Horsman v Commissioner of Police

[2002] WASC 81

HORSMAN -v- COMMISSIONER OF POLICE [2002] WASC 81

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 81
Case No:	MCS:14/2002	Heard:	27 MARCH 2002
Coram:	McKECHNIE J	Delivered:	12/04/02
No of pages:	5	Judgment Part:	1 of 1
Result:	Application refused
Category:	A
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Parties:	RONALD JAMES HORSMAN COMMISSIONER OF POLICE
Catchwords:	Application for supply of videotaped interview for private purposes Principles to be considered
Legislation:	Criminal Code (WA), s 570F
Case References:	Plutonic Operations Ltd v Done [2000] WASC 56 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : HORSMAN -v- COMMISSIONER OF POLICE [2002] WASC 81 CORAM : McKECHNIE J HEARD : 27 MARCH 2002 DELIVERED : 12 APRIL 2002 FILE NO/S : MCS 14 of 2002 BETWEEN : RONALD JAMES HORSMAN

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Application for supply of videotaped interview for private purposes - Principles to be considered

Legislation:

Criminal Code (WA), s 570F

Result:

Application refused

(Page 2)

Category: A

Representation:

Counsel:

Applicant : Mr R W Keeley
Respondent : No appearance

Solicitors:

Applicant : Legal Aid WA
Respondent : State Crown Solicitor

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

Plutonic Operations Ltd v Done [2000] WASC 56

Case(s) also cited:

Nil

(Page 3)

McKECHNIE J:

Introduction

1 Dirk Matthew Horsman was a fisherman, aged 19, who lived in Dongara. On 24 May 2001, he was interviewed by police officers, the interview being recorded on videotape. Three days later, on 27 May 2001, he died as a result of a motor vehicle accident.

2 His father applies for an order that a copy of the video record of interview be supplied to him because:

"6. The video made with my son is the only audio/visual record my family have of my son and for sentimental reasons I ask this Honourable Court to make an order allowing me to have possession of a copy.

7. The video will be used for our family viewing and for no other purpose."

3 The Commissioner of Police has no objection to the order sought and does not wish to be heard on the application.

The Criminal Code: Chapter LXA

4 The application is brought under the provisions of the Criminal Code (WA) Chapter LXA – "Videotaped interviews" and particularly the provisions of s 570F:

"570F Court may give directions about videotapes

The Supreme Court or, if the accused person is or was committed to the District Court, the District Court may give directions (with or without conditions) as to the supply, copying, editing, erasure, playing, or broadcast of a videotape."

5 In Plutonic Operations Ltd v Done [2000] WASC 56, Master Sanderson held that the Supreme Court had general jurisdiction under s 570F to make an order for supply of a videotape to persons other than the accused. He made an order for production of a videotape to a plaintiff who had brought civil proceedings against the defendant (who had given the interview which was videotaped). The videotape was a discoverable document although the defendant no longer had a copy of it.
(Page 4)

6 Accepting that the court has jurisdiction to make the order sought, the question nevertheless arises whether the court should exercise its discretion to grant the application. In order to determine this issue, it is necessary to look at the legislative framework.

7 Chapter LXA restricts the publication of videotaped records of interview except for limited purposes connected with the administration of justice. Section 570B provides that a person other than an authorised person who has in his or her possession a videotape commits an offence.

8 "Authorised Persons" are defined:

"(a) the suspect or the suspect's lawyer;

(b) a member of the Police Force acting in the course of duty;

(c) a person authorised for the purposes of this chapter by the Commissioner of Police;

(d) the Director of Public Prosecutions or a person acting under the authority of the Director;

(da) a member of the Anti-Corruption Commission or an Anti-Corruption Commission official;

(db) the Parliamentary Commissioner;

(e) a person acting at the direction of a court;

(f) a person prescribed to be an authorised person."

9 Section 570C prohibits the broadcast of a videotape unless the broadcast is made under direction of a court under s 570F. Section 570H allows the playing of videotapes for teaching purposes but under restricted conditions.

10 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

(Page 5)

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.

11 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.

12 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.

13 The private interests of the applicant, though understandable, are not such that would lead me to make a direction. Therefore the application fails.