[10-530] Non-publication paper

Warning: This paper is an account of the law prior to the enactment of the Court Suppression and Non-publication Orders Act 2010. It has been archived rather than deleted because part of the discussion of the common law remains relevant.

Introduction

The central issue is the extent of the power to make non-publication orders binding on persons unconnected with the proceedings, usually the media, in their conduct outside the courtroom. At common law no such general power exists, however, in NSW specific powers are conferred by a variety of Acts which enable prohibition of publication of particular aspects of proceedings. The situation is different in other jurisdictions, such as Victoria, where the Supreme Court of Victoria has a broad power to “make an order prohibiting the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding”: s 18(1)(c) Supreme Court Act 1986 (Vic). The Federal Court also has a general power to prohibit publication under s 50 Federal Court of Australia Act 1976 (Cth).

Therefore, two issues arise in relation to non-publication and suppression orders in NSW, firstly, whether there is power to make the order, and secondly, if there is power, whether and on what terms, that power should be exercised in the particular circumstances of the case.

This may soon change as there is a proposal to confer a general power on all NSW courts to make non-publication orders under the Court Suppression and Non-publication Orders Draft Bill 2009.

Common law

The principle of open justice

“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:

The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hallmark of judicial as distinct from administrative procedure” (McPherson v McPherson [1936] AC 177 at 200).

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.

Test of necessity

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.

Pre-trial publicity

In most cases, non-publication orders are not granted to avoid the possibility that pre-trial publicity may prejudice an immanent trial. The risk that the publicity may cause the trial to be unfair would have to be “wholly exceptional” to satisfy the test of necessity. Even in cases which have attracted intense media attention non-publication orders have been refused. In O’Shane v Burwood Local Court (NSW) (2007) 178 A Crim R 392, McClellan CJ at CL suggested that it was perhaps even more important to adhere to open justice in high profile matters.

In O’Shane v Burwood Local Court (NSW) at [34], a pseudonym order protecting a complainant’s name was held not to be justified to protect the complainant from the intense media scrutiny to which she had been subjected because her complaint was against a prominent person. The inconvenience, irritation or distress the complainant may suffer from the media attention was held not to be a consequence of a kind that would undermine the proper administration of justice in hearing and determining APVO applications: at [49]. The suggestion that, as with blackmail victims, the pseudonym order was warranted because the intense media scrutiny may deter others from making complaints against persons in public office, was rejected. On the contrary, McClellan CJ at CL at [51] considered that the values inherent in the principle of open justice may be more important where there is heightened media interest and, except in a most unusual case, there should be no impediment to the public being informed.

In John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 where a series of trials were scheduled against the accused, the judge ordered the media not publish the guilty verdict in the first trial to avoid possible prejudice to the subsequent trials. It was held that this order was invalid. The appropriate way to remedy any prejudice that might have be caused was by an adjournment or a stay (at [55]), but there is no power to order non-publication of the verdict: at [66], [89].

Similarly, in Re An Application to set aside an order for non-publication; R v Williams [2004] VSC 413, a case involving an accused on whom a character in the TV series “Underbelly” was based, the court refused to order non-publication of the fact that the accused and his wife had pleaded guilty to drug trafficking charges on the basis that it may prejudice his pending murder trial. The drug trafficking charges and the murder trial were part of a series of trials arising from the “gangland wars” in Melbourne. However, the notoriety of the matter did not warrant prohibiting publication of the plea. Nevertheless, when the television series “Underbelly” was to be broadcast during the trial of one of the accused who was featured in the series, an order was made prohibiting the broadcast until after the verdict: General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68. The order made was directed to a particular television proprietor and was akin to an injunction to restrain a threatened contempt: at [28]. It was also relevant that the prohibition was not concerned with the publication of a news report of the proceedings but a dramatic portrayal for entertainment purposes of the very events which were the subject of the trial and would be running at the same time as the trial: at [55]–[56].

In R v Einfeld (No 2) (2008) 71 NSWLR 31 at [8]–[14], the Court of Criminal Appeal refused to grant an non-publication order of a pre-trial application to quash some of the counts in the indictment. The applicant was a prominent former judge charged with perverting the course of justice and the matter had attracted intense media interest. The application was likely to receive considerable publicity, however, there was no exceptional feature of the matter warranting the order. The material canvassed in the appeal and the reasons for judgment were all in the public domain, and jurors would be directed to disregard extraneous material. The test of necessity did not require non–publication of the fact of the appeal and its outcome to ensure a fair trial.

Power to make suppression orders

It is well established that a court has power to conduct proceedings in closed court and to make orders binding on the parties, witnesses, and others connected with the proceedings. At common law, the power to make suppression orders is part of the implied power of the court. Strictly speaking, there is a distinction between the inherent power of the Supreme Court and the implied power of inferior courts. The Supreme Court has an inherent jurisdiction to make such orders arising from its general responsibility as a superior court of unlimited jurisdiction for the administration of justice: as to the supervisory role of the Supreme Court, see generally Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531 at [91]–[100]. The inferior courts have implied power to do what is necessary to act within their jurisdiction: Grassby v The Queen (1989) 168 CLR 1 at 16–17; John Fairfax Group Pty Ltd v Local Court of NSW (1992) 26 NSWLR 131 at 147.

For most practical purposes that distinction may not be significant, as it is now settled that both the Supreme Court and the inferior courts have power to make such orders as are reasonably necessary to secure the proper administration of justice in the proceedings before them: John Fairfax & Sons Pty Ltd v Police Tribunal of NSW per McHugh JA at 477; John Fairfax Group Pty Ltd v Local Court of NSW at 160; Attorney-General (NSW) v Mayas Pty Ltd per Mahoney AJ at 345; John Fairfax Publications Pty Ltd v District Court of NSW at [24]–[37]. However, the distinction is still important in relation to contempt proceedings, as it is arguable that a suppression order made beyond power by the Supreme Court would be voidable, but not a nullity, whereas an order made beyond power by an inferior court would be a nullity, breach of which could not be the basis of contempt: Cameron v Cole (1944) 68 CLR 571 at 590; Re Macks; Ex p Saint (2000) 204 CLR 158 at [20]–[23]. Furthermore, inferior courts do not have power to punish a deliberate interference with the administration of justice by publication outside court, they only have power to punish a contempt committed in the face of the court, whereas the Supreme Court, in the exercise of its inherent supervisory jurisdiction, has power to protect inferior courts from contempt: United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 332–333.

