17 May 2014

Open Access

In The Queen v Miroslav Jovanovic [2014] ACTSC 98 Refshauge J has provided a nuanced and elegant judgment regarding public access, through the media, to exhibits in a criminal trial.

In February 2014 an ACT jury found Miroslav Jovanovic guilty against of intentionally inflicting grievous bodily harm on Peter Manna at the Belconnen Bus Interchange. The trial featured two extracts of video from CCTV cameras at the Interchange.  Journalists from the Australian Broadcasting Corporation and The Canberra Times sought access to the exhibits to supplementing news stories about the conviction.

Media coverage in the previous year had included the report that
A man accused of a random, near-fatal stabbing at the Belconnen bus interchange earlier this month ignored his girlfriend's pleas of "don't stab him" before launching into the frenzied attack, according to police. 
Miroslav Jovanovic appeared in court on his 55th birthday on Friday over allegations he repeatedly stabbed a man waiting for a bus at the interchange on Lathlain Street on Sunday April 7. 
The alleged stabbing left the 38-year-old victim with six or seven open wounds, a punctured lung, and severed arteries between his ribs, according to court documents. He lost four litres of blood, and police say he would have died without emergency treatment. 
The attack appears to have no clear motive, and CCTV footage does not show the victim attempting to defend himself or fight back at any time, according to police. Police say the victim was standing at a platform about 4.50pm, when Jovanovic ran up behind him and punched him in the back of the head.
The attack apparently became more unpleasant after that punch … grand guignol, Canberra-style, in time for the public sector rush hour.

The requests by the journalists were opposed by Jovanovic's representative at the end of the trial. Refshauge J refused to permit access prior to sentencing. He received a formal request and the ABC provided a written submission.

The Court has now published reasons for granting access.

