R v Hemming (Ruling 1)
[2015] VSC 351
•12 August 2015,
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0085
| Application for access under s 464JB of the Crimes Act 1958 (Vic) | |
| R v THOMAS JAMES HEMMING | |
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JUDGE: | KING J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 December 2014, 12 January 2015 |
DATE OF JUDGMENT : | 12 August 2015, |
CASE MAY BE CITED AS: | R v Hemming (Ruling 1) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 351 |
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CRIMINAL LAW - Application by Media for copy of the audio video record of interview - Application refused-
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APPEARANCES: | Counsel | Solicitors |
For the Offender For the Crown | M C Nikakis Mr R Lewis | Haines & Polites Office of Public Prosecutions |
| For the first Applicant Fairfax Media Limited, Nationwide News Ltd and Newslife Media Pty Ltd | Mr D Stuk Mr J P Cashen | Kelly Hazell Quill Lawyers |
| For the second Applicant Channel Seven Melbourne Pty Ltd, Seven Network (Operations) Ltd, | Mr T Hutton | Corrs Chambers Westgarth |
HER HONOUR:
The Application
By summons dated 10 December 2014, Kelly Hazell Quill Lawyers, pursuant to s 464JB(2) of the Crimes Act 1958, made application that the Nine Network Australia Pty Ltd (including its employees, servants, agents, related entities and licensees) be permitted to access a copy of the audio-visual recording of Thomas Hemming’s interview with Victoria Police together with permission to copy, edit, play or publish, in whole or in part, the audio-visual recording of Thomas Hemming. The audio-visual recording relates to the murders of Mr and Mrs Adamson by the prisoner Thomas Hemming, which I shall detail shortly.
On 17 December 2014, an email was received from Corrs Chambers Westgarth, on behalf of Channel 7, stating that they also would be seeking access to that video-recording. Accordingly, both matters were directed to be listed and heard together.
Background
The background facts relevant to this application are that Thomas James Hemming, a 21 year old man, who lived with his parents in Murrumbeena, in the early hours of the morning of 19 February 2014, murdered Robert Malcolm Adamson and his wife Cheryl Celeste Adamson in their home in Murrumbeena, a mere few houses from where he together with his family, resided. The murders were committed in a particularly grave manner in that they were random, inexplicable and senseless, and accurately described in the sentencing remarks as ‘thrill kills’. The plea for the offending was heard on 13 October 2014, and on 24 October 2014, I sentenced Mr Hemming to a total of 32 years with a minimum of 27 years’ imprisonment, and published lengthy reasons.
The Adamsons’ were a much cared about couple, Mr Adamson working as an accountant and Mrs Adamson as a teacher/librarian at a private school in Melbourne and they were also involved in the community in which they lived. The parents and sister of Mr Hemming were teachers and health care professions and also involved in their local and extended community.
The parties and their attitudes
Mr Hemming opposed the application to release the audio-video recording, and via video link he expressed his reasons as being, firstly, that it would have a very negative impact upon his family, particularly his father and sister who are both educators, and, secondly, that the reiteration of his offending may make his time in prison harder.
Mr R Lewis appeared on behalf of The Director of Public Prosecutions, who sought to be excused on the basis that the DPP was not a party to the application, and that the Director of Public Prosecutions’ view of this application was neutral. Mr Lewis stated to the court that the family of the victims’ and the informant equally maintained a neutral view of the application, submitting it was a matter for the court. the applicant originally presented a letter indicating that the Victoria Police supported the application, but that was modified by the statements of counsel for the Director of Public Prosecutions on behalf of the informant. The family of the deceased were equally neutral as to the application.
Recent decisions
Two applications of a similar nature were issued on behalf of Channel Nine on the same day, being, this matter and the Director of Public Prosecutions v Angela Maree Williams,[1] a matter heard and determined before Hollingworth J, with her Honour delivering judgment on 27 March 2015.
[1]DPP v Williams (Ruling No 1 [2015] VSC 107.
