Townes v Gilmour - [2001] WADC 206

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TOWNES -v- GILMOUR & ORS [2001] WADC 206

CORAM: FENBURY DCJ

HEARD: 2 JULY 2001

DELIVERED : Delivered Extemporaneously on 2 JULY 2001 typed from tape and edited by Trial Judge

FILE NO/S: CIV 1876 of 2000

BETWEEN: JASON FREDERICK TOWNES
Plaintiff
AND
GARTH STEWART GILMOUR
First Defendant
DAVID JAMES STEVENS
Second Defendant
MARK GRAHAM SPENCER
Third Defendant
CRAIG BARRON SPENCER
Fourth Defendant
COMMISSIONER OF POLICE
Third Party

Catchwords:

Video interviews - Appeal from Registrar's decision ordering production of video cassette recordings made by police officers in course of criminal investigation

Legislation:

Criminal Code, s 570F

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff:     Mr I A Morison
First Defendant             :     No Appearance
Second Defendant         :     No Appearance
Third Defendant           :     No Appearance
Fourth Defendant          :     Mr D F Gordon
Third Party                   :     Mr B P King

Solicitors:

Plaintiff:     Hoffmans
First Defendant             :     Brickhill & Banaszak
Second Defendant         :     Brickhill & Banaszak
Third Defendant           :     Brickhill & Banaszak
Fourth Defendant          :     Mackinlays
Third Party                   :     State Crown Solicitor

Case(s) referred to in judgment(s):

Plutonic Operations Ltd v Done [2000] WASC 56

Case(s) also cited:

Nil

FENBURY DCJ: This is an action for damages for assault and battery brought by the plaintiff against the four defendants. The claim arises out of what can fairly be described as a violent incident at the end of a party. Following the incident a complaint was made to police and the four defendants, and others were interviewed on video. At the end of the investigation no charges were laid. Some time thereafter the plaintiff commenced these civil proceedings.
On 26 June 2001 a registrar of this Court, on application by one of the defendants, made a number of orders granting leave to the defendant to issue a subpoena duces tecum to the Commissioner of Police requiring him to produce a number of documents and materials including videotapes of the interviews conducted by police with any of the parties to the action.
The return date for the subpoena was 28 June 2001. The trial was listed to commence on 2 July2001.
The Commissioner of Police objects to the subpoena and desires to appeal against the Registrar's decision. Obviously, for such an appeal to be given proper opportunity, given the fact that only one working day separated the Registrar's decision and the commencement of the trial, an adjournment of the trial was likely. All parties were very keen to avoid that event. On Friday 29 June 2001 all parties attended before the Court and following discussion it was decided that if written submissions were provided that afternoon then the matter would be decided prior to the commencement of the trial on 2 July 2001. In a sense it might be said that the appeal against the learned Registrar's order was expedited by consent and determined at the commencement of the trial.
As has been stated the issue related to the question of whether the videos of interviews conducted by the police with the parties to the action in circumstances where they were interviewed as suspects in an alleged assault that occasioned bodily harm should be made available for viewing when no criminal prosecution was ever commenced.
The interviews of the four defendants in this action, who were suspects in the original police enquiry, were conducted in accordance with Chapter 60A (LXA) of the Criminal Code of Western Australia. The effect of the order made by the learned Registrar was that the interviews of those suspects would be made available for inspection by other parties.
As a preliminary observation, it seems to me that there is a public interest in suspects in criminal investigations being free to decide whether to answer questions or not, without concern about what use others may make of any video of their interview.
There is no doubt that a video tape is relevantly a document and therefore discoverable and capable of being the subject of orders for inspection and discovery. However, videotapes of interviews conducted by police under the Criminal Code of suspects of criminal activity are not ordinary videotapes. They have a special quality in that they are the videotapes of interviews of suspects in criminal matters and the interview is conducted under the Criminal Code.
The making of videotaped interviews during the process of investigation of criminal offences by police, as I have said, is governed by Chapter 60A of the Criminal Code. It can be seen that persons who are subject to the process outlined therein are suspects. Some are charged with criminal offences, some are not. I reiterate that in this particular case nobody was charged with any criminal offence.
Chapter 60A is cast in fairly strict terms. Section 570A(2) of the Criminal Code says "No person is entitled to a transcript of an interview that is videotaped or any part of such an interview and a court shall not order that such a transcript be prepared unless satisfied that…" and it provides certain conditions.
Section 570B greatly restricts possession of videotapes. It specifies those persons who can have a videotape and those who cannot and it provides for an offence and penalty.
Section 570C similarly prohibits broadcasting of interviews.
Section 570G obliges the police to retain videos for a certain period of time.
Section 570F states:
"The Supreme Court or, if the accused person is or was committed to the District Court, the District Court may give directions with or without conditions as to the supply, copying, editing, erasure, playing, or broadcasting of videotapes."
Having regard to the legislation it can be seen that it is quite restrictive but there is provision made for videotapes to be available for copying, editing, playing and the like by s 570F.
It is common ground that none of the defendants in this action is or was an accused person committed to the District Court. Having regard to s 570F, and giving the English words contained in it their natural meaning, as no person was or is to be charged in this Court in relation to this matter, then in my view this Court has no jurisdiction to give directions as to the supply, copying, editing, erasure or playing or broadcast of the videotapes in question. Section 570F seems to me to state that quite clearly.
The only basis that this Court has jurisdiction to make such an order is if the person, the accused person (and that would appear to be the person who is interviewed) is or was committed to the District Court. As nobody was so committed then the Court has no jurisdiction.
During submissions my attention was drawn to the decision of the Master of the Supreme Court in the case of Plutonic Operations Ltd v Done [2000] WASC 56. Immediately it is to be noted that a Master of the Supreme Court does have jurisdiction under s 570F. There is no dispute about that.
Read correctly, in my view this decision is not as helpful to the application as those who assert the fact. My attention was drawn to par 10 of the Reasons for Decision but par 9 states:
"In my view section 570F empowers a Supreme Court in any case to determine whether or not the videotapes should be made available."
With respect the learned Master is correct in that regard.
The Master went on to say:
"It also permits the District Court to make such an order in certain limited circumstances."
In my view the Master is also correct about that.
The Master then said:
"When those circumstances arise, the Supreme Court and the District Court have concurrent jurisdiction."
The District Court in my view has jurisdiction in limited circumstances and they have not arisen in the case for decision. The reliance by counsel on the Master's remarks in par 10 of the decision needs to be understood in the light of the fact that the Supreme Court did have jurisdiction. Consequently the case is distinguishable on its facts. Furthermore, in any event, the portions of the Master's reasons relied on seem to me to be obiter dicta. Without commenting upon whether or not the decision is binding upon this Court in my view the learned Registrar of this Court did not have jurisdiction to make the decision that he did and consequently the decision is quashed. The parties to this action, if they wish to pursue this matter, must attend at the Supreme Court to obtain access to these videos. As an aside, if I had jurisdiction I would make the orders sought. The contents of what the parties said to police when enquiries were freshly made would seem to me to be relevant.