• Introduction
• Current law
• Discussion Paper 43
• Submissions to DP 43
• The issues
• The Commission's view
• Conclusion

INTRODUCTION

11.1 The belief that courts and court proceedings should be open and accountable is known as the principle of open justice and is both an adjunct of free speech and an accepted doctrine within the Australian justice system.¹ In John Fairfax & Sons Limited v Police Tribunal, Justice McHugh said:

The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule when its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom.²

CURRENT LAW

11.3 At common law, a court file is not a public register and there is no public right to inspect court files.⁴ Access by non-parties to documents on file in a court registry is regulated by statute or rules of court. The approach taken to regulating access to documents varies among Australian courts. In some jurisdictions, access is given as of right to the entire file,⁵ while other court rules restrict access to specific documents⁶ or grant access to a file only by leave of the court.⁷

New South Wales

11.4 In New South Wales, access to court documents in the Supreme, District and Local Courts is governed, respectively, by the Supreme Court Rules 1970 (NSW) Part 65 rule 7, the District Court Rules 1973 (NSW) Part 52 rule 3(2) and the Local Courts (Civil Claims) Rules 1988 (NSW) Part 39 rule 4.

11.5 The Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW), which has been assented to but has not yet commenced,⁸ amends the Criminal Procedure Act 1986 (NSW) with respect to committal proceedings before magistrates and proceedings for summary and indictable offences. The amending Act inserts s 314 which provides for media access to court documents. Once that Act commences, the media will be entitled to inspect: the indictment; the court attendance notice or other document commencing the proceedings; witnesses’ statements tendered as evidence; the brief of evidence; the police fact sheet (in the case of a guilty plea); transcripts of evidence; and any record of a conviction or an order.⁹ However, inspection of these documents can only take place after an application is made to the registrar within two days after the proceedings are finally disposed of and where the purpose of inspection is to make a fair report of the proceedings for publication.¹⁰ As well, the granting of access will be subject to any court order or overriding law and the registrar need not grant access to documents not in his or her possession or control.¹¹

11.6 Supreme Court Rules 1970 (NSW) Part 65 rule 7(1) provides that “a person may not search in a registry for or inspect any document or thing in any proceedings except with the leave of the court”. The discretionary basis on which that leave is granted or withheld is set out in Supreme Court Practice Note 97 (1998) (“Practice Note 97”).¹² Access will normally be granted to non-parties to:

• pleadings and judgments in proceedings that have been concluded, except in so far as a confidentiality order has been made;
• documents that record what was said or done in open court;
• material that was admitted into evidence; and
• information that would have been heard or seen by a person present in open court.¹³

11.7 Access to other material is granted only if the judge or registrar is satisfied that exceptional circumstances exist.¹⁴ Practice Note 97 gives the following rationale for this. In relation to affidavits and witness statements filed in proceedings, these are often never read in open court either because they contain matter that is objected to and rejected or because the matter has settled before coming on for hearing. These documents, as well as exhibits and pleadings, may contain matter that is “scandalous, frivolous, vexatious, irrelevant or otherwise oppressive” and which may, at the hearing, be ruled inadmissible.¹⁵ Practice Note 97 also explains that access is not normally allowed to pleadings and judgments prior to the conclusion of the hearing because material that is ultimately not read in open court or admitted into evidence would be seen.¹⁶

11.8 Practice Note 97 further points out that even where material has been read in open court or is included in pleadings, there may be good reason for refusing access:

Material that has been rejected or not used or struck out as being scandalous, frivolous, vexatious, irrelevant or otherwise oppressive, may still be legible. Where access to material would otherwise be unobjectionable, it may concern matters that are required to be kept confidential by statute … or by public interest immunity considerations …¹⁷

Case law
11.10 In Hammond v Scheinberg,²² Justice Hamilton dealt with an application by two of the plaintiffs that the Court give notice to the parties before allowing further media access to the affidavits. The plaintiffs objected to the Court having already given media access to affidavits without giving the parties notice of the application for access in accordance with Supreme Court Rules 1970 (NSW) Part 65 rule 7 and Practice Note 97. His Honour held that a Supreme Court trial judge has power pursuant to the inherent jurisdiction of the Court, or under s 23 of the Supreme Court Act 1970 (NSW), to determine all matters relating to granting access to any person to any material in evidence in the trial, including transcript of evidence, affidavits and exhibits.²³ Accordingly, he held that it was within these general powers, independently of Part 65 rule 7 and Practice Note 97, to allow media access to affidavits formally “read” (though not read aloud) in court in the proceedings without giving to the parties notice of the application for access.

11.11 There have been a number of cases where the courts have considered whether there were exceptional circumstances which warranted granting access to documents, to which access would otherwise have been refused.

11.12 In Australian Securities and Investments Commission v Adler,²⁴ Justice Santow granted media access to the Statement of Claim on the basis that the interests of justice would not be prejudiced, as the subject matter of the pleading was already in the public domain. In a subsequent application for media access to the defences filed,²⁵ Justice Santow allowed the application “in the interests of open justice” noting that “no countervailing prejudice to a fair trial”²⁶ had been identified and it was likely that the defence would be read in open court. His Honour was persuaded by the fact that there was considerable public interest in the proceedings. His Honour observed that “the Court must be the custodian of a responsibility to ensure that its processes are transparent and that justice occurs in a public way”.²⁷ His Honour further observed that:

If reporting is to be informed the media do, generally speaking, need access to the underlying documents before the court. That consideration though of great importance must not prejudice a fair trial.²⁸

11.14 In Australian Securities and Investment Commission v Rich,³¹ Justice Austin dealt with what were advanced by counsel opposing access to affidavits as qualifying principles to the doctrine of open justice. Although His Honour ultimately decided, on the facts of that case, that media access to the affidavits should be granted, His Honour took account of these qualifying principles. It is useful to set them out here as relevant considerations in resolving how a right of access to court documents should be framed. The arguments were as follows:

