ABC SEEKS COURT PERMISSION TO USE VIDEOS OF POLICE INTERVIEWS FOR ITS TV PROGRAM "AUSTRALIAN STORY"
ABC v Victoria Police & Gardiner [2020] VSC 599 (15 September 2020)
This case involves the Australian Broadcasting Corporation asking a court order to permit the police to supply them with videos of police interviews with a convict to be used in a program/show.
Facts:
The Australian Broadcasting Corporation seeks orders from the court to permit Victoria Police (the first respondent) to supply it with the audiovisual recordings of three police interviews with Maxwell Gardiner (the second respondent). The ABC wishes to use some of the footage from those interviews in two upcoming episodes of its ‘Australian Story’ program. Those episodes will focus on the experience of Dianne McDonald, who was stalked by Mr. Gardiner following the breakdown of their relationship in 2015.
ABC contended that the episodes will raise matters of substantial public interest, including the operation and adequacy of the justice system in relation to preventing and prosecuting stalking as a form of family violence and abuse, and whether current laws adequately recognize the impact of mental harm caused by stalking. Ms. McDonald's case will be used as a case study for an examination of these issues.
Issue: Can ABC be permitted to use the footage in its program?
Law:
- 464JB (2) of the Crimes Act- A court may give directions, with or without conditions, as to the supply, copying, editing, erasure, playing or publishing of an audio recording or an audiovisual recording.
- Director of Public Prosecutions v Williams (No 1)[1]- following non-exhaustive list of factors which may be relevant in considering the exercise of the court's discretion under s 464JB
Analysis: The court permitted the ABC to publish the parts of the recordings under the following reasons:
- Ms. McDonald, the victim of Mr. Gardiner's offending, and a person whose privacy would be directly affected by publication, is very supportive of the application. She endured years of harassment and stalking by Mr Gardiner, and wants her story to be told.
- Apart from Ms. McDonald and Mr. Gardiner, there are no other persons who would be directly adversely affected by release of the recordings.
- Victoria Police does not oppose publication, and there are no privacy concerns in relation to the interviewing police.
- No ongoing criminal investigations or trials, which may be prejudiced by publication.
- The records of interview do not disclose graphic details of offending of the sort that may be unsuitable for general publication.
- Publication of the relevant parts would not be likely to undermine the integrity of the criminal justice process.
- The nature of the proposed publication is to include extracts from the recordings in a respected documentary program on a topic of substantial community interest, namely family violence.
- Although the cases against Mr. Gardiner are over, and there is no evidence of any contemporaneous public interest in this particular case, there is contemporaneous public interest in the important topic covered by these episodes, namely the insidious and ongoing problem of family violence
Conclusion: Hence, ABC can use such police interview for its show.