In a carefully considered judgment her Honour outlined the previous practice of this court in respect of applications for release of records of interview, being that applications for access were refused unless there were some exceptional circumstances that justified the release of that information.[2] Her Honour then detailed the Victorian Legislative Scheme, as currently enacted, and said:
Parliament has created a statutory scheme by which the courts are the only bodies entrusted with the power to control who has access to, and what use may be made of, records of interview.[3]
Her Honour also referred to the second reading speech relating to the amending Act of 2009, which included the following passage:
Clearly, in relation to some offences, there will be graphic or disturbing information that should not be freely disseminated to others who are unconnected with the criminal justice processes. The bill seeks to preserve the integrity of the process and to protect against personal details and possibly graphic details of offences being made public unnecessarily.[4]
[2]DPP v Williams (Ruling No 1) [2015] VSC 107 [7]-[8].
[3]Ibid [15].
[4]Victoria, Parliamentary Debates, Legislative Assembly, 15 October 2009, 3689.
Her Honour examined the authorities, with particular emphasis upon West Australian decisions as the Victorian legislation had been modelled upon the existing West Australian legislation. Her Honour detailed the general principles arising from the legislation and the leading case of Ex parte West Australian Newspapers Ltd[5] before she examined an example of a particular application of the legislation referred to in Ex parte Seven Network Ltd.[6] In that case, application had been made for the release of the record of interview of a man who had been convicted of murdering his former partner some six years earlier. The Network had expressed a desire to use extracts from that interview as part of a program about domestic violence and restraining orders. As her Honour noted, Martin CJ refused the application as a result of the consideration of a number of factors, including[7]:
(a) There was no contemporaneous public interest in the man’s trial;
(b)The program was on general topics, so releasing the recording would not enhance the reporting of court proceedings;
(c)The interviewee opposed the directions. This factor was relevant (because release despite opposition could discourage voluntary participation in interviews), but not determinative; and
(d)The man’s eight year old son could be adversely affected, even though his guardians supported the application and said they would make sure he did not see the program. Granting the application would significantly increase the risk of feedback to the child after publication, and the child may later see the segment on the internet.
[5](2008) 38 WAR 177.
[6](2010) 205 A Crim R 360.
[7][2015] VSC 107 [32].
The applicant in the case before Hollingworth J relied upon the principle of open justice and referred to and relied upon the cases of the Herald & Weekly Times Ltd v Magistrates’ Court of Victoria[8], the Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No. 3)[9] a civil case, and the Herald & Weekly Times Ltd v Magistrates’ Court of Victoria[10] a matter in this court, but relating to suppression orders.
[8](2000) 2 VR 346.
[9](2002) ATPR 41-873 (a civil case).
[10][1999] 2 VR 672.
After examining all of that material to which I have referred, her Honour determined a non-exhaustive list of factors which she held may be relevant to the exercise of the court’s discretion pursuant to s 464JB, which included:
(a)The privacy of the interviewee, interviewers, and others mentioned in the interview;
(b)Whether the interviewee consents to the release;
(c)The attitude of other people affected by the interview;
(d)Whether any person (such as victims or children) would be adversely affected by release;
(e)Whether the record of interview discloses graphic details of offending;
(f)Whether any criminal investigations or trials are ongoing;
(g)Whether release may undermine the integrity of the criminal justice process;
(h)The level of contemporaneous public interest in the case;
(i)Whether release will enhance the fair and accurate reporting of the case;
(j)The principle of open justice (where the record of interview has been played in open court); and
(k)The nature of the proposed publication.
Her Honour stated that the court must consider for itself whether those, or any other factors, are relevant to the case and what weight each of those factors should receive.
With respect I agree with her Honour’s conclusions in respect of the applicable principles and the matters that a court may need to consider when determining an application for release of a Record of Interview.
The submissions
Application by Channel Seven
The basis upon which application was sought on behalf of Channel Seven was stated, in Submissions in Support of Application and included the following:
(a)There is a public interest in the circumstances of Mr Hemming’s offending, and in his prosecution and sentencing. This public interest arises, amongst other things, from the heinous nature of Mr Hemming’s crime. The circumstances of Mr Hemming’s offending, including his intoxication at the time of the offence, is captured in the interview with police.
(b)This public interest is best served by full and accurate reporting of the criminal prosecution and sentencing of Mr Hemming. We note that the police interview was referred to by Justice King in her judgment of Mr Hemming.
(c)The ability of the media to report on court proceedings is a corollary to the principle of open justice a fundamental aspect of the legal system in Australia.[11]
[11]John Fairfax Publications Pty Ltd and Anor v District Court (NSW) and Ors (2004) NSWCA 324.
