Criminal Trial Courts Bench Book — Miscellaneous

“The fundamental rule of the common law is that the administration of justice must take place in open court.”^[1] The classic formulation is that proceedings should be conducted “publicly and in open view”: Scott v Scott [1913] AC 417 at 441. This is especially true of criminal proceedings: R v Tait (1979) 24 ALR 473 at 487; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 58.

Openness is regarded as an essential characteristic of a court. A law requiring closed hearings would be inimical to that inherent attribute and would therefore be invalid, as was held in Russell v Russell (1976) 134 CLR 495 in relation to one of the original provisions of the Family Law Act 1975 requiring hearings in closed court, because courts cannot operate as courts in that way. Gibbs J said in Russell v Russell:

Gibbs J was quoted in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 53. See also Dickason v Dickason (1913) 17 CLR 50 and John Fairfax Publications Pty Ltd v District Court of NSW at [22].

The principle of open justice entails that courts be open to the public and the media may freely publish fair and accurate reports of the proceedings: John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 481 per McHugh JA. It is considered a “basic human right” to have a public trial to which the media has access: John Fairfax Group Pty Ltd v Local Court of NSW (1992) 26 NSWLR 131 per Kirby P at 141; John Fairfax Publications Pty Ltd v District Court of NSW at [99]. It is also essential to maintaining “confidence in the integrity and independence of the courts” that judicial proceedings be “fully exposed to public and professional scrutiny and criticism”: Russell v Russell at 520; see also John Fairfax Publications Pty Ltd v District Court of NSW per Spigelman CJ at [99].

However, where “the nature or the circumstances of the particular proceeding are such that a public hearing would frustrate or render impracticable the administration of justice”, the principle of open justice must yield to the more fundamental principle that the chief object of courts is to ensure that justice is done: Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 13.

The advantage of open justice is that courts are open and accountable; the disadvantage is the “personal and public harm” that may be caused by unrestricted publicity: in John Fairfax Group Pty Ltd v Local Court of NSW per Mahoney JA at 164. The balance has been weighed very clearly in favour of open justice and departures from that principle, such as orders to close the court or to allow the use of pseudonyms, are only valid in those wholly exceptional circumstances where they are “really necessary to secure the proper administration of justice” in the proceedings: John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 477 per McHugh JA; David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 per Street CJ at 299–300; John Fairfax Group Pty Ltd v Local Court of NSW at 160.

The test is one of necessity, namely, whether it is “really necessary to secure the proper administration of justice” in the proceedings: John Fairfax & Sons Pty Ltd v Police Tribunal of NSW at 477 per McHugh JA. The necessity for such measures would arise only in “wholly exceptional” circumstances, not merely where such measures would be useful or desirable (John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 per Spigelman CJ at [45]), or would save embarrassment, distress or financial loss: Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 347 per Mahoney JA; John Fairfax Group Pty Ltd v Local Court of NSW (1992) 26 NSWLR 131 per Kirby P at 142–143.

The test of necessity does not confer a general discretion to balance the principle of open justice against the avoidance of harm likely to be caused by disclosure: John Fairfax Group Pty Ltd v Local Court of NSW per Mahoney JA at 164. There is a “high level of strictness” applied in determining whether it is really necessary to exercise the power to suppress disclosure or publication: O’Shane v Burwood Local Court (NSW) (2007) 178 A Crim R 392 at [34]; John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at [51]; John Fairfax Publications Pty Ltd v Ryde Local Court at [40]–[45].

The test for making an order under the Court Suppression and Non-publication Orders Draft Bill 2009 is whether the order is “necessary to prevent prejudice to the proper administration of justice” (s 5(1)), or to the defence and security interests of the State or Commonwealth. However, the Bill includes an alternative public interest test of whether “it is otherwise in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice”: s 5(1).

The categories of cases where exceptions to open justice are valid are few and “strictly defined”: R v Tait (1979) 24 ALR 473 at 487; McPherson v McPherson [1936] AC 177 at 200; Russell v Russell (1976) 134 CLR 495; John Fairfax Group Pty Ltd v Local Court of NSW at 141; John Fairfax Publications Pty Ltd v District Court of NSW at [19], [45], and courts are loathe to expand the field: Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55.

The well established categories are to protect the identity of an informer, to protect the identity of victims of blackmail, matters of national security and to postpone publication of evidence in a voir dire: Mirror Newspapers Ltd v Waller per Hunt J at 19D; John Fairfax Group Pty Ltd v Local Court of NSW per Mahoney JA at 159F; John Fairfax Publications Pty Ltd v District Court of NSW per Spigelman CJ at [45]–[48].