1. It would be unfair to release the evidence of one party, presented, for example, at an ex parte hearing, before the other party had had a chance to reply. However, His Honour was of the view that the principle of open justice entails that “when the Court makes quite significant orders on an ex parte application, the basis for the making of those orders must be available so that the court is accountable for what it has done”.³²

2. “Trial by media” may result from allowing public access to the court file prior to the hearing, a proposition which His Honour accepted carried weight.³³

3. Public access to affidavits may lead to abuse of the “absolute privilege” protecting a party from liability for defamation.³⁴ In other words, the media, if granted access to affidavits, may be free to publish defamatory material contained in the affidavits, relying on the defence of publication of a “fair protected report”. His Honour was of the view that this is a relevant consideration in an application for access, but that it must be weighed against other factors.³⁵

4. Access should be denied if release of information will only satisfy “prurience” and serve no public interest. His Honour accepted that considerations of privacy were relevant but needed to be weighed against the principle of open justice.³⁶

5. Access should be denied if release of information might jeopardize a negotiated arrangement between the parties.³⁷

6. Allowing media access to affidavits runs the risk of misleading reporting, as the media may not distinguish between admissible and non-admissible evidence.³⁸

7. Access should be denied if commercial confidentiality attaches to the documents.³⁹

DISCUSSION PAPER 43

11.16 In Discussion Paper 43 (“DP 43”),⁴³ the Commission was of the view that the law surrounding media reporting on court documents needed clarification. In order to give full rein to the principle of open justice, the Commission proposed (Proposal 22) that there should be a general public right of access to those court documents:

• admitted into evidence in proceedings in open court;
• read out, or read out as to the relevant part, in open court; or
• comprising part of the pleadings, information, indictment or summons on which the proceedings were based.

11.18 In Proposal 23, the Commission proposed that legislation should confer a public right to publish the contents of, or a fair and accurate summary of the contents of, such documents (subject to any restriction on publication ordered by the court). In addition, the Commission proposed that courts establish a system to facilitate ready access by non-parties to the relevant court documents.⁴⁵

SUBMISSIONS TO DP 43

11.19 The Australian Broadcasting Corporation⁴⁶ and a collective of Australian broadcasters⁴⁷ agreed with both Proposals 22 and 23 but submitted that the situation in relation to facts sheets and hand-up briefs, not marked as an exhibit or read out in open court, required clarification. ATN Channel 7 was similarly concerned that facts sheets may not come within the definition of “documents” and that the media was uncertain whether or not they were reportable, yet these were the more readily available documents on which the media relied.⁴⁸ In addition, the Joint Broadcasters’ Submission suggested that the media should have access to “any document relied on in open court.”⁴⁹

11.20 The Australian Press Council was also in agreement with both Proposals 22 and 23, subject to the limitation of circumstances in which lawful orders for restricted access are possible.⁵⁰ The Council did not elaborate on what it thought those limitations should be.

11.21 Mr Norris, Senior Solicitor, Crown Solicitor’s Office supported the proposals, with the qualification that a statement of facts should be a document “admitted into evidence” and for which, therefore, there should be a general right of access.⁵¹

11.22 News Limited⁵² and TCN Channel 9⁵³ both supported Proposal 22. TCN Channel 9 submitted that “the ability to report accurately relies on access to documents”. Neither commented on Proposal 23.

11.23 The New South Wales Industrial Relations Commission, in support of dot point one of Proposal 22, and, by implication, of dot point two, submitted that the argument can be made that if journalists are allowed to take down notes during the trial, then they ought to have access to documents that are admitted in evidence in open court. This, it was argued, would aid them in reporting court proceedings more accurately. Giving access imposes a burden on judges but not giving access imposes burdens on the media.⁵⁴

11.24 The New South Wales Industrial Relations Commission was, however, concerned that giving access to documents to the media would require giving access to the public, which could, in certain situations, compromise the administration of justice. The example given was the situation where a person against whom an apprehended violence order is sought gains access to court documents in order to track down the people who gave evidence against him or her.⁵⁵

11.25 The New South Wales Bar Council was in support of a general right of access to documents admitted into evidence in proceedings in open court, or read out in open court, but was of the opinion that giving access to pleadings merely relied on in a proceeding in open court may result in injustice.⁵⁶ It submitted that in many pleadings, scurrilous allegations are made and, if published, may cause damage to the parties.

11.26 The Law Society of New South Wales disagreed with Proposals 22 and 23 submitting that:

there are good reasons that general access to such material [as that specified in Proposal 22] ought to be restricted to circumstances where a person has a legitimate forensic reason to have access.⁵⁷

material produced to courts dealing with bail applications has sometimes been prematurely displayed in print or electronic media and that material tendered at committal has been prematurely reprinted or displayed on television (in circumstances where the material may never be exhibited at trial because of its prejudicial nature).⁵⁸

11.29 The Law Society did not favour giving the magistrate in the bail application the power to block access to material.⁶⁰ The Law Society’s rationale for this was that it is unreasonable to make defence lawyers, who may not themselves have access to all the material (such as an ERISP) at the time of the bail application, responsible to alert the court to inadmissible material; nor should responsibility fall on the magistrate, who may not even be aware of the existence of certain material, to issue a suppression order. It also pointed out that magistrates would be hard pressed to find the time to hear access applications, in addition to their normal workload. It preferred that applications for access to material presented at preliminary proceedings be made to the Attorney General. It also submitted that, because it would be difficult to know in advance what evidence may be inadmissible in the trial, media reporting on material not yet presented (or not presented at all) at the trial should be delayed until the trial is concluded.⁶¹