(d)In ACCC v ABB Transmission and Distribution Ltd (No. 3),[12] Justice Finkelstein held that the principle of open justice should be upheld unless the interests of justice demand otherwise. In the context of an application of a non-party to access materials relied upon by a judge during trial, his Honour stated:
[12][2002] FCA 609.
In such a case I have no doubt that the proper approach is that access should be allowed, unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view, there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances. I think that the position is a fortiori when the material has been read by the judge in private and is not read out in court. If that material has not been made available for inspection then the manner in which the case has been conducted would only be known to the parties. That is an unacceptable position.
(e)There are no exceptional circumstances in this instant warranting refusal to access to this interview (sic). Mr Hemming has pleaded guilty to the murder of Mr and Mrs Adamson, and has been sentenced. There is accordingly no sensible risk of prejudice to Mr Hemming arising from access being granted to our client.
(f)The presumption in favour of disclosure that Justice Finkelstein spoke of was recently codified by the Victorian Legislature in the Open Courts Act 2013 (Vic). We note in this regard s 4 of the Open Courts Act 2013 (Vic)
To strengthen and promote the principles of open justice and free communication of information, there is a presumption in favour of disclosure of information to which a court or a tribunal must have regard in determining whether to make a suppression order.
(g)In DPP v Bracken (Ruling No.16),[13] President Maxwell stated that he had “borne steadily in mind the force of s 4 of the Open Courts Act 2013 (Vic)” which, according to Maxwell P, established a statutory presumption in favour of disclosure of information in order to ‘strengthen and promote the principles of open justice and free communication of information’” Maxwell P made these remarks in the context of an application for access to certain exhibits in the criminal trial following the jury’s verdict.
[13][2014] VSC 96.
Application by Channel Nine
The grounds for the application by Channel Nine are contained within the affidavit of Daniel Leon Stuk, an Australian Legal practitioner in the employ of Kelly Hazell Quill, Lawyers. At paragraph 9 he deposed:
Nine intends to make the application broadly on the following grounds (although Nine would seek to make submissions before the court at an appropriate time upon the hearing of the application):
(a)The recording relates to a matter of public interest. In particular it relates to the investigation of murder, police practices and the conduct of the accused (and subsequently convicted) person in that murder investigation.
(b)Release of the recording is consistent with open justice principles. The interview of a suspect in a murder trial is an important aspect of the administration of justice.
(c)The recording is the property of Victoria Police and Victoria Police consents to the release of the material.
(d)There is no risk of endangering any ongoing investigations or police procedures by release of the recording.
(e)There is no risk of prejudice to any ongoing proceedings by release of the recording.
(f)There has already been extensive reporting on this proceeding. Further reporting, including of the record of interview, will not be detrimental to any process or person.
Relevant considerations
I will commence with the consideration upon which both applicants principally relied, being the principle of open justice. What should be noted in respect of the matter is that this was a plea of guilty, not a trial, Mr Hemming pleaded guilty at a very early opportunity, to these offences and, accordingly, there was no contested committal, no trial and no playing of the record of interview in any court.
All of the parties to this application have, or have available to them if they seek it, a copy of the transcript of the interview of Mr Hemming with the police, it therefore follows that what is sought is the audio-visual aspect of the interview. Accordingly, it is not knowledge of the words he used, nor the statements that Mr Hemming made to the police, that the applicants are seeking, but the visual graphic of Mr Hemming saying it. It became apparent, in discussions during the application, that because the applicants represent television networks what was needed was an audio-visual component to ensure that the target audiences became, and remained, ‘interested’ or ‘entertained’ in the material being presented[14].
[14] Transcript 12 January 2015 p 2ff
In this case, despite the apparent misapprehension of the applicants to the contrary, there was no playing of the Record of Interview in court. There were references to, and extracts from, the transcript of the interview in both submissions from counsel and the sentencing remarks. Those transcripts, as indicated, are available, and the networks have all of the material that was referred to in open court. In my role as the sentencing Judge I viewed the Record of Interview, as part of my task to assess Mr Hemming’s criminality and determine the appropriate sentence, a role that no member of the public will have to perform, nor should be asked to perform.
