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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] WADC 206
Decision Date: 2 JULY 2001

CaseChat Overview and Summary

In Townes v Gilmour, the issue of the admissibility of video recordings made by police during a criminal investigation was the subject of judicial scrutiny. The case was heard by the Supreme Court of Western Australia, where the respondents sought an order for the production of video cassette recordings made by police officers during their investigation. The appellant, Townes, opposed the order, arguing that the recordings were not admissible in evidence and that the Registrar did not have the requisite jurisdiction to make such an order. The central legal issues that the court had to address were whether the Registrar had the authority to order the production of the video recordings and whether the recordings were admissible in evidence.

The court considered the jurisdiction of the Registrar and the admissibility of the video recordings. The court noted that the Registrar did not have the jurisdiction to make the order for the production of the recordings as the circumstances under which the District Court has such jurisdiction had not arisen. The court also held that the contents of the interviews between the parties and the police officers were relevant and therefore, the recordings should be made available for inspection. However, the court ultimately quashed the Registrar's order as it was beyond the Registrar's jurisdiction to make such an order. The court further held that if it had the jurisdiction, it would have made the orders sought by the respondents.

The court's decision highlights the importance of jurisdiction in legal proceedings and the need for parties to seek the appropriate remedy from the correct court. The court also emphasised the relevance of the contents of the interviews between the parties and the police officers, which could potentially be admissible in evidence. The final orders of the court were that the Registrar's order for the production of the video recordings was quashed, and the parties were directed to pursue their remedy in the Supreme Court if they wished to obtain access to the recordings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.