Re Commissioner of Police;
[2006] WASC 56
RE COMMISSIONER OF POLICE; EX PARTE ARTEMIS INTERNATIONAL PTY LTD [2006] WASC 56
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 56 | |
| Case No: | MCS:10/2006 | 15 MARCH 2006 | |
| Coram: | JOHNSON J | 27/03/06 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ARTEMIS INTERNATIONAL PTY LTD COMMISSIONER OF POLICE |
Catchwords: | Application by third party to possess and broadcast videotaped record of interview Jurisdiction to be exercised in the interests of justice |
Legislation: | Criminal Code (WA) |
Case References: | Curtis-Miller v Parks [2004] WASC 223 Director-General of Education v Godfrey [2000] WADC 33 Horsman v Commissioner of Police [2002] WASC 81 Nixon v Warner Communications Inc 435 US 589 (1978) Plutonic Operations Ltd v Done [2000] WASC 56 R v Mahanga [2001] 1 NZLR 641 R v Olney [1996] 1 Qd R 187 Rogers v Television New Zealand Limited, unreported; HCNZ; CIV 2005 - 404 - 007152; 22 December 2005 Vickery v Nova Scotia Supreme Court [1991] 1 SCR 671 Coleman v Porter (2004) 220 CLR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
ARTEMIS INTERNATIONAL PTY LTD
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Application by third party to possess and broadcast videotaped record of interview - Jurisdiction to be exercised in the interests of justice
Legislation:
Criminal Code (WA)
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Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr J J Edelman
Respondent : Mr G T W Tannin SC & Mr G J Dale
Solicitors:
Applicant : Edwards Wallace
Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Curtis-Miller v Parks [2004] WASC 223
Director-General of Education v Godfrey [2000] WADC 33
Horsman v Commissioner of Police [2002] WASC 81
Nixon v Warner Communications Inc 435 US 589 (1978)
Plutonic Operations Ltd v Done [2000] WASC 56
R v Mahanga [2001] 1 NZLR 641
R v Olney [1996] 1 Qd R 187
Rogers v Television New Zealand Limited, unreported; HCNZ; CIV 2005 - 404 - 007152; 22 December 2005
Vickery v Nova Scotia Supreme Court [1991] 1 SCR 671
Case(s) also cited:
Coleman v Porter (2004) 220 CLR 1
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1 JOHNSON J: The applicant seeks an order under s 570F of the Criminal Code (WA) ("the Code") granting the applicant permission to possess and broadcast the whole or part of the videotaped record of interview of Andrew Mark Mallard conducted by police officers on 17 June 1994.
2 The background facts of this matter can be shortly stated. On 15 November 1995, Mr Mallard was convicted of the murder of Pamela Lawrence. The evidence before the Court on Mr Mallard's trial included the videotaped record of interview. The videotape and a transcript of the videotape were provided to Mr Mallard's legal advisers for the purpose of assisting in their representation of him on the murder charge. On 15 November 2005, the High Court quashed Mr Mallard's convicted and ordered a retrial. On 20 February 2006 the Director of Public Prosecutions lodged with the Court a notice, under s 87(3) of the Criminal Procedure Act 2004, discontinuing the prosecution of Mr Mallard. The discontinuance of the prosecution under s 87 does not prevent the accused from being charged later with the same offence: s 87(7). The Director explained the decision to discontinue the prosecution of Mr Mallard in the following terms:
"… for the record and for the future, that this decision is made on evidence presently available to the prosecution. The acquittal of Mr Andrew Mallard on this charge does not alter the fact that he remains the prime suspect for this murder. Should any credible evidence present in the future which again gives the State reasonable prospects of obtaining a conviction against him, the State would again prosecute him."
- I note in passing that the Director has mistakenly referred to the effect of the decision of the High Court as an acquittal. That, of course, is not the case. An acquittal is the term used to describe the situation where an accused person is found by a jury, or by a Judge sitting alone, to be not guilty of the offence with which he or she has been charged. It is a complete defence to a charge of an offence to show that the accused person has already been tried and convicted or acquitted of the offence with which the person is charged: see s 27 of the Code which provides a statutory defence similar to that available through the common law pleas of autrefois acquit or autrefois convict. However, where a conviction has been quashed on appeal, there is no prohibition on again trying that person with the same offence. Indeed, in this case the High Court ordered a retrial.
