The State of Western Australia v Burt
[2015] WADC 128
•28 OCTOBER 2015
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BURT [2015] WADC 128
CORAM: BOWDEN DCJ
HEARD: ON THE PAPERS
DELIVERED : 28 OCTOBER 2015
FILE NO/S: ALB IND 78 of 2014
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
MARK FREDERICK BURT
Catchwords:
Media organisation's application for court to release copies of sentencing materials
Legislation:
Criminal Investigation Act 2006 (WA)
Criminal Procedure Rules 2005(WA)
Restraining Orders Act 1997 (WA)
Sentencing Act 1995 (WA)
Victims of Crime Act 1994 (WA)
Result:
Some materials released
Representation:
Counsel:
The State of Western Australia : No appearance
Accused: No appearance
Solicitors:
The State of Western Australia : Not applicable
Accused: Not applicable
Case(s) referred to in judgment(s):
Curtis-Miller v Parks [2004] WASC 223
Ex parte Seven Network Ltd [2010] WASC 311
Ex parte West Australian Newspapers Ltd (2008) 38 WAR 177
Home Office v Harman [1982] 1 All ER 532
Re Hogan; Ex Parte West Australian Newspapers Ltd [2009] WASCA 221
BOWDEN DCJ: The Australian Broadcasting Commission (ABC) by email dated 29 September 2015 applied to the registry of the District Court for copies of the 'sentencing brief and certain exhibits' provided to the court in the sentencing of Mr Mark Frederick Burt on 27 July 2015.
The purpose of the application is to enable that material to be provided to the producer of 'Australian Story', a popular ABC programme, for use in a forthcoming episode focussing on domestic violence and one of the victims of Mr M F Burt offence's Ms S Wolfe.
The stated aim of the 'Australian Story' episode is to focus attention on the general subject of domestic violence perpetrated against the victim in circumstances where various restraining orders had been issued against the offender.
Further, the programme hopes to highlight the difficulties faced by survivors of family violence, the police and the criminal justice system in handling domestic violence cases so women are kept safe and to provide insight into the assistance victims of abuse can receive from police and other services. As such, it is hoped the programme will highlight the complex issues facing police, victims and the courts dealing with such cases and thereby help viewers understand the nature of abusive behaviour at the heart of such offences.
Clearly, there is significant public interest in this important topic.
Mr M F Burt was convicted, on his own plea, of two counts on ALB IND 78 of 2014 being as follows:
(a)Count 4 - on 9 June 2014 he with intent to harm did an act as a result of which the life, health or safety of Sandra Wolfe was, or was likely to be endangered.
(b)Count 5 – on 16 June 2014 he with intent to harm did an act as a result of which the life, health or safety of Sandra Wolfe was, or was likely to be endangered.
Mr M F Burt was also sentenced, following his pleas of guilty, for possession of amphetamine, reckless driving, driving whilst disentitled, 17 counts of breach of a violence restraining order and two counts of attempting to induce a witness to withhold true testimony. He was sentenced to a total of 5 years' imprisonment.
The District Court has the power to provide a media organisation with access to court records including copies of visual footage or images: Criminal Procedure Rules 2005 (WA) r 51 (CPR).
The courts recognise the principle that the public administration of justice will be subject to public scrutiny. Justice is done in public so that it may be discussed and criticised in public: Home Office v Harman [1982] 1 All ER 532, 547. It is hoped that by providing information to the public it will ensure that courts and judges will administer justice in a way that will maintain and foster its integrity, fairness and efficiency: Re Hogan; Ex Parte West Australian Newspapers Ltd [2009] WASCA 221 [50].
However, facilitation of open justice needs to be balanced against other potential competing interests including the interests of victims' of crime: Victims of Crime Act 1994 (WA), and witnesses who provided statements to the police and the broader public interest. Each case is determined on a case by case basis.
The ABC is required to demonstrate 'sufficient cause' to inspect or copy a court record. The application may be granted on terms or conditions (CPR r 51(6a)) and the court may determine the costs associated with the application (CPR r 51(6)).
The registrar determined on 6 October 2015 that the application was to be dealt with by the sentencing judge.
The principal victim Ms Wolfe has provided written consent to anything in the sentencing brief being provided to the ABC for publication in the 'Australian Story' programme and Mr Aiden Burt has provided written consent to materials that relate to him being provided to the Australian Story programme for publication.
The ABC has advised that they intend to comply with s 70(2) of the Restraining Orders Act1997 (WA)
Regrettably, the ABC had not notified Mr M F Burt of the application. Subsequently on 8 October 2015 the court provided such notice and invited Mr M F Burt to provided written submissions within 10 days of receiving that notification. On 13 October 2015 the prison superintendent advised that the courts notice had been collected by Mr M F Burt that day. As at 28 October 2012 the court had not received any submissions from Mr M F Burt. Two letters, which fail to address the issues, have been received from his mother.
