South Australian Telecasters Limited v Director of Public Prosecutions and Miho Christian Alavija No. SCGRG 94/1631 Judgment No. 5004 Number of Pages 6 Evidence Practice (1995) 64 Sasr 123

[1995] SASC 5004

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1), OLSSON(2) AND MULLIGHAN(3) JJ

CWDS
Evidence - documentary evidence.

Practice - South Australia - jurisdiction of supreme court generally - Supreme Court Acts.131 - video film of police interview with accused person - application by television channel to inspect and copy film for purpose of broadcasting - single Judge determined that film should not be made available - policy of exclusory provision discussed - determination upheld. Supreme Court Acts.131.

HRNG ADELAIDE, 8 March 1995 #DATE 23:3:1995 #ADD 2:5:1995

Counsel for appellant:     Mr N J T Swan

Solicitors for appellant:    Finlaysons

Counsel for respondent:     Mr J J Doyle QC

Solicitors for respondent: DPP (SA)

Respondent Alavija:         No appearance.

ORDER
Appeal dismissed.

JUDGE1 COX J In September last year Duggan J. presided over the trial of the second respondent, Mr Alavija, in this Court for murder. During the trial, on September 22, his Honour heard an application by a television broadcaster for the release of a video film which evidently recorded a police interrogation of the accused relating to the matters in issue at the trial. The application was made under s.131 of the Supreme Court Act. The learned Judge heard argument from counsel representing the applicant and the Director of Public Prosecutions and the accused respectively and refused the application. The applicant, by leave of the Judge, has appealed against that decision.

2. Section 131 was added to the Supreme Court Act in 1991. It reads as follows -
    (1) Subject to subsection (2), the court must, on
    application by any member of the public and payment of the
    appropriate fee (if any) fixed by the regulations make
    available for inspection by the applicant -

(a) a transcript of evidence taken by the court in any
    proceedings;

(b) any documentary material admitted into evidence in any
    proceedings;

(c) a transcript of submissions by counsel;

(d) a transcript of the judge's summing up or directions to
    the jury, in a trial by jury;

(e) a transcript of reasons for judgement (including remarks
    made by the court on passing sentence);

(f) a judgement or order given or made by the court.

(2) Evidentiary material will not be made available for
    inspection under this section if -

(a) the evidence was not taken or received in open court; or
    (b) the court has suppressed it from publication; or

(c) the court has determined that it is not to be available
    for inspection under this section.

(3) On payment of the appropriate fee fixed under the
    regulations, the court must provide a copy of any material
    that is available for inspection under this section."

3. There are like provisions in the District Court Act (s.54) and the Magistrates Court Act (s.51).

4. The appeal was argued by Mr Swan for the appellant and the Solicitor-General for the Director of Public Prosecutions. Mr Alavija was not represented. Mr Costello appeared on behalf of two police officers who had filed an application for leave to intervene in the appeal pursuant to r.33 of the Supreme Court Rules. However, the application was held over, and the Court reserved its decision on the appeal on the understanding that, should it be disposed to allow the appeal, it would first give Mr Costello the opportunity of pursuing his intervention application.

5. Before I consider the merits of the appeal I should mention two preliminary matters.

6. First, there is the question whether Duggan J's decision was appealable. Section 131 deals generally with administrative matters, albeit on an important subject, and it would appear to create no rights beyond the right to make an application for inspection and, if the material is made available for inspection, the right to receive a copy of it on payment of the appropriate fee. On that view of the matter any application for inspection would be made in the first instance to the Registrar or other proper officer, and one might suppose that inspection would ordinarily be allowed as a matter of course. Where, exceptionally, a question arose whether the material should be withheld from inspection pursuant to sub-s.(2), the Court would have to make a decision about it. No doubt it would not do so, except in the clearest of cases or in accordance with a settled policy, without giving the applicant the opportunity of explaining, orally or in writing, the grounds of the request, and I expect that in the nature of things any contentious application would be normally referred in accordance with the Court's administrative procedures to a Judge. The Judge may or may not decide to have the issue debated before him in chambers or in open court. A decision of the Court would then be made in accordance with sub-s.(2). It does not necessarily follow, however, that the decision would be a judicial act on the Judge's part, as though he were deciding a justiciable issue between parties rather than a purely administrative question, and that an appeal would lie to the Full Court under s.50 of the Supreme Court Act against a determination adverse to the applicant. Generally speaking, administrative directions are not appealable. That, as it seems to me, is one possible interpretation of s.131. Another view, which would doubtless emphasize the importance of public access to the courts and the desirability of ensuring that the section's policy is enforced, is that the section evinces an intention by Parliament that a determination under par.(c) should be made by a Judge (or Master) and should constitute a judgement or order or direction of the Judge and be appealable to the Full Court under s.50. It would seem to me important, therefore, to settle the question appeal vel non at the outset. However, when the case was called on in the Full Court both sides made it clear that they wanted a decision on the merits - and that is understandable - and neither was disposed to argue the interpretation point. In the circumstances I express no opinion about it beyond observing that, in my judgement, the question cannot be regarded as being foreclosed by these proceedings.

