Re Hogan - [2008] WASC 113

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE HOGAN; EX PARTE CHANNEL SEVEN PERTH PTY LTD [2008] WASC 113

CORAM: BLAXELL J

HEARD: 30 JANUARY 2008

DELIVERED : 13 JUNE 2008

FILE NO/S: CIV 1788 of 2007

MATTER :Application under s 36 of the Magistrates Court Act 2004 (WA) for a review order against Ms Pamela Hogan, Magistrate of the Magistrates Court at Perth

EX PARTE
CHANNEL SEVEN PERTH PTY LTD
First Applicant
NATIONWIDE NEWS PTY LTD
Second Applicant
WEST AUSTRALIAN NEWSPAPERS LTD
Third Applicant

Catchwords:

Magistrates Court Act 2004 (WA) - Review order - Access to court records - Magistrate's refusal of applications by media organisations for copies of a videotape tendered as an exhibit in criminal proceedings - Whether each applicant was a 'party interested' within the meaning of s 33 of the Act

Legislation:

Magistrates Court Act 2004 (WA), s 33, s 36

Result:

The decision the subject of review set aside, and the matter referred back to Magistrate for determination of conditions for release of copy videotape to each applicant.

Category: B

Representation:

Counsel:

First Applicant              :     Mr J D MacLaurin
Second Applicant          :     Mr J D MacLaurin
Third Applicant            :     Mr J D MacLaurin
Amicus Curiae              :     Mr J F O'Sullivan

Solicitors:

First Applicant              :     Edwards Wallace
Second Applicant          :     Edwards Wallace
Third Applicant            :     Edwards Wallace
Amicus Curiae              :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Attorney‑General v Leveller Magazine Ltd [1979] AC 440
Australian Competition & Consumer Commission (ACCC) v ABB Transmission & Distribution Ltd (No 3) [2002] FCA 609
Australian Securities & Investments Commission v Rich [2002] NSWSC 198
Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining & Energy Union [2007] WASC 133
Craig v South Australia (1994) 184 CLR 163
Fairfax Publications v Ryde Local Court (2005) 152 A Crim R 527
R v Clerk of Petty Sessions; Ex parte Davies Brothers Ltd (1998) 8 Tas R 283
R v Davis (1995) 57 FCR 512
Re Bromfield; Ex parte WA Newspapers Ltd (1991) 6 WAR 153
Re Guardian Newspapers Ltd [2005] All ER Rep 155
Russell v Russell (1976) 134 CLR 495
Seven Network Ltd v News Ltd [No 9] [2005] 148 FCR 1
Smith v Harris [1996] 2 VR 335
Titelius v Public Service Appeal Board [1999] WASCA 19

BLAXELL J: This is the return of an order for review of a magistrate's decision, pursuant to s 36(1) of the Magistrates Court Act 2004 (WA) (MCA). The decision the subject of this review was made by Magistrate Hogan on 11 July 2007, when her Honour refused requests under s 33(5) of the MCA for each of the applicant media organisations to be provided with a copy of an exhibit tendered in criminal proceedings. The proceedings involved the prosecution of the operators of a child care centre on charges alleging that they had assaulted children under their care. The exhibit in question was a police videotape which showed the complainant children lying in beds or cots with their legs tied. Each applicant requested a copy of this videotape 'for the purpose of broadcasting a fair and accurate report' of the proceedings.
In refusing these requests, her Honour held that although the media had an interest in the proceedings, they were not 'party interested therein' within the meaning of s 33(5) of the MCA. In these review proceedings, the applicants contend that the Magistrate erred in her construction of s 33(5) and thereby failed to perform a legal duty to provide them with a copy of the exhibit. Accordingly, each applicant seeks relief analogous to the former remedies of certiorari and mandamus, based upon the claimed misconstruction of the statute. In that regard, it is well established that:
... an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. [Craig v South Australia (1994) 184 CLR 163, 177 ‑ 178]