3 The Deputy Commissioner of Police (Specialist Services), John Christopher Dawson, has deposed to the fact that Mr Mallard is a prime
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- suspect in the murder of Pamela Lawrence, and that the investigation into the murder remains ongoing. One of the reasons given to the Court by the Director of Public Prosecutions for not proceeding with the prosecution of Mr Mallard was the leading nature of the videotaped interview. However, even if, for that reason, the videotaped interview were not relied upon on any further prosecution of Mr Mallard as evidence of confession, that would not preclude an issue arising about the extent to which the existence and the content of the videotaped record of interview has been in the public arena. Nor would it prevent the videotape from being put before the Court of trial as evidence of the conduct of Mr Mallard, or of the police, rather than as evidence of a confession.
4 The applicant is currently preparing a documentary about the prosecution of Mr Mallard for murder, up to and including the decision of the High Court to quash his conviction. The affidavit evidence of Brian Maxwell Beaton, a director of the applicant, is that the videotaped record of interview forms a crucial part of Mr Mallard's story and is essential to the documentary. Mr Beaton provides a number of reasons for the importance of the videotaped record of interview. I will address those reasons at a later point. However, for present purposes I accept the proposition that viewing the relevant portions of the videotape would have greater impact than simply hearing those matters recounted by Mr Mallard or someone else.
5 Mr Mallard has given affidavit evidence that he consents to the broadcast of the videotaped record of interview and to the possession of it by Artemis. Indeed, Mr Mallard believes the broadcast of the interview is vital to help the public understand how he came to be charged, convicted and finally released from prison. With respect to the documentary, Mr Mallard observes: "Although I have not yet seen the documentary, it is my strong desire that it be broadcast and that it contain the Interview so that the public can be told my story". I accept that Mr Mallard's consent is a relevant factor in determining whether an order under s 570F of the Code should be made.
6 At the hearing, Counsel for the Commissioner of Police, who sought and was granted leave to appear on this application, advised the Court that the Director of Public Prosecutions is opposed to the grant of the application. Deputy Commissioner Dawson has deposed to the attitude of the Commissioner of Police, as being in opposition to the current application for possession and broadcast of the videotape. Deputy Commissioner Dawson also deposed to having conferred with the two police officers that interviewed Mr Mallard in the videotape. They
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- advised him that, in the present circumstances, they do not consent to the application for possession and broadcast of the videotape.
7 Counsel for Mr Mallard disputed that the police officers involved in the videotaped record of interview have an interest in either preventing or allowing disclosure of the videotape. He did concede that, in circumstances where there was some possibility that the videotape disclosed prima facie evidence of an offence committed by the interviewing police officers, an interest in disclosure of the videotape might arise. However, there being no suggestion of misconduct on the part of the interviewing officers, no such interest arose. I do not accept that proposition. The interest of an investigating officer in the outcome of the application is not dependent on an accused person's interpretation of the quality of his or her conduct. Once publicly divulged, the views of others as to the conduct of the interview becomes the significant factor.
8 It was also suggested that police officers who conduct videotaped interviews are simply carrying out a part of the criminal justice process and it is the interests of justice, in particular the interest in preserving the integrity of the criminal trial process, and not the interest of the police officers which is the relevant consideration on an application of this type. Counsel also submitted that, insofar as the public dissemination of the identity of the police officers may be said to prejudice them, the applicant was quite prepared to make the concession that any part of the videotaped record of interview which identifies the police officers would be removed or obscured. Counsel for the Police Commissioner commented that such an approach would serve only to throw suspicion on the police officers conducting the record of interview. In reply, on behalf of the applicant, it was said that there is nothing in the second reading speech or in any decision on s 570F which suggests that the purpose of the prohibition on broadcast is to protect the identities of any police officer. I accept that proposition but note that there is nothing in the section to suggest that the prohibition is to protect the identity of the accused and yet an accused person's interests are taken into account in exercising the power.