11.30 The Police Media Unit also expressed concern regarding access to ERISPs. In addition, it submitted that the publication of material obtained through covert surveillance, especially when the surveillance was ongoing, may jeopardise the particular, or similar, surveillance operations and even put those involved at risk.⁶²

11.31 The Director of Public Prosecutions (“DPP”) did not agree with Proposals 22 and 23 insofar as they related to criminal proceedings. He submitted that:

access should be denied to the media until the conclusion of the proceedings or until the Court makes a specific order authorising access in the proceedings. In the absence of a Court order, the denial of access should apply until the conclusion of the sentencing proceedings, and until the conclusion of summary proceedings, where relevant.⁶³

11.33 The DPP also submitted that media reporting, particularly reporting verbatim, of witnesses’ statements could deter those witnesses from giving evidence in subsequent trial proceedings. Further, media reporting of the contents of police briefs of evidence tendered at a committal hearing (which may contain much prejudicial material subsequently excluded by the trial judge on a discretionary basis) had the potential to prejudice a fair trial. The DPP also drew attention to instances where the media have obtained, and improperly published, ERISPs. Finally, the DPP submitted that if a broad right of access were to be given, it should not apply to video or audiotapes, nor to photographs, being material which has a “greater impact and potential to influence than other documentary material”.⁶⁴

11.34 The New South Wales Legal Aid Commission was concerned that the media may re-use material, originally obtained for reporting purposes, for subsequent purposes for which it was never intended. The example it gave was where a television program designed merely to entertain rather than inform incorporates material from court proceedings.⁶⁵

11.35 During consultations with several government lawyers, it was suggested that there should be a provision in the legislation to prevent certain material submitted in committal proceedings, for example, names of complainants in sensitive cases, being published. Some participants expressed the view that there should be no right of access to court files. It was also submitted that the term “right” of access should not be used.⁶⁶

THE ISSUES

Informed reporting

11.36 One of the key issues that must be considered is whether better access to court documents would lead to better reporting by the media, and, if so, what weight should be given to this. It is an issue going to the operation of open justice. It is not always practicable, or even possible, for a media organisation to have a representative in attendance for the duration of every court proceedings. Hence, the media will not always know everything that has transpired in a trial or hearing.⁶⁷ Furthermore, there is an increasing trend towards giving evidence in documentary form and a practice of affidavits not being read aloud in open court, but formally designated as “read” by counsel to the court.⁶⁸ As well, in a civil matter, one party, but not the other, may make documents available to the media, giving a one-sided view of proceedings.

11.37 Clearly, if the media does not have all the information regarding a case, the reporting to the public is less reliable. If, on the other hand, there is a general right of access to the documents described in Proposal 22, it can be argued that the media will obtain a better understanding of the facts and issues involved in a case, and “fair and accurate” reporting of court proceedings would result.⁶⁹ This was succinctly put by Justice Santow in Australian Securities and Investments Commission v Adler, as quoted in paragraph 11.12 above: “If reporting is to be informed the media do, generally speaking, need access to the underlying documents before the Court.”⁷⁰ However, Justice Santow went on to say: “That consideration, though of great importance, must not prejudice a fair trial.”⁷¹

Balancing competing principles

11.38 As Justice Santow rightly observed, the concern to facilitate fair and accurate reporting of court proceedings must be balanced against the need to protect the parties to a hearing, in particular the accused in a criminal trial, from prejudice to the proceedings.

11.39 Justice Austin, in Australian Securities and Investment Commission v Rich, after conveying the fundamental importance of the principle of open justice, emphasized that:

free access by the media to the contents of a court file is not, in absolute terms, a proposition flowing from the principle of open justice. There must be some limits to the extent to which any non-party is entitled to have access to material, especially where the material has not been the subject of evidence in open court.⁷²

Thus adopting a single bright line rule that access should always be allowed – or indeed never – in either case ignores that there are genuinely competing principles to be weighed. There is open justice, its processes made as accessible as possible through a properly informed Press reporting to the wider community and which seek to be contemporaneous. There is the need to avoid injustice and unfair prejudice in the trial from disclosure of serious and as yet untested or incompletely tested allegations, where prematurity of disclosure is at issue and where there is likely to be no redress in defamation, no matter how malicious the pleaded allegation. Neither principle has a priori ascendancy. Both are subordinated to the interests of justice in which the community is vitally concerned as well as the parties. These questions must therefore be tested, case by case, against that overriding purpose of the interests of justice.⁷³

11.42 Paradoxically, enlarging the media’s access to court documents imposes a substantial burden on the media to ensure that what is published is, in fact, a fair and accurate report of the court’s proceedings, or in any other respect free of prohibitions or restrictions on reporting, and thereby protected from a charge of contempt.⁷⁵ This signals the need for journalists to ensure that they well understand what material can be published, including understanding what evidence is inadmissible, such as evidence given on a voir dire, and should therefore not be reported. In Chapter 15, “The Media and the Courts”, the Commission discusses ways to assist the media in their ability to report without prejudicing court proceedings.

11.43 The DPP illustrated the dangers of allowing a general right of access in criminal trials by drawing attention to the instances where the media have obtained leave to access the court file and then inadvertently published material obtained on a voir dire and later rejected by the court, or the subject of a suppression order or inadmissible material or material not relied on. While these are legitimate concerns, it has to be questioned whether the incidence of improper reporting justifies complete restriction. As suggested by Justice Santow, adopting a single rule that access should never be allowed ignores the competing principle of open justice. Even with restrictions on accessing documents, there is still the danger that the media will inadvertently report prejudicial or inadmissible material it has heard in open court. Furthermore, the Commission recommends the safeguard that any right of access be subject to orders of the court.

