual recording of police interviews of suspects is abundantly clear from the terms of pt 11 and in particular from s 118, which limits the admissibility of confessional evidence which has not been audiovisually recorded. That purpose is, no doubt, a matter properly taken into account by a court when exercising the discretion conferred by s 122 of the Criminal Investigation Act.
55 Cast in even more general terms, it is clear that the purpose of the Criminal Investigation Act, including pt 11, is to enhance the administration of criminal justice and in particular that aspect of the administration of justice that relates to criminal investigation. It is, therefore, no doubt essential for a court considering making directions under s 122 of the Criminal Investigation Act to consider the extent to which the directions sought will enhance or detract from the administration of justice. However, the process of comparatively assessing the extent to which a direction sought will, on the one hand enhance or, on the other hand detract from the administration of justice is fundamentally different in character from the proposition adopted by the trial judge in this case, which is to the effect that directions can only be
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- made if the applicant establishes that the interests of justice will be positively advanced in a particular and identifiable case.
56 The provisions of pt 11 restricting the possession and use of audiovisual recordings merit particular attention. By s 120 of the Criminal Investigation Act possession of an audiovisual recording is limited to 'authorised persons', the suspect or the suspect's lawyer, and persons engaged by those persons to transport the recording in a sealed package. The same section prohibits the playing of an audiovisual recording, except for specified purposes or under a direction of the court. The section also prohibits the supply, or any offer to supply, of an audiovisual recording of an interview to a person is not authorised to possess it unless the supply or offer to supply is made under a direction pursuant to s 122. The section creates similar prohibitions in relation to the copying or erasure of an audiovisual recording.
57 Section 121 prohibits the broadcast of an audiovisual recording unless the broadcast is made under a direction of the court given pursuant s 122. The expression 'broadcast' is not defined by the Criminal Investigation Act, but would presumably bear its natural meaning, which would include the use of electronic media to publicly disseminate the images and sounds which have been recorded. Although the matter was not the subject of argument before us, I would incline to the view that the word would be wide enough to cover the webcasting proposed by the appellant.
58 Section 124 authorises the playing of audiovisual recordings by prescribed persons for the purposes of instruction if the suspect has been convicted of a charge to which the interview relates, all legal proceedings in relation to the subject matter of the interview have been concluded and all reasonable measures are taken to prevent the identification of the suspect from the recording.
59 As I have observed, the provisions of pt 11 constraining the possession, supply and use of audiovisual recordings are unusual when compared to analogous legislation in other comparable jurisdictions. The constraints imposed upon the possession, supply and use of evidentiary material of this kind are much greater than the constraints (if any) imposed in relation to other evidentiary material gathered in the course of a criminal investigation. For example, no equivalent constraints are imposed upon photographs taken at crime scenes, the audiovisual recording of the execution of a search warrant, or even in relation to the
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- product of intimate forensic procedures undertaken pursuant to warrant, or findings made in the course of body searches or strip searches.
60 The lack of legislative constraint upon other evidentiary material gathered in the course of the exercise of powers conferred by the Criminal Investigation Act enables two conclusions to be drawn on the subject of the legislative purpose underlying the imposition of the constraints relating to audiovisual recordings. The first is that the constraints in pt 11 would not appear to have been imposed as a result of considerations of privacy, given the lack of equivalent constraint in relation to the exercise of powers which infringe personal privacy in a most dramatic way - such as intimate forensic procedures, body searches or strip searches.
61 The second conclusion properly drawn from the lack of equivalent constraint in relation to other evidentiary material gathered under the Criminal Investigation Act, is that the constraints imposed in respect of pt 11 are unlikely to have been thought necessary by reason of possible prejudice to the investigative, pre-trial or trial processes by public dissemination of the evidence. That is because other evidentiary material gathered in the exercise of the powers conferred by the Criminal Investigation Act could, if publicly disseminated during the course of the investigation or prior to trial, have an equally prejudicial affect upon the investigative and trial processes, yet no constraint is imposed by the legislation with respect to evidentiary material of that kind. Rather, the legislature has been content to leave those matters to the investigative authorities themselves, and, once proceedings have been commenced, to the inherent powers of the court to control access to evidence and pre-trial publication, and the general principles relating to contempt of court.