Equally, as Hollingworth J pointed out, records of Interview are dealt with in a very specific manner under this amendment, and the Parliament did not remove what may be seen as an impediment to the release of records of interview, when they were enacting the Open Courts Act 2013. They had the opportunity to include records of Interview in the Act, but elected to leave the matter totally in the hands of the court.
Although I do not believe that the record of interview falls to be released within the principles of open justice, due to it not being played during the hearing, I am of the view that the principles of open justice have nevertheless been satisfied, in that the applicants have all of the material that was presented or referred to in open court. The references in the sentence to the contents of the interview are references to the transcript of the interview. The parties have a copy of every word that was available to me as the Sentencing Judge to read and consider. Nothing has been kept from them, apart from the visual of the prisoner saying those particular words.
As stated earlier the prisoner does not consent to the release of the Audio visual of the record of interview. Whilst not determinative, it is a factor to be considered.
In terms of whether the release may undermine the integrity of the criminal justice process, and/or interfere with a trial or investigation that is ongoing, that issue is clear. The processes of investigation, plea and sentence have been completed and there is no necessity to quarantine the public from the contents of the record of interview, indeed many of those matters have already been the subject of extensive media reporting.
The issue of whether release of the record of interview will enhance the fair and accurate reporting of the case can be answered simply with a no. As previously stated the media already have had access to, and the ability to, publish every word spoken by the prisoner in the record of interview if they desired to so do. Having a visual of the prisoner saying those words would do nothing to enhance the fair or accurate reporting of the case.
Both applicants relied upon the rather nebulous concept that it was ‘in the public interest’ to release the audio-visual recording of the interview. When pressed to articulate why it was in the public interest, it was submitted that homicide generally is in the public interest. As stated, firstly on behalf of Channel Nine:
Mr Stuk: The first point is that all matters of homicide are matters of public interest. This was particularly heinous and there are a number of aspects …
Her Honour: It makes it more prurient but none of that helps the public interest greatly.
Mr Stuk:Well your Honour we say that these sorts of offences need to be brought to the public’s attention because it is a matter of extreme concern. It rocked the community. [15]
[15]Transcript 18 December 2014, page 7.
This issue was again referred to in the second hearing on this matter and on behalf of Channel Nine it was said:
Mr Cashen: The offence of murder is one that we submit has ongoing and perpetual public interest, and it’s not unusual to see murders talked about and discussed 10, 20, 30, 50 years after the event, your Honour, and we would say that this murder is no different, and it’s of no moment to the victims of the offence whether that it occurred a day ago, a year ago, or 20 years ago, and murder is the most serious of offences and it continues to have a public interest in perpetuity.[16]
[16]Transcript 12 January 2015, page 5.
On behalf of channel 7 it was said:
Mr Hutton:Well alcohol notwithstanding, in our submission the public interest is furthered by the dissemination of material, any material that can assist the understanding of what took place and of the behaviour of the accused, not to glorify it, your Honour, but rather to inform the public, and in our submission the community’s understanding, of Mr Hemming’s behaviour would be assisted by the publication of his interview with police.[17]
On 12 January 2015 hearing:
Mr Hutton: I would reiterate what Mr Cashen has said, in that the public interest in this is not negated by a month having elapsed. The public interest in this remains, and will continue to remain, in our submission, given the severity of the crime.[18]
[17]Transcript 18 December 2014, page 15.
[18]Transcript 12 January 2015, page 10.
Despite numerous requests and queries being posed to the parties, I was unable to elicit any further reasons as to why it was ‘in the public interest’ to release this material. Thus the argument, as I understand it, is that murders, by their nature, are offences that fall within a particular category, such that the interest in the offence, the detail of the offence, the motivation for the offence, are matters of public interest in perpetuity. The more heinous the murder the higher the public interest.
There is no doubt that the public has a right to be, and should be, informed about what occurs within their community, including crimes as serious as this murder. The offences were reported numerous times. Initially at the time of the commission of the offending, then at the time of the arrest of the prisoner, again at the time of the plea of guilty by the prisoner and at the time of sentencing, as well as on other occasions. Nothing prevented the applicants from reporting these matters, which they duly did. The public has been informed, the public interest has been dealt with and this is now an application to revive that ‘public interest’ as all the appropriate and relevant times for the interest have been and gone, except for the ‘interest in perpetuity’.
