Re Corruption and Crime Commission; Ex parte West Australian Newspapers Ltd
[2007] WASC 201
•30 AUGUST 2007
RE CORRUPTION AND CRIME COMMISSION; EX PARTE WEST AUSTRALIAN NEWSPAPERS LTD [2007] WASC 201
| Link to Appeal : | [2008] WASCA 209 [2008] WASCA 209 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 201 | |
| Case No: | MCS:28/2007 | 20 AUGUST 2007 | |
| Coram: | TEMPLEMAN J | 30/08/07 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632) COMMISSIONER OF POLICE CORRUPTION AND CRIME COMMISSION |
Catchwords: | Corruption and Crime Commission Investigation by Commission Public hearings Application by media outlet to broadcast video held by Commission Statutory prohibition on release of "official information" Application of principles of interests of justice compared with public interest Whether exceptional circumstances Whether jurisdiction to authorise Commission to release when it thought fit |
Legislation: | Corruption and Crime Commission Act 2003 (WA), s 152 Criminal Investigation Act 2006 (WA), s 121, s 122 |
Case References: | Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133 Horsman v Commissioner of Police [2002] WASC 81 John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Plutonic Operations Ltd v Done [2000] WASC 56 Re Commissioner of Police; Ex parte Artemis International Pty Ltd [2006] WASC 56 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)
Applicant
Catchwords:
Corruption and Crime Commission - Investigation by Commission - Public hearings - Application by media outlet to broadcast video held by Commission - Statutory prohibition on release of "official information" - Application of principles of interests of justice compared with public interest - Whether exceptional circumstances - Whether jurisdiction to authorise Commission to release when it thought fit
Legislation:
Corruption and Crime Commission Act 2003 (WA), s 152
Criminal Investigation Act 2006 (WA), s 121, s 122
(Page 2)
Result:
Application dismissed
Category: A
Representation:
Counsel:
Applicant : Mr K J Martin QC & Ms C Galati
Commissioner of Police : Ms D P Scaddan
Corruption and Crime Commission : Mr B E F Tooker
Solicitors:
Applicant : Edwards Wallace
Commissioner of Police : Commissioner of Police
Corruption and Crime Commission : Corruption and Crime Commission
Case(s) referred to in judgment(s):
Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133
Horsman v Commissioner of Police [2002] WASC 81
John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
Plutonic Operations Ltd v Done [2000] WASC 56
Re Commissioner of Police; Ex parte Artemis International Pty Ltd [2006] WASC 56
(Page 3)
1 TEMPLEMAN J: West Australian Newspapers Ltd applies pursuant to s 122 of the Criminal Investigation Act 2006 (WA) for an order that:
"1. The Corruption and Crime Commission (CCC) may, subject to Section 152 of the Corruption and Crime Commission Act 2003, supply the Applicant with:
(a) That part of the videotaped police interview of Simon Rochford, conducted on 11 May 2006, played in a public hearing of the Corruption and Crime Commission of Western Australia (CCC) on 31 July 2007;
(b) …
2. The applicant be permitted to possess the interviews referred to in paragraph 1 above.
3. The applicant be permitted to broadcast the interviews referred to in paragraph 1 above."
Background
2 On 31 July 2007, the Commission commenced public hearings in an investigation under the Corruption and Crime Commission Act 2003 (WA). The scope and purpose of the investigation, as then stated by the Acting Commissioner, was:
"Whether any public officer engaged in misconduct in connection with the investigation of the murder of Pamela Lawrence, the prosecution and appeals of Andrew Mark Mallard and other matters related to and touching upon these events."
3 The Acting Commissioner noted that Mr Jeremy Gormly SC had been appointed as one of the counsel assisting the Commission in the investigation.
4 After a brief introduction by the Acting Commissioner, Mr Gormly commenced his opening statement.
5 Mr Gormly referred first to the circumstances of Mrs Lawrence's death in May 1994 and the subsequent investigation which led to the arrest of Andrew Mark Mallard who was then charged with the wilful murder of Mrs Lawrence.
(Page 4)
6 Mr Gormly went on to refer to Mr Mallard's trial, conviction and imprisonment: and then to the subsequent proceedings including an appeal to the High Court where, in November 2005, Mr Mallard's conviction was quashed.
7 On 20 February 2006, the Director of Public Prosecutions discontinued the proceedings against Mr Mallard. However, it was said that he remained the prime suspect for the murder of Mrs Lawrence.
