Plutonic Operations Ltd v Done - [2000] WASC 56

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PLUTONIC OPERATIONS LTD -v- DONE [2000] WASC 56

CORAM: MASTER SANDERSON

HEARD: 1 MARCH 2000

DELIVERED : 1 MARCH 2000

PUBLISHED : 9 MARCH 2000

FILE NO/S: CIV 1740 of 1998

BETWEEN: PLUTONIC OPERATIONS LTD (ACN 046 680 997)
Plaintiff
AND
WARREN ANDREW FRANK DONE
Defendant

Catchwords:

Practice and procedure - Application by plaintiff for access to videotape record of interview held by police - Interpretation of s 570F of the Criminal Code

Legislation:

Criminal Code, s 570F

Result:

Application granted

Representation:

Counsel:

Plaintiff: Mr A T Macknay
Defendant: Ms S J Tapper

Solicitors:

Plaintiff: Deacons Graham & James
Defendant: Jackson McDonald

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

Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474

Case(s) also cited:

McKinney v The Queen (1991) 171 CLR 468
Thomson Australian Holdings v Trade Practices Commission (1981) 148 CLR 150

MASTER SANDERSON: This application was brought under s 570F of the Criminal Code. The plaintiff sought access to a video recording of an interview conducted by the Western Australian Police Department with the defendant in relation to matters over which the defendant was subsequently charged. The offences related to stealing as a servant. The defendant was arraigned in the District Court, tired and acquitted. The plaintiff has brought an action against the defendant for conversion and the case concerns essentially the same matters as arose in the criminal trial.
Chapter LXA of the Criminal Code deals with video taping of interviews by the police with suspects and the use that can subsequently be made of the tape. As part of the regime the party interviewed has an entitlement to a copy of the videotape. It is common ground that after his interview with the police the defendant was given a copy of the taped record of interview. It was also accepted by the defendant that, in the context of the present proceedings the tape would be a discoverable document. However, the defendant no longer has his copy of the tape and he is unable to say what became of it. The plaintiff is of the view that the tape is of importance and so it seeks to obtain a copy from the police. That has led it to make this application.
After hearing argument I made orders in terms of the chamber summons, with slight amendments, to facilitate the police providing the tape to the court. I indicated that I would publish reasons for my decision. These are those reasons.
Section 570F of the Criminal Code is in the following terms:
"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."
The defendant in this case was committed to the District Court for trial. The point raised by this application was whether, in the circumstances, it was only the District Court which could give directions under s 570F or whether the section retained an overriding discretion in the Supreme Court.
It was submitted on behalf of the plaintiff that the section clearly anticipated that the Supreme Court would have overall control of when videotapes of interviews would be released. For instance, if an accused person were interviewed, a tape was made, but he or she was not then charged, an application for access to the videotape would be brought in the Supreme Court. If the person were charged and the case came on in Petty Sessions, it would still be the Supreme Court which determined whether a tape could be released. However, if the accused person was committed to the District Court application could be made to either the Supreme Court or the District Court. It was submitted that in vesting jurisdiction in the District Court in these circumstances was done for sound practical reasons. If, during the course of a trial, application was made for one reason or another for release of the videotape of interview, it would be incongruous if the District Court Judge, having fingertip knowledge of all matters in issue was not empowered to rule whether or not the videotape should be made available. It was submitted that this did not in any way reduce the overall supervisory function of the Supreme Court.
Counsel for the defendant submitted, on the other hand, that the use of the preposition "or" in this case was disjunctive. Counsel accepted the broad jurisdiction of the Supreme Court but submitted that in instances where the accused was committed to the District Court it was the District Court alone which had jurisdiction. This was the simple point at issue between the parties. Was the use of the word "or" in the section disjunctive or conjunctive. If it was conjunctive then I have jurisdiction to make the order. If it was disjunctive I did not.
The proper approach to statutory interpretation in a case such as this can be illustrated by reference to the decision in Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474. The facts of the case are not relevant. Beach J was called upon to interpret a provision of the Companies (Victoria) Code. His Honour said (at 481 ‑ 482):
"Section 265B provides that the inspection shall be made by a registered company auditor or a duly qualified legal practitioner. On one view of the matter, it could be argued that only one of such persons can be appointed. To so find, would, in my opinion, be to take a far too restricted view of the section. I consider that the section means no more than that the person given permission to make the inspection must come from one or other category of persons. It does not mean that one person from each category cannot be appointed at the same time. In other words, the word 'or' is merely expressive of the category of persons who can be appointed."
In my view s 570F empowers the Supreme Court in any case to determine whether or not the videotape should be made available. It also permits the District Court to make such an order in certain limited circumstances. When those circumstances arise, the Supreme Court and the District Court have concurrent jurisdiction. The word "or" in the section is used in a conjunctive sense.
Having determined the jurisdiction question, this is clearly a case where production of the videotape should be ordered. As I have mentioned, it is a document which is discoverable. It might well have been open to the plaintiff to make application under O 26A r 5. Alternatively, the plaintiff may have issued a subpoena for early return under O 36 r 16A. In neither case would there be any basis for denying the plaintiff access to the videotape. Nor is there any basis for denying the plaintiff access to the video tape under s 570F of the Criminal Code.
For these reasons I made orders for the production of the videotape.