R v Clerk of Petty Sessions; Ex Parte Davies Brothers Limited
[1998] TASSC 144
•19 November 1998
144/1998
PARTIES: R
v
CLERK OF PETTY SESSIONS,
DAVIES BROTHERS LTD, Ex parte
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M112/1998
DELIVERED: 19 November 1998
HEARING DATE/S: 7, 12 August 1998
JUDGMENT OF: Slicer J
CATCHWORDS:
Procedure - Contempt, attachment and sequestration - Contempt - What constitutes - Interference with course of justice and administration of law - Prejudicing fair trial of accused - Newspaper, radio or television report - Before committal - Publication of particulars of complaint unread but pleaded to.
Berry v Piggott, 24/1963; R v Matterson & Ors; Ex parte Moles A54/1993; Smith v Harris [1996] 2 VR 335; Homestead Award Winning Homes Pty Ltd v State of South Australia Butterworths, unreported 1998, 15 September 1997, followed.
R v Glennon (1992) 173 CLR 592, applied.
Lucas & Son (Nelson Mail) v O'Brien [1978] 2 NZLR 289; Cunningham v The Scotsman Publications Ltd (1987) SLT 698; Bunn v British Broadcasting Corporation and another [1998] 3 All ER 552, approved.
Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385, considered.
Justices Act 1959 (Tas), ss3, 16, 17A, 18(2), 37, 50A, 56(1), 56A(2)(a), 72(1)(a) and 74A.
Justices Rules 1976 (Tas), rr63, 9 and 10.
Aust Dig Procedure [679]
REPRESENTATION:
Counsel:
Prosecutor: R E Hudson
Respondent: D J Bugg QC
Solicitors:
Prosecutor: Butler, McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment category classification:
Court Computer Code:
Judgment ID Number: 144/1998
Number of pages: 16
Serial No 144/1998
File No M112/1998
THE QUEEN v CLERK OF PETTY SESSIONS,
Ex parte DAVIES BROTHERS LTD (ACN 009 475 754)
REASONS FOR JUDGMENT SLICER J
19 November 1998
Davies Brothers Limited is the publisher of a daily newspaper ("the Mercury"), a major provider of news and information to the community that is Tasmania. It provides the community with knowledge of the conduct of the court system and accounts of selected proceedings conducted in that system. The nature of a newspaper is both to respond to community interest and select for publication items which it regards to be of public interest and for the general information of the community. Its task, like that of judicial officers, is to give fair balance to competing interests and principles.
It is natural in the affairs of people that the conduct of persons holding public office, succeeding in a discipline, sport or form of entertainment or otherwise possessing a high public profile, attracts special interest.
In 1998, Stephen Randell, a person well known to the community, was charged with a number of offences or crimes of a sexual nature. That combination invited widespread community interest in the conduct and conclusion of the legal proceedings in which he is involved. When he appeared in court, reporters from the Mercury attended and the newspaper duly published an account of the appearance, including the general nature of the crimes with particulars of the dates and places of the alleged offences. These proceedings concern the extent to which a public news provider may have access to, and obtain information from, court records or material placed before a court sitting in open session.
On 19 May 1998, Randell appeared in the Court of Petty Sessions, in response to two complaints alleging indictable offences contrary to the Criminal Code, ss124 and 127. Represented by counsel, he was not called upon to plead, and no charges were read out in open court. Proceedings were adjourned until 16 July. The reporters attending the hearing were provided with copies of the court's "daily list", which set out the name of the defendant, the generic name of the offence, its date and place of occurrence, and the relevant statutory provision. The list did not contain details of the names, ages or gender of the alleged victims, or the nature and form of the alleged conduct. Following the hearing, a journalist seeking particulars approached a member of the court staff, who in turn sought a direction from a magistrate, who was not the magistrate who had conducted the hearing. In accordance with his direction, access to a copy of the relevant complaints was refused. The learned magistrate based his direction on the basis that:
"(a)I considered there was a risk of prejudicing the defendant's trial on these charges if further detail of the complaint was provided to media organisations (other than that already contained in the Daily Court List); and
(b)I considered that the information concerning these proceedings provided in the media folder was sufficient for their Court reporting duties; and
(c)I saw no reason in this case to depart from the Court's policy set out in paragraph 4 hereof."
Paragraph 4 referred to the policy of providing a folder containing the daily court list.
Following refusal, solicitors for the applicant requested the Acting Administrator of Petty Sessions to provide details of the allegations contained in the complaints, but that request was refused on the ground that the provision of such details might constitute a breach of the Evidence Act 1910, s103AB. The request was repeated by letter dated 22 May. The Administrator advised:
That he held the office of Administrator of the Magistrates' Court, pursuant to the Magistrates Court Act 1987, s16, and by virtue of that office was ex officio the Chief Clerk of Petty Sessions pursuant to the Justices Act 1959 ("the Act"), s16.
He considered that he had a discretion in the matter of access to the records of the court, the discretion to be implied from the combined effect of the Justices Rules 1976, rr63, 9 and 10.
In the exercise of discretion he had paid regard to "the nature of the proceedings and charges, the extent of public curiosity in the charges, and the need to ensure that the defendant's right to a fair trial is not prejudiced". He drew attention to the information already provided through the Daily Court List and repeated his concern about a possible breach of the Evidence Act 1910, s103AB, adding:
"I accept that your client has stated that it does not intend to publish such details, but as a recent unfortunate experience has shown, the Court cannot always be confident that agreed protocols will be respected by your client in the matter of Court reporting."