Although those categories are strictly defined, they are not absolute and may be extended to categories “closely analogous” to the existing categories. In R v Kwok (2005) 64 NSWLR 335, it was held that non-publication orders may be made in respect of complainants in cases of sexual servitude under the Criminal Code (Cth). The position of victims of such offences was regarded as closely analogous to victims of blackmail: R v Kwok at [21]–[27]. The victims of extortion are also said to be in a similar position to victims of blackmail and pseudonym orders protecting their identity were approved in John Fairfax Group Pty Ltd v Local Court of NSW. The category of police informer does not include a co-offender who co-operates with authorities and gives evidence for the prosecution. The danger such a witness and his family face deserves consideration and may result in a suppression order being made, but not on the basis that the witness falls into the category of police informer: R v Strawhorn (No 2) [2006] VSC 433 at [41].

In Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643 at [37], Mason P stated that he was aware of no authority justifying a closed list of exceptions and if it could be demonstrated to be harmful to the public interest in the relevant sense, then the court’s power to frame a protective order outside one of those categories would be engaged. Similarly, in Attorney-General for New South Wales v Nationwide News Pty Ltd (2007) 73 NSWLR 635 at [29], Hodgson JA held that a case of “true necessity” could be found even if not in one of the recognised categories.

Outside of those categories, the test of necessity requires “at least” that there be identified “some substantial detriment or risk to the administration of justice that would, in a significant way, be alleviated by suppression of the information”: Attorney-General for New South Wales v Nationwide News Pty Ltd at [39]. In Attorney-General for NSW v Nationwide News, taped confessions were obtained using the undercover technique considered in Tofilau v The Queen (2007) 231 CLR 396. The trial judge closed the court, allowed the use of confidential affidavits, and edited exhibits to restrict disclosure of information about undercover operatives and the technique used. The Police Commissioner sought a non-publication order of designated parts of the evidence and sought to have references to the technique expunged from the public record of the proceedings. This was sought on the basis of public interest immunity and an analogy was drawn between protecting the identity of a police informer, which is a recognised category, and protecting confidential police methods. The Court of Criminal Appeal rejected that analogy (at [31]–[32]), holding that evidence of the technique used to obtain the confession would have to be given and would be the subject of challenge at trial and appeal in all cases where the technique was employed, therefore, there would be no secrecy as to the technique, particularly as it has also been the subject of other reported proceedings. To prohibit publication of all such references would “grossly conflict” with the principle of open justice: at [31]. The Attorney General’s application for special leave to appeal against this decision was refused: Attorney-General (NSW) v Nationwide News Pty Ltd [2007] HCATrans 803 (14.12.07). A similar approach was adopted in the Victorian Court of Appeal in relation to non-publication of all references to this technique: Re Application by Chief Commissioner of Police (Vic) for Leave to Appeal (2004) 9 VR 275 at [29]–[35].

The history of the exceptions to open justice is reviewed by Kirby P in John Fairfax Group Pty Ltd v Local Court of NSW (1992) 26 NSWLR 131 at 141. That discussion has been cited with approval in later cases, however, the decision itself is a dissenting one. The reason for allowing these exceptions in cases of victims or informers is not out of tenderness towards the victim or the informer but because experience has shown that such complainants or witnesses will not come forward unless they are given some protection: R v Savvas (1989) 43 A Crim R 331 at 336; R v CAL (1993) 67 A Crim R 562 at 564.

The making of pseudonym orders is subject to the test of necessity discussed above, namely, whether it is “really necessary to secure the proper administration of justice” in the proceedings: John Fairfax & Sons Pty Ltd v Police Tribunal of NSW at 477 per McHugh JA. Accordingly, the use of pseudonyms should not be allowed merely because it would be useful or desirable (John Fairfax Publications Pty Ltd v Ryde Local Court per Spigelman CJ at [45]), or would save embarrassment, distress or financial loss: Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 347 per Mahoney JA; John Fairfax Group Pty Ltd v Local Court of NSW per Kirby P at 142–143; R v Chief Registrar of Friendly Societies Ex p New Cross Building Society [1984] QB 227 at 235.