The power to make non-publication orders of proceedings in open court

There are three basic views as to whether there is power to make non-publication orders binding on the public and the media in relation to proceedings conducted in open court. The first is that courts have no such authority, for it is more in the nature of a legislative than a judicial power. The second is that such a power does exist as an aspect of the inherent or implied power of the court. The third is that the power exists but it cannot be exercised to make an order directed explicitly to the media and only to the media.

1. 

No power to make non-publication orders

The classic statement of the jurisdictional limit on the power of courts to prohibit publication of proceedings conducted in open court is that of McHugh JA in John Fairfax & Sons Pty Ltd v Police Tribunal of NSW at 477:

… Courts have no general authority, however, to make orders binding people in their conduct outside the courtroom. Judicial power is concerned with the determination of disputes and the making of orders concerning existing rights, duties and liabilities of persons involved in the proceedings before the courts. An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common law rule and to bind people generally is an exercise of legislative — not judicial power. Nevertheless, conduct outside the courtroom which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. But the conduct will be a contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself ….

Accordingly, while non-publication “orders” may be binding indirectly in that publication in breach of such “orders” may constitute contempt, they are not binding “ipso jure” or of themselves. The basis of the contempt would not be contravention of the order itself (because that was not binding on the media or the public generally) but the intentional interference with the proper administration of justice, which the making of the order was designed to effect: John Fairfax & Sons Pty Ltd v Police Tribunal of NSW at 477; United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 333–334; R v CAL (1993) 67 A Crim R 562 at 564; R v Savvas (1989) 43 A Crim R 331; John Fairfax Group Pty Ltd v Local Court of NSW per Kirby P at 142; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55 (strictly speaking, Kirby P did not finally decide whether such a power exists in Raybos Australia Pty Ltd v Jones (at 57G) for the circumstances did not warrant making of the order in any event, however, his Honour expressed strong doubts that such a power existed (at 55G, 57E–58A)); Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago [2005] 1 AC 190 at [25]; John Fairfax Publications Pty Ltd v District Court of NSW per Spigelman CJ at [89] (However, Spigelman CJ appeared to confine the principle directed and directed only to persons unconnected to the proceedings, the implication being that there was power to make non-publication orders of proceedings conducted in open court if the orders were not directed explicitly to the media and the media alone: John Fairfax Publications Pty Ltd v District Court of NSW at [67], [77], [89]). This is discussed as the A third approach: the power exists but it cannot be directed to the media alone, below.

A breach of a non-publication order made under a statutory provision which binds persons outside the courtroom would prima facie constitute contempt whether or not the person was aware of the order. But where the order is not directly binding it is necessary to show that the publisher was aware of the order and had actual or imputed knowledge that publication would frustrate the effect of the order: Attorney-General (NSW) v Mayas Pty Ltd at 355; John Fairfax & Sons Pty Ltd v Police Tribunal of NSW at 477. In this way, a valid non-publication order binding on those in court may, indirectly, bind the general media. The basis of the contempt is publication knowing the order had been made and with actual or imputed knowledge of the purpose of the order: Attorney-General (NSW) v Mayas Pty Ltd at 356; John Fairfax & Sons Pty Ltd v Police Tribunal of NSW at 477; John Fairfax Publications Pty Ltd v District Court of NSW at [82]–[83].

However, where the order is made without power, such as an order purporting to prohibit publication of evidence given in open court, it is a nullity and cannot of itself be the basis of contempt: United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 333–334; Attorney-General (NSW) v Mayas Pty Ltd at 357.

The exercise of such general power purporting to bind people outside the courtroom is more in the nature of a legislative function than a judicial one: John Fairfax & Sons Pty Ltd v Police Tribunal of NSW at 477; Attorney-General (NSW) v Mayas Pty Ltd per McHugh JA at 355. Where it is considered that the evidence is so sensitive that it should not be published “it will often be proper to hear the evidence in camera”: Attorney-General (NSW) v Mayas Pty Ltd at 358. McHugh JA acknowledged that orders closing the court are less satisfactory than hearing the evidence in public and prohibiting publication but, that option is not available, in the absence of a statutory provision, so there is “no choice other than to open or close the court or have the name of a witness or other piece of evidence written down” and handed between the parties: Attorney-General (NSW) v Mayas Pty Ltd at 358.

In Attorney-General (NSW) v Mayas Pty Ltd, the magistrate in committal proceedings made an order prohibiting publication of the name of the victim of a sexual assault. There was no statutory power to make such an order at that time and, as the victim gave evidence in open court, the order was held to be a nullity and therefore the newspaper that published the victim’s name could not be guilty of contempt: Attorney-General (NSW) v Mayas Pty Ltd at 359. Similarly, in John Fairfax & Sons Pty Ltd v Police Tribunal of NSW, an order made prohibiting publication of the name of a person whose name was permitted to be disclosed before the tribunal was held to be beyond power: at 481A.

In Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago [2005] 1 AC 190 at [22]–[26], the Privy Council noted that closing the court, the use of pseudonyms or conducting a voir dire in the absence of the jury were actions indicating to the media that disclosure of the information in question was likely to have an adverse effect on the proceedings, and may not require the making of an order or a statement that the information not be published to form the basis of contempt proceedings. However, if the proceedings were conducted in open court with no protective measures adopted to limit disclosure of the information, the court could not prohibit publication.

2. 

