JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA 
IN CHAMBERS 

LOCATION	:	PERTH 

CITATION	:	BARBER -v- COMMISSIONER OF POLICE [2010] WADC 118 

CORAM	:	DERRICK DCJ 

HEARD	:	2 JULY 2010 

DELIVERED	:	Delivered extemporaneously on 2 July 2010 typed from transcript and edited by Judge Derrick 

FILE NO/S	:	CIVO 14 of 2010 

BETWEEN	:	DANNY RAY BARBER
Plaintiff
 
AND
 
COMMISSIONER OF POLICE
Defendant 

Catchwords:
Application for directions made pursuant to s 122 of the Criminal Investigation Act 2006 (WA) 
Legislation:
Criminal Investigation Act 2006 (WA), ss 118, 120, 122 
Result:
Plaintiff granted permission to copy and possess videotaped record of interview 

Representation:
Counsel:
Plaintiff	:	Mr A J Klein
Defendant	:	Ms S Mateljan 
Solicitors:
Plaintiff	:	Stephen Browne Lawyers
Defendant	:	State Solicitor for Western Australia 

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

Ex parte West Australian Newspapers Ltd (2008) 38 WAR 177; [2008] WASCA 209

1	DERRICK DCJ:  This is an application made by originating summons pursuant to s 122 of the Criminal Investigation Act 2006 ("the Act") for an order that the Commissioner of Police, who is named as the defendant in the summons, provide to the plaintiff's solicitors a copy of a videotaped recording of an interview conducted by police officers with one Richard Anthony Lawrence on 22 January 2008 ("the interview").  Section 122 provides, so far as is relevant:
"The District Court may give directions (with or without conditions) as to the supply, copying, editing, erasure, playing, or broadcast of an audiovisual recording of an interview."
2		If an order along the lines sought is not made, the plaintiff will be unable to gain access to the videotape by reason of the provisions of s 120 of the Act.
3		The application is supported by two affidavits sworn by the plaintiff's solicitor Mr Allon Klein on 19 April 2010 and 9 May 2010.  The application is not opposed by the defendant.
Background
4		The brief background to the application as revealed by the affidavit evidence before me is as follows.
5		On 5 January 2008 the plaintiff was involved in an incident with Mr Lawrence in or around Templeman Avenue in Girrawheen.  During the course of the incident the plaintiff suffered significant injuries.
6		On 22 January 2008 Mr Lawrence participated in the interview.  Following the interview, Mr Lawrence was charged with one count of assaulting the plaintiff and causing him bodily harm.
7		On 26 August 2008 Mr Lawrence pleaded guilty to the charge in the Magistrates Court and was fined.  The copy of the police statement of material facts relating to the charge which has been obtained by the plaintiff's solicitors from the relevant police file, and which is annexed to the affidavit of Mr Klein sworn on 19 April 2010 ("the statement of material facts"), states that the plaintiff and Mr Lawrence had spent the evening of 4 January 2008 drinking together, that later on that evening the plaintiff and Mr Lawrence were in Mr Lawrence's car, that while Mr Lawrence was driving his car the plaintiff pushed Mr Lawrence's head against the car window on two occasions, that Mr Lawrence pulled into the car park of a shopping centre located on Templeton Avenue, that upon pulling into the car park Mr Lawrence got out of his vehicle, grabbed the plaintiff by the neck, pushed him against the back of the car, and punched him to the right eye, that the plaintiff lost consciousness and that Mr Lawrence punched the plaintiff another two or three times as he slid to the ground.  The statement of material facts also records that on 22 January 2008, Mr Lawrence participated in an interview during which he "made full admissions".  This is clearly a reference to the interview.
8		It is, I think, reasonable to infer that the facts of the offence to which Mr Lawrence pleaded guilty as read to the Magistrates Court were substantially the same as those stated in the statement of material facts.  I note, however, that the words "old SMF" are handwritten on the front page of the statement of material facts.  The reference to "SMF" is clearly an abbreviation for "statement of material facts".  It may therefore be the case that the facts of the offence as read to the Magistrates Court did not accord precisely with the statement of material facts.
9		In November 2010 the plaintiff commenced in this court an action against Mr Lawrence.  In his statement of claim the plaintiff alleges that on 5 January 2008 he was negligently run down by a motor vehicle being driven by Mr Lawrence and suffered injury as a result.
10		Since commencing the action the plaintiff's solicitors have been unable to locate Mr Lawrence.  This court recently made an order allowing substituted service of the writ of summons and statement of claim by way of publication of a notice in The West Australian newspaper.