That any discretionary concession might permit access to and copying of many other court records, including details of magistrates' notes, lists of prior convictions, pre-sentence reports, exhibits and coronial files and that public policy precluded such access.
Between 19 May and 16 July, eleven fresh complaints were filed alleging against Randell twenty-six counts of indictable offences under the Criminal Code 1924, ss124 and 127. On 16 July, upon Randell's appearance at the adjourned hearing, the prosecutor successfully sought the withdrawal of the original complaints, and the new complaints, presumably replicating some of the original charges, were put to the defendant. Randell, through counsel, waived the statutory requirement for the charges to be read, as permitted by the Act, s56A(2)(a), and thereupon entered pleas of not guilty to the charges. The matter was then adjourned until 9 September.
On 20 July, the solicitors for the Mercury again wrote to the Administrator requesting that details of all complaints, withdrawn and pleaded to, brought against Randell, be supplied. The Administrator replied by letter dated 22 July:
"For the reasons set out in my previous letter dated 25 May 1998 in relation to the initial complaints, I advise that I have again exercised my discretion to refuse your client access to inspect or copy the fresh complaints listed in your letter."
Application
The applicant seeks judicial review of the various decisions and processes leading to the denial of information. In support of the application, the Editor of the Mercury deposes:
"Should an Order be made requiring the Acting Administrator of Courts to provide Davies Brothers Ltd with details of the complaints against Mr Randell, I am well aware of the legal obligations preventing me from reporting in the Mercury Newspaper or the Sunday Tasmanian Newspaper, the information that would identify the alleged victims specified in the complaints."
The Court accepts the integrity of the approach which would be taken by the Editor and his newspaper in the reporting of the matters under consideration. The problem for a court is that the dissemination of information can be used equally by both the responsible and the frenzied purveyors of fear and prejudice.
The application, as amended subsequent to the original order nisi seeks resolution of differing issues which will be considered under the following headings:
Right of access to the files of the Court of Petty Sessions.
Status of a complaint withdrawn before plea.
Status of a complaint unread but pleaded to and the effect of the Act, s56A(2)(a).
Duties and discretion of the keeper of records under the Act.
Status of a direction given by a magistrate.
Before consideration can be given to the specific categories, it is necessary to define and analyse the general concepts of open justice and the duty to afford each citizen a fair trial.
Open justice
The requirement that the conduct of legal proceedings be open to public scrutiny is not simply to afford the community knowledge of the events occurring within one of the branches of government. It exists because within any closed system, abuses can occur. Public scrutiny ensures that any abuse of process by the powerful is exposed and that neither favour nor prejudice is afforded by reason of the status of the litigant. Public awareness of the legal process can excite debate, which in turn can lead to productive change by legislative or other means. A member of the community might not agree with a particular outcome or might challenge the reasoning of a particular decision or verdict, but can only do so if there is sufficient access to and awareness of the process. Unless the community possesses information, then it is collectively less likely to accept the fairness of the legal process. It is worth repeating (R v Pirimona 49/1998 at 1) a footnote to an academic paper entitled Republicanism, Community Values and Social Psychology by Ghosh, published in the Sydney Law Review (1998) Vol 20 5 at 35:
"There is a substantial research literature suggesting that 'the key factor affecting the perceived legitimacy of authorities is procedural fairness': Tyler, T and Mitchell, G, 'Legitimacy and the Empowerment of Discretionary Legal Authority: the United States Supreme Court and Abortion Rights' (1994) 43 Duke LJ 703 at 746. The authors state that the most important factor determining citizens' acceptance of the Court's authority to make decisions relating to the permissibility of abortion is not their personal views on abortion but their general views on the legitimacy of the Court. This was in turn most significantly dependent on judgments of the court's procedural fairness, in particular, whether judges were 'trying to be fair' and 'consider[ed] people's opinions': id at 776-7."
(For a contrary view that confidence in the legal process depends more on the support of other forms of governmental power, see Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power, Handsley Sydney Law Review (1998) Vol 20 183.)
The general principles applicable to the concept of open justice were exhaustively stated and analysed by Underwood J in R v Matterson & Ors; Ex parte Moles A54/1993, and one can do no better than to repeat his judgment at 2, where he said:
"Any application to suppress from public scrutiny either a part or the whole of a judicial proceeding is a fundamental concern of the court. Consent of all parties to the making of a suppression order although relevant, (ABC v Parish (1979-1980) 29 ALR 228 at 254) is not decisive. Admission of the public to attend curial proceedings and the publication of those proceedings is an attribute of a court. Consequently, the rule is that generally, the administration of justice must be open to full public scrutiny and comment. This general rule has never been in doubt since at least Scott v Scott [1913] AC 417. I venture to draw attention to that part of the speech of Lord Shaw of Dunfermline at 477 in which his Lordship invoked the words of the great writer Bentham. Although couched in the language of two centuries ago, those words are just as appropriate today as they were when written
'In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very sole of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial. The security of securities is publicity.'
The common law rule that the administration of justice must be done in public has been re-affirmed on many occasions since Scott and was not called into doubt in these proceedings. See eg, McPherson v McPherson [1936] AC 177; Russell v Russell (1976) 134 CLR 495; R v Tait (1979) 46 FLR 386. It is required in order to maintain public confidence in our system of justice and to safeguard against judicial arbitrariness."
