The State of Western Australia v McKinnell

[2018] WADC 25

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- McKINNELL [2018] WADC 25

CORAM:   BOWDEN DCJ

HEARD:   ON THE PAPERS

DELIVERED          :   13 FEBRUARY 2018

FILE NO/S:   IND 232 of 2017

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND

JEFFERY JAY McKINNELL

Catchwords:

Media organisations' application for court to authorise release 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

1. BOWDEN DCJ:  Mr McKinnell was convicted on 12 February 2018 following a six day trial of possession of child exploitation material in the form of data contained on a laptop.  He is to be sentenced on 18 April 2018.

2. On Friday 9 February 2018 Seven West Media Ltd made an application for an order releasing exhibit 1, a visually recorded search video dated 24 May 2016 between detectives and Mr McKinnell as they wished to use the video in their news report that evening to ensure fair and open reporting of this case.

3. Subsequently a further application (oral) was received on Monday 12 February 2018 following Mr McKinnell's conviction.

4. The custodian and copyright holder of the electronic record of interview is the Commissioner of Police on behalf of the Western Australian Police Service.

5. The District Court has the power to provide media organisations with access to court records.  The Criminal Procedure Rules 2005 (WA) r 55 (CPR), s 122 of the Criminal Investigation Act 2006 (WA) (CIA), gives the court the power and discretion to authorise the Western Australian Police Service (the copyright owner and custodian of the interview) to release the interview.

6. No notice of the application, as I understand it, has been given either to the State or to Mr McKinnell.

7. I declined to make the order before the jury returned their verdict on the basis that it would be inappropriate for the material to be released prior to the jury returning their verdict.

8. There is significant public interest in ensuring fair and open reporting of criminal cases that occur in the District Court.  Seven West Media Ltd have, in my opinion, demonstrated 'sufficient cause' to enable me to exercise my discretion to permit access to the visually recorded search video.  The question is whether I should exercise my discretion in favour of the application.

The exercise of the discretion

1. There is debate over whether the court has the power to direct the supply of an electronic record of interview contrary to the wishes of the holder of the electronic record of interview, being the Commissioner of Police.  The Commissioner of Police, as I understand, has not been notified of this application: Ex parte Seven Network Ltd [2010] WASC 311 (Martin CJ); Ex parte West Australian Newspapers Ltd (2008) 38 WAR 177 [67]; Curtis-Miller v Parks [2004] WASC 223 (Miller J).

2. However, for the purposes of this judgment I leave that question aside and act on the basis that I do have the power to direct the supply of the visually recorded interview.

3. The 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 Ltd; Ex parte Seven Network Ltd.

4. I accept that Mr McKinnell's responses to police officers' questions about child pornography are matters of public importance, however at the time the interview was conducted Mr McKinnell was given the standard caution, that is, words to the effect that he was not obliged to say anything but anything he said would be recorded and can 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.

5. The interview was played in open court in the course of the trial and was an exhibit at the trial.  This points in favour of releasing the interview to a media organisation.  The views of the offender and the media organisation are matters to be considered as it is in the court's interests to protect the integrity of its own process and that of the judicial system as a whole.  The media organisation wishes that the visually recorded search video be released.  The offender has not been advised of the application.

6. Interviews are clearly an important tool used by police officers in the investigation of criminal conduct.  Many convictions are obtained solely as a result of what an accused says to police during a search.  There is significant public interest in offenders answering police officers' questions, although of course they are under no obligation to do so.  If it becomes accepted practice that participation in an interview results in that interview being used not only in court but also later becoming available to the mass media, it may discourage people from participating in those interviews.

7. The public interest in encouraging persons to participate in interviews is such that I would not make an order authorising the Western Australian Police Service to release the interview particularly in circumstances where the offender has not been advised of the application.

8. I will re-visit the issue on the sentencing date when the offender's counsel will be advised of the media's application and have the opportunity to be heard.

9. For the reasons indicated I exercise my discretion to not make an order authorising the Western Australian Police Service to release the electronic record of the search video.