R v Reed-Robertson

[2016] VSC 236

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CI 2000 1410

THE QUEEN
v
CAROLINE REED-ROBERTSON	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2014
DATE OF RULING:	12 May 2016
CASE MAY BE CITED AS:	R v Reed-Robertson
MEDIUM NEUTRAL CITATION:	[2016] VSC 236

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CRIMINAL LAW – Evidence – Application by media for release of record of interview – Accused person declined to answer any questions – Accused later pleaded guilty to murder - Application refused – General principles relevant to such an application discussed – No admissible evidence contained in record of interview – No reliance placed on record of interview in trial judge’s reasons for sentence - Section 464JB Crimes Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Cashen	Macpherson & Kelley Lawyers
For the Respondent	Mr G Mukherji

HIS HONOUR:

1. This is an application on summons by the Nine Network Australia Pty. Ltd. pursuant to s 464JB of the Crimes Act 1958. The application sought the release of a record of interview between Detective Sergeant Ross and Caroline Reed Robertson conducted on 13 March 1999.

1. On later arraignment, Ms Robertson pleaded guilty to the murder of Rachel Elizabeth Barber at Prahran between 28 February 1999 and 14 March 1999.  On 29 November 2000, she was sentenced in this Court by Vincent J (as His Honour then was).  On the count of  murder she was sentenced to 20 years’ imprisonment with  14 years and 6 months fixed as the period to be served before she became eligible for release on parole.

1. This is a matter that has captured the public interest from time to time.

1. During the course of his reasons for sentence in 2000, Vincent J reproduced a substantial part of the  prosecution opening on plea and in doing so stated:[1]

It is, I think, sufficient in order to convey the essential features of the factual matrix within which the sentence is to be determined to set out a portion of the narrative provided by the prosecutor, Mr Rapke of Her Majesty's Counsel, at the time of the plea presented on your behalf, and concerning which there has been no dispute.  His description, I should add, accords with my understanding of the effect of the evidence contained in the depositions.

[1]Para [2] – The Queen v Caroline Reed Robertson [2000] VSC 560.

1. At no stage in the course of His Honour’s sentence did Vincent J make any reference to the record of interview the subject of this application.  I am unable to tell whether he was even aware of its existence.  As far as I can see the record of interview did not form part of the depositions.  There are good reasons why this is so.  I have watched the entire interview, approximately 31 minutes in length, and it is sufficient to say that Ms Robertson exercises her entitlement not to answer any questions throughout.  No admissible evidence arises from the interview. 

1. The application for the release of the interview was heard on 25 November 2014  Ms Robertson having been represented by counsel.  As became obvious during the hearing, the eligibility for Ms Robertson’s release on parole arose on 29 November 2014.  It was apparent that the Nine Network proposed to use the record of interview as part of the publicity surrounding that date and Ms Robertson’s likely release from custody.  The proposal was that this matter be adjourned so that I could consider the application with the prospect of further submissions from the parties.

1. The Adult Parole Board apparently fixed a date for Ms Robertson’s release and on the basis of the publicity it appears she was so released from Dame Phyllis Frost women’s prison on 20 January 2015.  To my observation, there was significant coverage of the matter in the early part of 2015.  I had understood that this application was with a view to that publicity which proceeded and then dissipated without me having finalised the matter.  I regret that the matter therefore lapsed to some degree given that I misunderstood whether the need for this ruling had persisted. 

1. On 19 December 2014, Channel Seven Melbourne Pty Ltd sought to join the application and filed written submissions which broadly supported the Nine Network’s original application and requested that, despite the publicity having passed, I finalise the matter.

1. During the course of the application in this matter before me, Mr Cashen, who appeared for the Nine Network submitted that because this case involved the crime of murder there was significant public interest.  No doubt that offence does usually generate such interest.

1. The second and more particular consideration he referred to and relied on in this case was that the respondent, Ms Robertson, was on the verge of being released on parole and the public were entitled to have a view about whether such release should occur.  In my view there is nothing in a ‘no comment’ record of interview in circumstances where the accused later pleaded guilty to the count of murder that could possibly inform that question.

1. In that context, however, Mr Cashen posed three questions in which he submitted the public might be interested.  First, the ‘nature’ of the accused at the time the crime was committed.  Second, what she said and whether she confessed.  Third, the circumstances of the crime and whether she lied.  The public, Mr Cashen argued, would also wish to assess the demeanour of the accused. 

1. It was clear that Mr Cashen made his submissions to me unaware of what in fact was contained in the record of interview.  He understood there was some ‘confession and discussion’.  There is none.  One thing is clear – Ms Robertson’s responses to questions could not be misrepresented because she does not make any.  One of my concerns, however, is that such a record of interview might be portrayed as the accused using legal protections that suspects have in police custody not to answer questions as a method of evasion and to hide the truth.  Were that to be an approach taken, in my opinion it would do harm to the criminal justice system.