8 Evidence which came to light subsequently caused the Director of Public Prosecutions to exclude Mr Mallard as a suspect. That evidence was described by Mr Gormly as including "a perfectly-preserved plaque of an unidentified palm print and another plaque containing unidentified fingerprints".
9 Subsequently, the palm print was identified to be that of Mr Simon Rochford. At the time, Mr Rochford was an inmate of the Albany Regional Prison where he was serving a sentence imposed on him for the wilful murder of his girlfriend, some seven weeks after the murder of Mrs Lawrence.
10 On 11 May 2006, Mr Rochford was interviewed at the Albany Regional Prison by Detective Sergeant Saunders of the Special Crime Squad. In accordance with the usual procedures, the interview was recorded on a videotape.
11 During the course of the interview, Mr Rochford denied having murdered Mrs Lawrence. However, he was unable to explain why his palm print had been found at the crime scene.
12 On 18 May 2006, Mr Rochford was named as the suspect for Mrs Lawrence's murder.
13 On the morning of 19 May 2006, Mr Rochford was found dead in his cell, apparently as a result of self-inflicted wounds.
14 Extracts from the video recording of the interview with Mr Rochford on 11 May 2006 were played by Mr Gormly in the course of his opening statement. It is those extracts from the recording which are the subject of this application. It will be convenient to refer to them as "the Video".
(Page 5)
Sections 121 and 122 of the Criminal Investigation Act
15 Sections 121 and 122 of the Criminal Investigation Act provide as follows:
"121. Recorded interview, broadcast prohibited
A person must not broadcast an audiovisual recording of an interview or any part of such a recording unless the broadcast is made under a direction of a court given under section 122.
Penalty:
(a) for an individual, a fine of $12 000 and imprisonment for 12 months;
(b) for a body corporate, a fine of $100 000.
122. Recordings, court may give directions as to supply etc.
The Supreme Court, District Court, Magistrates Court or Children's Court may give directions (with or without conditions) as to the supply, copying, editing, erasure, playing, or broadcast of an audiovisual recording of an interview."
17 In Horsman v Commissioner of Police [2002] WASC 81, McKechnie J referred to the restricted classes of persons who were authorised by s 570B to possess a videotaped record of interview. Possession under s 120 of the Criminal Investigation Act is similarly restricted. His Honour went on to observe that:
"The purpose of such restrictions is not hard to see. A person who gives an interview to a police officer which is videotaped, has expressly or impliedly consented to that tape being viewed by persons in the authorised person category under s 570B and more importantly to that videotape being viewed in open court if charges are laid. There can not be implied a consent to have a tape broadcast to a wider audience, or indeed to be supplied to any person beyond the authorised persons mentioned."
(Page 6)
- These considerations led McKechnie J to hold that the jurisdiction given to the Court under s 570F "ought to be exercised for the interests of justice".
18 His Honour then referred to the decision of Master Sanderson in Plutonic Operations Ltd v Done [2000] WASC 56, where a direction under s 570 had been given for that purpose. There, the plaintiff had brought civil proceedings against the defendant, who had been interviewed previously by police officers in connection with an alleged offence arising from the same circumstances as the civil action.
19 The defendant had been given a copy of the videotaped record of interview but had mislaid it. It was, however, a discoverable document.
20 In these circumstances, Master Sanderson ordered the Western Australian Police Department to produce the relevant video recording.
21 The production of this material was clearly in the interests of justice. That is to say, it would have been an injustice to the plaintiff if it had not been provided with a discoverable document which was available from another source.
22 McKechnie J in Horsman's case gave a further example: where two accused persons had been charged or were to be tried jointly. If a video recording had been made of an interview with one or both accused, the interests of justice would require that the recording be supplied to the other.
23 McKechnie J concluded by saying that "it will be an exceptional case where the court would exercise its discretion under s 570F other than to advance the interests of justice".
24 Having regard to the way in which applications of this kind have been approached by the Court, I consider that the expression "the interests of justice" should be taken to reflect the need to achieve justice in the particular case. Thus, if a person who was denied access to the video recording of an interview might thereby suffer an injustice, it would be in the interests of justice that a direction be given under (now) s 122 of the Criminal Investigation Act.
25 Applying the principles to which McKechnie J referred in Horsman's case (supra), Johnson J reached a different decision in Re Commissioner of Police; Ex parte Artemis International Pty Ltd [2006] WASC 56. There, an application was made under s 570F to permit
(Page 7)
- the release of the whole or part of the videotaped record of interview between police officers and Mr Mallard on 17 June 1994.