9 To my mind, protection from the public dissemination of their identity is not the only interest that the interviewing officers have with respect to an application of this type. The relevant interest to which the right to be heard attaches, arises from the fact that the videotaped record of interview was prepared for a confined purpose in the course of which only certain authorised persons are entitled to view it and it is now proposed to put the videotape to another use. In Horsman v Commissioner of Police [2002] WASC 81, McKechnie J concluded
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- (at [10]) that a person who gives to the police a videotaped interview has expressly or impliedly consented to the tape being viewed by authorised persons and being viewed in open court but has not impliedly consented to the tape being broadcast to a wider audience. In my view, any use of the videotape for a purpose other than the purpose for which it was created, confers on every one of those involved in the record of interview a right to be heard. It is that circumstance which makes the attitude of the police officers, as well as the attitude of the interviewee, a relevant factor in determining an application to permit public broadcast of the videotaped interview. That conclusion in no way transforms an assessment of the interests of justice into an assessment of the interests of the interviewing police officers. Their attitude to the application is simply one of a number of factors I must take into account in resolving this application.
10 Before dealing further with the specific submissions of each party, it would be appropriate to refer to the relevant authorities and to identify the principles which have been found to apply to an application of this type. But first, it is necessary to consider the relevant statutory framework.
11 Section 570F falls within a much amended ch LXA of the Code which is entitled "Videotaped Interviews" and which sets out the use to which a videotaped record of interview may lawfully be put. It is fair to say that ch LXA is restrictive in scope, in that it restricts the publication and use of videotaped interviews to the trial process for which they came into existence but it also creates exceptions to that restriction in defined and limited circumstances. To a large extent ch LXA reflects the practice in place before legislative intervention; that is, a restrictive approach limiting possession, in almost all circumstances, for the purposes of the trial process. One important addition is that ch LXA contains offence provisions for breaching the restrictions on possession and broadcasting of a videotaped interview. Section 570B creates an offence for a person, other than an authorised person, to possess, supply, copy, erase, or play a videotaped interview other than to an authorised or a nominated person or group of persons. The offence attracts a $5000 fine: s 570B(7). Section 570C makes it an offence to broadcast a videotaped interview, or any part of it, unless the broadcast is made under a direction of a court. Significantly, the offence is considered so serious that Parliament has included imprisonment for 12 months as an appropriate sentencing option: s 570C.
12 Chapter LXA contains a number of other provisions. It confers on an accused charged with an offence an express right to be provided with a copy of the record of interview with respect to that charge: s 570A. The
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- chapter also restricts the use of admissions made by an accused charged with an offence unless the admissions were videotaped: s 570D. As would be expected, the restrictions are eased with respect to jurors who are entitled to possess and play a videotape admitted into evidence: s 570E. Section 570H allows a videotape to be played to prescribed persons for teaching purposes, although only where the suspect interviewed has been convicted of the charge and all legal proceedings in relation to the subject matter of the interview have been concluded. It can be seen that, even for legitimate teaching purposes, it is not considered appropriate to disseminate a videotaped interview where the investigation to which the interview relates has not been concluded.
13 There are two final provisions of ch LXA that underline the importance of the preservation of videotaped records of interview to the criminal justice process. The first provision is s 570GAQ(1) which requires the videotape of an interview with a suspect conducted by an officer of the Corruption and Crime Commission ("the CCC") to be kept in safe custody for at least five years. The second provision is s 570G(1) which requires videotapes of an interview with a suspect by a member of the Police to be kept in safe custody for at least five years. I consider that these provisions underline the importance of preserving videotaped records of interviews for future purposes.
14 This summary of the thrust of the provisions in ch LXA underlines the restriction on possession and use of videotaped interviews to authorised persons, including the accused, and the importance of preserving the videotapes in the interests of justice. The restrictions on possession and broadcasting of videotaped interviews are seen as being so serious that any breach of the requirements constitute an offence. In particular, as I have indicated, broadcasting a videotaped interview without authorisation attracts a term of imprisonment as a sentencing option. Further, the videotapes made by two primary regulatory bodies are to be safeguarded for a period of years. Significantly, the one specified departure from these restrictions, use of the videotaped interviews for teaching purposes, is only in circumstances where the suspect interviewed has been convicted and all legal proceedings with respect to that offence or offences are concluded.