The relevant statutory provisions

Section 33 of the MCA provides for parties to cases and other persons to have varying degrees of access to court records (either by way of an entitlement to such access or following an application for leave). These provisions are somewhat repetitive and overlapping, and, relevantly, are as follows:
33. Court's records, access to
...
(3)A party to a case is entitled, on request, to inspect or obtain a copy of the following documents -
(a)any document that has been lodged with or issued by the Court as required by law and that forms part of the Court’s records of the case;
(b)a copy of any document admitted as evidence in the case by the Court;
(c)if an electronic recording has been made of the proceedings and a transcript of it has been prepared, a copy of the transcript;
(d)if no such recording was made, a copy of the record of proceedings made by the person or persons constituting the Court;
(e)any written judgment (including the reasons for it) given, or written order made, by the Court in the case.
(4)With the leave of the Court, a party to a case may -
(a)listen to or view -
(i)any electronic recording tendered to the Court in the case; or
(ii)any electronic recording of the proceedings in the case,
and obtain a copy of all or a part of such a recording;
(b)inspect or obtain a copy of any document held by the Court in relation to the case;
(c)inspect any other thing tendered to the Court in the case and, if it is practicable for the Court to make a copy of such a thing, to obtain a copy of it.
(5)In respect of criminal proceedings in the Court, where a conviction or order is made, or a charge is dismissed, any party interested therein is entitled on request -
(a)to receive a copy of -
(i)the prosecution notice containing the charge;
(ii)the record of proceedings;
(iii)any statement of the accused’s convictions that is tendered in the proceedings; and
(iv)the conviction or order,
from the officer who has custody thereof, subject to payment of an amount calculated in such manner as is prescribed by regulations; and
(b)to view any exhibit in the proceedings that is in the possession of an officer of a court and that is not reasonably capable of being copied, at a time and place appointed by that officer.
(6)In subsection (5)(a)(ii) 'record of proceedings' means a record of the evidence and proceedings however made whether -
(a)taken personally by the person constituting the Court;
(b)recorded in any manner by a clerk or typist; or
(c)transcribed from a sound recording,
and includes any record of the reasons for the decision, and a copy of any exhibit that is reasonably capable of being copied.
(7)In respect of criminal proceedings in the Court, each of the following people is entitled, on request, to inspect or obtain a copy of any document that is part of the Court’s records and any document received by the Court in sentencing proceedings -
(a)a party to the proceedings;
(b)the Commissioner of Police;
(c)the Director of Public Prosecutions appointed under the Director of Public Prosecutions Act 1991;
(d)the Corruption and Crime Commission established under the Corruption and Crime Commission Act 2003;
(e)the Chief Assessor appointed under the Criminal Injuries Compensation Act 2003;
(f)the Parliamentary Commissioner for Administrative Investigations appointed under the Parliamentary Commissioner Act 1971;
(g)the chief executive officer of the department of the Public Service principally assisting in the administration of the licensing provisions of the Road Traffic Act 1974;
(h)a person authorised by one of the above persons;
(i)a person prescribed by the regulations.
(8)Subject to this section, the rules of court may provide for unconditional or conditional access to records and things held by the Court by parties to cases and by other persons.
The essential question in the present matter is whether each applicant, as a media organisation reporting on the proceedings to the public, was a 'party interested' within the meaning of s 33(5). In my opinion, it will assist in determining the correct answer to this question if certain extrinsic materials are taken into account pursuant to s 19 of the Interpretation Act 1984 (WA). In this regard, the official record of proceedings in Parliament shows that when the Magistrates Court Bill 2003 (WA) was first presented to the Legislative Council, it did not contain the present s 33(5). However, the Bill was referred to the Standing Committee on Legislation, which recommended that cl 33 be amended to incorporate the provisions of s 148 of the Justices Act 1902 (WA). It was as a result of this recommendation being adopted that the present s 33(5) and s 33(6) were included in the MCA as finally enacted.
It is important to note that s 33(5) is in virtually the same terms as the former s 148(1) of the Justices Act. The only differences are that s 33(5) commences with the words 'In respect of criminal proceedings in the court' (which did not appear in s 148), and also refers to a 'prosecution notice' instead of a 'complaint'.
The Magistrates Court (General) Rules 2005 (WA) govern the manner in which applications or requests for access to court records are dealt with. The relevant rules include the following:
37. Request to inspect or obtain a copy of a record (Act s 33)
(1)A request under the Act section 33(3), (5) or (7) must be made by lodging a Form 1.
(2)If a person who is not a party to a case wants -
(a)to inspect, listen to, or obtain a copy of, any record; or
(b)to inspect any thing,
held by the Court in respect of the case, the person must lodge a Form 1.