Access to particular categories of documents

11.44 A number of submissions expressed particular concern in relation to giving access to pleadings and the court file generally, video and audio recordings (including ERISPs), witnesses’ statements, photographs, police surveillance material and documents relating to bail applications and committal hearings. The issue that arises is whether, if a general right of access is given to court documents, specific categories of documents, or even documents relating to specific proceedings, should be excepted.

Pleadings
11.45 The Commission notes the concern that pleadings often contain scurrilous allegations that, if published, may cause damage to the parties and result in injustice. As set out in paragraph 11.7 above, Practice Note 97 similarly explains that access is not normally allowed to pleadings and judgments prior to the conclusion of the hearing because material that is ultimately not read in open court or admitted into evidence, possibly because it is rejected or struck out as being scandalous, frivolous, vexatious, irrelevant or otherwise oppressive, would be seen. The issue therefore arises whether these documents should be excepted from a general right of access to court documents.

The court file
11.46 Documents which are kept on the court file include the originating process, transcripts of evidence, witness statements, affidavits, the associate’s records of proceedings, orders of the court, notices of motion and documents marked for identification, if these are not with exhibits. Exhibits are normally too bulky to be kept on the court file.

11.47 Affidavits and witnesses’ statements. Practice Note 97 explains that affidavits and witnesses’ statements are rarely read in open court (even in the purely formal sense), either because they contain matter that is objected to and rejected or because the matter has settled before coming on for hearing. As with pleadings, these documents may contain matter that is “scandalous, frivolous, vexatious, irrelevant or otherwise oppressive” and which may, at the hearing, be ruled inadmissible. In fact, affidavits may have an even greater potential to cause injustice than pleadings. There is also the possibility that media reporting, particularly reporting verbatim, of witnesses’ statements could deter those witnesses from giving evidence in subsequent trial proceedings.⁷⁶ Should these documents, therefore, be excepted from a general right of access to court documents?

Committal hearings
11.48 In David Syme & Co Ltd v Hill, the Court observed that:

[A committal] is an administrative step, albeit an important one, in the criminal process. The need for the public to know what is happening at a committal is of less significance than its need to know what is happening at a trial. Indeed, I consider it is strongly arguable that the less publicity attaching to a committal the better. I say that for the reason that often at a committal only one side of the case is fully presented to the magistrate, namely the case for the Crown.⁷⁷

[t]he reporting of committal proceedings is an example of the reporting of public affairs, notwithstanding that the publication of the report may cause prejudice to the accused at his trial by prejudicing the mind of potential jurors in relation to the issues to be determined at the trial. … [I]t is a case where on balance the wider interests of the administration of justice are thought, as the law currently stands, to be better served by allowing publicity.⁷⁹

11.51 It should be noted that the Law Society has observed that the time between a committal hearing and the trial is getting shorter, which presumably increases the potential for juror recall of prejudicial publicity surrounding the committal.⁸³ As well, as it is the practice to conduct committal proceedings by way of documentary evidence, if access were freely given to committal documents, media coverage of these hearings would in all likelihood increase.

11.52 In Herald & Weekly Times Ltd v Magistrates’ Court of Victoria,⁸⁴ the Court did not accept that the magistrate in a committal hearing did not have power to permit the public and reporters to see parts of the hand-up brief, or witness statements, otherwise:

reporting of committal proceedings would in many cases be in practical terms impossible. This would be a serious invasion of the principle of open justice.⁸⁵

11.54 The Court agreed with the judge at first instance that “a proceeding is properly conducted in open court if the public has the right of admission to that court which is reasonably and conveniently exercisable”⁸⁶ and does not “become ‘closed’ if a request by a member of the public or the press for such access were refused in the committal proceeding”.⁸⁷ The Court held that the requirement to hold proceedings in the Magistrate’s Court in open court⁸⁸ gave no right to access to the charge sheet and witness statements in a committal.⁸⁹ However, the Court commented that:

if the press is entitled to report upon committal proceedings, it would seem desirable that reasonable access be afforded to enable a fair and accurate report to be made, unless considerations contemplated by s 126 of the [Magistrates’] Act or referred to by Beach, J in David Syme & Co Ltd v Hill, dictate otherwise.⁹⁰

11.56 Hand-up brief. What is known colloquially as a “hand-up brief” is a brief of evidence handed up at a committal hearing. Section 48AA of the Justices Act 1902 (NSW) provides for mandatory use of written statements in committal proceedings.⁹² The documents in a hand-up brief can include transcripts, surveillance material, ERISP transcript (and sometimes the ERISP audiotape itself), analyst’s certificates in drug cases and photos.

11.57 One argument in favour of allowing access as of right to the hand-up brief is that ordinarily there will be no opening address and, unless the media is allowed access to the hand-up brief, it will be almost impossible to understand what is going on and produce a fair and accurate report. In particular, it can be difficult to understand cross-examination of witnesses without having access to the witnesses’ statements. An inability to access the hand-up brief acts as a strong deterrent to reporting on committal hearings, which is not in the interests of open justice.

11.58 However, hand-up briefs can contain material that has the potential to be highly prejudicial if published, such as details of prior convictions and admissions or confessions, and which may be ruled inadmissible at the subsequent trial. The Commission notes that s 314(1) of the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW) will, when it commences, allow media access to the hand-up brief (but not access by the general public) only after application to the Registrar and only after the “criminal proceedings” (as distinct from the committal proceedings) are “finally disposed of”.