The Act, s37, provides:
"(1) Subject to subsection (2) and to the Admission to Courts Act 1916, and the regulations thereunder, the room or place in which justices sit to hear and determine a complaint upon which a conviction or order may be made, is an open and public court, to which all persons may have access so far as it can conveniently contain them."
Sub-section (2) limits the power of the justices to exclude persons from the hearing to witnesses other than the complainant and the defendant. The starting point in the consideration of the publication or otherwise of court proceedings should be that of the principle of open justice. But courts, especially those exercising criminal jurisdiction involving trial by jury, are required to ensure that persons charged with crime, are tried on the basis of evidence, not prejudice or public outcry. Access to court proceedings does not necessarily imply a right of publication. An example will suffice. In some cases evidence, especially confessional, is challenged and is heard on a voire dire in the absence of a jury. Publication of that evidence, even though given in open court, would imperil the trial if such evidence was excluded, but the jury were able to read its account. The court is able in such cases to enforce non-publication or to prohibit publication through its powers of contempt. Over time, non-publication has been accepted by the media as a matter of course. At the heart of the problem is the need to ensure a fair trial without denying public scrutiny. The remedies available to the courts have traditionally been those available after the event, including adjournment of trial and change in venue, contempt proceedings and appellate review (R v David Syme & Co Ltd [1982] VR 173; Hinch v Attorney-General (Victoria) (1987) 164 CLR 15; R v The Australian Broadcasting Corporation and Others [1983 - 1984] Tas R 161). In some instances the legislature has proscribed publication of material which could impinge on the victims of criminal activity (eg Evidence Act 1910, s102A, or permitted the closure of courts in pre-trial hearings (the Act, s56(1)).
There are circumstances where there is a need to restrict publication of material, such as blackmail (R v Socialist Worker Printers and Publishers Ltd and Another ex parte Attorney-General [1975] 1 All ER 142), the protection of witnesses in cases involving organised crime (Shaw v Director of Public Prosecutions (1961) 45 Crim Ap R 113; cf R v Hines [1997] 3 NZLR 529) and protection of victims who might suffer future risk ("TK" and Others v Australian Red Cross Society (1989) 1 WAR 335); and there remains a question of the power of a court to make an order directed to the world at large (see generally Raybos Australia Pty Ltd and Another v Jones (1985) 2 NSWLR 47, Kirby P, at 50 - 58). But such restrictive power should be exercised sparingly (Creevy v Salesian Society (Victoria) Incorporated, Supreme Court of Victoria, unreported, 24 August 1993; Re a Former Officer of the Australian Security Intelligence Organisation [1987] VR 875). As Malcolm CJ said in "TK" (supra) at 338:
"It is only in wholly exceptional circumstances where the presence of the public or public knowledge of the proceedings is likely to defeat the paramount object of the court, which is to do justice according to law, that the courts are justified in proceeding in camera."
Protection of interest
The policy arguments raised against the publication of the particulars of the complaint is that the fair trial of the defendant might be compromised. If such be the case, then the Court ought to state clearly that the right to a fair trial is paramount and reject any claim of public interest. There can be no more fundamental principle of governance than that a person ought not be convicted of a crime, except upon evidence produced by the prosecution. As Lord Reid stated in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 296:
"There must be absolute prohibition of interference with a fair trial but beyond that there must be a balancing of relevant considerations." (See also Hinch v Attorney-General (Victoria) (supra).)
But disclosure and discussion of the particulars of an alleged crime do not result in the deprivation of a right to a "fair trail". As Burbury CJ observed in Berry v Piggott, 24/1963, at 8:
"In my view the proposition that an accurate statement in a newspaper that A has issued a Writ against B making certain allegations of misconduct against him has as a matter of practical reality wholly a real tendency to affect the minds of potential jurors against B is wholly untenable. Members of the public must be taken to understand that allegations of this kind in a Writ are merely ex parte and may be without the slightest foundation. The principle that allegations made in Criminal or Civil proceedings must be proved by the party making them is a deep seated and clearly understood principle of justice in all those countries which enjoy the great heritage of the Common Law. To suppose that good men and true empanelled on a jury to try a case would instead of faithfully applying that principle be adversely influenced against one of the parties because they had read some time before that the Writ in the case had been issued making the very allegations whose truth it was their duty to decide would be to damn the jury system out of hand. I believe that juries play a very important and useful part in the administration of justice. So far from being convinced beyond reasonable doubt that jurymen would be likely to be influenced by a publication of this kind my own experience of jury trials leaves me with no doubt that it would not have the slightest influence on them - with or without a specific direction from the trial judge."
The rationale is that society ought to place trust in the integrity of jurors who are central to the criminal justice system. As Brennan J in R v Glennon (1992) 173 CLR 592, stated at 614:
"The law does what it can to protect the integrity of the criminal trial. In the forefront is the law relating to criminal contempt. If the protection given by that law should fail, the trial judge is given powers to adjourn the trial until the influence of prejudicial publicity subsides and is required to direct the jury that their verdict must be based on the evidence given before them on the trial and that, in reaching their verdict, they must disregard knowledge otherwise required and any revulsion against or sympathy for the accused. … However, these protective mechanisms cannot guarantee perfect impartiality … Of necessity the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced."