15 It is in this context that the power which the Court is called upon in this case to exercise can be found. Relevantly, s 570F empowers the Court to give directions (with or without conditions) as to the supply, copying, editing, erasure, playing, or broadcast of a videotape. Such a provision would clearly facilitate the admission into evidence of a
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- videotaped record of interview where parts of the video have been found to be inadmissible. The videotape could then lawfully be edited as necessary, copied to achieve that purpose, and played and broadcasted to a person other than an authorised person if it were necessary to do so to facilitate the ruling of the Court. The provision has also been relied upon to authorise persons who are jointly charged with an offence to obtain a copy of each other's record of interview: Curtis-Miller v Parks [2004] WASC 223 per Miller J (at [8]). Although this case supports the use of s 570F by third party applicants, it involves using the videotape in the criminal justice process rather than for unrelated purposes.
16 In its precise terms s 570F does empower the Court to give directions as to the supply and broadcast of a videotape without limitation on the meaning of "broadcast". My initial reaction to this provision was to question whether the provision, including the term "broadcast", was actually intended to cater for an application by a third party to disseminate a videotape, or a portion of it, to the public at large. However, there are two factors which support a broader construction. The first factor is the terms of s 570C which prohibits the broadcast of a video unless it is pursuant to a direction of the Court under s 570F and refers in the penalty portion to bodies corporate. It is difficult to identify any entity normally involved in the criminal justice system which exercises its authority as a body corporate.
17 The second factor is that the provision has in the past been relied upon by the Court as a vehicle for third party applications for possession and broadcast of a videotaped record of interview and also for applications by accused person to be provided with a copy of their videotaped interview for purposes unrelated to the criminal trial: see Horsman v Commissioner of Police; Plutonic Operations Ltd v Done [2000] WASC 56; Director-General of Education v Godfrey [2000] WADC 33 per HH Jackson DCJ (at [16]). I raised my reservation on the scope of s 570F with counsel at the hearing. Neither wished to adopt the position that s 570F had the more limited scope which was my initial reaction to the provision. Because of the attitude of counsel and for the reasons to which I have referred, I have approached this application on the basis that it was validly brought pursuant to s 570F of the Code.
18 However, I consider the above summary of ch LXI and the analysis of the provisions contained in it, support the decision of McKechnie J in Horsman v Commissioner of Police (at [11]) that the jurisdiction to make directions under s 570F ought to be exercised in the interests of justice. I also concur with McKechnie J's view that it will be an exceptional case
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- where the Court would exercise its discretion under s 570F other than to advance the interests of justice: (at [12]). The few authorities on s 570F do not restrict the exercise of the power although, almost without exception, the cases deal with the situation where the videotape no longer has a forensic purpose because the criminal proceedings to which it relates are at an end. Counsel for the applicant provided the Court with the names of two cases in which applications for the possession and broadcast of videotaped interviews were made and granted. The first case, described only as MCS Number 33/2005, was an application by a television station for access to the videotaped interview for inclusion in a programme dealing with the transformation of the accused from a drug addict to a person who worked with children to educate them as to the adverse effects of drug-taking. A perusal of the file reveals that the application was made with the consent of the offender and that the offender had been tried and convicted of the charge to which the interview relates. It can be seen that this case can be distinguished from the application before me in that the question of the impact on future proceedings did not arise. However, it is apparent that there was considered to be no restriction on third party applications. The case of R v Olney [1996] 1 Qd R 187, heard by Malcolm CJ on 20 March 1998, also involved a videotaped interview with respect to a charge of which the offender had been convicted.
19 I do not suggest that these cases are authority for the proposition that the operation of s 570F is restricted to cases where the criminal proceedings to which the videotaped interview relates are concluded. However, I consider that it is easier to satisfy the criteria for granting the application, that it is in the interests of justice to do so, where there is no potential for any adverse impact on criminal proceedings. However, having considered the terms of s 570F in the context of ch LXA and the available authorities, it is apparent to me that the starting point of any application is that the use of videotaped records of interview is generally restricted to the criminal justice system. It is only where the Court is satisfied that it is in the interests of justice to depart from that position that an order under s 570F should be made.