THE COMMISSION’S VIEW

11.59 The Commission agrees with Justice Austin, in Australian Securities and Investment Commission v Rich, that:

free access by the media to the contents of a court file is not, in absolute terms, a proposition flowing from the principle of open justice. There must be some limits to the extent to which any non-party is entitled to have access to material, especially where the material has not been the subject of evidence in open court.⁹³

there is the need to avoid injustice and unfair prejudice in the trial from disclosure of serious and as yet untested or incompletely tested allegations, where prematurity of disclosure is at issue and where there is likely to be no redress in defamation, no matter how malicious the pleaded allegation.⁹⁵

11.62 The Commission notes that the majority of submissions were in favour of allowing the public access to any document, or part of a document, admitted into evidence in a criminal trial or civil proceedings held in open court, or read out in open court, subject to any suppression order.

11.63 The Commission does not agree that access to the documents included in Proposals 22 and 23 should only be given where there is “a legitimate forensic reason to have access”.⁹⁸ This negates the valid role of journalism in keeping the public informed about court hearings and exposing the judicial system to scrutiny. Although the Commission has reconsidered, in the light of submissions, exactly what court documents should be available to the public, it does not accept that the media should be denied access to all court documents because it does not have a “forensic reason” for accessing those documents.

11.64 The Commission notes the view that the media should not have access to court documents relating to criminal trials until the conclusion of proceedings or unless the court specifically authorizes access. Except for specific categories of documents and certain preliminary hearings, which the Commission considers below, it is difficult to see why the media should not be able to view documents that record what was said or done in open court or that were admitted into evidence in open court. In the Commission’s view, a blanket restriction on media access to such documents until the conclusion of proceedings, at which time the proceedings may well have lost their “newsworthiness”, is too great an interference with open justice.

11.65 Concerns that giving access to pleadings may lead to injustice are legitimate. Justice Santow in eisa Ltd v Brady expressed such a concern:

if it became the norm for courts to release to the press pleadings not yet heard and tested in open court, serious and damaging allegations could be put in pleadings for the purpose of their Press exposure relatively free of defamation risk.⁹⁹

11.67 The Commission appreciates the potential for pleadings to contain scurrilous allegations, which may not be pressed at the hearing itself. Although it also needs to be borne in mind that pleadings must only contain a statement in summary form of the material facts on which the party pleading relies for their claim or defence, but not the evidence by which they are to be proved.¹⁰¹ There is, therefore, less scope to make damaging allegations in pleadings than there is, for example, in affidavits.

11.68 Weighed against the concern that pleadings will contain damaging allegations is the reality that it may be difficult for the media to understand proceedings, and therefore report them accurately, without having access to pleadings, especially in light of the fact that pleadings are not usually read out in court.

11.69 The Commission is of the view that the concerns noted above would be addressed, and the media’s need to have access to pleadings accommodated, by excluding access to pleadings merely placed on the court file, and pleadings filed in the early stages of proceedings and later amended. This would be achieved by allowing access to pleadings only to the extent their content is relied on in open proceedings and referred to as forming the basis of the case argued by the party. In other words, pleadings would need to have been “deployed” in the proceedings. This approach accords with the observations of Justice Byrne in Smith v Harris¹⁰² that “a document prepared for, filed and even served is not in that sense [that is, in the context of open justice] part of the court’s proceedings, at least until it is deployed as part of the judicial process”.¹⁰³ His Honour further observed that there is a significant distinction between a document filed in the registry and the hearing in open court and that this distinction touches the policy underlying the immunity against any legal action where what is published is a fair and accurate report of court proceedings.¹⁰⁴ Ultimately, His Honour held that no common law privilege based on the public interest in court proceedings is available to the publisher of the content of a document that has been filed in court but not used in the judicial process.

CONCLUSION

11.70 Overall, the Commission has concluded that the interests of open justice and due process of the law can best be served if access is made available, without application, to a reasonably broad range of court documents and access to other specific documents is made possible after successful application to the court.

11.71 The Commission recommends that public access to the following categories of documents be given:

• pleadings to the extent their content is relied on in open proceedings and referred to as forming the basis of the case argued by a party;
• judgments and orders;
• documents that record what was said or done in open court;
• documents that were admitted into evidence in proceedings other than bail and committal proceedings and coronial inquiries;
• written submissions, to the extent their content is relied on in open proceedings and referred to as forming the basis of the case argued by a party; and
• documents recording the offences with which a person has been charged in open court.

11.73 Specifically, access to documents in bail and committal hearings and coronial inquiries would only be granted upon application. This does not mean that access to such documents would never be possible. It merely represents a reversal of the presumption of open access otherwise applicable to the categories of documents set out in paragraph 11.71 above, and a shifting of the onus to persons seeking access. The court would not have the task of considering whether access should be denied. Instead, the person wanting access would have the burden of showing the court why access should be given.

11.74 The reasons for distinguishing criminal preliminary hearings and coronial inquiries are largely practical ones. As referred to above, the empirical research in Managing Prejudicial Publicity suggests that there is no need to be overly concerned that a jury will recall media publicity of preliminary hearings. Nonetheless, a safeguard must be in place of preventing access to documents in certain circumstances. In the day-to-day running of these hearings, there are very real practical difficulties in making the magistrate or defence responsible for vetting all documents for their fitness for release to the public. In committals, the burden on the magistrate to go through all the documents contained in the hand-up brief to determine whether any material should be suppressed is too great, especially if there is no-one in court to alert the magistrate to problem material. The time is simply not available, with most preliminary hearings, and coronial inquiries as well, being concluded very quickly. Furthermore, the material that is handed up, in both preliminary hearings and coronial inquiries, is not actually ruled on as being admissible or not admissible and may be ruled inadmissible at a subsequent trial. On the other hand, application can be made to the magistrate, who has wide powers to make suppression orders, to suppress potentially prejudicial material. Such applications are frequently made and granted.

11.75 Another reason for distinguishing these particular hearings is that they are, as pointed out by Justice Beach in David Syme & Co v Hill¹⁰⁵ and referred to in paragraph 11.48 above, administrative proceedings and therefore not, strictly speaking, subject to the open justice principle.

