Swan Television and Radio Broadcasters Pty Ltd (Channel Nine Perth), Network Ten Pty Ltd (Channel Ten Perth), Seven West Media Ltd (Channel Seven Perth, the West Australian Newspaper) v The State of Western..
[2020] WASC 465
•14 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SWAN TELEVISION AND RADIO BROADCASTERS PTY LTD (CHANNEL NINE PERTH), NETWORK TEN PTY LTD (CHANNEL TEN PERTH), SEVEN WEST MEDIA LTD (CHANNEL SEVEN PERTH, THE WEST AUSTRALIAN NEWSPAPER) -v- THE STATE OF WESTERN AUSTRALIA [No 8] [2020] WASC 465
CORAM: SMITH J
HEARD: 7 DECEMBER 2020
DELIVERED : 14 DECEMBER 2020
FILE NO/S: INS 164 of 2018
MATTER: An application under section 122 of the Criminal Investigation Act 2006 (WA)
BETWEEN: SWAN TELEVISION AND RADIO BROADCASTERS PTY LTD (CHANNEL NINE PERTH), NETWORK TEN PTY LTD (CHANNEL TEN PERTH), SEVEN WEST MEDIA LTD (CHANNEL SEVEN PERTH, THE WEST AUSTRALIAN NEWSPAPER)
Applicants
AND
THE STATE OF WESTERN AUSTRALIA
Prosecution
BRADLEY ROBERT EDWARDS
Offender
Catchwords:
Criminal procedure - Criminal Investigation Act 2006 (WA) s 122 - Application by media organisations for directions as to the supply and broadcast of an audiovisual recording of an arrest and parts of an audiovisual recording of an interview
Criminal procedure - Whether an audiovisual recording of an arrest is an 'interview' within the meaning of s 120 and s 122
Criminal procedure - Criminal Investigation Act 2006 - Whether release of the audiovisual recordings would enhance or detract from the administration of justice - Proceedings not yet concluded - Turns on own facts
Legislation:
Criminal Code, ch LXA (repealed)
Criminal Investigation Act 2006 (WA), pt 11, pt 12
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicants | : | Mr J D MacLaurin SC |
| Prosecution | : | Ms C Barbagallo SC |
| Offender | : | Mr P D Yovich SC |
| Amicus Curiae | : | Ms N Eagling |
Solicitors:
| Applicants | : | Carmel Galati |
| Prosecution | : | Director of Public Prosecutions (WA) |
| Offender | : | Mony de Kerloy |
| Amicus Curiae | : | State Solicitor (WA) |
Case(s) referred to in decision(s):
Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133
Carr v Western Australia [2006] WASCA 125 (2006) 166 A Crim R 1
Carr v Western Australia [2007] HCA 47 (2007) 232 CLR 138
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Ex parte Seven Network Ltd [2010] WASC 311
Ex parte West Australian Newspapers Ltd [2008] WASCA 209
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153
Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221
The State of Western Australia v Edwards [No 6] WASC 22
The State of Western Australia v Edwards [No 7] [2020] WASC 339
SMITH J:
1.0 Introduction
On 24 September 2020, following a trial before Hall J sitting as a judge alone, Bradley Robert Edwards (the offender) was convicted of the wilful murder of Jane Louise Rimmer and Ciara Eilish Glennon and was found not guilty of the wilful murder of Sarah Ellen Spiers.[1]
[1] The State of Western Australia v Edwards [No 7] [2020] WASC 339.
The trial, including the addresses and evidence, commenced on 25 November 2019, and concluded on 25 June 2020 (95 days).
The offender was charged with eight offences on indictment. Counts 6, 7 and 8 comprised the three counts of wilful murder.
Prior to the trial, on 21 October 2019, the offender entered pleas of guilty to Counts 1 to 5 on the indictment. Both Counts 1 and 2 relate to offences that occurred in Huntingdale on 15 February 1988 in the night, and comprise one count of breaking and entering a dwelling‑house, with intent to commit an offence therein, and one count of deprivation of liberty. Counts 3 to 5 relate to offences that occurred in Karrakatta on 12 February 1995, and comprise one count of unlawful detention, and two counts of aggravated sexual assault (with bodily harm and committing acts which were likely to seriously and substantially degrade or humiliate the victim).[2]
[2] The State of Western Australia v Edwards [No 7] [2020] WASC 339 [33] ‑ [35].
The offender has yet to be sentenced for any of the offences on the indictment. At the time of the hearing of this application, the offender was due to be sentenced on 23 December 2020.
The offender was arrested on suspicion of wilful murder on the morning of 22 December 2016 at about 7.30 am at his home. An audiovisual recording of the initial exchange at the offender's house between the offender and police officer was tendered into evidence in the trial.[3]
[3] The State of Western Australia v Edwards [No 7] [2020] WASC 339 [2281] ‑ [2282]; exhibit 2629; In these reasons this recording is referred to as the audiovisual recording of the arrest.
The offender was taken from his house at approximately 9.00 am to the Cold Case Homicide Squad offices at 9.20 am and placed into an interview room. He was interviewed by police officers over the course of the day from 9.53 am until 11.27 pm, with a number of breaks.[4] An audiovisual recording of the interview was tendered into evidence in the trial.[5]
[4] The State of Western Australia v Edwards [No 7] [2020] WASC 339 [2285].
[5] Exhibit 2636; In these reasons this recording is referred to as the audiovisual recording of the record of interview.
During the course of the interview, the offender provided a sample of his DNA at 11.52 am, and by 8.16 pm the police had obtained the results of the DNA test, which they later put to him was a positive match with the DNA of the victim of the Karrakatta offences.[6]
[6] The State of Western Australia v Edwards [No 7] [2020] WASC 339 [2296] and [2299].
Throughout the interview, including prior to, and after being informed by the officers of the results of the DNA test, the offender denied committing any of the offences in Counts 1 to 8 on the indictment, including the Karrakatta offences.
When the audiovisual recordings of the offender's arrest and the record of interview were tendered into evidence, the recordings were played in open court and the audio of both recordings could be accessed by members of the public by listening to the audio of the proceedings for that day on which they were played. The recordings containing the audio of both audiovisual recordings were uploaded to the Supreme Court website on 7 May 2020, and remained on the website until 3 July 2020. The arrangements for the public to listen to the audio of the proceedings were made by Hall J because during the course of the trial the COVID‑19 pandemic occurred, which made it more difficult for members of the public to attend the trial in person.[7] On 3 July 2020, all of the daily audio recordings of the trial were removed from the Supreme Court website.