62 What then distinguishes audiovisual recordings undertaken pursuant to pt 11 of the Criminal Investigation Act from other evidentiary material gathered in the exercise of the powers conferred by the Criminal Investigation Act, and in respect of which the legislature has not thought it necessary to impose equivalent constraints? In my opinion the fundamental distinction between the evidence obtained by making an audiovisual recording pursuant to pt 11, and evidentiary material gathered in the exercise of the general powers conferred by the Criminal Investigation Act, is that the former requires the consent and cooperation of the suspect. Of course an audiovisual recording made pursuant to pt 11 of the Criminal Investigation Act will only be admissible if the suspect voluntarily participates in the interview. However, evidence gathered in the exercise of the other powers conferred by the Criminal Investigation Act does not generally require the cooperation and consent of a suspect.
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- So, it seems to me to be possible to infer, from the structure of the Criminal Investigation Act as a whole, that the legislature had regard to considerations of the kind referred to in Rogers v Television New Zealand Ltd and identified by Johnson J in Re Commissioner of Police; Ex parte Artemis International Pty Ltd when imposing the constraints upon the possession, supply and use of audiovisually recorded material. In other words, 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 commonplace for video recorded interviews to be supplied to the media against the wishes of the interviewee, this could discourage voluntary participation in video records of interview, to the detriment of the administration of justice.
63 Considerations of that kind readily justify a regime of the kind created by pt 11, which limits possession, use and supply of video records of interview to persons and purposes associated with the investigative and trial processes, unless a court expands the persons who may obtain the material, and the uses to which it can be put, by making a direction under s 122. Under such a regime, the legislature would no doubt have intended that the court would place great weight upon the extent to which a direction sought under s 122 might detract from the administration of justice, when considering the exercise of the discretion conferred by that section. Failure to take a consideration of that kind into account would undoubtedly be a failure to take all relevant considerations into account. However, that is a very different thing to saying that the legislature must be taken to have intended that the court could only exercise the discretion conferred by s 122 if it was satisfied that the making of the direction sought would positively advance the administration of justice in a particular case. With respect to those who have previously expressed a contrary view, I can see no justification for importing a requirement to that effect into the regime which has been created by the legislature. There are no words in the statute which import such a requirement, nor is any such requirement necessary to give effect to the legislative policies evident in the structure and language of the Criminal Investigation Act.
64 In my view, having regard to the unconstrained terms in which the court is empowered to make directions pursuant to s 122, the court has a general discretion to make such directions to be exercised by taking into account all relevant facts, matters and circumstances. If a matter is logically relevant to the exercise of the discretion, its consideration is only excluded if that exclusion is to be implied by the subject matter, scope and purpose of the Criminal Investigation Act (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [15]). There is nothing in the Criminal
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- Investigation Act which would exclude from consideration relevant aspects of the public interest, or legitimate private interests, or indeed considerations such as the public interest in personal privacy on the one hand, or in freedom of communication on the other.
65 The view which I take might be illustrated by taking the facts of the Re Commissioner of Police; Ex parte Artemis International Pty Ltd case, and transposing them to a time after which the results of the inquiry by the CCC have been made public. By that time, there will be no question of the release of the interview of Mr Mallard compromising either any pending investigation into the murder of Mrs Lawrence, or the inquiry by the CCC. Assuming that there are no other investigations or possible proceedings to which the video record of Mr Mallard's interview might relate, and assuming that Mr Mallard maintains the position which he adopted at the time of the Artemis International Pty Ltd application, in which he actively supported the making of directions to enable the broadcast of the interview, it would be difficult to see how the publication of the interview, in those rather exceptional circumstances, could cause any possible detriment to the administration of justice. On the other hand, it could be argued that publication and broadcast of the interview might advance Mr Mallard's interests in the vindication of his reputation, and the public interest in having available the best information which bears upon issues of public importance. In those circumstances, I can conceive how, when all relevant and competing considerations are weighed and evaluated in the exercise of the discretion conferred by s 122, it might be concluded that it is appropriate to make a direction permitting the use of the material, without necessarily being satisfied that such a direction would positively advance the interests of justice.