20 Counsel for the applicant identifies a number of factors which are said to indicate that it is in the interests of justice for the interview to be broadcast. They are paraphrased as follows:
(a) Mr Mallard consents and strongly desires the videotape to be broadcast.
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- (b) The case against Mr Mallard has been completed. All charges have been dropped. There is no prejudice to criminal proceedings by allowing the broadcast of the interview.
(c) It is in the public interest for the public to be informed of the workings of the criminal justice system.
(d) The contents of the interview have been publicised during the course of the appeals.
(e) At the time the interview was videotaped, the law did not prohibit broadcasting, although contempt issued could arise.
21 I have already indicated that I consider the consent of Mr Mallard to be a relevant factor which falls to be considered in the context of the opposition of the police officers, the Commissioner of Police and the Director of Public Prosecutions. However, the process does not involve weighing the two competing attitudes against each other. I accept that there is a public interest in informing the public of the workings of the criminal justice system, although, from the information provided to me of the nature of the programme and the use to which portions of the videotape are to be put, I am not persuaded that the publication of the videotaped interview would sufficiently serve the identified educative purpose to justify public release. I accept that it would educate people that interviews with police are recorded on video. Its only other educative purpose would be with respect to Mr Mallard's situation. I am not persuaded that such a limited educative purpose, alone, is sufficient to exercise my discretion in favour of the applicant.
22 I accept that some of the contents of the record of interview have been publicised in the course of the trial and appeal process. I also accept that comments on Mr Mallard's demeanour in the course of the interview have also been publicised. However, it remains the fact that the videotape itself has not previously been put into the public arena and I do not accept that public knowledge of the details of the interview justify publication of the videotape itself. The very reason why the applicant would prefer the videotape rather than simply a description of it undermines the proposition that the videotape should be made public because the content and circumstances of it have already been publicly disclosed. One has greater impact than the other.
23 It may well be the case that, at the time the interview was videotaped, the law did not prohibit broadcasting. However, that is simply not to the point. Even then it was accepted that videotapes of interviews were not public documents and were for use in criminal
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- proceedings only. Whilst there may have been no express statutory provision limiting possession to certain authorised people, neither was there any statutory provision which would allow orders to be made authorising possession by third parties not involved in the trial process. Preventing public dissemination of a videotaped interview could be achieved by other means. In Rogers v Television New Zealand Limited, unreported; HCNZ; CIV 2005 - 404 - 007152; 22 December 2005, the High Court of New Zealand held that an injunction would lie to prevent interference with a person's privacy rights where a TV station sought to broadcast a videotape record of the person being interview by police: per Venning & Winklemann JJ (at [90]). I accept that, unlike the position in the Rogers v Television New Zealand Limited case, Mr Mallard is keen for the videotaped interview to be broadcast. However, the decision in Rogers v Television New Zealand Limited indicates that, in the absence of statutory provisions, there exist mechanisms for ensuring that videotaped interviews are confined to the purpose for which they were created.
24 In any event, the definitions of "interview" and "videotape" in s 570 of the Code are not qualified in any way which would limit the operation of ch LXA to videotapes which came into existence after ch LXA commenced operation. In my view, the provisions are procedural in nature and should not be so limited.
25 The only remaining factor for consideration is the one which asserts that the case against Mr Mallard has been completed; that all charges have been dropped and there is no prejudice to criminal proceedings by allowing the broadcast of the interview. It is the case that Mr Mallard's conviction has been quashed and that, despite the fact that the High Court ordered a retrial, the Director of Public Prosecutions has discontinued the prosecution against Mr Mallard. However, in my view, it does not follow that the case against Mr Mallard has been completed or that there is no prejudice to criminal proceedings by allowing the broadcast of the interview. Counsel for the Commissioner of Police relies on the fact that both Deputy Commissioner Dawson and the Director of Public Prosecutions have indicated to the Court that the police investigation of the murder of Pamela Lawrence is ongoing and that Mr Mallard remains a prime suspect in that murder. In these circumstances, it is said that publication of the videotape may be prejudicial to the investigation and prejudicial to the interests of justice. Therefore, the interests of justice would not be served by making an order for publication.