26 The application before Johnson J was made by the producer of a documentary film about the prosecution of Mr Mallard for wilful murder, and the subsequent events up to and including the decision of the High Court to quash his conviction. The videotaped record of interview was said to form a crucial part of Mr Mallard's story and to be essential to the documentary.
27 When the application was made, Mr Mallard remained a prime suspect: and Mrs Lawrence's murder was still the subject of a police investigation.
28 Johnson J dismissed the application. At [44], her Honour said:
"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 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."
- In that case, therefore, the interests of justice would not have been served by the release of the video.
The basis for the present application
29 The applicant accepts that the principles identified by McKechnie J in Horsman's case (supra) are applicable in this case. The applicant contends that both the interests of justice and exceptional circumstances justify the release of the Video. However, the applicant does not equate the interests of justice to the avoidance of injustice (which I regard as the appropriate test), but rather, to the public interest. That, I think, is clear from an affidavit sworn in support of the application by Paul Andrew
(Page 8)
- Armstrong, the editor of TheWest Australian newspaper published by the applicant. Mr Armstrong says:
"9. The matters the subject of the Mallard Inquiry are of great public importance. The Inquiry is arguably the most searching look at the operations of the WA police and the WA justice system.
10. As Editor of The West Australian, I believe it of the utmost public importance that openness and accountability extends to every aspect of the case and that the public be as fully informed as possible as to what is being revealed by the CCC.
11. In my view, the inability of most members of the general public to be present in the CCC hearing room on 31 July 2007 and 1 August 2007 should not inhibit the general public from being able to see and hear for themselves all the evidence presented to the CCC in the most coherent fashion which is capable of being presented to the public. It is my view that whatever is said in the Inquiry, and shown in the Inquiry room, should be made available to the Western Australian community, if that is possible. The applicant through its newspaper, and on-line newspaper, has the capacity to provide the means by which the public can be more fully informed.
12. A refusal of access to the police record of interviews in all the circumstances of this case, produces the same effect as the making of an order suppressing the video evidence. Such a restriction is, in my view, contrary to the public interest in this matter, particularly given that Mr Rochford is deceased and as a result will never face trial for the murder of Pamela Lawrence, and that the CCC revelations concerning Mr Rochford has effectively now exonerated Mr Mallard from any suggestion of involvement in her murder, let alone remaining as a 'prime suspect'." (emphasis supplied)
(Page 9)
- they did so. Extracts from The West Australian and The Australian newspapers published on the following day, and which are in evidence in this application, testify to that fact.
31 Further, I do not think it can be said that the restriction on the dissemination of video records of interview is contrary to the public interest when that restriction is imposed by legislation.
32 There is, of course, a public interest in the workings of the criminal justice system which is, therefore, a legitimate subject for investigative journalism. No doubt for that reason, the application is supported by an affidavit from Sean Douglas Cowan, a journalist who is a senior investigative reporter with The West Australian newspaper. Mr Cowan was present at the Commission's hearing on 31 July 2007 when the Video was played in the course of Mr Gormly's opening statement.
33 Mr Cowan says:
"8. The video shows that Mr Rochford denied any involvement in the death of Mrs Lawrence. However, having been present at the CCC hearing on 31 July 2007 and having observed for myself the way in which Mr Rochford on video is seen to react in answering questions put to him by police, and his overall demeanour, I believe the interview provides a unique insight concerning the reaction of the person now considered to be the prime suspect, to the questions put to him.
9. Even though I produced a report of the 31 July proceedings, which appeared in the 1 August edition of the newspaper, the impression I obtained from observing Rochford's reaction in the interview played at the CCC hearing is, in my view, impossible to fully convey by the written word.
10. Given that Mr Rochford is deceased and will never stand trial for the murder of Pamela Lawrence, I believe members of the general public should have the opportunity, if possible, to see for themselves how Mr Rochford reacted to the charge that it was he who was responsible for the death of Pamela Lawrence, by viewing his demeanour when responding to the questions
- put to him by the police in the 2006 interview, which interview was played at the CCC hearing."
34 As I understand Mr Cowan's evidence, the purpose of permitting the public at large to form a view about Mr Rochford's reaction to answering questions put to him by the police, and his demeanour at that time, is to enable members of the public to form an opinion as to whether or not Mr Rochford was guilty of murdering Mrs Lawrence.
35 In my view, the use of video recordings of interviews for this purpose could not be said to further the interests of justice in what I consider to be the true meaning of that term. If that was so, then it would be equally in the interests of justice to permit the broadcast of the video recording of any police interview of an accused person after he had been tried, following an appeal, so that the public could judge him for themselves.