11.76 The Commission has included one type of preliminary hearing document, namely the charge-sheet, in the above list of documents to which there should be open access, because this document is the criminal equivalent of civil pleadings that are relied upon. A charge-sheet is a simple statement of fact setting out the particulars of the offences charged. Usually, it is read out in open court, enabling the media to have access to the information. However, the defendant can waive his or her right to have the charges read out, which prevents media reporting of them.

11.77 This is what occurred in the case of R v Clerk of Petty Sessions; Ex parte Davies Brothers Limited and led to protests from the media.¹⁰⁶ In that case, Justice Slicer held that the public is entitled to know the nature of charges brought against a defendant put in open court and that access to the charge-sheet pleaded to should be allowed, despite the fact that the defendant had waived his right to have the charges read out. However, his Honour said that “publication of the contents of a complaint before its presentation in open court ought not to be permitted as of right.¹⁰⁷ The Commission has described the charge-sheet in its Recommendation 23 as being a document that sets out the offences with which a person has been charged in open court (whether or not it has actually been read out). This ensures that the document must have already been used in the criminal proceedings before it can be accessed and is the equivalent of the requirement that civil pleadings have been “deployed” in the civil proceedings.

11.78 In relation to access to material admitted into evidence, there is a potential risk that inadmissible material will then be seen. Often, objections are made in court to parts of evidence contained in a document, which parts may then be struck out, leaving the remaining contents of the document to be admitted into evidence. Access is made available to something that is, physically, one document, but which has sections of it that have not been admitted into evidence. It would not be practical for the court to make a fresh copy of the document, omitting the parts that have been struck-out, for the purposes of access. The Commission considered whether material admitted into evidence should be removed from the above list because of this risk. However, in the interests of open justice, it is preferable to err on the side of allowing wide-ranging access and rely on the court to make orders denying access in particular circumstances.

11.79 Under the Commission’s recommendation, a party or their legal representative would need to make known that they object to access being granted, or that they wish to reserve their position in regard to access, at the time material is being submitted for admission into evidence, in the same way that objections on the grounds of admissibility are made at this time. Otherwise, once material is admitted into evidence, open access would apply to that material. In the case of pleadings, once their content is relied on in open proceedings and referred to as forming the basis of the case argued by a party, open access would apply to such content. If an objection to access has been made and the objecting party has not given a release, media representatives, or anyone else not involved as a party, would need to apply to the court for access to the material.

11.80 Application would have to be made to obtain access to material on the court file not presented at the trial or hearing, with a presumption against the granting of access. Likewise, if the media wanted access to court documents before a trial or hearing, an application for access would have to be made.

11.81 The Commission believes that ERISP material and videotapes of “walk-throughs” should be excluded from the open access category because this material can be too graphic and can too easily contain inadmissible evidence, including inadmissible confessions of guilt. The propensity to prejudice a fair trial is too great. As well, the potential for broadcasts of this material to distress victims and family is a relevant consideration.

11.82 It should be borne in mind that, under the Commission’s recommendations, there would be an overriding safeguard whereby the court would retain the power to prohibit or postpone access to a document if it is potentially prejudicial. In addition, if a suppression order is not placed on particular documents, publication may still constitute contempt unless a defence of fair and accurate reporting is proved.

11.83 The Commission notes the concern that the media might archive certain footage from videos and records of interview and reproduce it at a later date, for a purpose unrelated to keeping the public informed of court proceedings. Likewise, a member of the public may be allowed access to a document for inappropriate personal reasons. There may also be cases where access is granted to photographs but publication of them in the course of making a fair and accurate report will cause great distress to the victim and/or family, or publication of them without explanatory text may distort their effect. The Commission is of the view that legislation should make provision for a power to impose conditions on access to, and reporting on a document, such as that the material is to be used for a specified purpose and not otherwise.

11.84 No distinction should be made between the media and the general public in regard to rights of access to documents. Pursuant to the principle of open justice, once it is thought appropriate to give access to certain documents, the general public has as much right as the media to access those documents. The operation of the principle of open justice is not confined to allowing the general public to walk through the door of the court to be present at a hearing or trial. It carries with it the implication that the public is entitled, just as much as the media, to avail themselves, as appropriate, of documentary material in order to be properly informed as to those proceedings.

11.85 Neither should a distinction be made between a right to obtain access to documents and a right to publish them. If access to documents is generally allowed, or granted after application, this carries with it, subject to any orders of the court or overriding law, a right to publish or summarise those documents, not merely to make reports of them from memory. Also, a right of access to documents should carry with it the right to copy those documents, subject to the payment of a reasonable amount by way of fee if copying is done by the court’s registry.

11.86 The Commission is of the view that application for access to documents should be made to the court involved in the proceedings, rather than to the Attorney General. The court itself is in the best position to make decisions as to whether access should be granted to specific documents and then to make documents available, knowing what orders have been made. As Justice Charles said in Herald & Weekly Times Ltd v Magistrates’ Court of Victoria:

[T]he presiding magistrate and counsel in any committal will obviously read the hand-up brief and all other statements or documents used during the committal. They should therefore be well-placed to deal with a request for access to any such document and the relevant considerations bearing upon the question whether access should be denied or limited, or publication of any material prohibited.¹⁰⁸

RECOMMENDATION 23

Legislation should provide that, subject to (a) any statute, (b) any order of the court prohibiting or restricting access to the relevant document or prohibiting or postponing reporting of the proceedings, or of the relevant part of the proceedings, and (c) any objection by a party or a person having a sufficient interest, the public should have a right of access to any document in one or more of the following categories:


(1) pleadings to the extent their content is relied on in open proceedings and referred to as forming the basis of the case argued by a party;

(2) judgments and orders;

(3) documents that record what was said or done in open court;

(4) documents that were admitted into evidence in proceedings other than bail and committal proceedings and coronial inquiries;

(5) written submissions, to the extent their content is relied on in open proceedings and referred to as forming the basis of the case argued by a party; and

(6) documents recording the offences with which a person has been charged in open court.