38. Requests, dealing with
(1)When a Form 1 is lodged in respect of a record in a case, a registrar may -
(a)grant the request if the request is made by a party to the case and is not made under the Act section 33(5);
(b)grant the request if -
(i)it is made under the Act section 33(5); and
(ii)the registrar is satisfied that the person making it is an interested party;
or

(c)otherwise, refer the request to a magistrate.

(2)A magistrate who is referred such a request may -
(a)without hearing the applicant, grant it; or
(b)after hearing the applicant, grant or refuse it.

...
41. Conditions on access may be imposed
(1)A registrar or magistrate granting a request referred to in rule 37 or an application referred to in rule 39 may impose any conditions on the applicant’s access to the record as is just.
(2)Without limiting subrule (1), conditions may be imposed -
(a)to prevent the record from being damaged, interfered with or lost;
(b)to prevent the improper use or publication of the record or any information in it.

The Magistrate's reasons for refusing to provide copies of the exhibit

Pursuant to r 38, each applicant's request for a copy of the videotape exhibit was referred to the Magistrate for decision. After hearing submissions from counsel, her Honour reserved her decision and, subsequently, delivered comprehensive written reasons for refusing each request.
In those reasons, the Magistrate noted a number of authorities referred to in the course of submissions, including Chick v Chick (Unreported, 8 June 2005) where Magistrate Packington considered s 33(5) and came to the view that The West Australian newspaper 'would have to be regarded as ... a party interested in the outcome of criminal proceedings held in open court'. (Her Honour observed that she was not bound by the decision of a fellow magistrate.)
Her Honour also noted the decision by Slicer J of the Supreme Court of Tasmania in R v Clerk of Petty Sessions; Ex parte Davies Brothers Ltd (1998) 8 Tas R 283 which concerned similar legislation enabling a person with a 'sufficient interest' in the subject matter of proceedings to have access to court documents. In the context of that legislative provision, Slicer J held that:
A reporter or other representative of the media is doubtless an interested party in all matters commenced by a public officer.
The Magistrate also referred to Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining & Energy Union [2007] WASC 133, where Le Miere J had extensively reviewed the authorities concerning the principles of open justice. Her Honour particularly noted the authority of Australian Securities & Investments Commission v Rich [2002] NSWSC 198 (ASIC v Rich), where Barrett J held:
The court has an undoubted and clear role to play in assisting the media to obtain a full and fair understanding of what has transpired so that informed reporting can occur without incomplete appreciation of source materials and in a way which enables the various matters which have come out in court, whether or not actually spoken aloud, to be understood in the full context of the case. [9]
However, in deciding that none of the applicants was a 'party interested therein' within the meaning of s 33(5), the Magistrate relied upon an authority not referred to by counsel, namely the decision of the Full Court in Titelius v Public Service Appeal Board [1999] WASCA 19. In that matter the provisions of s 148 of the Justices Act were considered in the context of an application for certiorari to quash a disciplinary decision against a public service officer. The officer had been disciplined for allegedly providing a copy of a court order to a person who was not necessarily a 'party interested therein'.
It was her Honour's view that Titelius was authority for the propositions that the entitlement to copy documents was limited to persons having a direct interest in the particular conviction, order or dismissal; and that such an interest did not exist when a person was simply curious, or had some emotional, or other, interest in the proceedings. Her Honour considered that particular examples of a 'party interested therein' under s 148 were a person in whose favour a compensation order might be made, and the alleged victim of a crime.
Her Honour then went on to state:
In my opinion the retention of the word 'party' demonstrates that Parliament intended that the class of persons to whom there is an obligation to supply a copy of a document continue to be limited, given that s 148 was effectively transposed into the Magistrates Court Act subsequent to the Titelius decision.
These proceedings were conducted in open Court and any member of the public could have come into the court room and watched the relevant video when it was played in evidence. However that fact does not then entitle that member of the public to obtain a copy of the video. The submissions made on behalf of the applicants are very much tied to each of their respective interests in informing the public as to the process in the court room. I certainly agree that the media has an interest in reporting proceedings such as this. I agree that such reports should be as accurate and informative as possible. I agree with the principles of open justice. However whilst the media is clearly, in general terms, interested in such proceedings I believe that the limits placed on the obligation to be exercised under s 33(5) are limits that exclude each of these applicants from an entitlement to a copy of the video. To trigger the entitlement, an applicant must establish amongst other things, that he or she is a party interested in the conviction or order made or in the dismissal of the charge(s).
S 33(5) of the Magistrates Court Act limits the class of persons to whom there is an obligation to supply a copy of a document. The term 'any party interested therein' does not extend to a journalist or a media organisation. In my opinion the term refers to any party directly interested in the conviction or order made, or the dismissal of the charge(s), rather than to any person with an indirect interest but upon whom the outcome of the proceedings has no direct impact. [17] ‑ [19]
It is relevant to note that at the time of delivering the above decision her Honour also determined the primary proceedings by dismissing all but one of the charges and convicting the defendants on the other.