There exists a power, in circumstances such as this, to preclude publication of material which would prejudice the right to a fair trial, but the power should only be exercised in exceptional circumstances where the prejudice is clearly shown (Unsworth v Booth A49/1985). The powers are conferred by the Act, s56(1), which states:
"The room or place in which justices take the examination and statements in a case where a person is charged with an indictable offence is not an open court for that purpose, and the justices may, if it appears to them that the ends of justice will be thereby best answered, order that no person may have access to, or be, or remain, in that room or place without their permission."
There remain circumstances where persons, with differing motives, seek for personal or commercial reasons, to advance their interest at the risk of prejudice to a person subject to trial. In such circumstances, a court has an obligation to conduct a preliminary enquiry, which is not a trial, in the absence of public scrutiny. However, that obligation ought not extend to the power to preclude public access to the matter of the charge which is being considered in a closed court.
Status of complaint
The applicant contends that the making of a complaint, without more, entitles disclosure. The argument depends on the proposition that the making of a charge by a public officer renders the contents of that complaint a public document. Such is not the case. The making of a complaint, without more, is no more than a statement by a party (often the state) that it wishes to have a particular grievance (public or private) determined by a court. It provides notice to the recipient of the nature of the grievance and when served does nothing other than require the recipient to appear (by personal or written appearance) in a court and make answer to the allegation (civil, statutory or criminal). Until appearance and the joinder of issue, the document has no public import. Non joinder might be met with the issue of a warrant, but such is a consequence of the initiation of proceedings. The fact that a person is charged might be a matter of public notification in its own right, but such does not depend on publication of the contents of the initiating process. The Act, s3, defines a complaint as meaning "… a written allegation of an indictable or simple offence or of a breach of duty made to a justice". Its status does not differ from an assertion made by a person in civil proceedings. The making of a complaint does not attract the requirement of "open justice" unless and until it becomes an issue between the parties. It does not attract "public interest" immunity unless and until it enters the public forum of a court. The issue has long been considered in relation to the privilege accorded publication of defamatory material comprised in pleadings filed but not judged upon. In considering such a case, Williams J in Campbell v Kennedy and Others [1884] LR 3 SC 8, said at 12:
"The statement of claim in an action is filed in the Court in the same way as a bill under the old chancery practice was filed, and it is filed for the information of the Court and of the parties. There is no law or rule that I know of which gives all the world a right to peruse it. No objection is, it is true, made to anyone perusing statements of claim on payment of the prescribed fee; but if the Registrar had reason to believe that the perusal was asked for by some person who was an entire stranger to the action, for the purpose of publishing the statement to the world, it would be his right if not his duty to refuse to allow the perusal. It is not until a case is heard that the proceedings become completely public property."
In Lucas & Son (Nelson Mail) v O'Brien [1978] 2 NZLR 289, the court distinguished between the use of pleadings in open court and that which is done out of court by one party alone. In his judgment, Richmond P stated at 302 - 303:
"With all respect, the reasons underlying the common law rule as to qualified privilege are such as to make it entirely logical to draw a line between 'what took place in open court and that which is done out of court by a party alone'".
That position is common to many jurisdictions as the following authorities illustrate:
Australia
Berry v Piggott (supra); Gobbart v West Australian Newspapers [1968] WAR 113.
New Zealand
In Re Evening Star (1884) NZLR 3 SC 8 at 12. Lucas & Son (Nelson Mail) v O'Brien (supra).
Scotland
Richardson v Wilson (1879) 7 R (Court of Sessions) 237 (for reference see Lucas (supra) at 306).
South Africa
Abt v Registrar of Supreme Court (1899) 16 SC 476.
United States of America
Cowley v Pulsifer 50 Am Rep 318 (1884) at 322 (for reference see Lucas (supra) at 300 and 306). In that case, Holmes J said at 320 - 321:
"If these [the principles of open justice] are not the only grounds upon which fair reports of judicial proceedings are privileged, all will agree that they are not the least important ones. And it is clear that they have no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court. It would be carrying privilege farther than we feel prepared to carry it, to say that by the easy means of entitling and filing it in a cause, a sufficient foundation may be laid for scattering any libel broadcast with impunity."
In Australia, the position has recently been restated by Byrne J in Smith v Harris [1996] 2 VR 335, when he stated at 341:
"A document prepared for, filed and even served is not in that sense part of the court's proceedings, at least until it is deployed as part of the judicial process."
The publication of contents of a court process, already filed, does not attract personal or public immunity (Manning and Church of Scientology v Hill [1995] 2 SCR 1130). Publication of a court sheet which did not reflect the actual charge found by magistrates was likewise held not to attract privilege (Furniss v The Daily Cambridge News Limited (1907) 23 Times Law R 705).
But the status of a document initiating proceedings changes once the pleading is used in open court. This judgment is not concerned with the status of proceedings dealt with by a court as part of pre-trial procedures conducted in accordance with statute or rules of court. Rather it is confined to the status of pleadings used or referred to in open court. Where pleadings (civil or otherwise) are used in open court they become public documents. As Burbury CJ said in Berry v Piggott (supra), at 5:
"When the case comes to Court the proceedings are of course heard in public and the press have an absolute right to publish a fair account of the proceedings. But it is only at that stage, when the allegations are being publicly denied by the Defendant, that it is in the public interest that the allegations should be published and absolute privilege attaches to the publication both at common law and under s 13 (1)(C) of the Defamation Act 1957 …"
The comparable status of criminal or quasi criminal process was affirmed by Prior J in Homestead Award Winning Homes Pty Ltd v State of South Australia Butterworths, unreported 1998, 15 September 1997, when, considering privilege in relation to the publication of a complaint (which had been amended before publication and was thus incorrectly reported), his Honour said at 8:
"In fact, the Complaint was a public document, available to the public from the time when the proceedings against Homestead were in public, at Directions Hearings, when reference to the terms of the Complaint was necessary to understand what was going on in a Tribunal open to the public."