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26 Further, in opposing the application counsel also relies on the fact that the Mallard investigation and prosecution is currently in the hands of the CCC. Deputy Commissioner Dawson deposes to the fact that on 21 November 2005, the Commissioner of Police wrote to the CCC and requested an investigation into any allegations against Western Australian police officers arising out of the Mallard investigation and prosecution. On 9 March 2006 the CCC publicly indicated that it would hold public hearings in July 2006 in relation to allegations of misconduct by persons involved in the investigation and prosecution of Mr Mallard. Deputy Commissioner Dawson also states that the circumstances of the making of the videotape and its significance are very likely to be the subject of investigation by the Commission.
27 Counsel for the applicant submits that the fact that the investigation is ongoing and that Mr Mallard is a prime suspect are irrelevant considerations. The basis of this submission is that the charges against Mr Mallard have been withdrawn and there is no evidence before the Court to suggest that there are any additional facts which could make a retrial a possibility. It is said that counsel for the respondent conceded that there was no suggestion that there was any probability that Mr Mallard would be retried. The emphasis of counsel is on evidence currently before the Court. The proposition being put is that it is only in circumstances where there is evidence of a retrial of Mr Mallard that an application could be refused on the basis that to grant it would interfere with the interests of justice. It is a trite observation that a court must act on evidence. But the nature of a power often dictates the type and adequacy of the evidence relied upon to exercise the power. In this case the power is to allow a videotaped record of interview which came into existence for the purposes of criminal proceedings to be publicly disseminated. That power must be exercised in the interests of justice. In my view, where there exists any possibility of the videotape being required for the purposes of the criminal justice process, it can not be in the interests of justice to act against the restrictions on possession and use of a videotaped interview set out in ch LXA of the Code. Indeed, the specific legislative intention was to avoid the risk of "trials being aborted because of leaks to the media or other misuse of video material": "WA Parliamentary Debates, Legislative Assembly" Wednesday, 25 November 1992 (at 7231). The release of a videotaped record of interview into the public domain carries with it a risk of an adverse affect on the criminal trial process and hence on the administration of justice. Risks to the trial process include applications for adjournments or a stay of proceedings based on unfairness to an accused of being pre-judged because the public
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- has seen the videotaped interview or because of media commentary relating to the videotaped interview. These are only two of a number of risks which come to mind. It is unnecessary to identify others because it is the existence of the risk rather than the manifestation of it which interferes with the interests of justice.
28 In the present case, the fact that the investigation is ongoing and that Mr Mallard is a prime suspect, gives rise to the possibility that the videotape may be required at a future time and that public dissemination of it might adversely affect its use in the criminal justice system in the future. It is for that reason it is said that it would not be in the interests of justice to grant the application.
29 That is not to say that Mr Mallard is not being given the full effect of the High Court's decision to quash his conviction, or of the fact that his prosecution is not currently being proceeded with (that qualification being the legal effect of the action taken by the Director of Public Prosecutions) or of the presumption of innocence. While ever Mr Mallard is a prime suspect in an unresolved murder there remains a risk to the interests of justice of placing his record of interview in the public domain. The fact that there has not been placed before the Court any evidence that he will probably be retried is to place on the respondent a higher burden than s 570F requires. The only evidence required is evidence which gives rise to a possibility that he may be retried. In my view, that requirement is met by the evidence that Mr Mallard is a prime suspect in an ongoing investigation. It is only where there is no possibility that Mr Mallard will be again tried for the same offence that the interests of justice would not require that the videotaped interview be protected from public exposure. Such might be the case where another person has been convicted of the offence and all appeal processes have proved unsuccessful. In that case there would be no possibility of a retrial.