[7] The State of Western Australia v Edwards [No 7] [2020] WASC 339 [106] ‑ [107].
The offender elected not to give evidence in the trial, nor did he call any witnesses. The only evidence adduced on his behalf was weather data that related to the Gosnells area in January 1996.[8]
[8] The State of Western Australia v Edwards [No 7] [2020] WASC 339 [2336].
2.0 The application
The applicants, Swan Television & Radio Broadcasters Pty Ltd (Channel Nine Perth); Seven West Media Ltd (Channel Seven and The West Australian) and Network Ten Pty Ltd (Channel Ten Perth) made an application on 21 September 2020 seeking orders to the effect that they be permitted to access and possess a copy of the audiovisual recordings, subject to any undertakings to the court, order, and directions given by the court, and to broadcast:
(a)the audiovisual recording of the arrest of the offender; and
(b)the audiovisual recording of the interview between the offender and police officers.
Prior to the hearing of the application, the applicants confined the scope of their application to seek directions to permit the broadcast of particular parts of the audiovisual recording of the interview.[9] The applicants seek to obtain permission to broadcast the following parts of the interview:
[9] Applicants' outline of submissions in support of access application filed 3 December 2020.
(a)denials by the offender of breaking and entering/indecent assault in Huntingdale;[10]
(b)an exchange about the offender's first wife;[11]
(c)an exchange about the offender's second wife;[12]
(d)the offender's employment history;[13]
(e)knowledge of the Karrakatta Cemetery/denial of the Karrakatta sexual assault;[14]
(f)references to, and the taking of, DNA samples;[15]
(g)the offender being confronted with the DNA evidence (of his results) and the DNA of a victim;[16]
(h)references to the kimono, and the breaking and entering denials;[17] and
(i)discussions between police and the offender following the disclosure of the DNA results, and generally.[18]
[10] Interview ts, pages 22 ‑ 23.
[11] Interview ts, pages 31 and 35.
[12] Interview ts, pages 47 ‑ 48.
[13] Interview ts, pages 56 ‑ 58.
[14] Interview ts, pages 13, 66, 73 ‑ 74.
[15] Interview ts, pages 74 and 77.
[16] Interview ts, pages 154 ‑ 159.
[17] Interview ts, pages 157 ‑ 158.
[18] Interview ts, pages 75, 153 ‑ 159
At the outset of the hearing, the applicants pressed their application for directions to permit the broadcast of the whole of the audiovisual recording of the offender's arrest.
However, during the course of submissions, an alternative application was made on behalf of each of the applicants, that if the court formed the opinion that part of the audiovisual recording of the arrest was an interview and the other part was not:
(a)the applicants apply, pursuant to r 51 of the Criminal Procedure Rules 2005 (WA),[19] as non‑parties, for leave to obtain a copy of that part of the audiovisual recording that records the arrest of the offender, and officer Marrapodi informing the offender of his rights; and
(b)the applicants press their application, pursuant to s 122 of the Criminal Investigation Act 2006 (WA), for the remaining part of the audiovisual recording of the arrest, which is found to constitute an interview within the meaning of pt 11.
[19] Pursuant to r 51(1) of the Criminal Procedure Rules 2005 (WA), a media organisation is a non-party to a case and may apply to the court for leave to inspect or obtain a copy of an exhibit tendered in evidence in the case.
3.0 The evidence filed in support of, and in opposition to, the application for access
The applicants filed three affidavits in support of their application. Each of the deponents of the affidavits are journalists. The first affidavit is sworn by Michael Edward Best on 21 September 2020. Mr Best is the News Director for Channel Nine News Perth. The second affidavit was sworn by Tegan Marie Sapwell on 21 September 2020. Ms Sapwell is a senior journalist at Channel Nine. The third affidavit is sworn by Alison Fan MacLaurin (known as Alison Fan) on 21 September 2020. Ms Fan is a senior news reporter with Seven West Media Ltd.
The only other affidavit evidence before the court was filed by the Commissioner of Police (Commissioner) who appears in these proceedings as amicus curiae. The Commissioner filed two affidavits sworn by Detective Senior Sergeant Joseph Dominic Marrapodi. The first affidavit was sworn by officer Marrapodi on 27 November 2020, and a supplementary affidavit was sworn on 2 December 2020.
Each of the affidavits were read into evidence.
The affidavits filed on behalf of the applicants essentially set out the factual basis of the grounds for the application for access, possession, and broadcast of the audiovisual recording of the arrest and parts of the audiovisual recording of interview.
In the affidavit of Mr Best, he states that the circumstances of this case are extraordinary and exceptional, and the broadcast of the audiovisual recording will assist in:[20]
(a)demonstrating to the public the workings of the WA Police Force and the events that led up to the trial of the offender;
(b)giving the public a greater understanding of this case and its legal processes;
(c)providing what is in effect the offender's only response to the allegations, given that the offender did not give evidence; and
(d)allowing the public to hear, see, and understand what the offender said and how the WA Police handled a critical part of the investigation, in the form that was presented to the court, which is more reliable than leaving those matters to be described in words alone.
[20] Affidavit of Michael Edward Best sworn 21 September 2020 [18].
Mr Best also states in his affidavit that:
(a)Channel 9 and the other news directors of the applicants intend to only use the audiovisual footage for a news story or stories about the verdict, and the evidence that Hall J (and those members of the public in attendance at the trial) saw in the course of the trial;[21] and
(b)any broadcast of the video record of interview will be fair and accurate, and that he would be prepared to undertake, on behalf of Channel 9, that any broadcast be accompanied with words or text that might be considered desirable to emphasise to the public that police interviews are rarely allowed to be broadcast, that they are, by law, protected, and to broadcast or publish any other accompanying material or commentary which the court considers necessary or appropriate, in respect of the possession of, or use of, the audiovisual footage.[22]
[21] Affidavit of Michael Edward Best sworn 21 September 2020 [19].
[22] Affidavit of Michael Edward Best sworn 21 September 2020 [21].