I sought clarification from both applicants as to the use they intended to make of the recording, including which particular program and the amount of the material that they may be seeking to use. Mr Cashen said his client intended to use it for a segment on A Current Affair, but stated that there was no script written at this point. He believed it would be basically about the offence, possibly to do with the manner in which the offence occurred, the investigation, the effect on the victims, what he described as a general story on the offence.[19]
[19]Transcript 12 January 2015, page 2.
Following that submission, this exchange occurred:
Her Honour: But you’ve got all the material.
Mr Cashen: Yes. So the question your Honour asked me was …
Her Honour: What you want is the video footage.
Mr Cashen: Correct.
Her Honour: Because television requires footage, doesn’t it?
Mr Cashen:Yes. And I expect my clients will show extracts from that record of interview we’re obviously not in possession of it yet.
Her Honour: No but you are in possession of the transcript of it, aren’t you?
Mr Cashen: Yes, but …
Her Honour: So you’re not denied any of the material that was considered by me in the court?
Mr Cashen:No and I am not seeking to re-litigate the submissions that are already put on behalf of my client.
Her Honour: No, I’m just saying there’s not material, because that was part of what Justice Finkelstein relied upon, the fact that material, if it’s been seen by the judge or considered by the judge should be a matter of open record. So you have all of that?
Mr Cashen: In written format, yes.
Her Honour: What you don’t have is the footage?
Mr Cashen:We don’t have the visual, correct. My clients will no doubt show extracts of the footage. Whether that’s five seconds worth of extracts, or two minutes, I can’t say, it will depend on the quality of the footage, how audible it is, what it depicts, it will depend on the length of the segment, what my client’s competitors are doing or intend to do with it, the news cycle, all of those things and I can’t really be any more specific than that, until they get the video in their hands and an editor begins to cut it, I really can’t be more specific. But I can say they will presumably show extracts from that record of interview, and presumably the most interesting extracts they can find, and extracts which they think shed the most light on the offence and the accused.
In respect of the application by Channel Seven, Mr Hutton indicated that he believed they were in a similar position to Channel Nine and he stated:
Without having seen the footage, it’s difficult to be overly precise about the manner in which the program will be used, and I don’t want to make any submissions to your Honour which my client will then step away from, having viewed the material itself, and I remain of the instruction that my client is interested in exploring a story about alcohol-fuelled violence, and the impact.
After further discussion it was put to Mr Hutton:
Her Honour: You could do that program right now couldn’t you?
Mr Hutton:We could, but it would be a better informed story, your Honour, in our submission.
Her Honour: No. How would it be better informed by having a video of it? How would it be in any way better informed?
Mr Hutton:Because we would have the accused’s account of his drunkenness.
Her Honour: You have the accused’s account currently.
Mr Hutton:We have it in word.
Her Honour: You have every word of what he said.
Mr Hutton:We don’t have the accused’s description of it from his own mouth.
Her Honour: You do. You have his words; you have every one of his words.
Mr Hutton: We don’t have his demeanour, your Honour.
Her Honour: No, this is not his demeanour at the time, this isn’t his demeanour at the time that he did the killing so it doesn’t assist. It doesn’t show his demeanour then.
Mr Hutton: It’s his demeanour…
Her Honour: How does that help?
Mr Hutton: It’s very shortly after your Honour.
Her Honour: No, it’s days later.
Mr Hutton: Days later, yes.
Her Honour: Yes. It’s not shortly after it.
Mr Hutton: It is a matter of days.
Her Honour: He is not still drunk, doesn’t do anything, doesn’t show his demeanour at that time. It does not enhance what it is you’re seeking to say about this issue in any way. What it does, is it gives you footage for television.
Mr Hutton:That’s right, but your Honour in our submission, and this is a submission I made to your Honour previously, that there is something that’s gleaned from a person’s demeanour, a person’s expression, his reflections upon the events shortly after, albeit days after, and that’s something that is recognised I think by courts generally when witnesses give evidence orally, it’s preferred for the very reason that demeanour can be inferred and have a greater…
Her Honour: Demeanour can be used to look at the truthfulness, reliability all of those things but …
Mr Hutton: That’s right, I think…
Her Honour: … not for the issue of the drunkenness or anything like that it doesn’t do a thing to assist.
Mr Hutton:Well his sincerity when he is talking about whether or not he is under the influence of alcohol is something that can’t be picked up from the transcript from the words themselves.