30 It is also said on behalf of the applicant that, if there is an ongoing investigation into the offence which does not involve Mr Mallard, there can be no interference with justice in granting the application. I accept that the argument is not as strong where it is only the investigation of another person which is currently being undertaken. However, it is conceded by counsel that the accused would be entitled to a copy of Mr Mallard's videotaped record of interview as a part of pre-trial discovery. I accept that such an entitlement exists: Plutonic Operations Ltd v Done (at [10]) per Master Sanderson. However, the fact that the existence of a confession by one person is relevant to the trial of another person indicates that public exposure of the videotaped interview may
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- even create risks where an entirely different person is being charged with the offence.
31 There is also the investigation of the CCC to be taken into consideration. It is not known what form that will take or what matters it will reveal. For that reason, I am not aware of the likely impact on the investigation of placing the videotaped interview in the public domain, other than the effects to which I have already referred should the investigation result in charges against police officers involved in the investigation and prosecution of Mr Mallard. In this context it is important to consider that it is the applicant's obligation to persuade me that there will be no such impact.
32 In exercising the discretion to grant the application I am obliged to balance competing interests. There is on one side the fact that the statutory framework is directed to limiting the possession and use of videotaped records of interview to those persons involved in the criminal justice system. Exercising my discretion in favour of the applicant represents a departure from the prima facie position that videotapes may only be possessed and broadcast for specific purposes related to the administration of justice. In effect, granting the order would make public that which came into existence for dissemination to a limited group only. In R v Mahanga [2001] 1 NZLR 641 the Court was called upon to consider an application for access to a videotaped record of interview of the accused by the police. The Court of Appeal considered (at [41]) that it was open to the Judge "to be sensitive to the circumstances in which the videotape was created … ": see also Nixon v Warner Communications Inc 435 US 589 (1978) and Vickery v Nova Scotia Supreme Court [1991] 1 SCR 671 per Stevenson J.
33 Public dissemination of videotaped interviews may also have the effect of deterring people questioned by the police from participating in a videotaped record of interview because the contents may be disseminated to the public rather than simply to those involved in the trial process. In Rogers v Television New Zealand Limited consideration was given to the evidence of a witness, a prominent barrister, on the likely effect of release of a videotaped interview to the media. The following is an extract from the judgment outlining her comments (at [61] and [62]):
"She states that it would be of concern if videotaped statements of accused person were released to the media. She says that the videotaping of statements are generally seen as desirable both for the prosecution and for the defence … She says that were it
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- to become permissible or common practice for the Police to hand over such videotaped interviews to the media, she would be obliged to advise that possibility to clients and that this would undoubtedly affect their decision whether to make a statement or video, or indeed whether to make a statement at all."
- Such a result is clearly not in the interests of justice.
34 Counsel for the respondent also submitted that there was insufficient evidence before the Court as to the use to which the videotaped interview would be put. Counsel's position on this issue remained unchanged by the information provided, subsequent to the hearing, on the portions of the videotape which would be included in the programme and on other aspects of the programme. Counsel noted that the names of those persons to be interviewed for the purposes of the programme was unknown and the Court remained uninformed of the context in which the videotaped interview would be used. On that basis, it is said, there is insufficient material before the Court to be satisfied that the videotape will be used for a proper purpose. To resolve this concern, counsel for the applicant offered the Commissioner of Police an opportunity to view a tape of the programme before it went to air. The difficulty with that concession is that the order for possession must already been made for the preview to occur. Further, the effect of the Commissioner's opinion on the use of the videotaped interview in the course of the programme is not clearly identified. There would no doubt be difficulties involved in such a situation which would almost inevitably lead to a further hearing and the potential for an argument on the part of the applicant that the Commissioner's opinion of the programme has no weight or legal effect.
35 As I have indicated, it is also important to take into account the fact that that the Commissioner of Police, the Director of Public Prosecutions and the police officers who conducted the interview all oppose its release into the public arena. The two remaining factors to be taken into account are that the police are still investigating Ms Lawrence's murder and consider Mr Mallard to be a prime suspect, and that the CCC will be conducting public hearings in July 2006 in relation to allegations of misconduct by persons involved in the investigation and prosecution of Mr Mallard. For the reasons to which I have already referred, I consider that it is clearly in the interests of justice that both investigations are not adversely affected by the videotaped record of interview of Mr Mallard being disclosed to the public.