The rationale of the principle accords with the statement of Lord Clyne in Cunningham v The Scotsman Publications Ltd (1987) SLT 698 at 705 - 706:
"It is evident that for public confidence in the administration of justice to be maintained the public must be able to see and hear the proceedings for themselves. They must be able to attend a court and see and hear what goes on. But their attendance will be of little point if the proceedings are so conducted that the communications made in open court between counsel and the judge are not disclosed. The substance of the matter discussed in the proceedings may be of such complexity or technicality as to be beyond the ready understanding of every particular visitor, but if the public are to be informed of the proceedings, the proceedings ought to be intelligible. If justice is to be seen to be done what is done must be open to inspection. The public must have at least the opportunity of understanding what is going on and if they do not have the opportunity I do not consider that the hearing is a public one. If the hearing is a public hearing then it does not seem to me that that characteristic is destroyed simply because for perfectly proper reasons of convenience a document is referred to and not read out in full. Where a document has been incorporated into what counsel has said, the proceedings cannot be said to be open to the public unless the terms of the document can be seen by the public.
Of course there must be exceptions to the general rule and these exceptions may also be found to be justified by other considerations of public interest and public policy in the administration of justice. Cases occur and circumstances may arise where it is proper for the doors of the court to be closed. Of course too there are practical considerations which, in the proper control and management of the court's business necessarily impose some restraint on the understanding of the bystander. It would not be practicable to circulate copies of documents referred to in open court around the public benches. But these considerations should not detract from the general principle of openness in judicial proceedings. As I have already noted so great is the danger of secrecy regarded that it is considered preferable to secure publicity albeit at the cost of private hardship. Furthermore, there is a clear advantage in enabling the public to know with certainty and accuracy what has passed in court rather than leaving them to rely on rumour or speculation and the reporting of proceedings may be found to be unfair or misleading if access to pleadings which have been founded upon in open court is not allowed. In order to make a realistic application of the principle to the circumstances of the present case, I cannot restrict the availability of the privilege to a report of what is actually read out in court. The test in my view is not what is actually read out - although all that is read out is published - but what is in the presentation of the case intended to be published and so put in the same position as if it had been read out. If it is referred to and founded upon before the court with a view to advancing the submission which is being made, it is to be taken as published."
Publication of the contents of a complaint before its presentation in open court ought not be permitted as of right. Publication ought not attract private or public immunity from either contempt or defamation proceedings. An officer of the court who publishes such material might do so at his or her risk (Manning and Church of Scientology v Hill (supra)). There is no public right to the provision of information comprised in a complaint not presented before an open court. But the status of the document or pleading alters upon its use at the hearing.
Reading of charge and waiver
The Act, s74A, relevantly provides:
"74A (1) When a person charged with a simple offence to which he or she has not entered a plea in writing authorized by rules made under section 144 first appears before justices, the justices shall, if that person is not represented by counsel -
(a)cause the charge to be read to the person or state to the person in simple terms with what he or she is charged; and
(b)inform the person that he or she is entitled to have the proceedings in respect of the charge adjourned in order to consider a course of action or to obtain legal advice in relation to the charge.
…
(3) If a defendant, whether represented by counsel or not, does not require an adjournment or, if the proceedings are adjourned, on the resumption of the proceedings -
(a)the charge shall be read to the defendant unless the defendant waives that requirement; and
(b) the defendant shall be called upon to plead to the charge.
(4) Notwithstanding subsection (3), the justices may at any time adjourn the proceedings to another date without calling upon the defendant to plead to the charge."
The Act, s3, defines a simple offence as meaning:
" … any offence (indictable or not) punishable, on summary conviction before justices, by fine, imprisonment, or otherwise;".
Randell was charged with offences contrary to the Criminal Code, ss124 and 127. By virtue of the Act, s72(1)(a), offences under s127 (being specified in PtI of Sch3) may be dealt with summarily. Once Randell had made his election, the proceedings would be governed by the Act, s56A. However, it appears that, so far as the first complaint is concerned, no election was made, and, accordingly, the relevant procedure was that provided by s74A. Section 74A was amended following decisions of this Court (Petrie v Visser A29/1987; Hennicke v Lowe A27/1988; Allen v Wood A31/1988) which were concerned with the questions of procedural fairness and capacity to enter an "informed" plea. The purpose of the section is to ensure that an unrepresented defendant has the charge read and, if necessary, explained. A person legally represented or otherwise who appears following adjournment, or who does not seek an adjournment, need not have the charge re-read. There is a tension between the provisions of subss(1) and (3) in that the section makes no provision for the first appearance of a represented defendant. However, that tension does not impact on the status of the complaint made in open court against the defendant. The apparent dichotomy can be best understood by reference to the second reading speech of the Attorney-General in which he said:
" … I would note that both the Law Reform Commissioner and the Director of Public Prosecutions have suggested changes to the procedure which applies where a person first appears. The Law Reform Commissioner commented:
'In many cases, the reading of the charges carries no information to the defendant, as he has already read them, and he is, in any event reduced to intellectual numbness by the apparent interminable litany chanted by the court clerk. So far as publicity is concerned, there is practically no public interest, and the content of the charges are available from the court lists, which can be obtained [sic by] anyone sufficiently interested.'