Her Honour: You won’t pick it up from just having little excerpts either. Alright that’s your basis, that’s your motive and your reason that you seek this to be released.
Mr Hutton:We seek it to report fully and fairly upon the proceeding itself, your Honour.[20]
[20]Transcript 12 January 2015, page 8 — 9.
When examining that aspect of why it is sought to be released, I found the discussion between Mr Hutton and myself illuminating. At page 15 of the transcript:
Mr Hutton: Well alcohol notwithstanding, in our submission the public interest is furthered by the dissemination of material, any material that can assist the understanding of what took place and of the behaviour of the accused, not to glorify it, your Honour, but rather to inform the public and in our submission the community’s understanding of Mr Hemming’s behaviour would be assisted by the publication of his interview with police.
Her Honour: So are you going to play all the hours, going to play it in its entirety so that the public can understand from beginning to end?
Mr Hutton:No your Honour, but it would be…
Her Honour: Are you going to take out certain select bits that you choose and that’s going to enlighten the public?
Mr Hutton:That’s correct. My submission on that point is that the more information is going to enlighten the public. It’s not our client’s practice to misrepresent or…
Her Honour: I am not talking about misrepresenting, I am just…
Mr Hutton: To take selective extracts.
Her Honour: You just said you were going to take selective extracts, that’s what you were going to do.
Mr Hutton:Selective in the sense that they represent the conduct of the police interview not misrepresent…
Her Honour: This is an interview that went for multiple hours.
Mr Hutton: I appreciate that.
Her Honour: If you take two or three minutes of it, it’s not going to give anyone any understanding.
Mr Hutton:My submission, your Honour, is that it would and the reason for that, your Honour is that Mr Hemming’s account is a unique account in that it’s a firsthand account.
Her Honour: It’s a prurient knowledge, that’s what this is about.
Mr Hutton:It is. And I think some support for this principle is perhaps found in that your judgment itself extracted portions of the police interview and the reason for doing that, we would submit…
Her Honour: Then refer to my judgment, can you use that to enlighten the public, can you not?
Mr Hutton: We can but …
Her Honour: Well there you go.
Mr Hutton:We can to a degree, your Honour but that obviously is… it would not fulfil the same role as the entire police interview would because…
Her Honour: What you don’t have is movement and light. You don’t have what you …
Mr Hutton: That’s correct.
Her Honour: … require for television which is video.
Mr Hutton: That’s correct.
Her Honour: That’s not a proper basis. That’s not the interests of justice, that is about commercial television making money on its programs — fine they are entitled to, but not unless it is in the interests of justice that I should release this material.[21]
[21]Transcript 18 December 2014. pages 16 — 17.
It is my view that there is no general or specific public interest in this audio-visual recording of the interview between Mr Hemming and the police being released. The contents of the interview have always been available to be utilised for programs of such vague and general nature as has been suggested here. What is being sought is the release of the audio-visual to enhance the ‘interest factor’ for television viewing, that is to give the public to chance to ‘see and hear a murderer’. I do not accept that is a matter of public interest.
There is no doubt that serious crimes, are matters of significant interest to the community in that they desire to know and ensure that crimes of such a serious nature are appropriately dealt with by the authorities. That is, that the criminals are detected, tried, and those convicted, adequately and appropriately, punished. That is all part of reassuring the community that the services, such as the police and the courts, engaged on their behalf, are performing their functions in an effective manner, and doing their best to protect this society.
Murders and other serious crimes are not ‘entertainment’, and ought not be the subject of continued ongoing media reporting unless there is a proper and legitimate reason unconnected with entertainment. These are matters that can and do have impact upon the lives of many people, the victims, the families and friends of the victims, the families and friends of the perpetrator, sometimes the much wider community beyond, such as has been demonstrated in this case. The constant repetition of circumstances of the offending can be quite traumatising for not only the immediate families but those in the wider community.
Such was the situation in this case. At the time of the murders, the arrest, the plea and the sentence there was unsurprisingly great public interest in these offences, especially as they were random, unmotivated, thrill-kill murders. They received a significant amount of publicity. As indicated earlier, Mrs Adamson was a teacher/librarian who had taught for many years at a private school and had students who had grown up with her being the teacher/librarian as they passed through that school, a teacher with whom they had contact on an ongoing basis as a result of the role she played. The sister and father of Mr Hemming are teachers who also have ongoing contact with children in schools. As explained to those appearing for the Networks, during a further hearing of this matter on 12 January 2015, it was appropriate to give all parties an opportunity to be heard on an issue that had not been raised at the initial hearing, but that had come to light subsequently, and which I considered was of some significance.