1. In his reasons for sentence, Vincent J did spend some time considering the attitude of Ms Robertson to her offending and the extent to which she was remorseful.  He considered expert psychological evidentiary material which was put before him but he did not refer to the record of interview or make any observations about the demeanour of Ms Robertson at the time it occurred.  As I have said, I am not at all sure that Vincent J ever actually saw the record of interview but there are no proper conclusions to be drawn from it in the form in which occurred.  The interview adds nothing to the description of the offending which is set out in detail in Vincent J’s reason for sentence.

1. In written submissions on behalf of Channel Seven Melbourne Pty Ltd in support of the release of the interview, that company argued that the public were concerned with the circumstances of Ms Robertson’s offending, her prosecution and sentencing.  The record of interview does not inform any of those things and cannot add to a ‘full and accurate report’ of the prosecution of her case.  In my opinion, it does not provide any insight into her demeanour at the time and is not relevant to any concept of ‘open justice’ because the interview was not part of any trial or sentencing hearing which concerned her.

1. Mr Mukherji of counsel appeared on the application for Ms Robertson and made submissions urging me not to release the interview.  Ultimately Ms Robertson was called and gave sworn evidence by video link.  Several of her concerns about the release of the record of interview were more relevant to her time in custody which is now complete, subject to satisfactory parole.  However, she also gave evidence that in the two years prior to this application the level of ‘violence’ directed to members of her family had increased due to various articles and books published on the topic of her offence.  She said she was concerned the release of the video of the record of interview would add to that.  It is now the case that Ms Robertson is on parole and the community interest is in her rehabilitation and non-offending.  I am unable to see how the release of the record of interview containing, as it does, no information about the offence she committed would be anything other than counter-productive to that purpose. 

1. Ms Robertson was not cross examined about the evidence she gave and I am willing to act on her evidence to the extent it is relevant to this application.

1. Section 464JA of the Crimes Act 1958 contains the legislative prohibition against, among other things, publication of a video-taped record of interview. Section 464JB(2) is in the following terms:

A court may give directions, with or without conditions, as to the supply, copying, editing, erasure, playing or publishing of an audio recording or an audiovisual recording.

1. Because it is referred to I also note that s 4 of the Open Courts Act 2013, provides:

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 tribunal must have regard in determining whether to make a suppression order.

1. However, in considering the significance of that provision in an application like this, it needs to be borne in mind that the Open Courts Act 2013 is intended to reform and consolidate provisions for suppression orders relating to information derived from proceedings applicable to various courts including this Court. The record of interview, the subject of the application was never before this Court and, of course, such potential exhibits are the subject of particular provision in s 464JA & JB of the Crimes Act 1958.

1. The application of these provisions was carefully considered by Hollingworth J in Director of Public Prosecutions v Angela Maree Williams.[2]Her Honour set out a detailed examination of the principles and the cases which underpinned them.  She then said:[3]

   [2][2015] VSC 107

   [3]At para [43]

Having regard to the decisions in WA and here, as well as the extrinsic legislative materials, the following is a non-exhaustive list of factors which may be relevant in considering the exercise of the court’s discretion under s 464JB:

(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.

1. Hollingworth J concluded that in each case the Court must consider for itself whether those (or any other) factors are relevant in that case and, if so, what weight to give to the relevant factors.

1. Of those matters, the identification of which I respectfully agree with, at least the following are relevant for the purpose of this application:

(b)Ms Robertson does not consent to the release;

(c)Members of Ms Robertson’s family are affected by the interview or would be if it was released;

(g)Depending on how the refusal by Ms Robertson to answer questions were to be portrayed, the integrity of the criminal justice system could be affected;

(i)The release of the record of interview will not enhance the fair and accurate reporting of the case;

(j)The record of interview was never played in open court;

1. I am therefore of the opinion that the I should not release the record of interview.  It was not played during Ms Robertson’s sentencing nor referred to by the sentencing judge during the plea or sentence and no principle of open justice applies in this case[4].  It will not enhance the fair and accurate reporting of the case and there is no public interest in its release.  Ms Robertson pleaded guilty to the offence of murder.  Vincent J’s careful and detailed analysis in the reasons for sentence contain everything that it is in the public interest to know.

   [4]Cf DPP v Williams [2015] VSC 107 at para [46].

1. It is an important consideration that the record of interview contains no information about Mr Robertson’s offending to which she later pleaded guilty.  Of course, were there to be any further publicity about the matter and it was relevant to do so, it could be stated that upon police interview at the time, Ms Robertson exercised her legal right not to answer any questions asked of her by the investigating police.

1. Finally, Ms Robertson has sworn that, given the history of the matter, members of her family may be adversely affected by its release were I to make the orders sought by Channels Nine and Seven.  She is now in the community and the publicity concerning her release has long subsided.

1. The application is refused.