Where an objection is made, the court must prohibit or limit access only if the person objecting establishes that a grant of access would be contrary to the due administration of justice.

In relation to all other categories of document, applications for access to a document must be made to the court in which the proceedings are taking place. The applicant must establish grounds for a grant of access.

The word “document” should be defined to mean any record of information including:

(a) anything on which there is writing;

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or

(d) a map, plan, drawing or photograph.

RECOMMENDATION 24

The court in which the proceedings are taking place should have the power to prohibit or impose conditions on access to, or reporting of, a document referred to in Recommendation 23, including a condition restricting the purpose for which the document is to be used.

RECOMMENDATION 25

Legislation should provide that, subject to any rule of common law or statute or any order of the court prohibiting or postponing reporting of the proceedings, or of the relevant part of the proceedings, the public should have the right to publish the contents of, or a fair and accurate summary of the contents of, a document referred to in Recommendation 23.

1. See, for example, Russell v Russell (1976) 134 CLR 495 at 520, and the cases cited therein.

2. John Fairfax & Sons Limited v Police Tribunal (1986) 5 NSWLR 465 at 476-477, cited with approval in Australian Securities and Investment Commission v Rich (2001) 51 NSWLR 643 at para 21. See also Attorney General v Leveller Magazine [1979] AC 440 at 450: “The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court this principle requires that nothing should be done to discourage this.”

3. See also ch 9, which deals with the defence to a charge of contempt that a publication is a fair and accurate report of proceedings that take place in open court; and ch 10 which deals with suppression orders.

4. Smith v Harris [1996] 2 VR 335.

5. See, for example, Rules of the Supreme Court 1996 (Vic) r 28.05 which provides: “When the office of the court is open, any person may, on payment of the proper fee, inspect and obtain a copy of any document filed in a proceeding.” Supreme Court Rules 1997 (NT) r 28.05(1) is similarly worded; see also Uniform Civil Procedure Rules 1999 (Qld) Ch 22 Pt 2 r 981 and Rules of the Supreme Court 1965 (Tas) O 77 r 19, r 20.

6. See, for example, High Court Rules 1952 (Cth) O 58 r 8(2); Federal Court Rules 1979 (Cth) O 46 r 6; Criminal Practice Rules 1999 (Qld) Ch 12 Pt 2 r 57.

7. See, for example, Family Law Rules 1984 (Cth) O 5 r 6.

8. Only Schedule 1[17] of the Act, which concerns the description of offences, has commenced.

9. Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW) s 314(2).

10. Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW) s 314(1).

11. Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW) s 314(3)-s 314(4).

12. “That Practice Note in turn reflects the underlying principles and the distinctions made in the case law which has developed over the last ten to twelve years both in Australia and the United Kingdom”: eisa Ltd v Brady [2000] NSWSC 929 at para 15.

13. Supreme Court Practice Note 97 (1998) para 2.

14. Supreme Court Practice Note 97 (1998) para 2. This includes documents which are only partly read out in court, or which are not read out but merely referred to, or which are simply handed up to the judicial officer without being admitted into evidence, for example, hand-up briefs.

15. Supreme Court Practice Note 97 (1998) para 3.

16. Supreme Court Practice Note 97 (1998) para 4.

17. Supreme Court Practice Note 97 (1998) para 5.

18. District Court Rules 1973 (NSW) Pt 52 r 3(2).

19. Local Courts (Civil Claims) Rules 1988 (NSW) Pt 39 r 4(2).

20. See Supreme Court Rules 1970 (NSW) Pt 65 r 7; District Court Rules 1973 (NSW) Pt 52 r 3(2); Local Court (Civil Claims) Rules 1988 (NSW) Pt 39 r 4(2).

21. Alterskye v Scott [1948] 1 All ER 469; Ainsworth v Hanrahan (1991) 25 NSWLR 155; Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316.

22. Hammond v Scheinberg [2001] NSWSC 568.

23. Hammond v Scheinberg at 52.

24. Australian Securities and Investments Commission v Adler [2001] NSWSC 644.

25. Australian Securities and Investments Commission v Adler (2001) 39 ACSR 216.

26. Australian Securities and Investments Commission v Adler at para 7.

27. Australian Securities and Investments Commission v Adler at para 9.

28. Australian Securities and Investments Commission v Adler at para 10.

29. Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 769.

30. Idoport Pty Ltd v National Australia Bank Ltd at para 24.

31. Australian Securities and Investment Commission v Rich (2001) 51 NSWLR 643.

32. Australian Securities and Investment Commission v Rich at para 26.

33. Australian Securities and Investment Commission v Rich at para 27-28. See Stonham v Speaker of the Legislative Assembly of New South Wales (No 1) (1990) 90 IR 325 at 333.

34. See Defamation Act 1974 (NSW) s 24.

35. Australian Securities and Investment Commission v Rich (2001) 51 NSWLR 643 at para 29-33.

36. Australian Securities and Investment Commission v Rich at para 34-36.

37. Australian Securities and Investment Commission v Rich at para 37-38.

38. Australian Securities and Investment Commission v Rich at para 39-40.

39. Australian Securities and Investment Commission v Rich at para 43.

40. eisa Ltd v Brady [2000] NSWSC 929.

41. eisa Ltd v Brady at para 18.

42. eisa Ltd v Brady at para 20.