On three separate occasions, after the sentencing of Mr Hemming, at social functions, I was approached by people who I knew to a limited degree; and very similar issues were raised on those occasions, in that each of those people had or had previously had a child or children at the school where Mrs Adamson was the teacher/librarian. Each of those parents expressed the distress and the trauma including, in at least one case, the ongoing trauma that their child or children had suffered. All expressed relief that the matter had finally been dealt with and that there was hope that the children would be able to move on and deal with their grief. It was stated that the children were traumatised not only at the time of the murders occurring but by the process of the plea and sentence and the massive publicity that followed, highlighting again their loss and placing them, particularly the younger ones, in fear. There were fears expressed by some of the younger children that they didn’t want to go to sleep because a person might come into their house and kill them or their parents. I have no doubt similar things may well have occurred in respect of Mr Hemming’s family and their association with children. Mrs Adamson had taught from preps all the way through the junior school, most of whom had then gone on to senior school and were still present at the school, as was she at the time of murder. She had impacted upon the lives of many hundreds of children over that time.
Those appearing for the Networks acknowledged that these were issues that should be considered in this application and agreed that it would be painful:
Mr Cashen: If I could start by saying that my client certainly agrees with everything your Honour said about the offence, and personally I have also known people who have been connected to this offence, and I don’t doubt for a second the depth of pain and sorrow and difficulty this creates for everybody.
Her Honour: Then tell me Mr Cashen, why, if you acknowledge that it does create this depth of pain and trouble for so many people, why does your client want to re-litigate and republish it? Why do you want to cause this pain?
Mr Cashen:It’s a sensitive topic, your Honour, but I would submit that every murder has that effect whether the people in this courtroom see it or not, every murder has — leaves ripples in its wake that have effect forever.
Her Honour: I agree with you. Every murder does, but in this particular case, because of the position occupied by the deceased we have larger ripples in some ways, just ripples affecting so many because of the fact of her being a teacher involved with hundreds and hundreds and hundreds of children who cared about her.
Mr Cashen:If I can answer your Honour’s question, I think the reason is because we seek to understand it, and that’s the reality. This murder is really troubling in many ways, the motive for it, the manner in which it happened is really quite shocking and unique.
Her Honour: It is inexplicable.
Mr Cashen: It is.
Her Honour: Unfortunately, you can’t explain the inexplicable.
Mr Cashen: We may, your Honour, I don’t know.
Mr Hutton on behalf of Channel Seven agreed that it was an appropriate consideration, and stated:[22]
Mr Hutton: I think that that is an appropriate consideration, but in our submission there is a broader public interest at play here, and I think Mr Cashen spoke quite — summed that up quite nicely at the end of his submission; it is a matter of furthering the understanding of the public about the entire proceeding, and the media, irrespective of whether there is a profit motive involved for our clients or for other public broadcasters, it plays an important role in disseminating that information. The public does not have the time nor the inclination to come down to court and to sit in here and listen, unfortunately, and into that void steps our client, and it is important that our client be able to convey as much information as it can, albeit on what is a difficult and distressing topic. I disagree with your Honour that avoiding a story on this is in the public interest or is a better result. I think that while this event is tragic, its newsworthy because it is important that people understand what went on.
[22]Transcript 12 January 2015, page 16.
All of this material was placed before the public at the time of sentencing, the applications for release of the interview were not made until at least a month later, when the public interest in the case had appropriately waned. There is, in my opinion, no compelling reason to re-traumatise all of the people involved in this case, particularly the children.
I have weighed all of the competing arguments in this case to which I have referred and I am not persuaded that it is in the public interest to release the record of interview to either Network. Accordingly, the applications are refused.
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Her Honour: ….But you’ve got all the material.
Mr Cashen: Yes. So the question your Honour asked me was …
Her Honour: What you want is the video footage.
Mr Cashen: Correct.
Her Honour: Because television requires footage, doesn’t it?
Mr Cashen:Yes. And I expect my clients will show extracts from that record of interview we’re obviously not in possession of it yet.
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