Minority view that there is power to make binding non-publication orders in respect of proceedings in open court

However, even at the time of the decision in Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342, there were dissentient views that such a general power did exist. In Attorney-General (NSW) v Mayas Pty Ltd at 345–346, Mahoney JA suggested that, if the circumstances warranted an order closing the court, the existence of the power to make an in camera order “would justify the making of a non-publication order”, the reasoning being that the in camera order to protect the identity of a witness may be ineffective if publication of the name could not be prohibited.

Mahoney JA was in the minority in Attorney-General (NSW) v Mayas Pty Ltd. McHugh JA, in the majority judgment, made it plain that there is a distinction between a power to order the proceedings take place in closed court, which is an order regulating the conduct of the proceedings and binding only on those connected with the proceedings and a non-publication order which purports to bind non-participants in their conduct outside the courtroom. The existence of a power to close the court does not give rise to a power to prohibit publication binding on the world at large: Attorney-General (NSW) v Mayas Pty Ltd at 357–358. Mahoney P again stated this view in Nationwide News Pty Ltd v District Court of NSW (1996) 40 NSWLR 486 but was again in the minority. This minority view is often quoted and has led to some decisions to the effect that such a power exists: see, for example, R v Ngo [2000] NSWSC 976.

DPP v Smith (1996) 86 A Crim R 308 is sometimes cited as authority for the proposition that non-publication orders may be made in respect of evidence given in open court. However, it is doubtful that it supports that proposition for while it decided that the names of two informers should be suppressed even though their names had been disclosed in open court, this did not represent a departure from Mayas, on the contrary, in DPP v Smith at 312, McHugh JA’s view was cited with approval:

His point was that, if a decision is made not to exercise the statutory power to close the court, a magistrate cannot thereafter (in the absence of statutory authority) restrict publication of the evidence which has been given in open court.

That statement accepted that there was no power to order non-publication of evidence given in open court where it had been decided not to close the court or take any other suppression measures, but noted that the court did not lose the power to suppress information merely because it was disclosed in open court before the court had the opportunity to consider the issue. In DPP v Smith, the court said at 313:

If one accepts, as a matter of principle, that the magistrate had the power, in advance, to do in relation to Messrs Harris and Bowman, what she had already done in the case of Mr Green, and conceal their identities by permitting or directing the use of pseudonyms, then it cannot be the case that she was deprived of that power simply because, without any conscious decision on her part, their names were mentioned in open court. If it were otherwise, the operation of the public interest immunity could be frustrated by an accident, or by the malice of a witness who blurted out the name of an informer in open court before he or she could be stopped.

It is to be noted firstly, that the power referred to was not the power to order non-publication, but the power to allow the use of pseudonyms. It was that power, not the power to order non-publication, which was not lost by the unexpected disclosure. Secondly, it is clear that the circumstances in DPP v Smith were unusual. A pseudonym had been granted to one informer, and a claim of public interest immunity was upheld in relation to the names of the other two informers. The order sought was not a general non-publication order in respect of the evidence in open court, but an order allowing the use of pseudonyms and non-publication of that part of the evidence of a particular witness where the real names were disclosed, otherwise any pseudonym order would be futile. Given that it was accepted that public interest immunity warranted concealing the identities of the informers, it was held that the fact that a witness “blurted out” their names in open court did not deprive the court of power to rectify the situation and ensure their identities were concealed.

However, in Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643 at [43]–[44] this narrow view of DPP v Smith was not adopted. It was held that the power to “suppress the further dissemination” of information disclosed in open court was “not confined to situations where there has been a deliberate ‘blurting out’ of information known to be confidential”. It was considered that the “powers” were available where it was necessary to act in the interests of justice whether or not the evidence/information has been disclosed inadvertently, wilfully or in breach of earlier orders.

In Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria (1999) 1 VR 267 at [85], Hedigan J at [39] expressed the view that there was no difference between pseudonym orders and non-publication orders, they both stood on the same footing as exceptions to the general principle of open justice. It was said that the authorities “do not speak with one voice”, as to whether there is power to make an order binding on persons outside the court, and it was ultimately concluded that such power did exist. This view was cited in Brennan v State of New State Wales [2006] NSWSC 167 at [39]. In Re Bromfield, Ex p West Australian Newspapers Ltd (1991) 6 WAR 153 at 167.15, the West Australian Supreme Court also rejected McHugh JA’s view in Attorney-General (NSW) v Mayas Pty Ltd and John Fairfax & Sons Pty Ltd v Police Tribunal of NSW.

These decisions should be approached with caution. In Herald and Weekly Times v The Medical Practitioner’s Board of Victoria, it was thought that the difference between the authorities could be explained on the basis that such power exists as part of the inherent jurisdiction of a superior court but not as part of the implied power of statutory tribunals: at [46], [54], [83]. It was noted that in Victoria there is also statutory power to make such orders under s 18 Supreme Court Act 1986 (Vic): Herald and Weekly Times v The Medical Practitioner’s Board of Victoria at [48]. The existence of an inherent power to make orders “binding on the world” is also doubted in Victoria. In Re Application by Chief Commissioner of Police (Vic) for leave to appeal (2004) 9 VR 275 at [29], it was said to be “very doubtful” that it did exist although, given the statutory power, it was unnecessary to decide the issue:

Whether the Court possesses any inherent power to make such orders may be thought to be very doubtful, for they are directed to circumstances going beyond the administration of justice.

This view was affirmed in General Television Corp Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68 at [29], although it was considered that the inherent power extended to prohibiting a particular publication which carried a “significant risk of causing serious prejudice” to the accused receiving a fair trial, which was “akin to an injunction to restrain a threatened contempt”: at [28].