66 Another example can be taken from the sad facts of the Horsman case which, with respect, I consider to have been wrongly decided. By the time the application was made in that case, the interviewee was deceased and there was no prospect of the material having any impact upon any pending charge. Nor was there any prospect of the material going into the public domain. I find it difficult to see how it could be credibly suggested that the provision of the only remaining audiovisual record of the deceased person to a grieving family could in any way discourage persons who are suspected of committing criminal offences from participating in visually recorded interviews with police. As Mr Horsman and his family had a legitimate interest in obtaining access to the material, and there were no contrary considerations, in my opinion any statutory impediment to the grant of access should have been removed by an appropriate direction.
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67 However, it is important to distinguish between a direction which has the effect of removing a statutory prohibition upon access, and the conferral of a right of access. There is nothing in s 122, or the rest of the Criminal Investigation Act, which would suggest that the court is given power to create a right of access where such a right would not otherwise exist. As I have observed, courts have general powers to grant access to materials tendered to the court, and which are in the possession of the court, or to make directions binding on the parties to proceedings for the purposes of preparation for trial and re-trial. In the Horsman case, presumably the video was in the possession of the Commissioner of Police, and there was no prospective trial. So, while the court could, and in my opinion in that case should, have made a direction empowering the Commissioner to grant access to the video if he so chose, the court would not have had the power to interfere with the Commissioner's proprietary rights to the video against his wishes.
68 Of course much will depend upon the particular circumstances in which the direction is sought pursuant to s 122. If the 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 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 will be no positive advancement of the interests of justice, if other legitimate private or public interests are served.
69 In my view the discretion conferred by s 122 of the Criminal Investigation Act is to be approached without constraints artificially imposed by the imposition of restrictions upon the exercise of the discretion which are not found in the express terms of the statute. Rather, the discretion is to be exercised taking into account all relevant facts and circumstances, including the subject matter, scope and evident legislative purpose of the statute. As I have indicated, prominent among the considerations to be taken into account will be the likely effect of the direction sought upon 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 properly 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
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- upon the rate of participation in such interviews - such as, for example, when the direction is actively supported by the interviewee.
The exercise of the discretion in this case
70 It follows from the views I have expressed that the trial judge erred in the manner in which he approached the exercise of the discretion in this case, by relying upon the principles enunciated in earlier decisions of single judges of the court which I consider to be erroneous. Further, in my opinion the trial judge erred in his observation [59] that it cannot be said to be in the public interest for documents to be made public when their publication is prohibited by statute. That observation overlooks the statutory regime which enables publication to be undertaken pursuant to a direction of the court. It is, with respect, a logical non sequitur to say, as the trial judge said, in effect, that it cannot be in the public interest for the court to exercise a discretion which has been expressly conferred upon it by the legislature.
71 It follows that the decision of the trial judge should be set aside. There is no reason why this court should not itself exercise the discretion, as the facts relevant to its exercise are not in contention.
72 It is clear that publication of the portions of the video record of interview which were shown by counsel assisting the CCC in the course of his opening could not impact adversely, in a direct sense, upon the administration of justice. There is no pending investigation or trial which publication of that material could compromise. It is also clear that the making of the direction sought by the applicant would pave the way for the CCC to release that material if, pursuant to s 152 of its CCC Act, it considered that disclosure was necessary in the public interest. Accordingly, it is of some significance to this case, that public disclosure will only occur if the CCC is satisfied that such disclosure 'is necessary in the public interest'. In my opinion it is in the public interest for the CCC to have the capacity to release the material, if it considers that it is in the public interest to do so.
73 The question then becomes whether there are any countervailing considerations which would weigh against making a direction that would leave it open to the CCC to determine that it may be in the public interest to release the material sought. The only consideration which might be advanced is the proposition that release of this material might discourage other prospective suspects from participating in video recorded interviews with police. If Mr Rochford were alive and opposing the directions sought, it would I think be easier to conclude that the making of the
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- direction could possibly have that effect. However, as Mr Rochford is deceased, his attitude towards publication of the interview is not known. In those circumstances, it seems to me to be entirely speculative to assert that the grant of the direction sought would discourage future participation by others in video records of interview. As against that entirely speculative proposition, in this case it is fair to assume that the material will only enter the public domain if the CCC is satisfied that it is necessary that it do so, in the public interest. This evaluation of the competing considerations leads me to conclude that the balance favours making the direction sought.
74 For these reasons I would allow the appeal, set aside the decision of the trial judge, and instead of that decision make a direction in the terms sought by the appellant, as amended during the course of argument.
