The State of Western Australia v Burt [No 2]
[2015] WADC 137
•19 NOVEMBER 2015
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BURT [No 2] [2015] WADC 137
CORAM: BOWDEN DCJ
HEARD: ON THE PAPERS
DELIVERED : 19 NOVEMBER 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 the court to authorise release of copy of visually recorded interview of offender with the police
Legislation:
Criminal Investigation Act 2006 (WA)
Criminal Procedure Rules 2005 (WA)
Result:
Application refused
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
State of Western Australia v Burt [2015] WADC 128
BOWDEN DCJ: Mr Burt was convicted on his own plea in the Albany District Court of a number of offences including the following:
(a)with intent to harm doing an act on, 9 June 2014, as a result of which the life, health or safety of Ms Wolfe was, or was likely to be, endangered;
(b)with intent to harm doing an act, on 16 June 2014, as a result of which the life, health or safety of Ms Wolfe was, or was likely to be, endangered;
(c)possession of amphetamine;
(d)reckless driving;
(e)driving whilst disentitled;
(f)17 counts of breach of violence restraining order;
(g)two counts of attempting to induce the witness to withhold true testimony.
Mr Burt was sentenced on 27 July 2015 to a total of 5 years' imprisonment with eligibility for parole.
After Mr Burt was sentenced the Australian Broadcasting Commission (ABC) made application to this court for the release of or copies of the 'sentencing brief and certain exhibits' provided to the court for Mr Burt's sentencing. They wished to use some or all of this material in an episode of 'Australian Story' featuring Ms Wolf and focussing on domestic violence. An order was made releasing some materials (134 pages of statements, diagrams, photographs and reports and a compact disc of CCTV footage), however the court declined, inter alia, to authorise the release by the Western Australia Police Service of two visually recorded interviews (the interviews) of Mr Burt conducted by police officers during the course of their investigation of the offences: State of Western Australia v Burt [2015] WADC 128.
Subsequently an application has been made by Ms Jolley, a television journalist, working with the Al Jazeera media network for an order authorising the Western Australia Police Service to release a copy of the same two interviews. Ms Wolfe, the victim of the offences, has provided her written consent to the release of these interviews.
The custodian and copyright holder of the interviews is the Commissioner of Police on behalf of the Western Australia Police Service.
The basis upon which the application is made that Al Jazeera media network wish to use excerpts of those interview in a half hourly documentary about domestic violence in Australia to be shown on their 101 East programme. In particular, Ms Jolley wishes to use excerpts of those interviews to show Mr Burt denying the assaults and claiming that Ms Wolf caused the injuries herself. Ms Jolley advises that experts who are to be interviewed say this is a typical response of many perpetrators and she believes it is in the public interest to show this.
The District Court has the power to provide a media organisation with access to court records: Criminal Procedure Rules 2005 (WA) r 55 (CPR), s 122 of the Criminal Investigation Act 2006 (WA) gives a court the power and discretion to authorise the Western Australia Police Service (the copyright owner and custodian of the interview) to release the interviews.
Despite the applicant being requested by the court to provide Mr Burt with a copy of their letter of 2 November 2015, addressed to the District Court, that was not done. Instead the applicant forwarded a letter dated 9 November 2015 to Mr Burt which did not disclosed in as much detail the use to which the applicant intended to make of the interview. Irrespective of this, the applicant's letter did advise Mr Burt of the request, the purpose of the request, the party making the request, his rights to make submissions opposing the application and that portions of the interview would be used in a forthcoming programme relating to domestic violence in Australia. Mr Burt has not made any submissions in response to the application.
Clearly there is significant public interest in the important topic of domestic violence. Expert analysis of the matters raised by Mr Burt in the interview, are clearly capable of assisting the public's understanding of domestic violence perpetrators. It is not for the court to exercise editorial control over the issues raised in the forthcoming programme. Ms Jolley has in my opinion, demonstrated 'sufficient cause' to enable me to exercise my discretion to permit access to the visually recorded interview. The question remains whether in all the circumstances I should exercise that discretion in favour of the applicant.
The exercise of the discretion
The applicant was also instructed to advise the Commissioner for Police of this application. However, the court has not been advised whether this has been done. For the purposes of this judgment I leave aside the controversy as to whether a court has 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: 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); Curtis Miller v Parks [2004] WASC 223 (Miller J).
That discretion is to be exercised by reference to a wide range of circumstances and considerations arising from the particular facts and circumstances of the individual case: Ex parte West Australian Newspapers; Ex parte Seven Network Ltd.
The recorded response and attitudes of offenders to police officers questions about domestic violence are matters of public importance, however at the time the interview was conducted Mr Burt was given a standard caution, that is, words to the effect that he is not obliged to say anything but anything he said would be recorded and could be used in evidence against him. He was not advised that the interview may also be used not only in court but also by mainstream media.
If the interview, or parts of it, had been played in open court during the sentencing process there would be no reason why a media organisation should not then have access to the whole or part of the interview, however in circumstances where it was not played in open court and the offender was not told that the interview may be the subject of wider dissemination in the media, I would not authorise its release.
The views of the victim, the offender and media organisations are matters to consider as is the court's interest in protecting the integrity of its own process and that of the judicial system as a whole. Interviews are important tools used by police officers in the investigation of criminal conduct. It is an irrefutable fact that many convictions are obtained solely as a result of what an accused says to police during such interviews. There is significant public interest in offenders participating in interviews, although there is no legal obligation on them to do so. If it becomes the accepted 'norm' that participation in an interview results in that interview being used in court and in the mass media it would, in my opinion, discourage people from participating in those interviews.
The public interest in encouraging persons to participate in interviews is such that I would not make an order authorising the Western Australia Police Service to release the interview to the applicant.
If the applicant wishes to have copies of the materials that were released to the ABC, then upon payment of the appropriate fee, those materials will be made available. When one media organisation has been provided copies of materials the court's media manager may grant access to the same material to another media organisation (CPR r 51(2), r 51(3a) without the matter being referred to a judge.
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