At the hearing of the application, senior counsel for the applicants informed the court that, each of the applicants: (a) were willing to provide an undertaking to the court that the audiovisual footage would only be used for the reporting of the court proceedings and would not be used for any other purpose, such as the reporting of stories about violence against women generally; and (b) were willing to provide the undertakings referred to by Mr Best in his affidavit, and would also undertake to the court not to broadcast any of the audiovisual footage in any promotional material so as to avoid any unplanned exposure of the material to any of the victims of the offences or their families.
In both the affidavits of Mr Best and Ms Fan, the deponents provide evidence to the court of the extensive news coverage of the charging of the offender, and the subsequent trial. Both Mr Best and Ms Fan attest that the media coverage in Western Australia and nationally, extended to local and national media reporting on each day of the trial, and resulted in extensive access by the public of visits on media websites, including visits to video streams of court proceedings.
Ms Fan deposes that in five decades of court reporting, she has never seen such public interest in any trial or Royal Commission.[23]
[23] Affidavit Alison Fan MacLaurin sworn 21 September 2020 [9].
Ms Fan also deposes that not only was she involved in live news reports of the trial, but she participated in a regular podcast facilitated by The West Australian newspaper, with other journalists employed by Channel 7 and The West Australian, and with others, including a criminal lawyer, and a forensic scientist, who each provided contemporaneous commentary upon the trial proceedings. Ms Fan provides statistical evidence that since the commencement of the podcast there have been 2.3 million downloads of the podcast in Western Australia alone.[24]
[24] Affidavit Alison Fan MacLaurin sworn 21 September 2020 [7], Attachment AF‑1, page 14.
Ms Fan and Ms Sapwell were both present in court when the audiovisual recording of the arrest and the audiovisual recording of the record of interview were played in open court.
In Ms Fan's affidavit, she states that the audiovisual recording of the arrest:[25]
(a)was the first opportunity to witness just how the offender reacted, his demeanour, and his verbal and physical appearance; and
(b)was the visual and audio reality of what actually happened on the day.
[25] Affidavit Alison Fan MacLaurin sworn 21 September 2020 [25] ‑ [26].
Ms Fan was struck by the offender's demeanour as shown in the audiovisual recording of the arrest, but says she found it difficult to report his responses during the arrest in a way that truly captured the whole of the visual and audio impression.[26] Ms Fan makes similar statements about reporting the offender's responses in the record of interview. In particular, she states that though she tried her best, she found it almost impossible to describe and convey the monotone, confused and consistent denials the offender gave during the record of interview, without imposing her personal subjective interpretation and view of his voice and manner.[27]
[26] Affidavit Alison Fan MacLaurin sworn 21 September 2020 [26].
[27] Affidavit Alison Fan MacLaurin sworn 21 September 2020 [38].
Ms Sapwell in her affidavit makes similar statements.[28]
[28] Affidavit Tegan Marie Sapwell sworn 21 September 2020 [18], [23].
In the first affidavit of officer Marrapodi, he informed the court that both he and the other arresting officer, Detective Senior Sergeant Aaron Capes, oppose the release of the audiovisual recordings for the purpose of broadcast.[29]
[29] Affidavit Joseph Dominic Marrapodi sworn 27 November 2020 [9] ‑ [10].
Officer Marrapodi has spoken to two of the victims, KJG and ALH, and stated in his first affidavit that:[30]
(a)KJG had informed him that she is uncomfortable with the audiovisual recordings being released to the media for the purpose of broadcast; and
(b)ALH had informed him that she does not want either of the audiovisual recordings being released for any purpose, including for the purpose of broadcast.
[30] Affidavit Joseph Dominic Marrapodi sworn 27 November 2020 [11] ‑ [12].
Officer Marrapodi also stated in his first affidavit that he contacted the father of Ciara Glennon and the father of Sarah Spiers who both informed him that they were opposed to the application.[31]
[31] Affidavit Joseph Dominic Marrapodi sworn 27 November 2020 [13] ‑ [14].
In his supplementary affidavit, officer Marrapodi sets out the reasons why he is of the view that the audiovisual recording should not be released to the applicants for the purpose of broadcast. Apart from the first point, the remaining points are in the nature of a submission. Officer Marrapodi's reasons for opposing the application are as follows:[32]
(1)The investigation into the death of Sarah Spiers remains open and will continue to be pursued by the Special Crime Squad ‑ Homicide.
(2)Release of the audiovisual recordings may compromise the willingness of suspects to voluntarily participate in police interviews.
(3)There are concerns that the audiovisual recordings may be further edited and broadcasted in a manner that alters the conduct and/or context of the interviews.
(4)The privacy of all parties involved in the interview may be compromised.
[32] Affidavit Joseph Dominic Marrapodi sworn 2 December 2020 [4].
4.0 Access to audiovisual recordings of interviews - the legislative scheme
Part 11 of the Criminal Investigation Act prescribes the powers conferred upon police officers and Corruption and Crime Commission officers (CCC officers) to interview a person suspected of an offence or offences. Part 11 also creates a regime to limit the possession, use, and supply of audiovisual recordings of interviews of suspects.
Subject to some exceptions, pursuant to s 118 of the Criminal Investigation Act, for an admission to a serious offence[33] made by a suspect to a police officer or a CCC officer to be admissible, the evidence of the admission must be recorded in an audiovisual recording.
[33] Being offences of the kind prescribed in s 118(2) of the Criminal Investigation Act (WA).
The possession of an audiovisual recording of an interview is prohibited by a person unless the person is an authorised person as defined in s 120(1) of the Criminal Investigation Act, which includes a court or a person acting at the direction of a court.[34]
[34] Criminal Investigation Act 2006 (WA) s 120(h).
The terms used in pt 11 of the Criminal Investigation Act are defined in s 115. 'Interview' means an interview with the suspect by a police officer or a CCC officer, or any part of such an interview, and 'suspect' means a person suspected of having committed an offence, whether or not he or she has been charged with the offence.
Pursuant to s 116, an interview may be conducted by remote communication, and s 117(1) requires that if an audiovisual recording is made of an interview, and the suspect is charged with an offence to which the interview relates, a copy of the recording must be made available to the suspect or the suspect's legal practitioner.
Section 119 provides that if an audiovisual recording of an interview is admitted as evidence in a trial, the jury is entitled to play the recording during its deliberations.