7. Secondly, there is a question whether a video tape admitted into evidence in a trial is "documentary material" within the meaning of s.131. Mr Swan submitted that it was and the Solicitor-General was prepared to argue the case on that basis. We were referred by the latter to Grant v Southwestern and County Properties Ltd (1975) Ch 185 and Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582, at 594. The question whether a film is a document has arisen for decision in a number of contexts, most commonly under rules relating to discovery where the word may or may not be defined, and there are conflicting decisions on the point. It would probably not be extravagant to suppose that Parliament, in using the expression "documentary material" in s.131, had in mind conventional documents and did not envisage the possibility of the Court having to provide itself with expensive equipment in order to meet the occasional acceptable request for a copy of a video film that formed part of the evidence in a civil or criminal trial. On the other hand, I can see the force of the argument that, having regard to the evident policy of s.131, the words "documentary material" should be given a liberal construction. In Director of Public Prosecutions v Williams
(1993) 172 LSJS 14, Debelle J. treated a video tape as being within the scope of s.131. The point does not appear to have been taken in that case. It was in Reg v Reed (1993) 173 LSJS 123, an application under s.54 of the DistrictCourt Act, and Judge Kitchen carefully reviewed the authorities and concluded that a video film is "documentary material". Plainly there is much to be said for that view. However, the point has not arisen in the Full Court until now and, as it is obviously fit for argument and was in fact not argued in this case, I prefer to reserve my position on it.

8. This particular video film, it would seem, had yet to be received in evidence in the trial at the stage at which the appellant made its application to Duggan J., but nothing turns on that. It was obviously convenient to have the matter decided then.

9. Duggan J.'s reasons for refusing the application were as follows -
    "Mr Swan, on behalf of South Australian Telecasters Ltd has
made application pursuant to s.131 of the Supreme Court Act for
    the right to inspect and have provided a copy of a video
    recorded interview with the accused in this case. It is true,
as Mr Swan points out, that s.131 directs the court to provide
    access to information and, in addition, to provide copies where
    that is appropriate.

However, sub-s.(2) provides that the evidentiary material shall
    not be made available for inspection in certain circumstances
    and those circumstances include those identified in sub-s.2(c)
    where the court has determined that the material is not to be
    made available for inspection under this section.

In my view that gives to the court a wide discretion and in my
    view I am entitled to take into account matters relating to the
    administration of justice, in the general sense of that concept,
    in deciding whether to accede to an application under the
    section.

The video recording of interviews has been a most important
    development in the administration of criminal justice in
    Australia in recent years. Previously there have been a number
    of Royal Commissions and enquiries which have recommended that
    the police adopt these procedures, and in the High Court cases
    of Duke, Carr, and more recently McKinney, the court has
    stressed the desirability of accused persons undergoing video
    recorded interviews.
    Of course, a person cannot be required to undergo a video
    recorded interview. The accused can refuse to answer questions
    on the video recording and while being video recorded, and in my
    view there is a grave danger of an accused person being reticent
    about taking part in such an interview if he knows that there is
    a possibility of the interview being shown to the public on
    public television. I regard this as a valid reason for refusing
    to provide facilities for the inspection and the copy to be
    taken of the video recording in this case and I refuse the
    application."

10. Mr Swan submitted that the learned Judge was in error in applying an exclusory test directed to the proper administration of justice; nor was there any evidence to support the findings that the Judge made.

11. It was put to us that the clear intention of s.131 is to assist in the laying open of the processes of the Court to public view and, while the section does not say so, one may infer that is one of its objects. The inspection policy is to be supported by the provision by the Court, on request, of a copy of any material that is available for inspection. But not all evidentiary material (which includes documentary material) is so available. Some material, because of its nature or the harm that may follow from its inspection or publication or for some other good reason, may be withheld from inspection. The reserved categories are set out in sub-s.(2). The first two paragraphs are self-explanatory. The third is in quite general terms - evidentiary material that the Court has determined is not to be available for inspection.