The nature of the media's 'interest' in proceedings

The essential submission on behalf of the applicants is that the Magistrate construed the words 'persons interested therein' too narrowly, and without sufficient regard to the principles of open justice including the media's special role in reporting court proceedings to the public.
In this regard I do not understand the applicants to contend that the common law principles of open justice are determinative of the proper construction of s 33(5), because, of course, they are not. Nevertheless, a consideration of these principles will undoubtedly assist in identifying the precise nature of the 'interest' that a media organisation can justifiably claim to have in any proceedings.
The classic Australian statement of the fundamental principle of open justice is to be found in Russell v Russell (1976) 134 CLR 495, where Gibbs J said:
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted 'publicly and in open view' (Scott v Scott [1913] AC 417 at 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. (520)
Other than in exceptional cases (where the interests of justice require that there be a suppression order) it is well established that this principle of open justice can only be fulfilled if there is full and fair reporting of the proceedings by the media. In Re Bromfield; Ex parte WA Newspapers Ltd (1991) 6 WAR 153, the Full Court was required to determine whether WA Newspapers Ltd had standing to seek judicial review by way of a prerogative writ of a magistrate's decision suppressing publication of proceedings. It was in this context that Malcolm CJ (164) held:
The administration of justice is a matter of public interest. Not all members of the public are able to attend court proceedings. The public nature of judicial proceedings is facilitated by the publication of fair and accurate reports of proceedings in our courts. While the publication of 'newsworthy' reports of proceedings in the courts is no doubt conducive to the sale of newspapers, I accept the reports of court proceedings are generally published for the information of the public. It is in the interests of the administration of justice and in the public interest that the public be fairly and accurately informed of what takes place in our courts.
In the same context, Rowland J (Re Bromfield (179 ‑ 180)) referred with approval to the following dictum by Lord Diplock in Attorney‑General v Leveller Magazine Ltd [1979] AC 440:
As a general rule the English system of administering justice does require that it be done in public: Scott v Scott. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the Press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this. (449 ‑ 450)

