TOPIC 1 PART 1: The Media and Open Justice A. THE PRINCIPLE OF OPEN JUSTICE The constitutional significance of the principle of open justice was first recognised by Lord Shaw in Scott v Scott (1913). It is of fundamental importance not only that justice is done, but that it is seen to be done. Open justice: o Keeps judges accountable o Acts as a spur for witnesses to tell the truth o Is seen as a form of free speech The media attends court on the behalf of the public. Sources of the principle of open justice: o Common law (e.g. Scott v Scott) o Article 14 of International Covenant on Civil and Political Rights (and s 24(1) of the Victorian Charter of Human Rights and Responsibilities is to similar effect) o Chapter 3 of Commonwealth Constitution à many judges consider that there is an implicit assumption that Chapter 3 courts are open. Main tenets of open justice: o The doors of the courts are open to the public o The evidence and information communicated to the court is communicated publicly o Magistrates and judges must pronounce their decisions in open court and give reasons o Nothing should be done to discourage those who have availed themselves of their entitlement to attend proceedings to report to the public at large what they have seen and heard. Costs of open justice: o Impedes on peoples privacy o Potential damage to reputation of parties o Threats to personal safety o Tension between protection of national security and open justice 1
B. COMMON LAW EXCEPTIONS TO THE PRINCIPLE OF OPEN JUSTICE Article 14 ICCPR contemplates exceptions to open justice, and some of these exceptions have been picked up by the Australian common law. There are three main ways to curtain open justice: 1) Power to hear proceedings in camera 2) Concealment orders 3) Non-publication orders EXCEPTION ONE: power to hear proceedings in camera The weight of authority favours the view that a court can be closed to the public only where closure is necessary in the interests of the administration of justice in the proceeding. Suppression of judgment? o Even where a court is held in camera, it does not follow that a judgment is shut down. The judges should be able to write their judgment in such a way that doesn t disclose the basis of why court closed, while still giving reasoning. Established circumstances in which it has been to be permissible for a court to sit in camera 1) Control of public attendance and order in the court Open justice is subject to the availability of accommodation in the courtroom Reasonable regulation of a crowd of persons who may bar entrance to the court This is necessary for the due administration of justice the courtroom must be available to those whose presence is essential to the conduct of the proceedings. 2) If a public hearing would destroy the subject matter of the action or thwart the relief being sought R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 Facts: the Chief Registrar of Building Societies made a decision which effectively prevented a building society from continuing to conduct its business. The Society applied for judicial review of the decision. Held: the application and subsequent appeals were heard in camera because it was feared that if publicised, the loss of public confidence in the Society would be so great that the Society would be forced to close, whether or not the Registrar s orders were ultimately quashed. Thus the Society would have been effectively deprived of the relief to which it might have been entitled. 3) Cases concerning wards of the court (children) and mentally ill persons 2
Scott v Scott [1913] AC 317: courts can sit in camera in such cases, because the court is taking on a parental responsibility for the ward/mentally ill person. The paramount duty is to care for the child/mentally ill person, which might involve excluding the public. Circumstances that will not support closure of court Where evidence is unsavoury. Considerations of public decency and morality. Embarrassment or reputational damage of a party. If both parties have consented and request the court to sit in camera. à Refer to p 7: meaning of necessary EXCEPTION TWO: concealing information from those present in the courtroom Superior courts possess an inherent power to make concealment orders. Inferior courts have the implied power to uphold, protect and fulfil the judicial function. In certain circumstances this may justify making a concealment order. à Insufficient grounds for a pseudonym order The mere prospect of stress, embarrassment or damage to professional or personal reputation. à When is such power properly exercised? i) Blackmail charges R v Socialist Worker Printers and Publishers Ltd [1975] 1 QB 637 Two reasons to conceal identity of blackmail victims: o Disclosure of the complainant s name in open court would lend itself to the blackmailer s purpose; the blackmailer would have had their way. o There is a keen public interest in getting blackmailers convicted and sentenced, and blackmail victims are unlikely to come to court unless they are given this kind of protection. ii) Extortion John Fairfax Group Pty Ltd v Local Court of New South Wales (1992) 26 NSWLR 131 Mahoney J: revealing the identity of extortion victims would have the same or similar effects to those produced by revealing the name of blackmail victims if published, copycats could seek to extort money from those victims or other potential victims. Also possible that extortion victims would not approach or co-operate with the police. Kirby P (dissent): blackmail not analogous with extortion. With blackmail, revealing the name of the victim in open court means that the blackmail would have succeeded. In extortion, there is no guilty secret being concealed, making it less likely that the prospect of publicity would deter victims from approaching police. 3