General Television Corp Pty Ltd v Director of Public Prosecutions concerned an accused who was the basis of one of the characters in the televisions series “Underbelly”. The trial judge made an order prohibiting all broadcast of “Underbelly” in Victoria and all publication on the internet until after his trial was completed. These orders purported to bind everyone in Victoria, not just the television station intending to broadcast the program: at [64]–[65]. Their terms covered a publican who had screened an episode for his patrons and anyone uploading material to the internet. The Court of Appeal narrowed the terms of the orders to refer to broadcast by the television station or related corporate entities (at [67]–[70]) with a warning that anyone else publishing “Underbelly” with knowledge of the order “would run a grave risk” of committing a contempt of court.

In Re Bromfield, Ex p West Australian Newspapers Ltd, the conclusion that such power exists was, to a significant extent, based on the decision of the House of Lords in Attorney-General v Leveller Magazine Ltd [1979] AC 440 which was curious because in Leveller even the prosecution had not contended that it did. Lord Diplock expressly refrained from stating a concluded view but plainly doubted its existence, and Viscount Dilhourne and Lord Edmund-Davies stated unequivocally that it did not. As Viscount Dilhourne put it, “It suffices for me to say that in my opinion the Courts of this country have no such power, except when expressly given by statute”. And Lord Edmund-Davies stated:

After considerable reflection I have come to the conclusion that a court has no power to pronounce to the public at large such a prohibition against publication that all disobedience to it would automatically constitute a contempt.

In Brennan v State of NSW [2006] NSWSC 167, a civil action for compensation for psychiatric injury suffered in the course of her employment as an undercover operative, the Police Commissioner claimed public interest immunity in relation to information about the conduct of undercover operations. The trial judge made “interim non-publication orders” in relation to the plaintiff’s name, her counsel’s opening address, some of her evidence and a confidential affidavit by the Deputy Commissioner of Police. His Honour also prohibited publication of submissions made, and evidence given, in open court. There was statutory power to make such orders, however, Hall J at [28] stated that there was also “an inherent jurisdiction to make such orders as may be necessary to secure the proper administration of justice in the proceedings” and quoted the statement in Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria that the authorities “do not speak with one voice” as to whether there is power to make an order binding on persons outside court: at [39].

On appeal, the view that there was power to make orders prohibiting publication of evidence given in open court seemed to have been accepted (although this was not the issue on the appeal): Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643 at [43].

While there is considerable authority for this view it remains the minority view. The preponderance of authority, particularly the recent decisions of the Privy Council and House of Lords, makes reasonably clear that no such power exists at common law. In Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago [2005] 1 AC 190 at [67], after a careful analysis of the authorities, including John Fairfax & Sons Pty Ltd v Police Tribunal of NSW and Attorney-General (NSW) v Mayas Pty Ltd, the Privy Council concluded that no such power exists and “if the court is to have the power to make orders against the public at large it must be conferred by legislation; it cannot be found in the common law”.

Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago involved a non-publication order made in a murder trial which had attracted intense media attention. Both the prosecution and defence agreed the order could be made under the “inherent power to control the proceedings of your court at common law, inherent jurisdiction”: at [6]. In deciding that no such “inherent power” (at [65]) existed, the Privy Council did not distinguish between superior courts and inferior courts but focused on the nature of the power asserted. The decision in Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago was recently quoted with approval by the House of Lords in Re Attorney-General’s Reference (No 3 of 1999) [2010] 1 AC 145 at [51].

Re Attorney-General’s Reference (No 3 of 1999) concerned an order that had been made by the House of Lords nine years earlier prohibiting publication of the name of an accused who had been acquitted of rape. The British Broadcasting Corporation sought to include the case in a series of programs on tainted acquittals and challenged the validity of the original non-publication order made nine years earlier.

The order had been made under statutory rules, the terms of which were limited to ensuring that the identity of the accused was not disclosed during the appeal proceedings (at [48]), whereas the terms of the order went further and purported to apply to any publication or broadcast: at [33]. The House of Lords held that the power conferred by the rules to withhold information during the proceedings did not extend to making an order directed to prohibiting publication of information disclosed in open court: per Lord Phillips at [2]; per Lord Hope at [10]; per Lord Brown at [51]–[52]; per Lord Neuberger at [83]. However, the issue of whether such a power existed under the inherent jurisdiction of the court was left undecided because it was considered that after the enactment of the Human Rights Act 1998 (UK), the power to make such orders existed and depended on balancing the Convention right to privacy (Article 8) and the right to free expression and communication (Article 10).

Lord Hope referred to an inherent jurisdiction to make such orders as are necessary for the purposes of the proceedings and noted that an order postponing publication had been made by the Judicial Committee of the Privy Council in Montgomery v HM Advocate [2003] 1 AC 641. However, the order in that case was made under s 4 Contempt of Court Act 1981 which conferred power to make an order postponing publication: Montgomery v HM Advocate at 675 per Lord Hope. As Hope LJ was referring to his earlier order under a statutory power, it would appear that this allusion to the inherent jurisdiction was not meant as a reference to the inherent jurisdiction at common law. Lord Phillips referred to the inherent power to prevent an unjustified interference with a party’s right to privacy under Article 8: at [2], although that reference also depended on a statutory basis, namely, as conferred by Article 8, not at common law.

Other than those references, the judgements of their Lordships centred on statutory not inherent power. Lord Brown relied on the decision of the Privy Council in Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago to the effect that there is no power to make orders against the public at large and doubted that any of the statutory provisions cited, including the Contempt of Court Act 1981, could confer the necessary power: [48]–[53]. His Lordship concluded that the power conferred by the rules did not extend to making non-publication orders of open court proceedings contra mundum (at [52]) from which it can be inferred that his Lordship considered that there was no inherent power to make such orders, for had there been inherent power there would have been no need to discuss the validity and scope of the possible statutory sources only to conclude that none of them supplied the necessary power. However, strictly speaking, his Lordship did not decide the issue because he considered that the discussion of the inherent power had been superseded by reference to balancing the competing rights to privacy and to freedom of expression and communication under the Human Rights Act 1998: at [54].

3. 