A committee chaired by the Director of Public Prosecutions which considered the operation of committal proceedings recommended similar charges to those provisions. It is against this background that the magistrates have agreed to the new procedure. I anticipate that it will simplify court proceedings, whilst at the same time ensuring that the rights of the defendant are protected. A new procedure will ensure that, where a defendant is represented by counsel, the charges are required to be read to him or her on only one occasion, and it will be open to the defendant to waive that process if desired."
Even allowing for the reality that a Minister's speech cannot always state every ramification of a legislative provision, it is clear that the amendment was procedural and not designed to alter the substantive requirement that the preferring of a charge against a person be made publicly.
The complaints were before the magistrate and their contents were doubtless known to him. That he read them to himself does not affect their status. That they were not read aloud makes no difference to the right of an interested party to know their contents. As Lightman J stated in Bunn v British Broadcasting Corporation and another [1998] 3 All ER 552 at 557:
"I do however think that the obligation of confidentiality in respect of the statement is at an end because the contents of the statement are already in the public domain.
(1) The reading of the statement by Phillips J in open court would appear to me to be sufficient for this purpose. I do not think that it is realistic to draw a distinction between a document which the judge reads and a document which is read to the judge. The distinction is artificial today when it is a matter of taste for the individual judge whether he requires a document to be read or reads it himself (consider RSC Ord 24, r 14A). But in any event Mr Suckling, referring the judge to the statement, stated its substance (the element in it for which protection is sought in these proceedings) in open court. Whether or not the prosecution is over and a matter of the past and the restraint on publication lifted, any confidentiality expired when the contents of the statement were disclosed in open court."
Randell, represented by counsel, first appeared in court on 19 May 1998 in response to the original complaints. He was not required to plead. That course was permitted by the Act, s74A(4). A question is whether the Act, s74A(4), which permits adjournment before a defendant is called upon to plead has particular import in relation to the first complaints. Randell had not been called upon to plead on 19 May. Had he been unrepresented, then the magistrate was required to cause the charges to be read. The fact that a represented party does not require the reading of a charge in no way affects the status of the complaint. Sub-section (4) permits deferral of the taking of a plea but does not affect the nature of the document which initiated the proceedings. The court has jurisdiction to adjourn because there is an initiating process remaining before it. The order adjourning proceedings is one publicly made and depends on the existence of the complaint. A complaint filed in court but then abandoned was held to attract privilege (Campbell v New York Evening Post Inc 245 NY 320 (1927)), but in that case the court conceded that its approach did not accord with the then English position. However, in this case, the complaint was not withdrawn until the fresh complaints were before the court and after Randell had appeared to answer them (see Abbot v Coombs [1887] 13 VLR 917, Smith v Harris (supra) at 340 - 341).
Randell was in court in response to complaints alleging a series of offences. Had he been unrepresented, the presiding judicial officer was required to have the charges read to him, unless a written plea had already been entered. A member of the public attending the hearing would have been entitled, without fear of libel, to repeat the substance of what was stated in court. Representation by counsel obviated the duty of the court to read aloud the charges preferred, but such did not make the contents of those charges confidential to the defendant. A member of the public, attending such hearing, would be entitled to be informed as to why the person charged was before the court. If justice is to be open, then the particulars of a charge ought be publicly stated or made available. If, for procedural reasons, the charge is not openly articulated, then procedure ought not to defeat the substance. Accepting that logic, it follows that the applicant has a right of access to the details of the complaints before the court on 19 May.
On 16 July 1998, Randell again appeared in court in response to the original order of adjournment and was required to make answer to eleven fresh complaints. On that day, the original complaints were withdrawn. But withdrawal did not affect their status as of 19 May. On 16 July, the learned magistrate dealt with fresh complaints in accordance with the Act, s56A(2). That section, similar to s74A, provides:
"If a defendant, whether represented by counsel or not, does not require an adjournment or, if the proceedings are adjourned, on the resumption of the proceedings -
(a)the charge shall be read to the defendant unless the defendant waives that requirement; and
(b) the defendant shall be called upon to plead to the charge."
Even if the analysis made in relation to the Act, s74A, is incorrect, the entry of a plea in accordance with s56A(2) renders the particulars of the complaint a public document. The defendant had, in open court, made answer to the charges against him. The principles of open justice require knowledge of that to which he has made answer. That the information might prejudice the individual does not outweigh the central issue of open justice.
Inspection of court records
The Clerk of Petty Sessions is required by the Act, s17A, to have:
" … the care and custody of all the records of the court of which he is the clerk."
Those records are defined by the Act, s17A(2), as including:
" … without limiting the generality of that expression -
(a) the complaints and applications lodged with a clerk of petty sessions and any documents filed in connection with those complaints and applications;
(b) where evidence in proceedings in a court of summary jurisdiction is recorded by mechanical means on to tapes or other apparatus, those tapes or other apparatus; and
(c) the record of those proceedings that are taken by the justices pursuant to section 50A(1)."