Pursuant to s 120(5), a person who supplies, or offers to supply, audiovisual recording of an interview to another who is not: (a) an authorised person; or (b) a suspect or the suspect's legal practitioner; or (c) a person engaged by a person referred to in (a) or (b) to transport it; or (d) a person who is required to be served with it under the Criminal Procedure Act s 35, s 42, s 61 or s 95; commits an offence unless the person is acting under a direction given (by the court) under s 122.
Pursuant to s 120(6), a person, other than an authorised person, who copies any part of an audiovisual recording of an interview, or permits another person to make a copy of any part of such a recording, commits an offence unless the person is acting under a direction given under s 122.
Unless made under a direction of the court given under s 122, the broadcast of an audiovisual recording of an interview, or any part thereof, constitutes an offence, and is prohibited by s 121.
Section 122 provides that 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.
Section 124 authorises the playing of an audiovisual recording of an interview to a police officer, police trainee, CCC officer, a legal practitioner or person training to become a legal practitioner or a person prescribed for the purposes of s 124 if: (a) the suspect has been convicted of a charge to which the interview relates; and (b) all legal proceedings in relation to the subject matter of the interview have been concluded; and (c) all reasonable measures are taken to prevent the identification of the suspect from the recording when it is played.
The rights of arrested people and arrested suspects are provided for in div 5 of pt 12 of the Criminal Investigation Act. There are two specific rights which are relevant to the disposition of the application.
The first is, pursuant to s 137(3)(b) an arrested person is entitled to reasonable degree of privacy from the mass media.
The second is that under s 138(2), in addition to the rights in s 137, an arrested suspect is entitled to the right: (a) to be informed of the offence for which he or she has been arrested and any other offences that he or she is suspected of having committed; and (b) to be cautioned before being interviewed as a suspect. The officer in charge of the investigation must, as soon as practicable after the arrest of an arrested suspect inform the suspect of his or her rights under s 138(2).[35]
[35] Criminal Investigation Act 2006 (WA) s 138(3).
5.0 Preliminary issue ‑ is the audiovisual recording of the arrest an interview?
The applicants contend, as a preliminary point, that the audiovisual recording of the arrest of the offender is not 'an audiovisual recording of an interview' within the meaning of s 120 and s 122 of the Criminal Investigation Act.
If the applicants' construction of the meaning of 'interview' in pt 11 is accepted, then r 51 of the Criminal Procedure Rules 2005 (WA) applies and the applicants as non‑parties make an application for leave to obtain a copy of the exhibit that was tendered at trial of the audiovisual recording of the arrest.
5.1 The structure of the conversation between the police and the offender when the offender was arrested at his home
The audiovisual recording of the arrest records:[36]
(a)officer Marrapodi speaking to the offender and identifying himself by showing the offender his identification, stating that the other officers (at the offender's house) were from the Special Crime Squad, and that he had in his possession a search warrant issued under the Criminal Investigation Act, which he gives to the offender;
(b)officer Marrapodi informing the offender that he was under arrest on suspicion of the wilful murder of Ciara Glennon, Jane Rimmer and Sarah Spiers, and for other offences during which the offender interrupts to make comment, but no admissions;
(c)officer Marrapodi informing the offender that he had the right to seek any necessary medical treatment, the right to seek a reasonable degree of privacy from the mass media, and the other rights referred to in s 137 of the Criminal Investigation Act, during which the offender makes comments to the effect that he understands what is being said;
(d)officer Marrapodi cautioning the offender in accordance with s 138(2)(b) of the Criminal Investigation Act, and engages in an exchange with the offender about whether he wished to exercise any of his rights; and
(e)officer Marrapodi asking the offender a series of questions about whether he wished to make any comment in relation to the offences, and whether there was any property in the house which belonged to Sarah Spiers, Jane Rimmer or Ciara Glennon, which the offender answers.
5.2 The applicants' construction of 'interview' in pt 11
[36] In the following order.
The applicants contend that the definition of 'interview' in s 115 must be read by reference to its context, and the surrounding provisions in pt 11, in particular s 116, s 117 and s 118, which contemplate the conducting of an interview by remote means or by an interpreter, a copy of the interview being made available to the suspect, and a jury being able to play the recording of the interview during their deliberations.
In particular, it is argued that none of these provisions contemplate the recording of an exchange between a suspect and a police officer carrying out his or her statutory functions and obligations under pt 12 of the Criminal Investigation Act during the course of an arrest or the execution of a search warrant. Consequently, the applicants argue that the performance of an officer's functions pursuant to pt 12 is separate to the process of an interview with a suspect by a police officer under pt 11.
The construction put forward by the applicants is an argument that an interview, within the meaning of pt 11, cannot encompass the process set out in pt 12, which requires an officer to inform the arrested suspect of the matters set out in s 137 and s 138, which includes the process of cautioning an arrested suspect and informing them of their rights and in turn asking them questions during an arrest.
However, this construction must be rejected as unnecessarily narrow when regard is had to purpose and object of the legislative scheme.
In Carr v Western Australia, the High Court affirmed the reasoning of the Court of Appeal, who found that a videotape of a recording of an exchange between police officers and an offender, which was initiated by the offender in the lock‑up after a formal interview had been conducted, and during which the offender did not know that the lock-up was fitted with surveillance cameras and microphones, was an interview as defined in s 570(1) of the Criminal Code.[37]
[37] Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138.
Section 570(1) of the Criminal Code defined for the purposes of ch LXA an 'interview' to mean an interview with a suspect by an officer of the CCC or a member of the Police Force, and a 'videotape' to mean any videotape on which is recorded an interview, whether or not it is the videotape on which the interview was originally recorded.
In Carr v Western Australia, the majority of the High Court and the Court of Appeal rejected the appellant's argument that an interview required a degree of formality that was lacking in the conversation in the lock‑up, and that a mere conversation would not suffice to constitute an 'interview'.[38]
[38] Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138; Carr v Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1.
The plurality in Carr v Western Australia importantly observed:[39]
It is difficult to see how any such policy of 'formality' is evident either in the statute itself or in the extrinsic legislative materials. The term 'interview' is largely undefined and on its face Ch LXA is unconcerned with the conduct of interviews beyond the requirement that they be videotaped if admissions made during them are to be admissible. Contrary to the appellant's contentions, nothing in the text or structure of the Chapter evinces any broader purpose of regulating the conduct of interviews. The textual indicia of Ch LXA all relate to the regulation of videotapes ‑ their use, distribution and so forth ‑ but not the regulation of interviews.