A third approach: the power exists but it cannot be directed to the media alone

In John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at [89], Spigelman CJ took a slightly different approach. His Honour accepted the reasoning of McHugh JA in Fairfax & Sons Pty Ltd v Police Tribunal of NSW and of the Privy Council in Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago and concluded that orders directed, and directed only, to persons unconnected to the proceedings are beyond power, however, his Honour placed some emphasis on the fact that those decisions applied to orders directed exclusively to the media: at [77].

Earlier in the judgement, his Honour had distinguished between the inherent jurisdiction of a superior court and the implied jurisdiction of a statutory court (at [38], [60]) and suggested that the power existed in the inherent jurisdiction but the circumstances in which it could be exercised were very limited: at [38]–[39], [45]. Where a “truly exceptional case” required the exercise of such power, it was said the Supreme Court could exercise its “protective inherent jurisdiction”: at [60].

This seemed to be based on the view that the reasoning of McHugh JA in John Fairfax v Police Tribunal of NSW and of the Privy Council in Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago applied only to orders directed exclusively to the media, but that otherwise there was power to make non-publication orders in respect of proceedings conducted in open court. This view seemed to be accepted by the Court of Appeal in Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) NSWLR 643 at [43]–[44], where it was held that the power of the Supreme Court “extended” to prohibiting publication of information disseminated in open court.

There is some difficulty in the formulation that the power exists but cannot be exercised to make orders directed exclusively to the media. The distinction between the existence and exercise of the power may not be helpful. It could be argued that if the power cannot be exercised against the media or the public that may be some reason for concluding that it does not exist. Or it may be that this third view is just another way of stating the view from John Fairfax & Sons Pty Ltd v Police Tribunal of NSW at 477, quoted above. That view is that non-publication “orders” made in respect of the conduct of the proceedings may be binding indirectly on the media, in that breach of such “orders” may constitute contempt on the basis of intentional interference with the proper administration of justice (which the order was designed to effect).

In the Herald and Weekly Times Pty Ltd v A (2005) 160 A Crim R 299 at [28]–[29] this was the reason the Court of Appeal (Vic) considered the question of whether the power to make such orders was “of little consequence”, namely, the orders would be binding indirectly anyway.

Basis for making orders

Mere belief that an order is necessary is not sufficient, there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. When the court is an inferior court, the order must do no more than is “necessary to enable it to act effectively within” its jurisdiction: John Fairfax & Sons Pty Ltd v Police Tribunal of NSW per McHugh JA at 477.

Terms of orders

Orders prohibiting publication must be clear in their terms and do no more than is necessary to achieve the due administration of justice: John Fairfax & Sons Ltd v Police Tribunal of NSW at 477 per McHugh JA.

This distinction between the power to make orders binding on persons in court and the power to make orders binding on persons not connected with the proceedings is fundamental because it also determines the terms of orders that can be made. Orders which regulate the conduct of the proceedings and purport to bind only those involved, such as orders to close the court, or directing that evidence be taken in writing or in a sealed envelope, or allowing the use of a pseudonym, may be valid if “really necessary to secure the proper administration of justice” in the proceedings. However, general non-publication orders purporting to bind the media in their conduct outside the courtroom are likely to be invalid as there is no power (apart from statute) to make such orders. On the other hand, non-publication orders directed only at those involved in the proceedings may be valid and may be enforced against the media indirectly by threat of contempt proceedings: John Fairfax & Sons Pty Ltd v Police Tribunal of NSW per McHugh JA at 477. A similar issue had arisen in Re Attorney-General’s Reference (No 3 of 1999) [2010] 1 AC 145 where a broad non-publication order was held invalid as the statutory rule under which it was made applied only to non-disclosure of the identity of the accused during the appeal proceedings themselves: at [48].

Generally speaking, the greater the restriction on openness the more likely the order will be invalid. Thus orders prohibiting publication of any mention of the case (Attorney-General (NSW) v Mayas Pty Ltd; Nationwide News Pty Ltd v District Court of NSW (1996) 40 NSWLR 486), or the name of a party (Raybos Australia Pty Ltd v Jones) are more likely to be considered invalid than orders allowing the use of pseudonyms, for they merely restrict disclosure of the identity of a particular witness but allow the proceedings to be conducted in open court and reports to be published: John Fairfax Group Pty Ltd v Local Court of NSW; Witness v Marsden (2000) 49 NSWLR 429.

The issue of prohibiting publication of the verdict raises particular problems. Many of the statutory provisions granting power to prohibit publication are in terms prohibiting publication of “evidence” or identities of witnesses, not of verdicts or other aspects of the case, and as the verdict is not evidence it may not be covered by such provisions and there may be no mechanism to prevent publication of the result itself: R v Chami; R v Sheikh (2002) 128 A Crim R 428; R v Strawhorn (No 2) [2006] VSC 433.

Similarly, in Nationwide News Pty Ltd v District Court of NSW (1996) 40 NSWLR 486 at 498, the trial judge prohibited publication of all mention of the proceedings which involved offences against school children committed by a school teacher. The order went beyond protecting the identity of the victims, or suppressing publication of “the evidence”, it purported to prohibit all mention of the case, even its name. This went beyond the power to close the court, or prohibit disclosure of the identity of victims or evidence, and was therefore invalid.

It is well established that such broad orders are invalid. Even where proceedings are conducted in closed court, it does not justify prohibiting publication of any mention of the name of the case, the terms of judgment or orders made (David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 per Street CJ at 294), or the identity of the presiding judge: R v Felixstowe Justices; Ex p Leigh [1987] QB 582.

In The Herald and Weekly Times Pty Ltd v A (2005) 160 A Crim R 299 at [37], an order prohibiting publication of any material adverse to the character and credit of the accused and an alibi witness was held to be too wide to be regarded as necessary to ensure the fairness of the trial (at [41]) and too imprecise given the uncertainty as to what might constitute an adverse reflection on the character and credit of the persons named. The Court of Appeal varied the order to prohibit publication of any detail of the accused’s prior convictions, the fact that he had been indicted and to another matter alluded to but not specified in the judgment for reasons of confidentiality: at [43].