The application refers to a copy of the sentencing brief, however there is no such document on the file. There is a prosecution brief dated 10 December 2014 which contains the following documents:
1.The prosecution notices. There is sufficient public interest in this material, which forms the basis of the charges, and copies of the notices will be provided.
2.Statement of material facts. There is sufficient public interest in this material, which form the basis of the charges and copies will be provided.
3.Statements of Ms Sandra Wolfe.
Ms Sandra Wolfe has consented to the release of this information. The court is in possession of two statements (15 June 2014 and 17 June 2014).
There is sufficient public interest in the material which form the basis of the charges being released and a copy of the statement of 15 June 2014 will be provided to the ABC (with Ms Wolfe's address redacted).
The statement of 17 June 2014 contains some allegations against Mr M F Burt which either were not the subject of charges laid against him or were the subject of charges laid which were subsequently discontinued and, accordingly, it would be inappropriate for the court to release that statement to a third party, notwithstanding Ms Wolfe's consent.
Ms Wolfe is at liberty to apply for a copy of that statement, however the court will not provide a copy to third parties. A copy of the statement will be released to Ms Wolfe upon her application.
4.Statements of Mr Aiden David Burt.
The court is in possession of two statements from Mr A D Burt and he has consented to the release of this information. There is sufficient public interest in the material, which form the basis of some of the charges, being released and a copy of both statements will be released (with Mr A Burt's address redacted).
5.Statement of SKG.
6.Statement of GJD.
7.Statement of MIVB.
These statements were made by persons other than Ms Wolfe and Mr A Burt and by persons who are not police officers. The prosecution brief does not disclose the address of those persons, and the court does not have the resources to trace and contact those persons to determine whether they consent to their statements being released to the ABC.
While such consent can only be one factor to take into account in exercising the courts discretion, in view the absence of notification to those persons the court declines to release those statements.
8.Statement of Police Officer Steven Paul Wells.
The court notes the approval provided by Superintendent Wood of the West Australian Police Service and subject to the normal conditions relating to payment the court shall providing a copy of that statement.
9.Scene sketches made by Sergeant May.
Consistent with the above reasons, a copy of this document will be provided.
10.Injury diagram made by Senior Constable Jennings witnessed by Senior Constable Malins.
Consistent with the above reasons and the consent of Ms Wolfe a copy this document will be provided (with Ms Wolfe's address will be redacted).
11.Vehicle photographs (holding yard).
These photographs relate to damage occasioned to vehicles caused by a collision on a public road and there is sufficient public interest established. A copy of these documents will be provided.
12.Injury photographs –Ms Wolfe.
Consistent with Ms Wolfe's consent and the above reasons a copy of this document will be provided.
13.Search warrant photographs.
Consistent with the above reasons copies of these documents will be provided.
14.Crash scene photographs.
Consistent with the above reasons copies of these documents will be provided.
15.Vehicle examiner's report by Senior Constable Steven Wells.
Consistent with the above reasons copies of these documents will be provided.
16.ACESO download – SIM card of Mr M F Burt.
This is a download of SMSs sent by Mr M F Burt in relation to some of the charges. The content of those messages were relied upon by the State at sentencing and referred to in open court. Sufficient public interest is established. A copy of these documents will be provided.
17.Search warrant.
Consistent with the above reasons a copy of these documents will be provided (the address has been redacted).
18.WAPOL exhibits log 235601.
Consistent with the above reasons a copy of these documents will be provided (the address has been redacted).
19.Application to a senior officer.
Consistent with the above reasons a copy of these documents will be provided.
20.Senior officer's authorisation.
Consistent with the above reasons a copy of these documents will be provided.
21.Police officers notes of the substance of conversation with Mr M F Burt.
This is a brief summary by a police officer of Mr M F Burt's answers when interviewed by the police. Consistent with par 22 below a copy of these documents will not be provided.
22.Audio-visual records of interview of Mr M F Burt.
This part of the application is treated as an application for directions pursuant to s 122 of the Criminal Investigation Act2006 (WA) (CIA) to the effect that the Commissioner of Police (the owner or holder of those interviews) supply to the ABC a copy of the audio-visual record of interview of Mr M F Burt and for a direction permitting the ABC to possess a copy of that interview and to broadcast it in the programme to which I have referred.
There has been no undertaking by the ABC to use the record of interview only for the purpose of the programme or any undertaking that any part of the record of interview that is broadcast would be a fair and accurate reflection of the entire interview.
The issue of whether or not the court does have the power to direct the supply of an audio-visual record of interview contrary to the wishes of the holder of the video record of interview has been the subject of different views expressed by different members of the Supreme Court: see Ex parte Seven Network Ltd [2010] WASC 311 (Martin CJ); Ex parte West Australian Newspapers Ltd (2008) 38 WAR 177 [67] (Martin CJ, Newnes AJA; McLure JA to the contrary) and see also Curtis-Miller v Parks [2004] WASC 223 (Miller J).