The Full Federal Court expressed very similar views in R v Davis (1995) 57 FCR 512 when overturning (the equivalent of) a suppression order. The court stated:
In Canberra as elsewhere, the media habitually report pre-trial proceedings, including evidence given in committal proceedings. Whatever their motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them. (514)
Consistent with these principles of open justice, any member of the public has an unrestrained common law right of access to court documents of a 'public' nature such as orders or judgments (Titelius [96] ‑ [101]). There is no such general right in respect of other documents used in open court unless the person seeking access has a proprietary interest in the document or needs to use it as evidence in other legal proceedings (Titelius [82] ‑ [85]). However, upon request, a court has inherent power to make available materials which have been admitted into evidence (Broad Construction Services [16]), and most courts have rules which provide for a discretionary grant of leave in respect of such requests.
The decision in Broad Construction Services contains a very helpful review of the authorities concerning the granting of leave to non‑parties to access documents used in court. In Australian Competition & Consumer Commission (ACCC) v ABB Transmission & Distribution Ltd (No 3) [2002] FCA 609 (Finkelstein J) held that:
[T]he proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances.
Similarly, in Seven Network Ltd v News Ltd [No 9] [2005] 148 FCR 1, Sackville J stated:
[I]t seems to me that unless the interests of justice require otherwise, this Court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence. … a convenient touchstone for determining the question of access by non-parties is whether the documents or other material have been admitted into evidence. In general, the application of this principle will serve the interests of open justice. In particular, access to the documentary evidence can be expected to be helpful to a person seeking to understand or explain the proceedings, or to evaluate the court’s determination of the issues arising in the proceedings.
In Broad Construction Services itself, Le Miere J held [46]:
In general, the Court should favour allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence, whether in the course of a trial or an interlocutory hearing. There may be reasons for refusing to exercise the court’s discretion in favour of access but in the absence of any good reason to refuse access the principle of open justice favours access.
The above authorities establish the principles that apply to applications for access to court documents by members of the public generally. In ASIC v Rich, Barrett J referred specifically to the considerations that arise when the application comes from a media organisation:
[D]ecisions about access to documents in court files are to be determined first and foremost by reference to principles of open justice and the due administration of justice that require an appropriate measure of cooperation by the court with those sections of the media which seek to report proceedings before the court. Those principles focus most sharply on the situation where a trial has taken place or is at least in progress. The proceedings which must be open and to which access in the public interest must be guaranteed are proceedings that actually take place in court. It is in that context that the court has an undoubted and clear role to play in assisting the media to obtain a full and fair understanding of what has transpired so that informed reporting can occur without incomplete appreciation of source materials and in a way which enables the various matters which have come out in court, whether or not actually spoken aloud, to be understood in the full context of the case. [9]
However, in Fairfax Publications v Ryde Local Court (2005) 152 A Crim R 527, the New South Wales Court of Appeal appears to have taken a more restrictive view on the extent to which the media should have access to materials used in court. Although the court held [32] that 'use in court will often be determinative when making a decision to give the media access to documents so deployed', it also referred to an 'underlying principle' which determines 'when a document has been put before the court in such a manner that it ought to be made public'. The Court [69] approved that underlying principle in terms as stated by Byrne J in Smith v Harris [1996] 2 VR 335, 350:
[T]he policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself.
It is important to note that most of the above authorities involved requests for 'access' to court documents under rules which allowed for both the inspection and copying of the same. The issue in the present case does not arise under any such rule but pursuant to a statutory provision which confers an entitlement on certain persons to copies of the relevant documents. As Malcolm CJ observed in Titelius [88], this same provision in s 148 of the Justices Act 'create[d] a right where none may previously have existed'.
It is also necessary to emphasis that the principles of open justice focus on the conditions necessary for the proper operation of the justice system and not on the creation of rights of access to documents used in court. In Fairfax Publications, Spigelman CJ stated:
Neither the claimants, nor the public at large, have a right of access to court documents. The 'principle of open justice' is a principle, it is not a freestanding right. It does not create some form of Freedom of Information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However, it remains a principle and not a right. [29]
Although the media does not have a 'right' of access to documents used in proceedings, I nevertheless consider that it has an 'interest' in doing so if that is necessary in order for the public to be fully informed of what transpired in court. In this regard, the media's interest in accessing a particular document is entirely commensurate with the extent to which the public need to be aware of the contents if they are to be able to properly scrutinise the proceedings.
In the great majority of cases where these circumstances arise, an adequate public comprehension of the contents of the document will be achieved by a simple inspection of the same by the media. However, there will always be the occasional case (of which the present may be one) where the publication of a printed or spoken description of the exhibit would not enable the public to fully comprehend what it contains. If in the present case, it is necessary to view the video in order to appreciate the nature of the evidence and to adequately scrutinise the decision of the Magistrate, then in my opinion the media would have a valid interest in obtaining a copy of the same.
Quite apart from the interest which arises from the operation of the principles of open justice, there are also authorities which suggest that the media has an interest in proceedings by reason of it being in the business of reporting. These authorities include: Re Bromfield (193) (Nicholson J); Re Guardian Newspapers Ltd [2005] All ER Rep 155; and Broad Construction Services [34] ‑ [35]. However, it is unnecessary to consider this question in the present case because each applicant requested a copy of the exhibit only 'for the purpose of broadcasting a fair and accurate report' of the proceedings.