Similar powers and duties are afforded to other officers of the court by the Act, s18(2):
"During a petty session or the session of a justice acting judicially or examining into a charge of an indictable offence, any person acting as clerk to the justice or justices may do all that the clerk of petty sessions might do in respect of the business of the session."
The Justices Rules, r63, impose more detailed obligations. The status of the Court of Petty Sessions, as a court of record, was considered by this Court in Gerard v Hope and Others [1965] Tas SR 15. An order made by such a court is a matter of record and a person having sufficient interest is entitled to its inspection. The question of sufficient interest is determined by reference to the status of the person seeking access and the nature of the material sought. Differing rights are afforded by the combination of those two factors. Thus the solicitor for a party might have an entitlement to inspect the subpoena issued on behalf of that client in order to check the accuracy of the name or address of the person summoned, but an opponent would not. A defendant to a domestic violence complaint or application ought not be permitted to inspect documentation to ascertain the address of the complainant. There does not exist a right of inspection of the court files. As Richmond J observed in Lucas and Son (supra) at 306 - 307:
" … I am left in no doubt that as at November 1972 there was no general public right of inspection of pleadings filed but upon which no judicial action had been taken. There may have been some limited right of inspection dependent upon proof of a sufficient bona fide interest in litigation. … The general principle, however, as appears in the article in Bouvier [Bouvier's Law Dictionary (3rd Revision 1914) Vol 3 at 2486] was that at common law there was no general right of inspection of public documents. The right depended entirely upon the question whether the parties seeking to exercise it had a sufficient interest."
Holmes J had earlier reached a similar conclusion in Cowley v Pulsifer (supra) when he stated at 322:
"It may be objected that our reasoning tacitly assumes that papers properly filed in the clerk's office are not open to the inspection of the public. We do not admit that this is true, or that the reasons for the privilege accorded to the publication of proceedings in open court would apply to the publication of such papers, even if all the world had access to them. But we do not pause to discuss the question, because we are of opinion that such papers are not open to public inspection."
The records of the Court include tapes or transcripts of Children's Court and committal proceedings. They can include copies of affidavits not used, or only used in interlocutory proceedings, records of prior convictions and the like. Not all of the material compiled in the records will be used in open court. That documentation forms part of a legal process and its publication may cause harm or prejudice to persons who are not parties to that process, or preclude an opportunity for a fair trial. Different jurisdictions have attempted to balance the competing needs of open justice and prejudice to the right to a fair trial. The High Court Rules, O58, r8, has recently been amended by inserting a provision limiting access by the public to some documents, such as affidavits, until after those documents are admitted in evidence in court. As a matter of practice, most documents are available for searching, but the rule provides for circumstances where affidavits, which, if published prior to the hearing, may embarrass the parties, especially if the material is not relied upon in the proceedings (Legal Reporter 1987, Vol 8, No 1). Similarly, in 1998, the Chief Justice of the Supreme Court of New South Wales issued Practice Note number 97 which states:
"Access to Court files by non-parties:
1 Access to material in any proceedings is restricted by Pt 65, r 7 of the Supreme Court Rules 1970 to parties, except with the leave of the Court.
2 Access will normally be granted to non-parties in respect of:
(a)pleadings and judgments in proceedings that have been concluded, except in so far as an order had been made that they or portions of them be kept confidential;
(b)documents that record what was said or done in open court;
(c) material that was admitted into evidence; and
(d)information that would have been heard or seen by any person present in open court;
unless the judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or judge is satisfied that exceptional circumstances exist.
3 It should not be assumed that material held by the Court comes within par 2. Affidavits, and witness statements, that are filed in proceedings are often never read in open court. This can occur because they contain matter that is objected to and rejected on any one of a number of grounds or because the proceedings have settled before coming on for hearing. Affidavits, statements, exhibits and pleadings may contain matter that is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive. Part 65, r 5 allows the Court to order this type of matter to be struck out of a document.
4 If access to material is given prior to the conclusion of the proceedings to which it relates, material that is ultimately not read in open court or admitted into evidence would be seen. Thus, access will not normally be allowed prior to the conclusion of the proceedings.
5 Even where material has been read in open court or is included in pleadings, there may be good reason for refusing access. Material that has been rejected or not used or struck out as being scandalous, frivolous, vexatious, irrelevant or otherwise oppressive, may still be legible. Where access to material would be otherwise unobjectionable, it may concern matters that are required to be kept confidential by statute (for example, the Criminal Records Act 1991) or by public interest immunity considerations (for example, applications to authorise listening devices, affidavits in support of suppression orders).
6 Application by a person, who is not a party to proceedings, for access to material held by the Court in the proceedings shall be made in the attached form to the registrar of the appropriate Division, who will refer doubtful cases to the Chief Justice or to a judge nominated by the Chief Justice. The registrar or judge may notify interested parties before dealing with the application. The applicant must demonstrate that access should be granted in respect of the particular documents the subject of the application and state why the applicant desires access. Enquires may be made to the Court's Public Information Officer.
7 The person to whom access to material is granted normally may copy or take extracts from the material and the registry may assist with copying."