Closed court

Courts may make orders to close or clear the court where the presence of the public would frustrate or render impracticable the administration of justice: R v Tait (1979) 24 ALR 473 at 487. For example, where there is tumult or disruption, or the reasonable apprehension of disruption, which interrupts the proceedings: Scott v Scott [1913] AC 417. Courts may exclude any or all persons whose behaviour interrupts the orderly procedures of the court: R v Governor of Lewes Prison; Ex p Doyle [1917] 2 KB 254.

An order to close the court is considered a serious departure from the principle of open justice and should not be made if some less drastic mechanism, such as the use of pseudonyms or sealed envelopes would achieve the necessary purpose. Orders to close the court may be made subject to certain conditions. In R v Richards and Bijkerk (1999) 107 A Crim R 318, the order made was that the proceedings be held in camera subject to accredited members of the media and legal profession being permitted to be present. This order was held to be valid in circumstances where there was concern about tampering with the jury.

It has been held that there is no power to close a court in the interests of public decency in a divorce case involving allegations of adultery (Scott v Scott), but an order to close the court to protect trade secrets or confidential commercial information may be valid in certain exceptional circumstances: R v Chief Registrar of Friendly Societies, Ex p New Cross Building Society [1984] QB 227; David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 per Street CJ at 29. The validity of the order was not really determined in that case, as the parties did not dispute that aspect of the earlier proceedings. However, on appeal, the request to close the court to protect confidential commercial information was refused. It was decided that the confidentiality could be maintained by avoiding detailed reference to the information during the appeal and other such strategies without having to close the court: David Syme & Co Ltd v General Motors-Holden’s Ltd per Street CJ at 296–297.

It has also been held that it would be inappropriate to close the court in a sentence appeal in the Court of Criminal Appeal on the basis that publicity disclosing the accused’s sentence and criminal history may prejudice his upcoming murder trial where the date of the murder trial had not been set. Hunt CJ at CL decided that the relevant test was whether justice could not be done in the sentence appeal (as opposed to the upcoming murder trial) if the public were not excluded from the sentence appeal. There would have to be exceptional and special circumstances to justify holding the sentence appeal in camera and such circumstances were not established. However, it was decided that a pseudonym order was warranted to avoid any potential prejudice to the murder trial: R v CAL (1993) 67 A Crim R 562 at 564.

The party requesting the order bears the onus of proving the necessity for it: Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 11; John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at [51]. Applications for closed court or suppression orders should be conducted so as not to violate the confidentiality claimed or render any prospective order futile. This will usually mean that applications for a closed court are heard in closed court and proceedings for suppression orders do not disclose the names of the persons whose identities are sought to be protected (R v Chief Registrar of Friendly Societies, Ex p New Cross Building Society [1984] QB 227); even if the applications are eventually refused: R v CAL (1993) 67 A Crim R 562.

A corollary of the principle of open justice is that there should be no communication calculated to affect the outcome of the proceedings between the judge and the parties in chambers. The procedure of communicating sensitive or confidential information which affects the outcome of the proceedings in chambers, even if done with the consent of all parties, is not appropriate. This procedure may undermine public confidence in the courts as the outcome of the case may appear discordant with the material presented in court. The process of reasoning which has decided the case should be fully exposed. If it is necessary to maintain confidentiality over certain evidence or documents, the court may sit in camera or adopt procedures such as sealed envelopes and ensuring that the unpublished material is kept secure and not referred to in such terms that would violate the necessary confidentiality. However, the court must be astute to ensure that the procedures adopted give as much information as possible to the public: R v Tait (1979) 24 ALR 473 at 491–492. See also R v Foster (1992) 25 NSWLR 732 at 736–741.

The position in civil proceedings is regulated by s 71 Civil Procedure Act 2005 which provides that proceedings may be conducted in the absence of the public if the presence of the public would defeat the ends of justice and in other designated circumstances.

Pseudonym orders

Pseudonym orders restrict the disclosure of the identity of a witness or party but allow the court to remain open and the proceedings to be reported. For this reason, the use of pseudonym orders is considered a “minimal” incursion on the principle of open justice: Witness v Marsden (2000) 49 NSWLR 429 at [143]–[144].

Pseudonym orders are not directly binding on the media: see authorities cited above at [10-650]. Where pseudonyms are used in court, the media is not entitled to publish the true identities as part of a fair report of the proceedings. If the media disclose the true identities despite having been warned of the reasons for withholding the identities in court there will likely be a clear inference that the disclosure was made with the intention of frustrating or interfering with the order and that may constitute contempt: R v Savvas (1989) 43 A Crim R 331 at 336.

The recognised categories where pseudonyms have been allowed are to protect the identity of informers: Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246; John Fairfax & Sons Pty Ltd v Police Tribunal of NSW at 472; blackmail cases where the suppression of the blackmail material, usually the identity of the victim, was necessary to prevent the damage threatened by the blackmailer being effectuated by the proceedings themselves (R v Socialist Worker Printers and Publishers Ltd; Ex p Attorney-General [1975] QB 637), and cases involving national security: A v Hayden (1984) 156 CLR 532; compare Re a Former Officer of the Australian Security Intelligence Organisation [1987] VR 875; Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440.

However, courts are reluctant to extend the categories of case where pseudonym orders may be used. In John Fairfax Group Pty Ltd v Local Court of NSW, it was sought to apply the rationale for the use of pseudonym orders in blackmail cases to extortion cases. Mahoney JA adopted a wide view of the test of necessity and extended the exceptions to cover extortion cases: at 161, 163. Kirby P dissented and pointed out that the fact that victims of extortion may not want publicity for fear of copycat attempts, unfavourable publicity and financial loss did not constitute exceptional circumstances necessitating the departure from open justice: at 149.