36 Clearly, it was never the intention of parliament that video recordings of interviews should be used for that purpose. It is for the courts to decide these questions (or, as in the present case, for the Commission to investigate them) having regard to all of the relevant evidence. Hence the prohibition against broadcasting such interviews, except where it would be in the interests of justice to do so, or where there are exceptional circumstances.
37 Counsel for the Commissioner of Police accepted that there would be no prejudice to the Commissioner if the Video was released. And such a course could not now result in any injustice to Mr Rochford. However, those considerations are irrelevant, in my view. To say that a course of action would not cause injustice is not to say that it would be in the interests of justice to follow that course.
38 I do not think my conclusion detracts from the principle of open justice on which the applicant relies. The principle was illustrated recently in Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133. There, application was made to Le Miere J by newspaper publishers and television broadcasters to inspect and copy materials on the court file including a video recording of a union representative who was said to have trespassed on building sites without statutory authority or permission. The conduct of the representative concerned, as shown on the video recording, formed the basis for orders made by Le Miere J in the action. Le Miere J said:
(Page 11)
- "I admitted the affidavit and annexures into evidence. In accordance with the usual practice in this Court I did not require counsel to read the affidavit or to play the videos annexed to the affidavit. I took the affidavit as read. In the course of the hearing counsel for the plaintiff referred to the affidavit and to the videos. Counsel relied upon the contents of the affidavit and the videos. I considered those matters in making my decision to grant an interlocutory injunction."
39 Le Miere J went on to say:
"The principle of open justice does not require that all documents on the court file should be open to inspection to any person. The principle applies to the judicial process not to the court file. In general, the Court should favour allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence, whether in the course of a trial or an interlocutory hearing. There may be reasons for refusing to exercise the court’s discretion in favour of access but in the absence of any good reason to refuse access the principle of open justice favours access. All the more so when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is contrary to the principle that court proceedings should be conducted publicly and in open view."
40 In dealing with the application for disclosure, Le Miere J was not concerned with any statutory prohibition such as that contained in the Criminal Investigation Act. Rather, his Honour was required to apply the Rules of the Supreme Court 1971 (WA) dealing with the access of non-parties to materials on the court file.
41 The principle of open justice requires that a judicial decision should not be made in secret. That is to say, subject to certain exceptions, the evidence on which the decision is made should be disclosed in open court.
42 It follows, that the decision in the Broad Construction Services case (supra) does not assist the present applicant. In the present case, the principle of open justice has been honoured by playing the Video in an open hearing which the applicant was free to, and did, report.
(Page 12)
43 The applicant relies also on the decision of Mr G A Kennedy QC sitting as a Commissioner under the Royal Commission (Police) Act 2002 (WA).
44 There, video recordings of interviews made by Channel 7 had been produced to the Commission pursuant to its statutory powers. Channel 7 was the owner of the copyright in the recordings.
45 One of the recordings was admitted into evidence at a public hearing of the Commission and a portion of it was then played. Thereafter, copies of that portion of the exhibit were made available to media outlets, free of charge, following a practice which has commonly been adopted by Royal Commissions in Australia.
46 Mr Kennedy referred to the judgment of McHugh JA in John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 481:
"Without the publication of the reports of court proceedings, the public would be ignorant of the workings of the courts whose proceedings would inevitably become the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice."
47 Notwithstanding that policy, Commissioner Kennedy initially restricted further publication of the copied material other than by the copyright owner, being Channel 7.
48 After hearing further argument, Commissioner Kennedy withdrew the restriction. He said:
"The video tape was played at a public hearing for the purpose of a judicial proceeding, and it was copied for the purpose of reporting a judicial proceeding. Its subsequent use was for the purpose of a report of a judicial proceeding. Nothing was drawn to my attention to suggest that the use of the tape by the media was other than for reporting a judicial proceeding."
49 In my view, two observations may be made about that decision. First, the subject-matter of the application was not a video recording of an
(Page 13)
- interview conducted by police officers, to which (then) s 530C of the Criminal Code applied.
50 Secondly, Commissioner Kennedy regarded the use of the video recording by the media as being for the purpose of reporting a judicial proceeding. That may be contrasted with the apparent purpose for which the present applicant wishes to use Mr Rochford's interview, as described above.
Are there exceptional circumstances?
51 There is no doubt that the circumstances in which the Commission is conducting its inquiry are exceptional: that is the reason the matter has been referred to the Commission. However, in my view, the question is not whether the Commission's inquiry is being conducted in exceptional circumstances. Rather, the question is whether the circumstances are so exceptional as to justify the broadcast of Mr Rochford's interview with police officers.