Moreover, a consideration of the relevant extrinsic materials confirms this textual conclusion. In his second reading speech, the Attorney General stated that the Bill that inserted Ch LXA:
'makes provision with respect to the increasing use of video recordings of police interviews for indictable offences ... [and] will ensure that in serious cases an accused's confession will be inadmissible unless it has been videotaped. Exceptions to this rule will be permitted, subject to the court's discretion, to receive evidence of admissions which have not been videotaped, if this is in the interests of justice.
Further, the appellant did not point to any passage in any of the reports which led to the enactment of legislation similar to s 570D supportive of his submission that their goal was to ensure the 'formality' and 'integrity' of the interview process.'
Even if the appellant were correct about the policy underlying Ch LXA of the Criminal Code, his construction of the term 'interview' is inconsistent with his submission as to that underlying statutory purpose. If indeed Ch LXA is aimed at preserving the integrity of police procedure more generally, it seems odd that the requirement of videotaping should apply only to a vaguely defined subset of interactions between police and suspects, namely 'formal' interviews. To the contrary, the text of the statute and its legislative history point towards its purpose as being the encouragement of video recording, and the expansion ‑ and not restriction ‑ of the circumstances in which video recording was appropriate.
[39] Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 [53] ‑ [56] (Gummow, Heydon & Crennan JJ) [9] (Gleeson CJ agreed) (footnotes omitted).
The plurality also observed that the statutory definition of 'interview' would not be satisfied, for example, by a videotape on which is recorded only a string of admissions without the surrounding context of the interview during which they were made.[40]
[40] Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 [59] (Gummow, Heydon & Crennan JJ) [9] (Gleeson CJ agreed).
Sections 570 to s 570H (ch LXA) of the Criminal Code were repealed by the Criminal Investigation(Consequential Provisions) Act 2006 (WA) and replaced by pt 11 of the Criminal Investigation Act.
The provisions of pt 11 of the Criminal Investigation Act reproduce in similar terms the provisions of the repealed provisions of ch LXA of the Criminal Code.
There are close similarities between s 118 and the former s 570D. The differences, however, are not relevant to the meaning of what constitutes an 'interview' in pt 11.
In Wright v The State of Western Australia, McLure P observed, in the context of considering an admission made by a suspect in the presence of police officers, and the suspect's cousin, prior to his arrest and being informed of his rights, which was not recorded in an audiovisual recording, that the structure of s 118 is:[41]
Prima facie, evidence of an admission by a suspect is not admissible unless there is an audiovisual recording of the admission. The evidence will be admissible in the absence of an audiovisual recording if (1) the prosecution proves that there is a reasonable excuse for the absence; or (2) the court decides otherwise under s 155.
Section 118 replaces s 570D of the Criminal Code which was considered by the High Court in Carr v The State of Western Australia (2007) 232 CLR 138 and Nicholls v The Queen (2005) 219 CLR 196. The explanatory memorandum for the Criminal Investigation Bill notes that s 118 substantially mirrors the previous provisions. Under s 570D evidence of any admission by the accused was not admissible 'unless the evidence is a videotape on which is a recording of the admission'. Videotape was defined as any videotape on which is recorded an interview. The term 'admission' in s 570D is the same as the definition in s 118(1). The term 'videotape' has been replaced in s 118 by the expression 'audiovisual recording' which is not defined. Thus the question whether the admission was made in an interview is no longer relevant. However, the definition of admission remains as one made by 'a suspect to a police officer'. The requirement must place some limitation on the scope of the exclusion. In its context, the meaning of 'to' is expressing motion or direction towards someone; that is the words or conduct was directed to a police officer.
[41] Wright v The State of Western Australia [2010] WASCA 199 [51] ‑ [52].
Her Honour made the point that to determine whether an admission by a suspect is inadmissible for the purposes of s 118(3), it is not relevant whether an admission was made in an interview, in the context that s 118(3) applies to evidence of any admission by a suspect (in a serious case), (that is, irrespective of whether the admission occurred in an interview).
Although the term 'videotape' was replaced by the term 'audiovisual recording' the later phrase is used in the context of an 'audiovisual recording of an interview' in s 117(2), s 117(4), s 119, s 120(2), s 120(3), s 120(5), s 120(6), s 120(7) s 121, s 122, s 123, and s 124(2). Although the term audiovisual recording is not expressly defined in pt 11, the change in language results in no difference in meaning to the meaning of 'interview'. This is because the definition of videotape in the repealed s 570 of the Criminal Code was defined to mean any videotape on which is recorded an interview and cannot be said to encompass any other type of recording other than an audiovisual recording of an interview.
The practical effect of the obligation in s 138(3) on a police officer to inform a suspect of their rights as soon as applicable after arrest, does not mean that the process of an interview is separate from the exercise of the power of arrest and advising the arrested suspect of their rights.
I do not agree that the exchange between officer Marrapodi and the offender can be divided into a part that can properly be said to constitute an interview and a part that is only an exchange about the fact of arrest, the particulars of the offences for which he was arrested, and the information given to the offender about his rights.
It is clear that the exchange that took place between officer Marrapodi and the offender during the arrest, and the giving of advice to the offender about his rights included an exchange of questions and answers about whether the offender understood what was being put to him, which could have resulted in an admission being made by the offender. This is because the questions put by the officer were questions of a kind designed to elicit admissions and information that could incriminate or lead to lines of inquiry in the investigation.
For these reasons, I am satisfied that the whole of the audiovisual recording of the arrest is a recording of an interview within the meaning of pt 11 of the Criminal Investigation Act.
6.0 Should the applicants' application for access and to broadcast the audiovisual recording of the arrest and parts of the audiovisual recording of the interview, be granted?
6.1 Grounds of the application
The principal reason why the applicants seek to broadcast the audiovisual recordings of the arrest of the offender and his subsequent formal interview by police officers is because the offender did not give evidence.
The recordings constitute the only means for the public to see the offender's image and hear his voice to assess his demeanour, when he was first confronted by the allegations that he had committed the offences for which he was ultimately indicted, which images and voice could have only been observed by those members of the public who attended the court during the course of the trial when the audiovisual recordings were tendered into evidence and played.