However, there have been suggestions that such a stringent test does not apply to pseudonym orders. In ABC v D1 [2007] VSC 480, a civil case concerning an allegation of sexual assault, the victim and the four defendants were given pseudonyms. Pseudonyms were allowed for both the victim, and more unusually the defendants, because the sexual assault occurred in a small country town and disclosure of the defendants’ names may lead to identification of the victim. The orders were held to be warranted as the victim had suffered “severe” psychological damage and her condition may deteriorate further if the defendants’ names were disclosed. There was also a “real risk” that she would not continue with the action if the defendants were named: at [81]–[82].

In ABC v D1 at [38], Forrest J noted that it had not been suggested that there was any material difference between the test under ss 18 and 19 Supreme Court Act 1986 (Vic) and the inherent power of the court. It was also noted that in John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at [94]–[96], Spigelman CJ had stated that the test of necessity required “a high level of certainty” and an assessment in terms of “what could and most probably would” be the effect of adverse publicity lacked the degree of certainty this extraordinary jurisdiction required. Forrest J expressed the view that this set the bar too high in relation to pseudonym orders and that the correct test was that propounded by McHugh JA in John Fairfax & Sons Pty Ltd v Police Tribunal of NSW of whether it is “really necessary to secure the proper administration of justice” in the proceedings: ABC v D1 at [50]. Given that pseudonym orders did not involve the same degree of intrusion into the principle of open justice as orders such as closed court orders, the appropriate test was not “near certainty” but the test of necessity: ABC v D1 at [61]. Forrest J propounded seven principles relating to the making of pseudonym orders: ABC v D1 at [65]–[71].

ABC v D1 was followed in AB v D1 [2008] VSC 371, where pseudonym orders were made in respect of the victim and defendant in proposed civil proceedings for sexual assault. The complainant alleged that she was sexually assaulted by her stepfather when she was 13 years old and as a result she gave birth to a son. The complainant suffered from a psychiatric condition. The complainant and her stepfather shared a common surname and were members of a particular ethnic community in Victoria. The orders were made on the basis that her mental health may deteriorate if she were identified and identification “will inhibit or compromise” her ability to commence the proceedings: AB v D1 at [4]–[5].

These principles may not have direct application in NSW. Forrest J had noted that it had not been suggested that there was any material difference between the test under ss 18 and 19 Supreme Court Act 1986 (Vic) and the inherent power of the court (at [38]), and proceeded on the basis that the considerations relevant under ss 18 and 19 were the same as those at common law. However, s 19 sets out a number of circumstances where non-publication and suppression orders may be made. These include prejudice to the administration of justice and national and internal security. However, s 19 goes further and also lists offending public decency or morality, causing undue distress or embarrassment to complainants in sex offences and witnesses under examination in sexual offences.

It is doubtful that the test from John Fairfax v Police Tribunal of whether it is “really necessary to secure the proper administration of justice” in the proceedings encompassed considerations of public decency or embarrassment to witnesses. It is also doubtful that in referring to the high level of certainty required for the test of necessity, Spigelman CJ was propounding a different test to that propounded by McHugh JA in John Fairfax & Sons Pty Ltd v Police Tribunal of NSW. The circumstances of the victim in ABC v D1 were exceptional and went beyond undue embarrassment or distress. The complainant had a severe psychological condition and had made attempts at self-harm. Publication would very likely have led to the termination of the proceedings.

Cases involving police informers may involve a claim of public interest immunity. Claims of public interest immunity raise similar considerations to applications for closed court or suppression orders, but the making of such orders is an entirely separate matter. That distinction is sometimes blurred: DPP v Smith (1996) 86 A Crim R 308; Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246. Under the Evidence Act, a claim of public interest immunity may lead to a direction that the information or document not be adduced as evidence: s 130 Evidence Act 1995 “Exclusion of evidence of matters of state”. A direction about the admissibility of the material involves separate, if not entirely different considerations, to the question of whether a closed court or suppression order is required.

Pseudonyms are not usually assigned to an accused, but there may be rare cases where it would be appropriate, for example, where the accused has given assistance to authorities (R v WHS (unrep, 27/3/95, NSWCCA)); or where publicity about his criminal history in the instant case may prejudice his upcoming trial in another matter: R v CAL (1993) 67 A Crim R 562. An accused’s fear of embarrassing publicity is not sufficient reason to allow use of a pseudonym: R v CAL.