52 In my view, there are no such circumstances. The position is that the Commission has been charged with the investigation of various matters in connection with the murder of Mrs Lawrence. In the course of conducting that inquiry, the Commission has identified a video recording of the interview with Mr Rochford as being relevant. The Commission has played parts of that video in open hearing so that the media are able to report that fact and the content of the interview itself.
53 For the reasons set out above, I do not regard the Video as being in any different category from the recordings of thousands of such interviews conducted by police officers in the ordinary course of their investigations.
The Corruption and Crime Commission Act 2003
54 The applicant acknowledges that even if it is successful in its application, the Court has no power to direct the Commission to release the Video. That is because s 152(2) of the Corruption and Crime Commission Act prohibits the disclosure of "official information". The Video falls into that category.
55 Section 152(4) permits the disclosure of official information by an officer of the Commission or a Commission lawyer if it is disclosed:
"(a) under or for the purposes of this Act;
(Page 14)
- (b) for the purposes of a prosecution or disciplinary action instituted as a result of an investigation conducted by the Commission or the Parliamentary Inspector under this Act or any other prosecutions or disciplinary action in relation to misconduct;
(c) when the Commission has certified that disclosure is necessary in the public interest;
(d) to either House of Parliament or to the Standing Committee;
(e) to any prescribed authority or person; or
(f) otherwise in connection with the performance of the person's functions under this Act."
56 For this reason, the order sought by the applicant is for the Commission to supply the relevant part of the videotaped interview "subject to Section 152 of the Corruption and Crime Commission Act".
57 In other words, the applicant recognises that:
(1) the Court cannot compel the Commission to supply the Video to the applicant; and
(2) the Commission cannot supply the Video unless it is so authorised by a direction given under s 122 of the Criminal Investigation Act and forms the view that one of the provisions of s 152(4) applies.
58 The Commission's position in relation to the supply of documents to the public and the media was articulated by Mr Gormly at the hearing on 6 August 2007. Mr Gormly said:
"… The policy of the Commission in this particular matter, particularly an historical matter, is that wherever possible any document referred to or used in the course of the public hearings, and indeed in some cases in the private hearings as well, will be provided.
That's the general view that has been taken. It's in the public interest to do so and that's the intention. There are some obvious exceptions and I will go through those … The first is that in some cases there is a statute that actually prohibits the provision of some documents. When I say document I'm using that in the wider sense to cover video films, tape-recordings,
(Page 15)
- plaques. Now, in particular there is a statute that prohibits the provision of the videotapes of records of interview that have been carried out.
It is not open to the Commission to provide those videotapes and they cannot be provided." (TS 2)
59 The applicant relies on Mr Gormly's statement that it is in the public interest to make documents available to the public and to the media. However, I repeat that "the public interest" is not a basis for the exercise of the discretion under s 122 of the Criminal Investigation Act: and I do not think it can be said to be in the public interest for documents to be made public when their publication is prohibited by statute. That is to say, in passing the relevant legislation, parliament must be taken to have formed the view that such publication is not in the public interest.
60 A situation might arise in which the Commission wanted to broadcast a video record of interview which fell within s 122 of the Criminal Investigation Act, in order to further an investigation. In those circumstances, it would be open to the Commission to apply to the Court under s 122 and seek the appropriate directions on the basis that the interests of justice or some exceptional circumstances justified that course.
61 In that case, the Court would be required to form a judgment on the circumstances as they existed at the date of the application.
62 In the present case, however, the order sought by the applicant would effectively authorise the Commission to supply the Video as and when the Commission thought fit. That being so, the Court would now be required to give a direction under s 122 of the Criminal Investigation Act, without knowing what the circumstances might be if the Commission decided at some time in the future to supply the Video to the media.
63 Counsel for the Commission told me from the bar table that as far as he knew, if a direction was given as sought by the applicant, the Commission would release the video. However, I do not think it would be appropriate to act on counsel's understanding, which falls far short of the considerations identified in s 152(4).
64 In any event, I do not think that s 122 of the Criminal Investigation Act contemplates that a blanket direction might be given. In my view, if the Commission wanted to supply material of this kind, it would be obliged to make its own application under s 122. And for the reasons set
(Page 16)
- out above, I do not think it could do so simply on the basis that the supply of materials falling within s 121 of the Criminal Investigation Act would be in the public interest. That is not one of the criteria identified in s 154(2)(c). The Commission would be required to show that the release of the Video was necessary in the public interest.
65 For all these reasons, I conclude that the application must be dismissed.
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