The grounds of the application for access, possession, and broadcast of the audiovisual recording of the arrest and parts of the audiovisual recording of interview are in essence that:
(a)there is a real and present public interest in these proceedings, not only in Western Australia but nationally, and that the members of the public who could not attend court to see and hear the audiovisual recording ought not to be deprived of the opportunity, through the media, of now seeing and hearing that important audiovisual recording, so as to be fully informed of the criminal proceedings;
(b)the public will be provided with a greater understanding of the police interview, including the lies told by the offender, and insight into his demeanour; and
(c)by allowing the general public through a broadcast of the trial proceedings to hear and see what the offender said and how the Western Australian Police dealt with a critical part of the investigation, in the form that was presented to the court, is more reliable than leaving it to journalists to describe.
The applicants seek the following portions of the audiovisual recording of the interview on the basis that they:
(a)are matters that are referred to in the reasons for decision by the trial judge;[42] or
(b)are otherwise matters directly related to the public understanding of the offender's reaction, conduct and demeanour which was mentioned by senior counsel for the State, and was an issue during the trial.
[42] The State of Western Australia v Edwards [No 7] [2020] WASC 339 [114], [118] ‑ [122], [2281] ‑ [2311] (Hall J).
The applicants contend that the court should not be concerned that the broadcast of the audiovisual recordings would infringe the privacy of the offender or any of the victims as the words that were spoken in the recordings have been extensively reported and commented on in the podcasts and no embarrassing or prejudicial matters would be revealed by the broadcast of the recordings.
6.2 Principles ‑ s 122 of the Criminal Investigation Act
The applicants' application is founded upon principles of open justice.
The applicants argue that:
(a)the media is a recognised means by which open justice can be achieved as a practical matter, given that not every member of the public can spare the time to attend court, but this does not, as a general principle, mean that they should be denied the opportunity of seeing and hearing the same things that those attending court have seen and heard, being the actual evidence that was before the court; and
(b)it is only in exceptional and compelling circumstances that the media should not be granted leave to inspect documents and exhibits tendered into evidence in proceedings.
In Re Bromfield; Ex parte West Australian Newspapers Ltd, the Full Court considered the inherent power of a magistrate to prohibit the publication of evidence in the interests of the administration of justice.[43] In that context, Malcolm CJ observed that:[44]
It is in the interests of the administration of justice and in the public interest that the public be fairly and accurately informed of what takes place in our courts. This is also an aspect of the right of free speech.
[43] Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153.
[44] Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153, 164; see also The State of Western Australia v Edwards [No 6] WASC 22 [7] (Hall J).
In the leading case dealing with application under s 122 of the Criminal Investigation Act, Ex parte West Australian Newspapers Ltd, Martin CJ observed that the open justice principle may be a significant consideration in a case in which an application is made for directions permitting access to, and use of, a recorded interview which has been presented as evidence in open court.[45] In that matter the principle had little or no relevance because the relevant proceedings were not proceedings in open court, but proceedings of the Corruption and Crime Commission, which is governed by specific statutory provisions vesting decisions with respect to public access in the Commission.[46]
[45] Ex parte West Australian Newspapers Ltd [2008] WASCA 209 [47] (Newnes J agreed).
[46] Ex parte West Australian Newspapers Ltd [2008] WASCA 209 [47] (Newnes J agreed).
In Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers, Le Miere J observed:[47]
The principle of open justice is that court proceedings should be conducted publicly and in open view. This principle enables court proceedings to be scrutinised as without such scrutiny abuses may flourish. The public administration of justice tends to maintain confidence in the integrity and independence of the courts: see Russell v Russell (1976) 134 CLR 495 at 520; Re her Honour Chief Judge Kennedy Ex Parte West Australian Newspapers Ltd [2006] WASCA 172, Steytler P at [36].
In Australian Securities & Investments Commission v Rich (supra), Austin J said at [26]:
'The principle of open justice entails, in my view, that when the Court makes quite significant orders on an ex parte application, the basis for the making of those orders must be available so that the court is accountable for what it has done after it has considered the information provided to it.'
In R v Davis (1995) 57 FCR 512 the Full Federal Court said at 514:
'Whatever [the media's] motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.'
[47] Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133 [31] ‑ [33].
Whilst the media should be free to report what goes on in courts, the principle of open justice is not without its limits. In Hogan v Hinch, French CJ stated:[48]
The open hearing is an essential characteristic of courts, which supports the reality and appearance of independence and impartiality. Its corollary is the freedom to make a fair and accurate report of what transpires in court proceedings, including the orders made by the court. However, at common law the open justice principle has, consistently with the judicial function, long been subject to qualifications reflected in the inherent jurisdiction of courts or their implied incidental power to hear part of their proceedings in camera and to restrict the publication of evidence or the names of witnesses.
[48] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [46].
This is particularly so where the proceedings are, or involve, criminal proceedings that are yet to be concluded. Chief Justice Warren, writing extra judicially, pointed out:[49]
Openness is only one aspect of maintaining public confidence. Another purpose of the open court principle is 'to protect trial fairness by preventing abuses of judicial authority'. Trial by jury is one of the ultimate democratic protections 'in countries sharing the common law tradition'. Paradoxically, in some cases, 'openness can operate to impair trial fairness' by making it difficult to find 'an impartial jury'. Pre‑trial publicity about the proceedings before the court may unfairly influence jurors in favour of or against an accused.
[49] 'Open Justice in the Technological Age' [2014] Monash University Law Review Vol 40, No 1, 45, 53 (footnotes omitted).
Her Honour made these observations in the context of considering the place of suppression orders in criminal proceedings. In that context, her Honour said 'The general position is that derogations from open justice can never be a matter of routine. The court will ask the question: is there nothing that can be done to relieve unfairness to an accused from prejudicial publicity?'[50]
[50] 'Open Justice in the Technological Age' [2014] Monash University Law Review Vol 40, No 1, 45, 54.
In this application this question is important, because the criminal proceedings in this matter have yet to be concluded. I return to this point below.
Importantly, the principle of open justice may be limited in the exercise of a superior court's inherent jurisdiction or an inferior court's implied powers when it is necessary to do so to secure the proper administration of justice. In Hogan v Hinch, French CJ made this point and then observed:[51]
In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could 'cause an entire destruction of the whole matter in dispute. 'Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer's victim, called as a prosecution witness, may be suppressed because of the 'keen public interest in getting blackmailers convicted and sentenced' and the difficulties that may be encountered in getting complainants to come forward 'unless they are given this kind of protection.' So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended.