However, the list of exceptions is not closed and pseudonyms may be allowed in cases “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]. In Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 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: see also Attorney-General for New South Wales v Nationwide News Pty Ltd (2007) 73 NSWLR 635 at [29].

Test of necessity

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:

1. 

The witness is to be addressed and referred to in the court only by a pseudonym.

2. 

Any matter which is likely to lead to the identification of the witness is not to be reported by those in court.

3. 

No photographs, film or video recording is to be taken of the witness in the court or within its precincts, and no drawings or other likenesses are to be made of the witness either in the court or within its precincts.

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.

Postponement of publication

A distinction has been drawn between the power to prohibit publication and the power to postpone publication: per Lord Denning in R v Horsham Justices; Ex p Farquharson [1982] 1 QB 762 at 791–792. There is a “rule” that evidence adduced in the voir dire cannot be published until the jury has reached its verdict. It is said a court may direct that there be no publication of anything said in the absence of the jury until after the case is finished: Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 19.

A court also has power to postpone publication of material from pre-trial applications which may affect the subsequent trial (R v Milat (unrep, 11/3/96, NSWSC) per Hunt CJ at CL), or in cases of multiple accused where each is tried successively and the evidence may prejudice the subsequent trials, or in cases where publication of evidence in one proceeding may prejudice another proceeding that has already begun: R v Horsham Justices; Ex p Farquharson [1982] 1 QB 762 at 791–792; Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 at 450.

It has been suggested that, whenever the jury is sent out, there is an implied direction that there be no publication because it is obvious that premature publication of material adduced in their absence may prejudice the trial and therefore constitute contempt: Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 19.

It may be misleading to refer to such postponement orders as orders in the usual sense. They are not orders binding on persons outside the courtroom however they are enforceable by the threat of contempt proceedings: see Mirror Newspapers Ltd v Waller at [28]–[30]. It may be easier to establish contempt where the judge has warned the media of the dangers of publishing the material, but in some cases, even without such a warning, it may be obvious from the nature of the material that publication would prejudice the proceedings: Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago at [22]–[26].

In practice, the media “could usually be expected to act responsibly and, once asked not to report those preliminary proceedings until after the jury had reached their verdict, they would not do so”: R v Milat (unrep, 11/3/96, NSWSC); R v CAL (1993) 67 A Crim R 562. In R v Milat, Hunt CJ at CL acknowledged there was no power to bind the media directly and relied on them to act responsibly and not publish material disclosed in various pre-trial applications. However, when the trial was imminent and a greater number of media representatives converged, Hunt CJ at CL found there was a substantial risk that pre-trial proceedings would be reported, even innocently, in a way which would inevitably cause substantial prejudice to the trial. There would be no sanction such as contempt proceedings if publication occurred and therefore, at that stage, the only option was to close the court for the pre-trial directions hearing: R v Milat (unrep, 11/3/96, NSWSC).

Prior restraint orders

Where it is known that a particular media organisation is planning to publish a story which may affect a current proceeding, it is possible to apply to the Supreme Court for a prior restraint order. A prior restraint order is similar to an interim injunction. It is an order that a particular item not be published as it would prejudice the trial: General Television Corp Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68.

The District Court, as an inferior court, has no power to order the prior restraint of a threatened contempt by the media. The reason is based on the distinction between inherent and implied jurisdiction. The District Court has no jurisdiction to punish contempt other than a contempt committed in the face of the court. However, the Supreme Court, in the exercise of its inherent supervisory jurisdiction, has power to protect inferior courts from contempt: United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 332–333.

In United Telecasters Sydney Ltd v Hardy, a District Court judge presiding at a trial involving a migration offence was informed that a television station intended running a story about immigration rackets of the kind with which the accused was charged. The judge made an order prohibiting the station from publishing any material which directly or indirectly identified the accused or the nature of the charge. A solicitor for the station gave an undertaking that the accused’s identity would not be disclosed. Although the broadcast did not identify the accused directly, it was possible to identify him from certain oblique references, as a result of which the trial judge decided that the jury had to be discharged. The prior restraint order was distinguished from a non-publication order because it was not an order designed to protect the accused’s anonymity. The accused’s identity had already been disclosed in open court. The order was not addressed to the media in general to prevent publication of the accused’s identity (which would have been beyond power), rather it was directed at a particular station to prevent a threatened contempt.

Nevertheless, a District Court judge has no power to make such an order. Therefore it was a “complete nullity” and the breach of the order did not constitute contempt. However, the broadcast could be a contempt on the basis that it was a deliberate interference with the proper administration of justice: United Telecasters Sydney Ltd v Hardy at 332–333.

Standing of the media

When non-publication orders are made under the common law which are indirectly binding on the media, a media interest has standing to apply to a superior court for prerogative, declaratory or injunctive relief, but it is doubtful that they have a right to be heard at trial level: John Fairfax Group Pty Ltd v Local Court of NSW.

When non-publication orders are made under a statutory provision and are directly binding on the media they may seek leave to be heard, even at trial level, about the making, modifying or vacating of the order. Media interests do not have an absolute right to be heard, in the sense that they are necessary parties to such applications, it is a matter of discretion for the court whether it will grant leave to be heard. The court may have regard to various practical considerations, in particular, the time available to hear such applications, in deciding whether to grant leave. If the media interest is present when an application is made for an order which will directly bind the media, ordinarily the trial court will hear the media interest, at least to the extent that is consistent with doing justice in the trial.

Regardless of whether the media were granted leave to be heard on such applications, they have standing to apply to a superior court for prerogative, declaratory or injunctive relief: John Fairfax Group Pty Ltd v Local Court of NSW at 167–169; Nationwide News Pty Ltd v District Court of NSW (1996) 40 NSWLR 486.

Access to documents

Neither the media nor the public at large have a right to have access to court documents. The principle of open justice is a principle, not a right, and it does not operate as some form of freedom of information Act providing access to court documents: John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 per Spigelman CJ at [29]. There is no common law right to obtain access to a document filed in proceedings and held as part of the court record: John Fairfax Publications Pty Ltd v Ryde Local Court at [30]; however, there are statutory provisions which provide for access in certain circumstances: see [10-780].

