R v Harvey (No 3)

[2014] SASCFC 117

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Application)

R v HARVEY (No 3)

[2014] SASCFC 117

Judgment of The Court of Criminal Appeal

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

30 October 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 media outlets following this Court’s decision on 18 September 2014, pursuant to s 131 of the Supreme Court Act 1935 (SA), to copy and broadcast segments of the audio-visual record of interview of Mr Harvey. On 29 September 2014 Mr Harvey’s sentence was extended by the Court of Criminal Appeal.

Held – Permission to obtain a copy of the identified segments of the audio-visual material is denied. The public interest in ensuring open justice will be sufficiently served by publication of the transcript.

Supreme Court Act 1935 (SA) s 131; Evidence Act 1929 (SA) s 71A, referred to.
R v Harvey [2014] SASCFC 105; R v Harvey (No 2) [2014] SASCFC 106, considered.

R v HARVEY (No 3)
[2014] SASCFC 117

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. His sentence was extended by this Court on 29 September 2014.[1]

   [1]    R v Harvey (No 2) [2014] SASCFC 106.

2. On 18 September 2014 the Court made an order permitting Network Ten to view, but not copy, the audio-visual record of interview.[2]

   [2]    R v Harvey [2014] SASCFC 105.

   Subsequent applications

3. Following the decision on 18 September 2014, Seven Network Australia, the Australian Broadcasting Corporation (the ABC), Nine Network Australia and the Advertiser all made applications to view, but not copy, the audio-visual record of interview in line with the permission granted to Network Ten.  Permission was granted on all of the applications.

4. Network Ten has since viewed the audio-visual record of interview and on 18 September 2014 made an application to copy and broadcast specified segments of the material which it had been given permission to view. The ABC, Nine Network and the Advertiser have all made applications to copy the audio-visual material. The Advertiser has also requested to take still photos of Mr Harvey from the audio-visual material.

5. In R v Harvey[3] we held that the audio-visual recording falls within s 131(2)(f) of the Act and the material may only be inspected or copied with permission of the Court.

   [3] [2014] SASCFC 105.

   Submissions from the parties

6. The Court asked the Director of Public Prosecutions and defence counsel for Mr Harvey for submissions on Network Ten’s subsequent application. These submissions were provided to all interested media outlets for further comment in the interest of natural justice. Submissions from the Director, opposing the application, relevantly contained the following:

   One parent indicated her child can be affected even when she hears mention of similar types of cases on the television. The victims are still young and vulnerable. The parents of the victims have all expressed concern for the well-being of their children if such material is aired. Any news coverage has the potential to cause the victims and their families distress however specific footage of the interview wherein the defendant can be seen speaking of the abuse has a greater potential to do so.

7. The risk of harm to the victims identified in the record of interview is a weighty consideration on this application.

8. Network Ten contended that their application was in the interest of fair and accurate reporting to the public.  The Director responded:

   Network Ten have been able to view the footage and prepare a transcript of the interview. It is submitted fair and accurate reporting can be achieved by reference to the transcript of the record of interview which is already available to them.

9. The Director submitted that the volume of material sought is also significant and that if broadcast there is a greater potential for distress to the victims and their families.

10. Defence counsel made no objection to the application by Network Ten and stated the following:

    I submit that the segments identified don't present as potential breaches of Section 71A of the Evidence Act.

    I therefore do not object.

11. Network Ten relied on its original submissions from 4 September 2014 and provided the following in response to the Director’s submission that the volume of the material being sought is significant:

    We wish to emphasise that it is within the court’s desecration (sic) to release any of the sections of video applied for, even if it is only a small portion. Further, that all material obtained will still undergo editorial scrutiny.

12. Network Ten’s submissions on 4 September 2014 relevantly stated that they are used to dealing with interviews which contain sensitive material and that they are aware of their obligations under s 71A of the Evidence Act 1929 (SA) (the Evidence Act).

    Discussion

13. This Court must decide the broader public interest and whether the audio-visual material should therefore be released. In doing so the Court must balance the interests in the administration of justice, the possibility of harm to the victims and in particular the risk of contravention of s 71A(4) of the Evidence Act with the need for transparency. As stated in the previous judgment,[4] there is no risk to the fair trial of Harvey as the trial and the appeal have since concluded. We also accept that Network Ten is well aware of the requirements under s 71A(4) of the Evidence Act.

    [4]    R v Harvey [2014] SASCFC 105.

14. In weighing up the competing interests, this Court finds that it is not in the broader public interest to release the audio-visual material.  The likelihood that the victims will be greatly distressed by seeing the images and hearing the sounds of Mr Harvey on television is of grave concern.  The probability that the victims will view the footage or overhear discussion of its content by others is high given the number of media outlets that wish to copy and reproduce the audio-visual material.

15. The public interest in open justice will be sufficiently served by publication of the transcript. It is unnecessary to allow the audio-visual material to be copied and broadcast.

    Conclusion

16. On the application to obtain a copy of identified segments of the audio-visual material, permission is denied.