In some cases, pseudonym orders may create actual prejudice to the defence. The restriction on the publication of the true identities of parties or witnesses may deprive the defence of the opportunity of being supplied valuable information from the public. The use of pseudonyms may also create the impression for the jury that the witnesses are being treated specially because the court has accepted the genuineness of their fears and thus the veracity of their evidence against the accused. One way to minimise this prejudice is to avoid conspicuous pseudonyms such as the use of letters or names of colours or “Smith” or “Jones”, which emphasise the special treatment being given to them: R v Savvas at 338.

The purpose for making such orders should be outlined to the media, in the absence of the jury, and the media should be warned that a frustration or interference with that purpose would result in contempt proceedings. The orders themselves cannot be reported until after the trial has concluded: R v Savvas at 339.

The orders granted in R v Savvas were:

Similar orders were approved and adopted in Witness v Marsden (2000) 49 NSWLR 429 at [146]–[147]. Those orders are carefully framed so that their terms apply only to persons in court, they avoid any application to the media generally.

There is an automatic prohibition on the publication of information connecting children with criminal proceedings. This does not depend on the court making an order to that effect, it applies generally and automatically and contravention constitutes an offence punishable by fine, imprisonment or both: s 15A(7). Section 15A does not prohibit all publication of the proceedings, it applies only to the publication of the name of a child in a way that connects the child to criminal proceedings. “Name” includes any information, picture or other material that identifies or likely will lead to identification: s 15A(5).

The section has been said to be “self-executing” and it is normally not appropriate for a court to make orders, such as pseudonym orders, to prohibit publication for that is the purpose the statutory prohibition is designed to achieve. Such orders are “unnecessary”, “inappropriate” and “otiose”: Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK, and MRK [2006] NSWCCA 386 at [26]–[27]. It is not unusual for courts to use initials to denote the accused’s name to protect the identity of witnesses, but it is not appropriate to order such use of initials to prevent publication of the name of the accused who is a child when such publication is automatically prohibited by the section. It would be preferable to give directions drawing attention to the effect of the section rather than make an order purportedly binding on third parties: Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK, and MRK at [27].

A court may authorise publication where the child had been convicted of serious indictable offences. Section 15C confers power on the court sentencing a child for a serious indictable offence to make an order “at the time of sentencing” to authorise publication. It is not a general power to authorise publication, it applies only to the sentencing court at the time of sentencing: Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK, and MRK [2006] NSWCCA 386 at [12]–[20]. A court may also give consent to publication in certain circumstances: s 15D.

Where a child is a party to proceedings, s 10 allows the court to exclude from the hearing any person not directly interested in the proceedings. Any immediate family of a deceased victim is entitled to remain: s 10(1)(c). Media representatives are also “entitled” to remain unless the court otherwise directs: s 10(1)(b).

There are similar provisions in relation to Children’s Court proceedings in ss 104 and 105 Children and Young Persons (Care and Protection) Act 1998 and in relation to any apprehended violence order proceedings: s 45 Crimes (Domestic and Personal Violence) Act 2007. See also s 65 Young Offenders Act 1997 which contains similar prohibitions on the publication of the name of any child dealt with by the alternative procedures established under that Act.

Part 5 Div 1 (ss 290–294D) Criminal Procedure Act confers broad powers to close courts and prohibit publication in proceedings for prescribed sexual offences. The definition of prescribed sexual offences in s 3 includes virtually all sexual offences, therefore the provisions apply to almost all sexual offence cases.

Sections 291, 291A and 291B Criminal Procedure Act provide that proceedings for prescribed sexual offences be heard in camera.

Proceedings in respect of incest or attempted incest (ss 78A and 78B Crimes Act) must be held in camera, there is no power to direct otherwise: s 291B.

In cases of other prescribed sexual offences, the proceedings are to be held in camera when the complainant gives evidence, unless the court otherwise directs: s 291(1). However, the court may only direct that the complainant’s evidence be given in open court at the request of a party, and only if satisfied that the complainant consents or there are special reasons in the interests of justice requiring the evidence be given in open court: s 291(3). The principle of open justice does not of itself constitute special reasons. Therefore, the direction that the evidence be given in open court depends, to some extent, on the consent of the parties.

In relation to the rest of the proceedings, other than the complainant’s evidence, the court has a discretion as to whether those parts of the proceedings are also to be held in camera: s 291A.

Where the proceedings are a re-trial and the record or the complainant’s evidence from the original trial is tendered, it is not required that the record be tendered (or the record played) in camera: s 291(6).

Even though the court may have ordered that the proceedings be heard in camera, the court may make arrangements to allow the media to hear or view the evidence while it is being given, for example, from another place by closed circuit television, or to see a record of the evidence: s 291C.