11		The Insurance Commission of Western Australia ("the ICWA") has been notified of the plaintiff's action and of his intention to claim damages.  The ICWA is yet to make a decision on liability.
12		The plaintiff has informed his solicitors and two specialists that he has seen in relation to the incident, that he does not remember the circumstances surrounding the incident.  
13		In the first of his affidavits Mr Klein deposes to his belief that the videotape of the interview may touch upon the circumstances of the incident the subject of the plaintiff's action, and is critical for the plaintiff to properly prepare and present his case.  He states this is particularly so because the plaintiff claims that he is unaware of the circumstances surrounding his injury.  He deposes to the belief that if an order for production and inspection of the videotape of the interview is not made the plaintiff will potentially suffer an injustice in that he will not be able to access all relevant evidence.
14		In his affidavit sworn on 9 May 2010, Mr Klein deposes to his belief that it is in the interests of justice that the plaintiff be given access to the videotape of the interview as otherwise he will not be able to examine and, if necessary, adduce evidence which will shed further light on the circumstances of the incident.
15		So that is a summary of the background to the application.
Legal Principles
16		I have been provided with helpful outlines of submissions by both the plaintiff's and defendant's solicitors.  I have read the outlines and reviewed the authorities referred to therein. 
17		The leading case dealing with applications made under s 122 is Ex parte West Australian Newspapers Ltd (2008) 38 WAR 177; [2008] WASCA 209.  In my view the principles that can be derived from the judgment given by the Chief Justice in that case, with whom Newnes JA agreed, are as follows:
1.	There are no express terms in s 122 or Pt 11 of the Act which constrain the power of the Court to give directions with respect to the supply and broadcast of videotaped interviews.  The section confers a general discretion in unconfined terms, confined only by the limits to be implied by the subject matter, scope and purpose of the Act: at [53];
2.	A legislative purpose of encouraging audiovisual recording of police interviews of suspects is clear from the provisions of Pt 11, particularly s 118.  This legislative purpose is a matter properly taken into account by a court when exercising the discretion conferred by s 122: at [54];
3.	It is also clear that the purpose of the Act including Pt 11 is to enhance the administration of criminal justice and in particular that aspect of the administration of justice that relates to criminal investigation.  It is therefore essential for a court considering making directions under s 122 to consider the extent to which the direction sought will enhance or detract from the administration of justice: at [55] and [63];
4.	It is not the case that a direction can only be made under s 122 if the applicant establishes that the making of such a direction will positively advance the interests of justice: at [55] and [63];
5.	The constraints which Pt 11 of the Act impose in relation to audiovisual recordings are at least in part a result of the legislature's concern that if it were to become common place for videotaped interviews to be made available to the media against the wishes of an interviewee, this could discourage voluntary participation in videotaped records of interview to the detriment of the administration of justice: at [62];
6.	Having regard to the unconstrained terms in which the Court is empowered to make directions pursuant to s 122 the Court has a general discretion to make such directions to be exercised by taking into account all relevant facts, matters and circumstances.  If a matter is logically relevant to the exercise of the discretion its consideration is only excluded if that exclusion is to be implied by the subject matter, purpose and scope of the Act.  There is nothing in the Act which would exclude from consideration relevant aspects of the public interest or legitimate private interests: at [64]; and
7.	If the direction is sought with the consent of the interviewee and there is no prospect of any further investigation or court proceedings arising from the subject matter of the interview, then depending upon the purpose for which the direction is sought it may well be possible to conclude that the discretion is properly exercised in favour of making a direction: at [68].
Ruling
18		Against that background of legal principle, I return to the present case.