75 McLURE JA: I would dismiss the appeal. The facts, relevant statutory provisions and reasons of the primary judge are detailed in the judgment of the Chief Justice and not repeated here. It is sufficient for present purposes to note that the appellant applied pursuant to s 122 of the Criminal Investigation Act 2006 (WA) (the Act) for orders that:
(1) the Corruption and Crime Commission (CCC) may, subject to Section 152 of the Corruption and Crime Commission Act 2003 supply the Applicant with:
(a) That part of the videotaped police interview of Simon Roachford, conducted on 11 May 2006, played in a public hearing of the … (CCC) on 31 July 2007;
(b) ...
(2) The applicant be permitted to possess the interviews referred to in paragraph (1) above.
(3) The applicant be permitted to broadcast the interviews referred to in paragraph (1) above.
76 The appellant publishes the West Australian newspaper. It also has an internet website publication, 'thewest.com.au'. The appellant wishes to publish on its website that part of the videotaped police interview the subject of the application.
77 The evidence establishes that there is no feasible way to prevent an audiovisual record published on a website from being downloaded (that is, copied). According to the appellant's expert, when a video-recording is displayed or played through a web browser over the internet, the video is
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- automatically downloaded to the computer system on which it is being viewed. This happens independently of the computer. The video is stored in a temporary location on the computer system on which it was viewed and is eventually automatically overridden as the user continues to browse the internet. Although there are ways to minimise copying, it cannot be prevented.
78 The primary judge, with the concurrence of the appellant, accepted that the principles identified by McKechnie J in Horsman v Commissioner of Police [2002] WASC 81 in relation to the scope of the power in s 122 of the Act were applicable in this case [29]. The primary judge held that he would permit the broadcasting of the audiovisual recording (AVR) if it was in the interests of justice to do so, or if there were exceptional circumstances [36]. He rejected the appellant's contention that the interests of justice were to be equated with the public interest [29] and dismissed the application.
79 There are four grounds of appeal. Ground 1 is an assertion of an error in the construction of s 122 without identifying the error. Ground 2 is to the effect that the primary judge erred in narrowly construing the phrase 'interests of justice' to exclude any matters going to the public interest. In ground 3 the appellant contends that the trial judge erred in finding that there were no exceptional circumstances. In ground 4 the appellant contends that the primary judge failed to give sufficient weight to the position of the CCC which had played the videotape in a public hearing and did not oppose the appellant's application.
80 It can be seen from the grounds of appeal that the appellant did not resile from its concession below as to the correctness of the principles identified by McKechnie J in Horsman. However, this court must decide for itself the proper construction of s 122 of the Act.
Scheme of Pt 11 of the Act
81 The relevant provisions of the Act are set out in the judgment of the Chief Justice. The primary purpose of pt 11 of the Act is to encourage the use of audiovisual recordings of interviews with a suspect (being a person suspected of having committed an indictable criminal offence) by a police officer or a CCC officer. It does that by making evidence of an admission made by a suspect to a police officer or a CCC officer inadmissible at the criminal trial for the relevant offence unless the evidence is an AVR of the admission or, in the absence of an AVR, the prosecution proves there is a reasonable excuse for the absence. A reasonable excuse for the absence
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- of an AVR includes the fact that the suspect did not consent to an AVR being made of the admission.
82 Persons suspected of committing a criminal offence have the right to remain silent. They are not obliged to participate in an interview. Their consent is required. It is in the best interests of the criminal justice system that suspects voluntarily participate in an interview that is the subject of an AVR.
83 The Act places significant restrictions on the use to which an AVR of an interview with a suspect can be put. It imposes general prohibitions on being in possession of an AVR of an interview with a suspect (s 120(2)), playing an AVR of an interview with a suspect to another person (s 120(3)), supplying or offering to supply an AVR of an interview with a suspect to another (s 120(5)), copying any part of an AVR of an interview with a suspect or permitting another person to make a copy (s 120(6)), erasing an audiovisual recording of an interview with a suspect (s 120(7)) and broadcasting an AVR of an interview with a suspect (s 121). The Act makes it an offence to breach the prohibitions.
84 Each of the prohibitions are subject to one or more exceptions. For example, it is not an offence to be in possession of an AVR of an interview with a suspect if the person in possession (a) is an authorised person, (b) is the suspect or the suspect's lawyer, (c) was a person engaged by either of the above to transport it or (d) was served with the AVR pursuant to the prosecutor's duty of disclosure under the Criminal Procedure Act 2004 (WA). The same exceptions apply to a person who supplies, or offers to supply, an AVR of an interview with a suspect. In addition to those exceptions there will also be no offence if the person who supplies or offers to supply the AVR is a person 'acting under a direction given under s 122'.