[51] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [21].
President McLure in Re Hogan; Ex parte West Australian Newspapers Ltd describes the principle of open justice as the ordinary rule and said:[52]
The 'ordinary rule' goes no further than the conduct of court proceedings in public. It is subject to a number of exceptions which permit a departure from the general rule in a variety of ways such as by excluding the public from the proceedings or limiting the republication of information or evidence referred to or adduced in the proceedings. However, the ordinary rule is satisfied if persons are free to attend court and report on the proceedings without restriction; it does not require the court to permit the broadcast (by television or otherwise) of court proceedings. Whether it justifies it is a different policy (not legal) question. Moreover, the ordinary rule is silent on the issue of the provision of court documents and exhibits to persons not involved in the proceedings.
[52] Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 [31].
The applicants also point out that it is highly significant that statutory derogation from the open administration of justice is the exception to the rule and in defence of the principle, such statutes will usually be strictly and narrowly construed.[53] However, this principle has little application to s 122 of the Criminal Investigation Act as the discretion conferred by s 122 is broad and unconstrained by the formation of any particular opinion or value judgement and relevant considerations are confined only by the subject matter, scope and object of the legislation conferring the discretion (together with factual matters relevant to a particular matter).[54]
[53] Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 55 (Kirby P).
[54] Ex parte West Australian Newspapers Ltd [2008] WASCA 209 [53] (Martin CJ, Newnes J agreeing). See the discussion on broad and narrow powers of discretion in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [19] (Gleeson CJ, Gaudron & Hayne JJ).
In any event, and perhaps a more appropriate approach to the construction of the discretion conferred by s 122, to make directions to allow the supply, copying, editing, erasure, playing, or broadcast of an audiovisual recording of an interview, is the view expressed by French CJ in Hogan v Hinch that:[55]
[A] statute which affects the open-court principle, even on a discretionary basis, should generally be construed, where constructional choices are open, so as to minimise its intrusion upon that principle.
[55] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [27].
The subject matter, scope and object of the Criminal Investigation Act, including pt 11, encompasses more than the principle of open justice. This is made clear from the leading judgment of Martin CJ in the Ex parte West Australian Newspapers Ltd.[56]
[56] Ex parte West Australian Newspapers Ltd [2008] WASCA 209.
From the judgment of Martin CJ in Ex parte West Australian Newspapers Ltd,[57] the following principles emerge:
[57] Ex parte West Australian Newspapers Ltd [2008] WASCA 209.
(1)The general purpose of pt 11 is clear, it is to enhance the quality of confessional evidence given in criminal proceedings.
(2)It is also a legislative purpose:
(a)of pt 11, to encourage audiovisual recording of police interviews of suspects, which purpose is abundantly clear from the terms of pt 11, and in particular from s 118, which limits the admissibility of confessional evidence which has not been audiovisually recorded. That purpose is a matter properly taken into account by a court when exercising the discretion conferred by s 122;[58] and
(b)of the Criminal Investigation Act, including pt 11, to enhance the administration of criminal justice and in particular that aspect of the administration of justice that relates to criminal investigation. It is, therefore, essential for a court considering making directions under s 122 to consider the extent to which the directions sought will enhance or detract from the administration of justice.[59]
(3)The constraints imposed upon the possession, supply and use of evidentiary material of audiovisual recordings are much greater than the constraints (if any) imposed in relation to other evidentiary material gathered in the course of a criminal investigation, such as photographs taken at crime scenes.[60]
(4)The fundamental distinction between the evidence obtained by making an audiovisual recording, pursuant to pt 11, and evidentiary material gathered in the exercise of the general powers conferred by the Criminal Investigation Act, is that the former requires the consent and cooperation of the suspect.[61] It is reasonable to infer that the legislature may, at least in part, have been motivated by concern that if it were to become commonplace for video recorded interviews to be supplied to the media against the wishes of the interviewee, this could discourage voluntary participation in video records of interview, to the detriment of the administration of justice.[62]
(5)By the regime established in pt 11, the legislature intended that the court would place great weight upon the extent to which a direction sought under s 122 might detract from the administration of justice, when considering the exercise of the discretion conferred by this provision. However, the legislature must not be taken to have intended that the court could only exercise the discretion conferred by s 122 if it was satisfied that the making of the direction sought would positively advance the administration of justice in a particular case.[63]
(6)The court is conferred with a general discretion to make directions, pursuant to s 122, by taking into account all relevant facts, matters and circumstances.[64] The discretion is to be approached without constraint artificially imposed by the imposition of restrictions upon the exercise of discretion which are not found in the express terms of the statute.[65] If a matter is logically relevant to the exercise of the discretion, its consideration is only excluded if that exclusion is to be implied by the subject matter, scope and purpose of the Criminal Investigation Act, including relevant aspects of the public interest, legitimate private interests, or considerations such as the public interest in personal privacy or in freedom of communication.[66]
(7)Prominent among the considerations to be taken into account will be the likely effect of the directions sought upon the administration of justice. If, on balance, it is properly concluded that the direction sought would impact adversely upon the administration of justice, powerful considerations would be required to justify the exercise of the discretion in favour of access. When assessing the extent to which the direction sought might impact upon the administration of justice, regard will be properly be taken of the desirability of encouraging voluntary participation in video recorded interviews. However, there will be circumstances in which it can safely be concluded that the making of the directions sought would not have any adverse impact upon the rate of participation in such interviews, such as, for example, when the direction is actively supported by the interviewee.[67]
7.0 Disposition - would the grant of the application enhance or detract from the administration of justice?
[58] Ex parte West Australian Newspapers Ltd [2008] WASCA 209 [54].
[59] Ex parte West Australian Newspapers Ltd [2008] WASCA 209 [55].
[60] Ex parte West Australian Newspapers Ltd [2008] WASCA 209 [59].
[61] Ex parte West Australian Newspapers Ltd [2008] WASCA 209 [62]. Whilst the decision of the Court of Appeal in Carr v Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 and the High Court in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 were not considered in this matter, the Chief Justice's observations in respect of the concept of consent must necessarily be understood as consent or cooperation to engage in an exchange (which may or may not lead to the making of voluntary admissions).
[62] Ex parte West Australian Newspapers Ltd [2008] WASCA 209 [62].