19		In this case the order is not sought with the consent of Mr Lawrence.  He has not had the opportunity to be heard on the application.  However, there is a good explanation for this, namely that he cannot be located.
20		There would appear to be no prospect of further criminal investigations or a further criminal prosecution arising from the incident the subject of the interview.  Mr Lawrence has already been charged and convicted as a result of the incident.  Moreover, given that the plaintiff's civil action against Mr Lawrence is already on foot, it cannot be said that making an order along the lines sought may expose Mr Lawrence to additional court proceedings which he might otherwise not be subjected to but for a direction granting the plaintiff access to the videotape of the interview.  Further, this is not a case in which there is a proposal for the videotape of the interview to be widely broadcasted.  In these circumstances I do not consider that the making of directions under s 122 in the present case is likely to have the effect of discouraging voluntary participation by suspects to offences in videotaped interviews.
21		In short I do not consider that this is a case in which making an order along the lines sought will detract from the administration of criminal justice or justice generally.
22		Furthermore, in my view the plaintiff clearly has a legitimate private interest in being given access to the videotape of the interview.  As I have already mentioned, the plaintiff apparently has no recollection of the incident forming the basis of his claim and has therefore only limited ability to instruct his solicitors.  Accordingly, giving the plaintiff access to the videotape of the interview will result in him and his solicitors being provided with information about the incident which they are currently unable to obtain.  This will in turn enable the plaintiff, through his solicitors, to make a more fully informed assessment of the accuracy of his case as pleaded and the prospects of the action succeeding.  Indeed, it may be said that this outcome is not only in the plaintiff's interest but also in the interests of justice generally.
23		For the above reasons I am satisfied that I should exercise my discretion under s 122 of the Act to give the plaintiff access to the videotape of the interview notwithstanding that Mr Lawrence has not been heard on the application.
The orders
24		By the originating summons the plaintiff seeks an order that the defendant make and provide to the plaintiff's solicitors a copy of the videotape of the interview.  The plaintiff also seeks an order that the plaintiff's solicitors be at liberty to use and publish the videotaped interview in the course of preparation for trial and, if so desired in the trial.  
25		In light of comments made by Martin CJ in Ex parte West Australian Newspapers (supra) at [67] in relation to the distinction between a direction which has the effect of removing a statutory prohibition on access and the conferral of a right of access, I do not think that it is appropriate to make an order imposing an obligation on the defendant to make and provide a copy of the videotaped interview to the plaintiff.  Moreover, in my view the plaintiff's proposed order relating to the use and publication of the videotape of the interview is expressed in terms that are too wide.  I do not see why the plaintiff's solicitors should be given liberty at large to publish the video in the course of preparation for trial.
26		For these reasons I prefer the terms of the orders set out in the defendant's minute of proposed orders dated 29 April 2010.  I therefore make orders in the following terms:
1.	The solicitors for the plaintiff, the solicitors for the defendant and the solicitors for the ICWA be granted permission to copy and possess one copy each of the videotaped record of interview conducted between police officers and Richard Anthony Lawrence on 22 January 2008 ("the videotaped interview").
2.	Only one copy of the videotaped interview may be made and used by each of the parties named in par 1 of these orders and no further copies are to be made.
3.	Each party named in par 1 of these orders is permitted to play the videotaped interview to their respective clients and any experts they retain for the purposes of preparing for the trial of the action between Danny Ray Barber and Richard Anthony Lawrence being action number CIV 372 of 2010 ("the action").
4.	Each party named in par 1 of these orders is permitted to play the videotaped interview during the trial of the action.
5.	At the conclusion of the action each party named in par 1 of these orders shall return their copy of the videotaped interview to the defendant within seven days.