85 The exemptions in relation to copying apply to an authorised person or a person 'acting under a direction given under s 122'. The only exception for broadcasting is if the broadcast is made under a direction of a court given under s 122.
86 The definition of authorised person is important. Section 120(1) provides:
(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.
87 All the nominated authorised persons are persons who are the holders of public office or public officers or public institutions each of whom are required to be acting in the course of their duties. Only a court and the coroner have the power to widen the range of authorised persons by making a direction in relevant terms. The direction must place the person under a duty.
88 The list of authorised persons goes beyond persons involved in the investigation of, and prosecution of legal proceedings relating to, a criminal offence. For example, the CCC and an ombudsman officer have powers to investigate the conduct of public officers involved in those facets of the criminal justice system.
89 Section 120(3) is also relevant for present purposes. It provides:
(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.
90 The prohibition in s 120(3) does not apply to a police officer, CCC officer, the Parliamentary Inspector or an ombudsman officer acting in the course of their duty: s 120(4). Nor does it apply to a recording played under s 124 of that Act. Section 124 provides:
(1) In this section -
'prescribed person' means -
(a) a police officer or police trainee;
(b) a CCC officer;
(c) a lawyer or a person training to become a lawyer; or
(d) a person prescribed for the purposes of this section.
(2) An audiovisual recording of an interview may be played to a prescribed person for the purposes of instruction if -
(a) the suspect has been convicted of a charge to which the interview relates;
(b) all legal proceedings in relation to the subject matter of the interview have been concluded; and
(c) all reasonable measures are taken to prevent the identification of the suspect from the recording when it is played.
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.
92 Thus, the nominated courts are given a power to make directions with respect to the matters specified in the section. It is to be noted that there is no express power in s 122 to give directions as to the possession of an AVR of an interview with a suspect. However, such a power is arguably to be inferred from the express power to make directions relating to the supply of an AVR.
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The scope of the s 122 power
93 The exercise of the power to give directions as to the specified matters is at the discretion of the courts nominated in s 122 of the Act. The scope of the discretion is to be ascertained by reference to the text and purpose of s 122 in the context of pt 11 of the Act as a whole, in particular, in the context of the statutory exceptions to the general prohibitions. It is significant that the power in s 122 is confined to the nominated subject matters which links the power to the relevant general prohibitions and their statutory exceptions.
94 The scope of the statutory exceptions as of right (the non-discretionary exceptions) are relevant to the scope of the discretionary power in s 122. The non-discretionary exceptions are very narrowly circumscribed. They permit dealings with an AVR of an interview with a suspect for the limited purposes of facilitating (1) the prosecution and defence of indictable criminal offences in the courts; (2) the investigation by the police, the CCC and the coroner of matters involving actual or potential criminal conduct; (3) the investigation of misconduct by officers involved in (1) and (2); and (4) the training of some personnel involved in (1) - (3). Thus, in broad terms, the non-discretionary exceptions to the general prohibitions relate (directly and indirectly) to the efficient and proper investigation and prosecution of indictable criminal offences in this State.
95 Having regard to the nature and scope of the restrictions on dealings with an AVR of an interview with a suspect, the relevant statutory objects informing and limiting the scope of the discretionary power in s 122 are:
(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 the suspect has been convicted and all reasonable measures are taken to prevent the identification of the suspect from the AVR. The limitation applies notwithstanding the death of the suspect.
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96 In the absence of any possibility of prejudice to the efficient and proper investigation or prosecution of indictable offences, the consent of the suspect would be a weighty factor in satisfying the second and third of the statutory purposes. No consent was given in this case. In the absence of consent, it is necessary to consider whether the disclosure in issue has the capacity to affect suspects as a class, not just the individual suspect the subject of the decision.
97 The appellant contends that significant weight should be accorded in this case to the fact that the portions of the AVR the subject of the application were played in public hearings of the CCC in the course of the Mallard Inquiry. That was an inquiry into whether any public officer engaged in misconduct in connection with the investigation of the murder of Mrs Pamela Lawrence, the prosecution and appeals of Mr Andrew Mallard and other matters related to and touching upon those events.