A person with a legitimate interest has a right to inspect orders made by the court (unless precluded by special statute, eg Child Welfare Act 1960), the process used in court and documentation used in the hearing. There is no right to obtain copies of the above (such as videoed confession material, cf French et al and Others v R et al; Thomson Newspapers Company et al Interveners (1998) 122 CCC 449, a case dependent upon the Canadian Charter of Rights and Freedoms) except at the discretion of the Clerk of Petty Sessions. A reporter or other representative of the media is doubtless an interested party in all matters commenced by a public officer and that person has a right to inspect the originating process, orders made by the court and documents tendered in open court, on the hearing. Confidentiality and the relationship between the court and a probation officer, or forensic examiner, precludes access to reports tendered during the course of the sentencing hearing (see The Commonwealth of Australia v John Fairfax and Sons Ltd and Others (1980 - 1981) 147 CLR 39, Mason J at 51), although a reporter might, without sanction, publish such portions as have been read to the court during the proceedings. In all other respects, inspection is dependent on the discretion of the Clerk of Petty Sessions.
Discretion of Clerk of Petty Sessions
The Clerk of Petty Sessions is afforded discretion by statute. The Act, s50A(1), requires the justice to take or cause to be taken a record of the course of the evidence received in and the decision and orders made in proceedings before the court. Sub-section (2) provides:
"A party to proceedings subject to this Part or a person who appears to the clerk of petty sessions to have a sufficient interest in the subject-matter of the proceedings may, on application made to the clerk and upon payment of the relevant fee prescribed in the rules made under section 144, obtain from the clerk a certified copy of the recording of the proceedings unless the clerk certifies that no recording of the proceedings exists from which a copy may be taken."
The Justices Rules, rr63(9) and (10), relevantly provide:
"(9) Each record of proceedings and each register entry in respect of those proceedings is available for inspection without fee by a party to the proceedings or a Crown Law Officer.
(10) The clerk may permit the record of proceedings held in open court and the register entries in respect of those proceedings to be inspected, without payment of a fee, by a person, other than a party to any of those proceedings or a Crown Law Officer."
It is not necessary to determine the extent of the class of persons to whom sub-rule (10) applies, except to say that the media would be an interested party in each prosecution commenced by a public officer in the exercise of a statutory power. However, the discretion is not unfettered. There did exist a view that the discretion was limited by the status of the person seeking disclosure and that a court officer was bound to refuse access to "a stranger" who intended publication (Campbell v Kennedy and Others (supra)), but such a strict approach is no longer the case. Publication of proceedings and orders of the court ought be facilitated, even if representatives of the media are either not present, or unable to make a complete record of the details of those proceedings. The media would always be "an interested party" in the course of those proceedings. It would be a wrongful exercise of discretion to prohibit access to material in the absence of an order made by a magistrate in the exercise of another power.
Referral to magistrate
Referral of the matter by an officer of the court to Magistrate Hill is not susceptible to review. The officer was not purporting to exercise statutory power and the referral for advice was for administrative purposes only. Although a court officer might not be described as a Crown prerogative employee, as are judges' associates (Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385), the relationship is confidential in nature. As Eichelbaum CJ observed in Nicholls (supra) at 419:
"The relationship between the Judge and clerk is a confidential one, and the communications between them, whether written or oral, are part of that confidential relationship. So far as I know there is no New Zealand jurisprudence on the subject but the Solicitor-General drew our attention to USA authorities giving some support to the concept of confidentiality which I have endeavoured to develop: Nixon v Siraca 487 F 2d 700 (1973) at p 740 … Williams v Mercer 783 F 2d 1488 (1986) at pp 1518 - 1520 … Such an approach, in my opinion, is necessary and appropriate in order to maintain the proper independence of the judiciary from Executive influence or control. The work of Judges' clerks has no equivalence in the administrative processes in government departments where papers are prepared for the consideration of Ministers in making a decision."
However, the action of a court officer exercising a statutory power is subject to judicial review, as is the decision of the magistrate whose discretion is sought. Communication between the two and its reasonableness or otherwise is not. (See also the Act, s17(3).)
Conclusion
The applicant is entitled to the primary orders sought. That it sought to test the parameters of its entitlement did no more than make this judgment more complex. That it did not obtain the right of access to every file of the Clerk of Petty Sessions ought not be seen as a rejection of the claim of public access. The public is entitled to know the nature of charges brought against every citizen or corporate body put in open court. The public is entitled to know the progress and outcome of those proceedings, irrespective of their nature or the status of the party. The media is entitled to publish those matters. The public is entitled to attend the course of proceedings in circumstances such as the holding of a voire dire, but publication of those proceedings which would affect the fair conduct of the trial is prohibited. But the public has no interest in matters preparatory or incidental to trial which are not part of those open proceedings. The public has no right to information concerning the tactics or strategies of the parties preparatory to trial, or to matters which might impact on victims or innocent parties. The community, committed to the ideal of a fair trial, cannot destroy that ideal by permitting prejudice, unless and until it openly removes that right. But the community is entitled to be informed of the nature of charges brought against its members, the conduct of those proceedings and the details of the outcome. Those matters ought remain fundamental principles. The following orders ought be made:
That the applicant be provided with all details of the contents of the complaint preferred against Stephen Grant Randell presented in court on 19 May 1998.
That the applicant be provided with all details of the contents of the complaints preferred against Stephen Grant Randell on 16 July 1998 (second set).
That the applicant have the right to inspect all orders made by the Court of Petty Sessions with respect to such complaints.
It might be necessary to refine the above orders in order to give practical effect to this judgment. Counsel will be afforded an opportunity to make submissions in relation to the details of such orders.
0
10
0