[63] Ex parte West Australian Newspapers Ltd [2008] WASCA 209 [63].
[64] Ex parte West Australian Newspapers Ltd [2008] WASCA 209 [64].
[65] Ex parte West Australian Newspapers Ltd [2008] WASCA 209 [69].
[66] Ex parte West Australian Newspapers Ltd [2008] WASCA 209 [64].
[67] Ex parte West Australian Newspapers Ltd [2008] WASCA 209 [69].
In essence, the applicants' answer to this question is that the broadcast of the recordings would enhance the administration of justice as the broadcast will provide an accurate and fair account of the evidence that was presented in open court.
As senior counsel for the offender points out, the ability of the applicants to accurately and fairly report what can be seen and heard in the audiovisual recordings that were tendered in open court is only minimally impaired in this matter. This is because the audio of the audiovisual recordings form part of the audio of each day's proceedings was on the Supreme Court's webpage for a period of approximately two months, so that any journalist employed by the applicants could during that time refresh their memory as to exactly what was said and because journalists of each of the applicants were present in court when the audiovisual recordings were played, they were in a position to describe the reactions and demeanour of the offender throughout both of the recordings.
The parties opposing the application each point to a number of relevant considerations, which when carefully considered and balanced against the principle of open justice, they claim makes it clear that to grant the application could not only detract from the administration of justice but act to its detriment.
Having considered all of the relevant matters put by the parties, I am of the opinion that the application should be dismissed as I am of the opinion that if the application was granted there is an unacceptable risk that the administration of justice would be compromised.
In particular, there is one consideration, which on its own is determinative. This is the fact that the proceedings are not concluded. The time for filing an appeal does not run until the offender is sentenced.[68] Consequently, at this point in time it is not known whether an appeal against the verdicts will be instituted.
[68] Supreme Court (Court of Appeal) Rules 2005 (WA) r 26(2).
A successful appeal against conviction, if made, may result in a retrial, which the offender could elect to be by jury. Should parts of the audiovisual recordings be broadcast, there is a potential for a future jury to be unfairly influenced or broadcast to impact on the evidence of witnesses. This is because the proceedings have already been the subject of intense public interest and discussion through the internet.
It is also relevant that s 120(6) of the Criminal Investigation Act provides that a person, other than an authorised person, who copies any part of an audiovisual recording of an interview, or who permits[69] another person to make a copy of any part of such recording, commits an offence unless the person is acting under a direction given under s 122. Whilst s 122 must be read to authorise what s 120(6) otherwise prohibits, the legislative intent that can be gleaned from this provision when read in context within the statutory scheme of pt 11 is that it is only the person who acts under a direction given under s 122 that is authorised to copy any part of an audiovisual recording. This authorisation would not extend to a person who republishes an audiovisual recording without acting under a direction given by the court (under s 122).
[69] My emphasis.
It is well‑known that since the Criminal Investigation Act was enacted in 2006 that internet accessibility to mainstream media broadcasts has increased dramatically to the point that now all news programs broadcast by mainstream media organisations, including the applicants' news programs, are now broadcast on the internet.
If I was to allow the application and make the directions in accordance with the undertakings given by the applicants, once any part of the audiovisual recordings are broadcast the applicants are unable to control the further publication of the recordings. Once broadcast on the internet others could download edit or enhance parts of the recordings.
For example, the audiovisual recording of the interview of the offender shows the offender sitting at some distance from the camera. Consequently, during the interview the offender's face and expressions cannot be seen very clearly. However, if parts of the interview are broadcast on the internet and subsequently republished in a way that enhances the vision so that the offender could be seen more clearly, there would then be images available on the internet that could be different to what could be seen by a jury viewing an unenhanced copy of the audiovisual recording of the interview. It is notorious that once images are broadcast on the internet they will be retained and accessible in permanent form virtually indefinitely.[70]
[70] Ex parte Seven Network Ltd [2010] WASC 311 [21] (Martin CJ).
As senior counsel for the State points out the broadcast of this material could potentially have an impact on the administration of justice should there be a retrial. At this point in time the likelihood of prejudice to the completion of the proceedings cannot be said to be insignificant or remote.
Of the other relevant considerations, while each is not determinative on their own, collectively they also weigh against the granting of the application.
The first is that, pursuant to s 137(3)(b), an arrested person is entitled to a reasonable degree of privacy from the mass media. The offender has indicated that he is opposed to the broadcast of the audiovisual recordings. When arrested, the offender was informed of his right to a reasonable degree of privacy from the mass media and he was not told that there was a possibility that what was being recorded could be released to broadcast by the mass media, including the internet.
This consideration impacts upon the public interest in encouraging voluntary participation in an audiovisual record of interview. This factor is well recognised as relevant. In Ex parte Seven Network Ltd, Martin CJ remarked:[71]
If it were to become commonly known that notwithstanding opposition by interviewees courts would make orders overriding interviewees' interests (in particular their interests in the privacy of the interview which they conducted with police) by allowing those interviews to be broadcast, there is a possibility ‑ and I put it no higher than that ‑ that voluntary participation in video records of interview may reduce.
[71] Ex parte Seven Network Ltd [2010] WASC 311 [16].
This factor is particularly relevant in this matter. At this point in time, the death of Sarah Spiers is an unresolved homicide and the investigation into her death by WA Police is ongoing. If a person is subsequently arrested in relation to her death, and if it is known that audiovisual recordings of interviews made by the police may be ordered to be released to the media and made accessible on a media website, that may affect a decision by that person as to whether to participate in an interview.
The second consideration is that two of the victims of the offences and the family of Sarah Spiers and Ciara Glennon oppose the application. Whilst I agree that there is nothing scandalous or embarrassing to be seen on the audiovisual recordings, and that no specific reasons have been given for why they oppose the applications to broadcast the audiovisual recordings, it must be accepted that it would be distressing for them to see the offender's image and hear the offender's voice, in particular, to hear him deny the offences for which he is now been convicted of, including the counts on the indictment to which he pleaded guilty.
Whilst this factor alone would not be determinative, it is perhaps more relevant in this matter than in most criminal proceedings because of the extent and degree of the publicity of the proceedings and the intense interest of the public, that if the recordings are broadcast on the internet there is a prospect that the victims and their families would be exposed to the audio visual images to a greater extent than would occur following the release of such recordings in other criminal matters.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith
14 DECEMBER 2020
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