Leaving that question aside, s 122 CIA clearly gives the court discretion as to whether such an order should be made.
Such discretion is to be exercised by a reference to a wide range of circumstances and considerations arising from the particular facts and circumstances of each individual case: Ex parte West Australian Newspapers and Ex parte Seven Network Ltd.
The court has not been advised of any further charges confronting Mr M F Burt and the issue of potentially prejudicing upcoming proceedings does not arise.
As in Ex parte Seven Network Ltd, a problem confronting the ABC is that not having seen the audio-visual record of interview it is difficult for them to explain to the court or provide cogent evidence of just how the public interest in the important subject of domestic violence and its consequences, detection and prosecution would be enhanced by a direction enabling access and broadcast of the interview.
As was observed by Martin CJ in Ex parte Seven Network Ltd, if it were to become commonly known that notwithstanding opposition by interviewees, the courts allow these interviews to be broadcast, it is possible – and the chief justice put it no higher - that voluntarily participation in audio-visual records of interviews may reduce.
There is nothing to establish that Mr M F Burt was advised at the time of his participation in the audio-visual record of interview that it may be used not only in the court but also in the mass media.
Accepting for the purpose of this application that I have a power under s 122 of the CIA to direct supply of the audio-visual record of interview to the ABC, I would not exercise that power insofar as it related to the provision of the audio-visual record of interviews with Mr M F Burt made on 16 June 2014 and 8 July 2014.
No specific public interest benefit has been established and the potential effect of dissuading interviewees from participating in records of interview if they are subsequently released to the media must be considered.
I am not satisfied that there is a demonstrable public interest which would flow from releasing the audio-visual record of interview.
23.Search warrant recording.
The court is currently not in possession of such recording.
In relation to the items specifically referred to in the application of 29 September 2015 I rule as follows:
•Audio-visual recordings of two police interviews with Mr Mark Frederick Burt made on 16 June 2014 and 8 July 2014.
I refer to par 22 above.
•Audio recordings of telephone calls made by Mr M F Burt from custody between 26 June and 17 July 2014 inclusive relating to charges AL 19, AL 20 and AL 21 to AL 32 (exact dates 26 June, 27 June, 28 June, 30 June, 1 July, 2 July, 7 July, 15 July and 17 July 2014.
The court does not have audio recordings of those telephone calls
•Letters written by Mr M F Burt from custody between 21 November and 11 December 2014 inclusive relating to charges AL 479 and AL 480.
The court is in possession of two letters, provided by Mr Burt's counsel in his written submissions in mitigation of sentence.
One letter was addressed to Mr M F Burt's mother.
This letter contains references to parties other than Ms Wolfe and Mr A Burt and those parties' views about the release of the letter are unknown. Accordingly, it would be inappropriate for the court to release that letter to a third party. Additionally, no specific submission has been made as to how the public interest in the important subject of domestic violence would be enhanced by a direction enabling access and publication of that letter.
The other letter was from Mr M F Burt to the court.
If those materials are subject to mass media exposure it may inhibit offenders from providing materials to the court in future. That would be contrary to the interest of justice. Additionally, no specific submission has been made as to how the public interest in the important subject of domestic violence would be enhanced by a direction enabling access and publication of those letters.
I decline to exercise my discretion to release the two letters.
•Photographs of Ms Wolfe and the former matrimonial home at Mount Barker.
See par 13 above.
•Audio-visual recording of police executing the search warrant at the former matrimonial home at Mount Barker.
The court is not in possession of such recordings.
•Audio-visual recordings of police interview with Mr Aiden Burt on 16 June 2014.
The court is not in possession of any such recordings. The prosecution brief contains witness statements by Mr Aiden Burt (see par 4 above) which will be made available in accordance with Mr Aiden Burt's consent.
•Speed camera photograph of Mr M F Burt's utility taken in March or April 2014. The court is not in possession of any speed camera photographs of Mr M F Burt's utility taken in March or April 2014.
The court is in possession of a DVD showing footage of an incident occurring on a public road. That incident was the subject of a criminal charge and sufficient public interest in its release has been established. A copy of that DVD will be made available on the normal undertakings.
•Audio recordings of two 000 calls made by Ms Wolfe in 2013 and 2014.
The court is not in possession of any such audio recordings.
•Audio recordings of anonymous 000 call made on or about 9 June 2014.
The court is not in possession of any such audio recording.
•Victim impact statement of Ms Wolfe.
At the time of sentencing the court received a victim impact statement from Ms S Wolfe pursuant to s 24 of the Sentencing Act 1995 (WA). Section 26 of that Act permits the court to make that statement available to the prosecutor and to the offender on such conditions as it thinks fit. The Sentencing Act 1995 (WA) does not empower the court to make a victim impact statement available to a third party, notwithstanding Ms Wolfe's consent, and, accordingly, the court declines to release the victim impact statement to the ABC.
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