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

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.
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
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.
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.
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
The Court asked the Director of Public Prosecutions and defence counsel for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Harvey (No 3)

Details

AGLC: R v Harvey (No 3) [2014] SASCFC 117
Case: [2014] SASCFC 117
Decision Date: 30 October 2014

CaseChat Overview and Summary

The application before the Supreme Court of South Australia concerned the public interest in open justice and the potential for audio-visual material to be copied and broadcast. The applicant sought permission to obtain copies of identified segments of this material.

The central legal issue was whether the public interest in open justice, as served by the publication of the transcript, necessitated the further step of allowing the audio-visual material itself to be copied and broadcast. The court was required to balance the principles of open justice against any competing considerations that might arise from the dissemination of the audio-visual recordings.

The court concluded that the public interest in open justice would be adequately met by the publication of the transcript of the proceedings. Consequently, it determined that it was unnecessary to permit the audio-visual material to be copied and broadcast. Accordingly, permission for the applicant to obtain a copy of the identified segments of the audio-visual material was denied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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