In civil proceedings, s 71 Civil Procedure Act 2005 provides that proceedings may be conducted in the absence of the public if the presence of the public would defeat the ends of justice. Section 71 also lists six other circumstances where proceedings may proceed in closed court.

Section 292(1) Criminal Procedure Act confers a wide power on a court to make an order “forbidding” publication of the whole or any part of the evidence in the proceedings, or of any report or account of that evidence. However, no such order is to be made if the prosecution or accused indicate that any matter given in evidence should be available for publication: s 292(2). It is an offence to contravene any order made: s 292(3). Section 292 is effectively the old s 578 Crimes Act 1900, which was repealed and transferred to the Criminal Procedure Act. It does not stipulate what matters are to be taken into account in making a non-publication order. No order is to be made if the accused or the prosecution request the matter be published, therefore, like the decision that the complainant’s evidence be given in open court, the making of the non-publication order depends, to some extent, on the consent of the parties. Section 292 enables a court to prohibit publication of the “evidence” given in a case, but it does not give power to suppress all mention of a case, the name of the accused, the fact that proceedings have been brought, the result, the name of the judge and the fact that an application to lift the suppression order has been made and refused: Nationwide News Pty Ltd v District Court of NSW (1996) 40 NSWLR 486 at 498; Crampton v DPP (unrep, 7/7/97, NSWCA).^[3]

Section 578A Crimes Act prohibits publication of any matter which identifies or is likely to identify a complainant in prescribed sexual offence proceedings. Section 578A applies in addition to other prohibitions in respect of prescribed sexual assault proceedings: s 578A(6). It does not depend on a court order, although the offence of publishing matter identifying a complainant does not apply where the publication has been authorised by the judge or justice in the proceedings (s 578A(4)(a)); or where the publication is with the consent of the complainant (being over 14 years of age at the time of publication) (s 578A(4)(b)); or in other defined circumstances: s 578A(4)(c)–(f).

The Criminal Procedure Act 1986 provides that committal and summary proceedings must take place in “open court”: ss 56, 191. These sections state that they are subject to “any other Act or law”. Presumably, this means they are subject to the common law and statutory provisions which empower the court to proceed in camera and make suppression orders and, notwithstanding the broad language used, are not intended to require that all Local Court proceedings be conducted in open court.

The Coroners Act 2009 gives a coroner holding an inquest power to clear the court and prevent publication of any evidence given at the inquest. There are broader powers in cases where the death may have been self-inflicted: ss 73–77; see also Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1.

No information calculated to identify a person (other than the accused) specified in non-association condition of bail is to be published or broadcast: s 36C Bail Act 1978.

Similar restrictions on publishing and broadcasting apply to non-association orders imposed when sentencing an offender: ss 17A, 51B, 100H Crimes (Sentencing Procedure) Act 1999.

Section 195 Evidence Act 1995 prohibits publication of any improper question which has been disallowed (under s 41); any question that has been disallowed because the answer would contravene the credibility rule; and any question in respect of which the court has refused leave under the Ch 3 Pt 3.7 (Credibility). It is an offence to publish any such questions without the express permission of a court.

Appeals under s 5A Criminal Appeal Act 1912, involving a question of law following an acquittal, must be held in camera. There is a prohibition on reporting the Crown submissions or publishing material which identifies the accused.

Part 3 of the Act contains provisions to protect the identity of those in the witness protection program. Where the identity of a participant in the witness protection program is in issue or may be disclosed in any proceeding, the court must, unless the interests of justice require otherwise, hold that part of the proceedings in private and make such order suppressing publication as is necessary: s 26(1). If a participant with a new identity gives evidence, the court may hold that part of the proceedings in the absence of the public: s 26(2). Part 3A (ss 31A–31E) contains similar provisions where a person with a new identity is required as a witness in relevant proceedings.

Section 28 Law Enforcement (Controlled Operations) Act confers wide powers on courts to protect the identity of participants in authorised operations.

Where the identity of a participant in an authorised operation is in issue or may be disclosed in any proceeding, the court must, unless the interests of justice otherwise require, ensure that such part of the proceedings that relate to the identity of the participant are held in private and make such orders as to the suppression of evidence as will ensure that the identity of the participant is not disclosed: s 28(1). In particular, the court may allow a participant in an authorised operation who has been authorised to participate in an operation under an assumed name, to appear before it under that name, and may make a non-publication order in respect of any information that identifies or may facilitate the identification of a person who has been or is proposed to be called to give evidence: s 28(2).