12. The grounds upon which the Court may reach a decision under par.(c) are not set out in the section and that is not surprising. Parliament commonly, in a case such as this, establishes a general principle or policy and leaves the details, including any proper exceptions, to be worked out by the courts as occasion requires. The learned Judge applied a criterion in this case of the proper administration of justice. In my opinion, the relevance of that test could not fairly be questioned. Mr Swan argued that, if Parliament had such a test in mind, it would have said so in the section, but that may be said of any test. Besides, it would have been undesirably limiting. It is unlikely that all of the instances for a proper use of the par.(c) exception could readily be brought within a conventional administration of justice test. Cf. Director of Public Prosecutions v Williams.

13. Then it was put to us that s.131 should be interpreted and applied with the provisions of s.69a of the Evidence Act in mind. That section empowers a court, having regard to the considerations specified in the section, to make a suppression order in order to prevent prejudice to the proper administration of justice or to prevent undue hardship to an alleged victim or to a witness or potential witness who is not a party in the proceedings. Certainly there is a deal of overlap between the two provisions; indeed, paragraph (b) of sub-s.(2) of s.131 expressly provides that evidentiary material will not be made available for inspection if the Court has already suppressed it from publication. Paragraph (c), however, plainly envisages that there will be cases in which no suppression order has been made but where the Court may nevertheless determine for good cause that the evidentiary material should not be made available for inspection. That was the situation in the present case. There was no reason why the interview that was recorded on the video film - that is, the questions that were asked and the answers that were given - should not be published, but it did not follow that there could be no possible objection to the appellant receiving a copy of the film itself.

14. Sub-section (3) of s.131 states that, on payment of the prescribed fee, the Court must provide to an applicant a copy of any material that is available for inspection under the section. This Court, I understand, does not possess the necessary equipment for copying video films, but Mr Swan told us that his client is willing to make its own copy of this particular film if the Court is disposed to make it available. It is not immediately obvious why Parliament took the view that the provision of a copy must follow as a matter of course from the right to inspect in any particular case, but the consequence is to make the matter of inspection the sole point of discretionary exclusion. That means that, while the inspection or even the showing of a particular film in the Registry might be unobjectionable in itself, the Court is virtually bound to decline to make the film available for such inspection if there are good reasons why a copy of the film should not also be made available.

15. The appeal was argued on the footing that the appellant's purpose in seeking to inspect the video film was to obtain a copy of it with a view to showing it, or much more probably a part or parts of it, on television. I think the learned Judge was entirely justified in regarding that possibility with concern. The courts have welcomed the video taping of police interviews with suspects as a distinct improvement in the way criminal justice is administered. The opportunity for police oppression of suspects and for the fabrication or erroneous recording of incriminating admissions, and therefore the opportunity for true or false accusations against the police by accused persons, have been reduced considerably since video interviews were introduced. However, no-one can be forced to submit to a video interview and it is not uncommon for a suspect to decline to do so. The Judge was entitled to conclude, as a matter of judgement and common sense, what in the nature of things it would be difficult to establish by evidence, that the number of those refusing to take part in a video interview might well increase if it became known that there was a possibility of the interview being shown to all the world on public television. Such a result would be detrimental to the administration of justice in this State.

16. There is cogency in other points that were made by the Solicitor-General - that it would be difficult to control the fair and proper use of a video interview film; that its use in a topical television report might be thought to infringe the privacy of the person interviewed - the usual police caution relates to use of the film in court, not in other settings; that the film could be copied or re-used for different purposes at other times; and that wide disclosure of the identity and techniques of police officers might impede effective police work. However, it is enough to say, for the disposal of the appeal, that it has not been shown that the learned Judge erred in making his determination on the grounds that he gave.

17. It is plain that Duggan J.'s determination was not based on circumstances that were special to this particular case. The determination should be regarded as applicable to all such video films of police interviews, subject only to the right of any applicant to put forward reasons why a particular matter should be regarded as exceptional.

18. It is hardly necessary to say that the determination in this case creates no restriction or qualification upon the normal and necessary openness of the Court's trial procedures -the right of any member of the public, including media representatives, to attend a trial, and the right of the media to report the proceedings to others in the usual way. The research students to whom Mr Swan referred will still be free to watch the trial in progress and see any video film as it is screened in the courtroom. Nothing in those respects has changed.

19. The appeal should be dismissed.

JUDGE2 OLSSON J I agree.

JUDGE3 MULLIGHAN J I agree that the appeal should be dismissed for the reasons expressed by Cox J.