A document does not become part of the court proceedings for the purposes of access until it is used as part of the judicial process. The mere filing and serving of the document does not by itself make it part of the proceedings and entitle non-parties to access: John Fairfax Publications Pty Ltd v Ryde Local Court at [65]–[75].

Statutory provisions

The statutory provisions operate in addition to the common law. In contrast to the common law’s restrictive approach, the provisions enable courts to make orders binding on persons unconnected with the proceedings in their conduct outside court, and they confer wide powers to close courts and prohibit publication,[2] particularly in relation to sexual offences, children and law enforcement.

In civil matters there is power to prohibit publication tending to reveal the identity of a party or witness under s 72 Civil Procedure Act 2005. The test is whether “it is necessary to do so to secure the proper administration of justice in the proceedings”. In DC v State of New South Wales [2010] NSWCA 15 at [23], a civil action by two sisters in relation to sexual abuse committed upon them by their stepfather, a non-publication order was made in respect of the sisters’ names and the name of the district officer with the Department of Youth and Community Services who was responsible for dealing with their complaints against their stepfather. The Court of Appeal discharged the non-publication order in relation to the district officer because it could not be shown that it was necessary to secure the proper administration of justice for the order to have been made. There was no indication that naming the officer might lead to identifying the complainants nor any evidence to substantiate why such an order was necessary in the circumstances of the case.

The Court Suppression and Non-publication Orders Draft Bill 2009 proposes granting a general power to order on-publication to all NSW courts. The test 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 also 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 Bill gives precedence to the principle of open justice by providing that “a primary objective of the administration of justice is to safeguard the public interest in open justice”: s 5(2).

Children

Children (Criminal Proceedings) Act 1987

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.

Sexual offences

Criminal Procedure Act 1986

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.

Closed court

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.

Non-publication orders

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]

Crimes Act 1900

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).

Confidential communications

Chapter 6 Pt 5 Div 2 Criminal Procedure Act 1986 contains a number of provisions to protect the privilege of sexual assault counselling communications. Those provisions relate mostly to the disclosure, production and admissibility of the protected counselling communications but s 302 gives the court power to make ancillary orders to limit the possible harm of disclosure of a protected confidence. The orders a court may make include orders that all or part of the evidence of the protected communication be heard in camera and such orders relating to the suppression of publication of all or part of the evidence as are considered necessary to protect the safety and welfare of any protected confider.

Sections 126A–126F Evidence Act 1995 relate to professional confidential relationship privilege. The provisions are mostly about the exclusion of evidence of protected confidences but s 126E gives the court power to make ancillary orders to limit the possible harm caused by disclosure of evidence of a protected confidence or protected identity information. The ancillary orders a court may make include orders that all or part of the evidence be heard in camera and such orders relating to the suppression of publication of all or part of the evidence as are necessary to protect the safety and welfare of the protected confider.

Apprehended violence order proceedings

Section 45(1) Crimes (Domestic and Personal Violence) Act 2007 prohibits publication of the names of children involved in apprehended violence order proceedings. Section 45(2) gives the court power to make an order prohibiting publication of the names of persons other than children involved in such proceedings.

Other statutory provisions

Local Court

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.

Coroners 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.

Bail

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.

Sentencing

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.

Improper questions

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.

Court of Criminal Appeal

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.

Witness Protection Act 1995

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.

Law Enforcement (Controlled Operations) Act 1997

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).

Law Enforcement and National Security (Assumed Identities) Act 1998

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.

Terrorism (Police Powers) Act 2002

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.

Federal offences: Crimes Act 1914 (Cth) and Criminal Code 1995 (Cth)

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.

Miscellaneous provisions

There are many other provisions relating to non-publication in a variety of Acts some of which are listed below merely to illustrate the sorts of provisions available but this list not in any sense comprehensive or exhaustive:

  • Section 41 Drug and Alcohol Treatment Act 2007 — non-publication of name of person involved in detention or treatment proceedings

  • Section 151 and cl 1 Sch 2 Mental Health Act 2007 — contain provisions relating to conducting mental health inquiries in private and prohibiting or limiting publication of the evidence or any report of the proceedings

  • Schedule 2 Victims Support and Rehabilitation Act 1996 — non-publication of names of persons involved in proceedings before the Victims Compensation Tribunal

  • Section 6 Lie Detectors Act 1983 — non-publication of evidence of offences of improper use of a lie detector

  • Section 57 Guardianship Act 1987 — non-publication of names of person involved in guardianship proceedings.

Media access to court documents

Criminal Procedure Act 1986

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.

Supreme Court Rules

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.



[1] This is a quote from McHugh JA in John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 476. A more recent re-statement of this principle is John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 per Spigelman CJ at [17]–[21] and John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at [60]–[63] where Spigelman CJ cites his two part article on open justice titled “Seen to be done: the principle of open justice” (2000) 74 ALJ 290 (Pt 1) and 378 (Pt 2).

[2] However care must be taken to construe the terms of each provision carefully. In the review that follows, the general effect of the provisions is given, but the specific meaning of the various provisions depends on the particular terms used eg, the meaning of “publish” or “publication” in the various sections may depend on the terms of the section as a whole. “Publish” may mean to disclose information to any person or discrete group, or it may mean disclosure to the public generally, as the media does by publishing or broadcasting to a broad group of people (that is the meaning specified in s 73 Coroners Act 2009).

[3] The commentary in R Howie and P Johnson, Criminal Practice and Procedure NSW, LexisNexis Butterworths, Sydney, 1998 at [2-s 292.1] that Nationwide News and Crampton are authorities for the proposition that the name of the accused can be suppressed under this section is incorrect. Those cases stand for the contrary proposition, namely, that the accused’s name cannot be suppressed under this section.