Publication in contravention of such orders is an offence under the section: s 28(3).

Section 14 Law Enforcement and National Security (Assumed Identities) Act confers wide powers on courts to protect the identity of certain officers who have an assumed identity approval under the Act.

Where the identity of an officer in respect of whom an assumed identity was or is in force is in issue or may be disclosed in any proceeding, the court must, unless the interests of justice otherwise require, ensure that such parts of the proceedings that relate to the identity of the officer are held in private and make such orders as to the suppression of evidence as will ensure that the identity of the officer is not disclosed: s 14(1). In particular, the court may allow the officer to appear before it under an assumed name, code name or code number, and may make non-publication orders in respect of any information that identifies, or may facilitate the identification of, any person who has been or is proposed to be called to give evidence: s 14(2).

Contravention of such orders is an offence under the section: s 14(3). Section 15 creates an offence of disclosing information relating to evidence of identity.

This legislation sets up extraordinary procedures for applications to obtain preventative detention orders and prohibited contact orders. In proceedings for such orders, the court is not bound by the rules of evidence (s 26O); and the public is to be excluded. The court has no discretion about excluding the public; but there is a discretion concerning whether to prohibit publication of the whole or any part of the proceedings, or of the whole or any part of the evidence in such proceedings: s 26P.

Both the Crimes Act 1914 (Cth) and Criminal Code 1995 contain provisions empowering a court exercising federal jurisdiction to exclude all or some members of the public, to suppress publication of all or some of the evidence and to prohibit access to documents used in the proceedings. The test is not one of necessity. In the case of s 85B Crimes Act it is whether adopting such a course “is expedient in the interest of the defence of the Commonwealth”. In the case of s 93.2 Criminal Code it is whether “it is in the interest of the security or defence of the Commonwealth”. Both sections make it an offence to contravene such orders punishable by five years imprisonment. This legislation was considered in Lodhi v R (2006) 65 NSWLR 573.

Section 314 Criminal Procedure Act “entitles” media organisations to “inspect” a variety of documents, including the indictment, facts sheet, police brief and transcripts of evidence. See also Practice Note SC CL 8 “Media Access to Sexual Assault Proceedings Heard in Camera”.

Application for access may be made to the registrar of the court. Documents will not be made available if they are subject to a suppression order or they are prohibited from being published for any reason: s 314(4). This section does not allow access to documents at any time. Access may be granted from the time the proceedings commence until two working days after they are finally disposed of for the purpose of preparing a fair report of the proceedings.

Section 314 applies to criminal proceedings but it does not apply to apprehended domestic order proceedings. In John Fairfax Publications Pty Ltd v Ryde Local Court the media sought access to court documents relating to assault and apprehended domestic violence order proceedings involving a prominent magistrate. The media were granted access to the documents relating to the assault charge because those proceedings were covered by s 314, but not to the apprehended domestic violence proceedings. The media sought access to those documents by relying on the implied power of the Local Court and the general law principles relating to open justice.

Practice Note No SC Gen 2 “Supreme Court — Access to Court Files”, allows non-parties to have access to a range of material, including pleadings and exhibits. Access to such material depends on the grant of leave by the court. The Rules provide that leave “will normally be granted” however that is not automatic. Access will not be granted where the judge or registrar considers that the material should be kept confidential.

In R v Xu (No 1) (2005) 152 A Crim R 17 at [44] access to a video exhibit was refused because publication of the images may cause greater distress to the accused and be harmful to her rehabilitation.

In R v Elomar (No 3) [2008] NSWSC 1443, the trial judge allowed the media to photograph weapons which were exhibits in the case. In R v Thomas Sam (No 16) [2009] NSWSC 544, the media were allowed access to some photographs of the child victim in a manslaughter case after the trial was finished. An earlier application for access during the trial had been refused. However, even after the trial, access to some of the photographs which showed the child in an “afflicted” state were not released. In R v Benbrika (Ruling No 26) [2008] VSC 452 at [6], the media were refused access to a video showing the conduct of a search because it may lead to the identification of an ASIO officer who had worked on the case.

Practice Note DC (Civil) No 11 “Access to Court Files by Non-Parties” provides for similar access in District Court matters.

Clause 62 Pt 9 Local Courts (Criminal and Applications Procedure) Rule 2003 allows non-parties to proceedings to have access to a copy of the court record or transcript of evidence with leave of a magistrate or registrar of the court.