R v Harvey

[2014] SASCFC 105

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Application)

R v HARVEY

[2014] SASCFC 105

Reasons for Decision of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Bampton)

18 September 2014

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS

Application by Network Ten Pty Ltd (Network Ten), pursuant to s 131 of the Supreme Court Act 1935 (SA), to obtain a copy of the record of interview of Mr Harvey. Appeal against sentence of Mr Harvey heard but not yet determined by the Court of Criminal Appeal.

Held – Network Ten is given permission to view and not copy the audiovisual record of interview.

Supreme Court Act 1935 (SA) s 131; Evidence Act 1929 (SA) ss 67H, 71A, referred to.

R v HARVEY
[2014] SASCFC 105

Court of Criminal Appeal: Kourakis CJ, Blue and Bampton JJ

1. THE COURT.      On 2 September 2014, Network Ten Pty Ltd (Network Ten) made an application pursuant to s 131 of the Supreme Court Act 1935 (SA) (the Act) for a copy of the record of interview of Mark Harvey conducted by police on 20 August 2012. Harvey was convicted of four counts of persistent sexual exploitation in the District Court on 27 June 2014. An appeal against the sentence has been heard but is yet to be determined by the Court of Criminal Appeal.

2. Section 131 relevantly provides:

   (1)Subject to this section, the court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of—

   (aa)   any process relating to proceedings and forming part of the court's records;

   (a)     a transcript of evidence taken by the court in any proceedings;

   (b)     any documentary material admitted into evidence in any proceedings;

   (c)     a transcript of submissions by counsel;

   (d)     a transcript of the judge's summing up or directions to the jury, in a trial by jury;

   (e)     a transcript of reasons for judgment (including remarks made by the court on passing sentence);

   (f)     a judgment or order given or made by the court.

   (2)A member of the public may inspect or obtain a copy of the following material only with the permission of the court:

   (a)     material that was not taken or received in open court;

   (b)     material that the court has suppressed from publication;

   (ba)   sensitive material in the custody of the court;

   (c)     material placed before the court during sentencing proceedings;

   (d)     documentary material filed in connection with a preliminary examination;

   (e)     a transcript of any oral evidence taken at a preliminary examination;

   (f)     a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced;

   (fa)    a report prepared to assist the court in determining a person's eligibility for, or progress in, an intervention program (within the meaning of the Bail Act 1985 or the Criminal Law (Sentencing) Act 1988 or the Intervention Orders (Prevention of Abuse) Act 2009);

   (g)     material of a class prescribed by the regulations.

3. It will have been observed that the right conferred by s 131(1) of the Act is subject to the subsections which follow including, importantly, subsection (2). The material referred to in subparagraphs (b), (ba)[1] and (f) of subsection (2) may have been admitted into evidence but nonetheless may only be inspected or reproduced in accordance with permission given pursuant to s 131(2) of the Act.

   [1] The term “sensitive material” must take its meaning from s 67H Evidence Act 1929 (SA) which was enacted at the same time as subparagraph (ba).

4. The audiovisual record of Harvey’s interview was received in his trial in the District Court on 7 March 2014.[2]

   [2]    At T450, P19.

5. It follows that the audiovisual recording of Harvey’s interview fell within s 131(1)(b) of the Act. However, Network Ten’s right to inspect or obtain a copy of such material is qualified by s 131(2) of the Act because the audiovisual record of Harvey’s interview is a form of recording from which a visual image or sound can be produced and for that reason falls specifically within s 131(2)(f).

6. The open court principle reflected in the right conferred by s 131(1) of the Act must, in its application to material which also falls within s 131(2), be balanced against the risks of publication of that material in a way which prejudices the administration of justice. In this case there is no risk to the fair trial of Harvey which has concluded. However, the possibility of harm to the innocent persons identified in that material, and in particular the risk of a contravention of s 71A(4) of the Evidence Act 1929 (SA) remain live considerations.

7. On this application, the Court has considered the submissions of the Director of Public Prosecutions, Mr Harvey and Network Ten.  Network Ten proffered the following explanation of the reasons behind its request:

   I wish to clarify that our intention in viewing and copying the video record of interview is in order to use sections of it for broadcast.  It is a process we have been through in other cases, on many occasions.

   As such, we are well used to dealing with interviews which contain sensitive material. In particular, I note Mr Kimber’s concerns about the identity of the victims in this particular case, and details of the crimes involving them. Just because we have access to a particular video or particular material, does not negate our obligations under Section 71A of the Evidence Act. We must not identify the victims or broadcast information which would tend to identify them. Our own broadcasting codes also limit what we can report of the details of the offending, given its sensitive nature.

   I would submit that the situation is no different to us making decisions about what we may legally or appropriately broadcast, of material we are privy to within the normal course of a court hearing.

   In regards to the identity of the police officers, I repeat that the broadcasting of police records of interview has become relatively common place.  However, if the court had concerns, we would be happy to comply with any orders it were to make surrounding the identity of the officers involved.

   We would also comply with any orders the court felt necessary in relation to what is done with any copy made of the footage, including any obligation to return it to the court.

   Our wish to broadcast appropriate elements of the video lies fairly and squarely within the public interest.  The prisoner was working within the public school system, and the progress of his case – including the withholding of information about it – has been the subject of intense public debate, as well as a public inquiry held at great cost to the taxpayer.  I would suggest that the need for the courts to be seen to be aiding transparency in this particular case, is greater than even that which would usually apply.

8. In the exercise of its discretion, the Court resolves that the open justice principle can satisfactorily be met in this case by allowing Network Ten to view the audiovisual recording and to identify the segments its wishes to broadcast.  Permission is given for that purpose.  The Court will then consider Network Ten’s application to obtain a copy of the identified segments.