98 Before addressing that issue, it is necessary to say something about the respective statutory powers of the courts under s 122 of the Act and the CCC under the Corruption and Crime Commission Act 2003 (WA) (CCC Act). The CCC's powers relating to dealings with an AVR of an interview with a suspect are, in my view, wholly contained in pt 11 of the Act. The appeal was conducted on the unchallenged assumption that the playing of the AVR the subject of the application by the CCC during public hearings in the Mallard Inquiry fell within s 120(4) of the Act. I will proceed upon that assumption. However, only a court nominated in s 122 has the power to give directions which widen the scope of the non-discretionary exceptions, including a direction as to the broadcast of an AVR. The CCC does not have the power to authorise the broadcast of an AVR of an interview of a suspect. This limitation is recognised by the appellant in the terms of the proposed orders.
99 The appellant (and the amicus) also accept that by virtue of s 152 and s 154 of the CCC Act this court does not have the power to direct the CCC to supply a copy of the AVR to the appellant. On my reading of the written submissions of the CCC before the primary judge, its position was that if this court considered it appropriate for the appellant to broadcast the relevant portion of the AVR, it must be left to the CCC to decide when it supplies the interviews to the appellant so its investigations are not compromised. In view of my decision on the outcome of this appeal, it is unnecessary to determine that issue. However, I wish to record my disagreement with the proposition that s 122 does not give the court the power to direct any person (not just the CCC) to supply an AVR of an interview with a suspect to another person. The AVRs the subject of pt 11
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- of the Act are created by public officers (a police officer or a CCC officer) for a public purpose. There is nothing in the text or purpose of pt 11 to limit the court's s 122 powers to permissive orders. It must be intended that the court be in a position to be able to direct that a person supply an AVR to another (such as, for example, a co-offender) if that was consistent with the purposes of pt 11 of the Act.
100 The parties also accept that the term 'broadcast' in s 121 and s 122 of the Act is wide enough to authorise publication of the AVRs on the appellant's website. On that assumption and having regard to the means by which information is disseminated on-line, there would need to be orders relating to the supply by the appellant of the AVR to persons who access the appellant's website and orders permitting those persons to copy the AVR.
Whether primary judge erred
101 The test adopted and applied by the primary judge is a generalisation that of its nature does not accurately capture the precise scope of the statutory power or reveal the considerations relevant to the scope of the power. So for example 'the interests of justice' (wide enough to include civil matters) is not in effect a further non-discretionary exception to the statutory prohibitions. Each case must be determined on its own facts by reference to the relevant discretionary considerations.
102 The public interests reflected in the legislative scheme will ordinarily only be outweighed if the proposed dealing with an AVR falls within the rationale for the non-discretionary exceptions (to further the efficient and proper investigation and prosecution of indictable offences) or a similar public purpose. However, if on the facts of the case the proposed dealing is consistent with the statutory objects (because for example there is no prejudice and the suspect consents), it may be permitted notwithstanding the dealing is not for a public purpose.
103 Although the primary judge applied the wrong test, I am not satisfied that he erred in the result.
104 Because the position of all parties was that this court cannot direct the CCC to supply the AVR to the appellant, there is no evidence as to whether the broadcast would impair the efficient and proper conduct by the CCC of the Mallard Inquiry. I will assume for present purposes that it would not. There is no evidence that the broadcast of the AVRs may otherwise prejudice the efficient and proper investigation or prosecution of an indictable offence.
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105 The remaining question is whether the statutory objects relating to the protection of the privacy of suspects and minimising the risk of prejudicing their voluntary participation in the investigation of serious criminal offences are outweighed by any relevant factors in favour of disclosure. The only relevant factor in favour of disclosure is that the CCC has played the AVR at its public hearings in the Mallard Inquiry. Thus, the issue for this court is whether it should permit the broadcast of an AVR that has been played as of right by the CCC under the Act in a public hearing dealing with the conduct of public officers which contributed to a miscarriage of criminal justice.
106 I would decline to make the direction for the following reasons. The determination of the guilt or innocence of Mr Rochford is a matter outside the scope of the Mallard Inquiry and indeed outside 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.
107 NEWNES AJA: I agree with Martin CJ that the appeal should be allowed, for the reasons his Honour gives. I agree with the orders his Honour proposes.
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