Privacy Law and Policy Reporter
Supreme Court of NSW, Hodgson CJ in Equity, 5 November 1998.
Search warrant — use of video obtained by police through coercive powers — whether television broadcast of video should be restrained.
This was an urgent interlocutory decision in relation to an application to restrain the defendant television broadcaster (Channel 7) from broadcasting video footage of the arrest of the plaintiff (D) at his mother’s house. In March 1998 the police were granted a search warrant to enter a house and seize various items. The search was recorded on video by the police. While they were at the house, the police arrested D. The video showed D in his bedroom dressed only in underpants, and his arrest. D subsequently pleaded guilty to a number of offences relating to harrassment of a person by telephone. At the time of this decision, D had not been sentenced.
Somehow the video footage was obtained by Channel 7. On 1 November 1998 an advertisement for the Today Tonight program was broadcast containing excerpts of the video. The program was scheduled to go to air the following day. D applied for an urgent restraining order.
Hodgson CJ in Eq said:
The real question is whether use of a video taken within private premises, to which access has been obtained by exercise by the police of powers under a warrant and/or of arrest, for purposes other than for which those powers were given, could be such an abuse of those powers that it should be restrained.
Reasoning by analogy from the law of breach of confidence, the Court held that in a proper case the police, and anyone knowing the circumstances of the acquisition of material by the police, could be restrained from disseminating material that was gratuitously humiliating and obtained by officers on private property in the exercise of powers under a search warrant or of arrest. In particular, the Court noted that no explanation was put forward as to why the dissemination of video footage was required for the legitimate publicising of the investigation, prosecution, and disposal of D’s offences.
In conclusion, it was held that:
... the broadcasting of material recorded within the house of [D]’s mother may well involve the knowing participation by [Channel 7] in a serious abuse by the police of their powers under a search warrant and/or of arrest, and that an injunction would as a practical matter be the only satisfactory remedy.
The injunction only related to the video footage obtained inside the house of D’s mother while the police were exercising powers under the search warrant and arrest.
The High Court held in Johns v ASC (see (1994) 1 PLPR 14) that a statute which confers power to obtain information by compulsion limits the purposes for which the information obtained can be used or disclosed. The Johns case was not referred to in the Court’s reasoning in this decision, but the Court’s approach here is clearly consistent. It will be interesting to see if the case is pursued to final determination.
Patrick Gunning, Senior Associate, Mallesons Stephen Jacques, PLPR Board Member.