iii) Victims of sexual servitude R v Kwok suppressed names of victims of sexual servitude without the orders the victims would be discouraged from reporting the crime and giving evidence due to the risk of suffering shame and stigmatization as a result of the publicity, thus promoting the success of the perpetrators of sexual servitude. iv) Police informants and undercover operatives Concealment orders protect the safety of informants and families, and give informants incentive to cooperate with police. v) Matters pertaining to national safety and security à Refer to p 7: meaning of necessary EXCEPTION THREE: non-publication orders NPOs are directed at what may be published about the proceedings. May be made in any one of three circumstances: 1) As a companion to an in camera order. o Note: sometimes it is argued that a valid in camera order can operate by implication to restrict the publication of what has taken place in the closed court, thus making NPO unnecessary. (However, the opposite view has also been expressed.) 2) In conjunction with a concealment order. 3) As a standalone order. 1) Source of power: The source of power to make NPOs is contentious. Though superior courts have inherent power to regulate their proceedings, it is uncertain whether this would support and NPO. The HC declined to resolve this issue in Hogan. Arguably, an NPO purporting to bind the world at large is an exercise of legislative power, thus requiring legislative sanction. UK courts do not have power to control what happens outside courtroom Internet Publishing Co v AG of Trinidad & Tobego NZ courts have power to make NPOs binding the world at large provided that the order is only temporary and protects fair trial Vincent Ross Siemer Mokbel said courts have inherent power to make general NPOs; Ibrahim said that the court had legislation to make these. Underbelly cases King J had the power in common law and the court s inherent power to make general NPOs. 2) Test: the restriction is necessary to secure the proper administration of justice in those proceedings Raybos (1985). 4
Attorney-General (NSW) v National News Pty Ltd the test of necessity requires at least that there be identified some substantial detriment or risk of detriment to the administration of justice that would, in a significant way, be alleviated by suppression of the information. Not properly exercised: o Not necessary to protect personal/business reputation Raybos o Lawyers will not be accorded special/privileged positions Raybos o (Possibly) especially desirable that criminal proceedings do not have publication restrictions what is at stake is public interest in proper administration of justice Kirby J in Raybos (rejected by Samuels J who said that the only question is whether publication would impede justice) o Not necessary to protect strangers from the case (e.g. police informants) from consequences which aren t necessary to secure justice John Fairfax v Police Tribunal of NSW 3) Countervailing interests Proceedings non-publication orders: o Per Warren CJ and Byrne J in Mokbel, the tension here is between the requirement that justice be administered openly and the requirement that it be administered. General non-publications orders: o Per Warren CJ and Byrne J in Mokbel, the tension here is between the protection of the court process and the preservation of free speech. o The free speech hurdle is more readily cleared than the open justice hurdle (Ibrahim) e.g. in Mokbel, the public s right to be informed about Mokbel s prior convictions and other like information was held not to rank at the highest level of principle. o In the Underbelly cases, the right to receive information was less important than the right to a fair trial. 4) Form of orders In Ibrahim the Court Suppression and Non-Publication Orders Act 2010 (NSW) could not support sweeping orders directed at the world at large, but only orders limited to specified person(s) and material which are in a form which would be appropriate in the inherent jurisdiction of the Supreme Court, to prevent an apprehended breach of the sub judice principle. If general NPOs were generally addressed to the world at large, they would directly bind entities that were unaware of their existence, such as ISPs and ICHs, which should not be liable in respect of content they are unaware of, and should not have to monitor or make inquiries about the content they host Ibrahim Underbelly cases: scope of the order was limited to bind only Channel 9 o However, if people know of the order and breach it, they may be guilty of contempt of court by interfering with the administration of justice. 5