The proper construction of s 33(5)

The legislative history that I outlined earlier explains why s 33(5) does not entirely mesh with the other provisions in s 33. When recommending that s 148 of the Justices Act be incorporated into the Magistrates Court Bill, the Select Committee was concerned 'about the proposed narrowing of the access to the court record, particularly in relation to criminal proceedings' ([2.46] of the Report). For this reason the Committee recommended that cl 33 be amended 'to allow wider access to the court record in criminal proceedings' (Recommendation 2 in the Executive Summary of the Report).
In this regard, the Select Committee had heard evidence from Chief Magistrate Heath that the Bill had been
through a number of proposed drafts in trying to strike that balance between people who have a genuine interest in a matter for legitimate purposes and those who are only wanting to get access and could use it for essentially improper purposes, without getting a scheme that needs application to be made to the trial magistrate on every occasion.
Although the proposed cl 33 was more restrictive than s 148, the Chief Magistrate also expressed the hope 'through Court rules and procedures, to widen that for people such as those in the Press, but have it in a manner that will protect what would otherwise be confidential documents that should not be widely distributed' (ts 6). However the Select Committee did not accept that 'this mechanism would achieve the level of access to the court record currently provided by s 148' and therefore recommended the incorporation of that provision into the Bill ([2.47] of the Report).
It is perhaps surprising that the Select Committee made this recommendation notwithstanding advice from the Department of Justice that 'following the Titelius case, the meaning of the term "party interested" remained unclear'. The Select Committee was also aware of the Chief Magistrate's view that the decision in Titelius 'still creates problems of interpretation' ([2.38] ‑ [2.39] of the Report).
In the end s 148 of the Justices Act was inserted into the MCA as s 33(5) and s 33(6) with some minor variations in wording. Those variations were clearly necessary to accommodate s 148's incorporation into an Act which dealt with both civil and criminal proceedings, as well as the fact that the terminology for 'complaint' had changed to 'prosecution notice'. In my view, it necessarily follows that these minor modifications cannot of themselves have changed the meaning of the provisions once they were inserted into the MCA.
As to the proper construction of the provisions, it is not surprising that the authority of Titelius is of limited assistance. The decision in that case did not turn on whether or not the applicant had released the court order to a 'party interested therein'. In this regard, it was the respondent's contention that regardless of this question, the applicant had been negligent in the performance of his functions (Titelius [67]). Furthermore, the Court held that although s 148 limited the class of persons to whom there was an obligation to supply a copy document, it did not 'contain or imply a prohibition on the provision of a copy to any other person' [50].
To the extent that Titelius throws any light on the proper construction of s 33(5), this comes from the reasons of Malcolm CJ [67] to the effect that it was 'at least strongly arguable' that the recipient of the document in that case was a 'party interested therein'. Ipp J [104] agreed with this aspect of Malcolm CJ's reasons and added that a 'party interested' is a 'broader concept than a party to the proceedings'.
For the reasons already stated, I do not consider that the meaning of the words 'party interested therein' changed as a result of the minor modifications to the overall provisions in s 33(5). Accordingly, the word 'therein' should be understood to refer to the conviction, order or dismissal, and not to the 'criminal proceedings'.
In any event, it is my opinion that not very much turns upon this distinction, because the reference to a conviction order or dismissal is primarily to establish a point in time when the entitlement to copy documents first arises. In this regard it is significant that no such time bar applies to a 'party to a case' under s 33(3) nor to any of the people specified in s 33(7). In my view, it is entirely logical (as well as consistent with these other provisions) that the wider category of persons contemplated by s 33(5) should have to wait until the criminal proceedings are complete before gaining access to the relevant documents.
One of the consequences of incorporating s 148 of the Justices Act into the Magistrates Court Act is that those provisions now appear in a very different statutory setting. In its previous manifestation, s 148 had to cover the whole of the field that is now addressed by the much more detailed and varied provisions in s 33. This new statutory context must inevitably impact on the proper construction of the particular provisions the subject of s 33(5), and it may well be that the meaning of the words 'party interested' has now changed.
In this regard, one of the most significant changes to the statutory framework is to be found in s 33(8) which allows conditions to be imposed upon access by 'other persons' to court records. One of the great problems with s 148 of the Justices Act was that the entitlement to access was an all or nothing situation with the Court having very little capacity to prevent subsequent misuse of documents once they were released. However, s 33(8) now allows the court to exercise considerable control over what is done with the copy documents. In my opinion this aspect of the statutory framework supports a fairly broad construction being given to the words 'party interested'.
It is also significant that a 'party interested' under s 33(5) is entitled to copies of a much narrower range of court documents than a party to the proceedings or the other people specified under s 33(7). Furthermore, the only documents which the 'party interested' can access are those which are part of the court record or which were produced in open court. Yet again, I consider that these are aspects of the statutory scheme which favour a fairly wide construction of s 33(5).
The words 'party' and 'interested' are ordinary English words in common use which nevertheless have widely varying meanings depending upon the context in which they are used. In my opinion, 'party' as used in the context of s 33(5) means a particular individual who meets the description that is specified by the subsection, namely a person who is 'interested therein'.
In the context of s 33(5), the word 'interested' might conceivably have a meaning which falls anywhere within the range from being simply curious, up to having some form of proprietary right or title to the documents. However, if Parliament had intended that anyone who was merely curious should have access, it surely would have conferred that entitlement on 'any person'. 'Interested' is obviously a word of limitation intended to restrict the categories of persons entitled to copy documents under the subsection.
For all of these reasons I consider that the provision should be given a fairly wide construction but not so wide as to allow almost anyone to obtain copies of court documents. In my opinion, a sensible meaning for the words 'party interested' is that the entitlement to access is restricted to those persons who have some form of concern or involvement in the conviction, order, or dismissal (viz. the proceedings) which is more than mere curiosity or some other interest of a trivial nature.

