Dr Manhattan Edit: There were practical problems with the breadth of the original legislation, and it has no undergone a nip-and-tuck in the Justice Legislation Further Amendment Bill 2010. The Explanatory Memo to this omnibus legislation can be found here.

Last year in Going Digital my colleague discussed what is now the Justice Legislation Miscellaneous Amendments Act 2009, which will insert new provisions in the Crimes Act 1958. It has received Royal Assent, but is yet to commence operation.

Section 464JA will provide in part:

(2) A person must not knowingly possess an audio recording or an audiovisual recording unless the person—

(a) is the suspect; or

(b) is a legal practitioner representing the suspect; or

(c) is an authorised person acting in the performance of his or her duties; or

(d) has possession of the recording in a sealed package in the course of his or her duties as a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording to that person.

Penalty: Level 8 imprisonment (1 year maximum).

Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(3) A person must not play an audio recording or an audiovisual recording to another person unless—

(a) the recording is played for purposes connected with the prosecution or defence of, or legal proceedings relating to, a charge to which the recording relates; or

(b) the recording is played for purposes connected with an investigation of a death or a fire or an inquest held by a coroner; or

(c) the recording is played for purposes connected with disciplinary action against a member of the force within the meaning of the Police Regulation Act 1958; or

(d) the recording is played for purposes connected with disciplinary action against a legal practitioner; or

(e) the recording is played in accordance with the direction of a court under section 464JB; or

(f) the recording is played in accordance with section 464JD; or

(g) the recording is played by an authorised person acting in the course of his or her duties.

Penalty: Level 8 imprisonment (1 year maximum).

Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(4) A person must not supply or offer to supply an audio recording or an audiovisual recording to another person other than—

(a) the suspect in relation to whom the recording was made;

(b) a legal practitioner representing the suspect;

(c) an authorised person acting in the performance of his or her duties;

(d) a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording.

Penalty: Level 8 imprisonment (1 year maximum).

Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(5) A person, other than an authorised person acting in the performance of his or her duties, must not copy the whole or any part of an audio recording or an audiovisual recording or permit another person to make such a copy, unless the person is acting in accordance with the direction of a court under section 464JB.

Penalty: Level 8 imprisonment (1 year maximum).

Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(6) An authorised person must not knowingly or recklessly tamper with, modify or erase (in whole or in part) a recording, except in accordance with the direction of a court under section 464JB.

Penalty: Level 8 imprisonment (1 year maximum).

Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(7) A person must not publish or cause to be published the whole or any part of an audio recording or an audiovisual recording except in accordance with the direction of a court under section 464JB.

Penalty: Level 7 imprisonment (2 years maximum).

Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 1200 penalty units: see section 113D of the Sentencing Act 1991.

(8) An offence against a provision of this section is a summary offence.

The Scrutiny of Acts and Regulations Committee raised a few concerns about these provisions, and in Alert Digest 4 of 2010 at pp 51 – 55 published them and the Minister’s response.

Sub-section (4) seems to be the most problematic, and on its face prohibits disclosure of co-suspect interviews to suspects or practitioners, or release of an interview to an expert or to non-legally-qualified advisers or confidants.

I won’t reproduced all of the material here, but the nub of it is that the Minister says these new provisions affect disclosure of recordings themselves, but not the transcripts or summaries of them. Because the prosecution is obliged to disclose all material it intends to rely on, the accused isn’t disadvantaged.

Although this is true as far as it goes, it doesn’t seem to consider that such material might be used by an accused for exculpatory purposes, not just by the prosecution for inculpatory use.

It also seems contrary to the prosecution’s ethical obligation of disclosure of all relevant material, exculpatory and inculpatory: Mallard v The Queen (2005) 224 CLR 125; Cannon v Tahche (2005) 5 VR 317 at [57]–[59], [77].

There is a general directions power for courts in s 464JB, but it’s not clear if that allows a summary court (which possesses only those powers expressly conferred by statute or by necessary implication) to override or modify the effects of s 464JA.