43. NSW Law Reform Commission, Contempt by Publication (Discussion Paper 43, 2000) (“NSWLRC DP 43”).

44. NSWLRC DP 43, Proposal 22.

45. See ch 15 of this Report, “The Media and the Courts”.

46. ABC, Submission 2 at 3.

47. Australian Broadcasters, Joint Submission at 10.

48. ATN Channel 7, Consultation.

49. Australian Broadcasters, Joint Submission at 10.

50. Australian Press Council, Submission at 7.

51. D Norris, Submission 3 at para 101.

52. News Limited, Consultation.

53. TCN Channel 9, Consultation.

54. NSW Industrial Relations Commission, Consultation.

55. NSW Industrial Relations Commission, Consultation.

56. NSW Bar Council, Consultation.

57. Law Society of NSW, Submission at para 46.

58. Law Society of NSW, Submission at para 46.

59. Law Society of NSW, Consultation.

60. Law Society of NSW, Consultation.

61. Law Society of NSW, Consultation.

62. Police Media Unit, Consultation.

63. N Cowdery QC, Submission at 3.

64. N Cowdery QC, Submission at 4.

65. NSW Legal Aid Commission, Consultation.

66. Government Lawyers, Consultation.

67. Mr Burgess, Lecturer in Journalism at the University of Southern Queensland, has noted the difficulties involved in preparing a fair and accurate report: “Trials can last for weeks or months, and often all the evidence given on a particular day will be in support of one side only. Additionally, the space available for court reports is limited”: C Burgess, Submission 2.

68. In Hammond v Scheinberg, Justice Hamilton observed that this practice was adopted to save court time and costs and “not for the purpose of removing from public hearing and scrutiny the affidavit material which would formerly have been read aloud in court and available to that scrutiny”: (2001) 52 NSWLR 49 at 54.

69. See ch 9, “The Fair and Accurate Reporting Principle”.

70. Australian Securities and Investments Commission v Adler (2001) 39 ACSR 216 at para 10.

71. Australian Securities and Investments Commission v Adler at para 10.

72. Australian Securities and Investment Commission v Rich (2001) 51 NSWLR 643 at para 23.

73. eisa Ltd v Brady [2000] NSWSC 929 at para 36, quoted with approval by Justice Santow in Australian Securities and Investment Commission v Rich (2001) 51 NSWLR 643 at para 23.

74. J J Spigelman “Seen to be done: the principle of open justice – part 1” (2000) 74 ALJ 290 at 292.

75. R McColl “President’s report” (2001) 21 Australian Bar Review 125 at 128.

76. N Cowdery QC, Submission at 2.

77. David Syme & Co Ltd v Hill (VSC, Beach J, 10 March 1995, unreported) at 6 cited with approval in Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [2000] 2 VR 346 at para 6.

78. Hinch v Attorney General (Vic) (1987) 164 CLR 15 at para 21.

79. Hinch v Attorney General (Vic) at para 22.

80. M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity (Justice Research Centre, Law and Justice Foundation of NSW, 2001).

81. Of 29 trials that received specific pre-trial publicity, reports of preliminary hearings of 11 trials, or 38%, were recalled by at least one juror: Chesterman, Chan and Hampton, Table 3.1 at 70 and para 173.

82. In relation to a very small number of trials where this period was less than six months, the incidence of recall was 54%: Chesterman, Chan and Hampton at para 195.

83. Law Society of NSW, Consultation.

84. Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [2000] 2 VR 346.

85. Herald & Weekly Times Ltd v Magistrates’ Court of Victoria at para 39.

86. Herald & Weekly Times Ltd v Magistrates’ Court of Victoria at para 40.

87. Herald & Weekly Times Ltd v Magistrates’ Court of Victoria at para 40.

88. Magistrate’s Court Act 1989 (Vic) s 125(1).

89. Herald & Weekly Times Ltd v Magistrates’ Court of Victoria at para 40.

90. Herald & Weekly Times Ltd v Magistrates’ Court of Victoria at para 42.

91. D Norris, Submission 3 at para 102.

92. Justices Act 1902 (NSW) s 48AA: “Evidence for the prosecution in any committal proceedings must (subject to this section) be given by means of written statements which are admissible as evidence under section 48A.” The Justices Act 1902 (NSW) is to be repealed by the Justices Legislation Repeal and Amendment Act 2001 (NSW), which was assented to on 19 December, 2001 but has not yet commenced.

93. Australian Securities and Investment Commission v Rich (2001) 51 NSWLR 643 at para 23.

94. eisa Ltd v Brady [2000] NSWSC 929 at para 36.

95. eisa Ltd v Brady at para 36.

96. John Fairfax & Sons Limited v Police Tribunal (1986) 5 NSWLR 465 at 476-477, cited with approval in Australian Securities and Investment Commission v Rich (2001) 51 NSWLR 643 at para 21.

97. Attorney General v Leveller Magazine [1979] AC 440 at 450.

98. See Law Society of NSW, Submission at para 46. The Commission is assuming that in using the term “forensic reason”, the Law Society means a reason directly related to the conduct of the trial or hearing.

99. eisa Ltd v Brady [2000] NSWSC 929 at para 20.

100. eisa Ltd v Brady at para 18.

101. Supreme Court Rules 1970 (NSW) Pt 15 r 7(1).

102. Smith v Harris [1996] 2 VR 335.

103. Smith v Harris at 341.

104. Smith v Harris at 341. Furthermore, “this distinction may be applicable, too, to affidavits which are filed in court and which may never be read or tendered” at 341.

105. David Syme & Co Ltd v Hill (VSC, Beach J, 10 March 1995, unreported) at 6 cited with approval in Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [2000] 2 VR 346 at para 6.

106. R v Clerk of Petty Sessions; Ex parte Davies Brothers Limited (1998) 8 Tas R 283.

107. R v Clerk of Petty Sessions; Ex parte Davies Brothers Limited at 297.

108. Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [2000] 2 VR 346 at para 42.