Whether the present applicants were 'parties interested'

I have earlier expressed the view that each of the present applicants will have an 'interest' in publishing the videotape, if such publication is necessary for the public to fully comprehend the nature of the evidence and to be in a position to properly scrutinise the proceedings. Of course, this is not the same interest that s 33(5) refers to, which is an interest of a much wider kind in the proceedings generally. Nevertheless, it is my opinion that the interest that each applicant has in reporting the proceedings to the public does constitute an interest of the type contemplated by s 33(5). It is an involvement or concern in the proceedings which rises above mere curiosity (or some other trivial interest) and thus entitles them to a copy of the videotape.
Accordingly, I respectfully disagree with the Magistrate's conclusion that the term 'party interested therein' does not extend to a journalist or a media organisation. In my opinion, the Magistrate misconstrued the word 'party' as referring only to a person 'directly' interested rather than to a person 'with an indirect interest but upon whom the outcome of the proceedings has no direct impact'. For the reasons previously stated, this is not the test which determines whether or not a person is entitled to copy documents under the subsection.
The entitlement of each applicant to a copy of the videotape does not carry with it an untrammelled right to publish the same. Under r 41(2)(b) the Magistrate has an unfettered discretion to impose conditions which 'prevent the improper use or publication of the record or any information in it'.
In deciding what conditions (if any) to impose, the Magistrate will no doubt have regard to the concerns of other persons whose interests might be affected by publication of the videotape, and will provide them with an opportunity to be heard. Such persons would include the defendants in the proceedings (viz. the operators of the child care centre) as well as the parents of the children who can be seen in the video.
It is entirely for the Magistrate to determine whether any interest that the public may have in seeing the video is outweighed by the valid concerns of any other party. I simply make the observation that the range of possible outcomes include a decision that no conditions should be imposed, a condition that the videotape be edited (eg by pixilating the faces of the children) prior to publication, or a condition prohibiting publication all together.

Conclusion

For all of the above reasons I order that the decision the subject of this review should be set aside, and that the matter be referred back to the Magistrate for a determination of the conditions (if any) that should be imposed on the release of a copy of the exhibit to each applicant.