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36 In my view, the combination of these factors constitute a compelling case against granting the application.
37 The competing interests are those of Mr Mallard and Mr Beaton. There is also a public interest in being provided with information concerning Mr Mallard's case. Mr Mallard supports the application of Artemis. He has given affidavit evidence of his strong desire to have his story told and he believes that the broadcast of the interview is vital to help the public understand how he came to be charged, convicted and finally released from prison. The evidence of Mr Beaton is to the effect that the videotaped record of interview forms a crucial part of Mr Mallard's story and is essential to the documentary. In R v Mahanga, the Court of Appeal declined an application for access to a videotaped interview and said (at [45]):
"The appellant's interest was in presenting information already in its hands with greater impact. That was an entirely legitimate interest ... "
- However the Court of Appeal went on to say that in the circumstances of that case, the applicant was not able to show that interests of open justice or freedom of expression gave it additional weight.
38 In his affidavit in support of the application, Mr Beaton identifies a number of factors said to support the proposition that the videotaped interview is essential to the documentary. First, it is said that the videotaped interview is essential in order for the public to comprehend the case against Mr Mallard and the evidence that the Court, at every stage, had before it. The interview enables the public to see for themselves a man who is under the influence of drugs and suffering from a mental condition which affected his perception of reality. I accept that the videotaped interview would be the most effective method of making the public understand that Mr Mallard was indeed in the condition to which Mr Beaton refers.
39 Secondly, it is said by Mr Beaton that the video is not of a standard type. Experience leads to knowledge that no videotaped interview can be said to conform to a standard. However, accepting that the way in which Mr Mallard responded to the questions was out of the ordinary, I do not accept that this issue could not be satisfactorily understood by the average viewer without being shown the videotape itself.
40 The third point put on behalf of Mr Beaton is that the Mallard case has been the subject of much publicity and the proposed documentary will
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- be the first occasion on which the public will be shown the way in which the case proceeded from beginning to end. In my view, accepting both propositions does not add any significant weight to the applicant's submission that it is in the interests of justice that the application be granted. I do not accept that the public's understanding of the way in which the case proceeded will be diminished by being unable to view the videotaped interview.
41 The fifth point is the educative issue which I have already addressed in these reasons. Although Mr Beaton's point adds to the educative impact it does not alter my conclusion on this point. The final factor is that the broadcast of the videotaped interview will help to illustrate the detrimental effects of mental illness and drug abuse on a person and his or her family. I accept that this is a worthy aim although one which would not hold sway over the adverse impact on the administration of justice of public dissemination of the videotape where the investigation of which the videotape forms a part is ongoing.
42 Finally, I must take into account the fact that the applicant has made a number of concessions to limit the adverse effect of publication of the videotaped interview. Whilst I commend the appellant for taking such a reasonable approach, in my view, the concessions made and the self-imposed restrictions on the use of the videotape do not overcome the risk to the interests of justice in placing the videotape in the public arena.
43 In this case, both the applicant and Mr Mallard, wish the public to know, through the medium of the applicant's programme, the way in which the charge against Mr Mallard proceeded from beginning to end and the impact on him and his family of his involvement in the criminal justice system. To achieve this aim, it is necessary to satisfy the Court that it is in the interests of justice that the application be granted. The essence of the position taken by the Commissioner of Police is the potential risk to the criminal justice system of broadcasting the videotaped interview. In making the appropriate determination these competing positions must be considered in the context that videotaped records of interview are brought into existence only for the purpose of the trial process.
44 Having considered all of the evidence put before me, I am not persuaded that it is in the interests of justice to grant the application. The position that I take is that the investigation of a murder and bringing the offender to justice is of such importance to the community that I would not be prepared to take any risk of interfering with that process unless
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- exceptional circumstances compelled me to do so. The information before me does not identify or establish any exceptional circumstances. I consider that allowing the public to view the videotaped interview would constitute a risk to an ongoing investigation by the police of Ms Lawrence's murder. It would, in my view, also have the potential to adversely affect the investigation of the CCC. I consider that these factors far outweigh the matters put before the Court by the applicant and by Mr Mallard.
45 For those reasons the application will be dismissed.
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