Refshauge J states that
An important issue for courts is that they are open to the public. The courts do their business in the open. The open justice principle is applied in many cases and in many different situations; the leading authority on the scope of the principle is Scott v Scott [1913] AC 417. It has been invoked to limit or preclude attempts to prevent members of the public from attending the proceedings of courts as in Dickason v Dickason (1913) 17 CLR 50. See also Russell v Russell (1976) 134 CLR 495 at 505.
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. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ (McPherson v McPherson [1936] AC 177 at 200). ...
As Gibbs CJ said in Russell v Russell at 520
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. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’ (McPherson v McPherson [1936] AC 177 at 200). ...
It has to be said that ancillary to this is the role of the media. Indeed, as Spigelman CJ, with whom Handley JA and Campbell AJA agreed, said in John Fairfax Publications Pty Ltd v District Court (NSW) (Unreported, NSWCA, Spigelman CJ, Handley JA, M W Campbell A-JA, 15 September 2004) at [20]
The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Nothing should be done to discourage fair and accurate reporting of proceedings. See, for example, Attorney General v Leveller Magazine Ltd [1979] AC 440 at 450.
Naturally not everyone can attend court proceedings and a fair and accurate report of court proceedings is an important part of the way in which the principle of open justice can be implemented. 
Indeed, the Full Court of the Federal Court of Australia suggested in R v Davis (1995) 57 FCR 512 at 514 that, as few members of the public have the time, or even the inclination, to attend courts in person, the open court principle, in a practical sense, demands that the media be free to report the proceedings of the court. 
Lord Widgery CJ said in R v Denbigh Justices; Ex parte Williams [1974] QB 759 at 765
Today, as everybody knows, the great body of the British public get their news of how justice is administered through the press or other mass media, and the presence or absence of the press is a vital factor in deciding whether a particular hearing was or was not in open court. I find it difficult to imagine a case which can be said to be held publicly if the press have been actively excluded.
This importance is recognised in the fact that, despite risks of unfair inferences being drawn that a defendant is guilty, or of influencing potential jurors, a fair and accurate report of committal proceedings is permitted. See Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 at 25.
The open justice principle has limitations, however, and one of those limitations relates to court files and, therefore, exhibits. 
Open justice and access to exhibits 
Lord Coke was cited in Brown v Cumming (1829) 10 B&C 70; 109 ER 377 as authority for the view that the open justice principle allowed every person to have access to the records of courts. The Court there did not have to decide the issue, though a number of cases were cited to it which were at variance with that view. 
The view of Lord Coke has not prevailed. In R v Waterfield [1975] 1 WLR 711 the UK Court of Appeal held that members of the public have no right to look at exhibits. Thus, Lawton LJ said in the judgment of the Court (at 714)
When evidence is given orally, all in court hear what is said. When written evidence is produced it may or may not be read out. In most cases part of what is written is read out, but not the whole. When a piece of real evidence is produced a witness has to say from where it came. This having been done, the jury looks at the exhibit. Usually the judge does too and counsel in the case may do so. The exhibit, however, is not shown to other persons who may be in court. They may be able to see what the article is: it may be a pistol or a knife. Sometimes they cannot; and if what is produced is a folder containing photographs (a common form of exhibit) they will not know what the photographs show unless either the judge, counsel or a witness describes them ... The members of the public in court have no right to claim to be allowed to look at the exhibits. A film put in evidence has to be looked at by a jury and a screen and a projector are necessary to enable them to do so. Members of the public in court have no more right to see a film than they have to see any other exhibit; and the circumstances may be such that it would be impracticable, even impossible, to show the film in the courtroom itself.
Later, in GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984 at 995, Potter LJ, with whom Butler-Sloss LJ and Sir Patrick Russell agreed, held that, other than as read out in court, there was no way that the contents of documents tendered in court were available to members of the public and that the court had no right to provide such documents to the public without the consent of the parties. 
In the United Kingdom, the increasing use of documents which were pre-read by judges or not read out so as to enhance expedition and efficiency has caused the courts to rethink this access issue. Thus, in SmithKline Beecham Biologicals Special Advocate v Connaught Laboratories Inc [1999] 4 All ER 498 at 511-2, Lord Bingham CJ said
Since the date when Lord Scarman expressed doubt in Home Office v Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and of judges pre-reading documents (including witness statements) out of court, have become much more common. These means of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided. …
Nevertheless, the tension between efficient justice and open justice is bound to give rise to problems which go wider than Order 24, rule 14A. Some of those problems were explored in the judgement of Potter LJ in Gio Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd (FAI General Insurance Co Ltd Intervening) [1999] 1 WLR 984. As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.
In Australia, the approach that the public has no right to see exhibits and like documents seems to have been accepted. Thus, in Herald and Weekly Times Ltd v The Magistrates Court of Victoria (2000) 2 VR 346 the Court of Appeal had to consider access to witness statements and the charge sheet handed up to the court as a “hand up brief” in committal proceedings in the light of s 125(1) of the Magistrates Court Act 1989 (Vic) which provides that all proceedings in the Magistrates Court are to be conducted in open court unless the Act provides otherwise. Charles JA, with whom Tadgell and Chernov JJA agreed, held at 361; [40]
There remains the question whether the Magistrates’ Court, by denying access to the documents sought by the appellants, was acting in breach of s 125(1) of the Act. The learned judge gave comprehensive and compelling reasons for his conclusions that s 125(1) does not extend to obliging the court to provide, upon request, reasonable access to copies of the charges sheet and witness statements. His Honour considered that a proceeding is properly conducted in open court if the public has a right of admission to that court which is reasonably and conveniently exercisable and did not think that an open court becomes ‘closed’ if a request by a member of the public or the press for such access were refused in a committal proceeding. For my own part, I agree with each of his Honour’s conclusions in this regard, and with the reasons given. In my view s 125(1) gives the appellants no right to such access in a committal.
That exhibits are not normally available for inspection was subsequently confirmed by the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell (representing the Estate of McCabe (deceased)) (No 2) (2003) 8 VR 571 at 587; [36] and more recently by Preston CJ in Caroona Coal Action Group Ltd v Coal Mines Australia Ltd (No 4) [2010] NSWLEC 91 at [44]. 
That approach, however, has come under pressure and scrutiny. In Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (2002) FCA 609 at [4], Finkelstein J pointed out that [i]f it be that the common law does not permit access to written evidence or exhibits (that is to say to the material upon which the judge has relied to decide a case) then the rule of open justice will not effectively secure its objectives. 
His Honour pointed out that such a rule, if such it be, developed when a very different court manner was extant and that things were now very different. His Honour continued at [7]
The question that I must resolve is what principle should be applied when deciding whether to allow inspection in cases where leave is required. In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge. In such a case I have no doubt that the 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. I think that the position is a fortiori when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is an unacceptable position.
There are a number of cases that have since taken that general approach. See, for example, R v Elomar (No 3) [2008] NSWSC 1443, R v Benbrika (No 26) [2008] VSC 452.
Refshauge J went on to consider any human rights issues, commenting
While the interpretative provision in s 30 of the Human Rights Act 2004 (ACT) only applies to statute law, it seems to me that I can have regard to the human rights in that Act as a measure of the approach to be taken to relevant issues. 
Thus, s 16(1) does include a right to receive information. This right, which is equivalent to that included in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, has been described by Sedley LJ in London Regional Transport v Mayor of London [2001] EWCA (Civ) 1491 at [55] as an important right which is the “lifeblood of democracy”. This has arguably been seen by the European Court of Human Rights as giving the press an enhanced right as “social watchdogs” or “public watch dogs” as the press was described in Tarsasag A Szabadsagjogokert v Hungary (Application No 37374/05, ECHR, Judgment 14 July 2009). 
 In the United Kingdom, it has been held that the press enjoy the rights under Article 10. See In re Guardian News and Media Ltd [2010] 2 WLR 325 at 337; [34] per Lord Rodger of Earlsferry. As was there said, however, this is a right which can be restricted, so that the courts, apparently legitimately, interfere with it when, for example, they make an anonymity order. 
 Nevertheless, in In re Guardian News and Media Ltd at 337; [34], Lord Rodger held that Article 10 did not require information not otherwise available to be provided to the press, hence the court declined to set aside the anonymity orders made by the Court of Appeal. 
In R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates Court [2011] 1 Cr App R 447, the Court of Appeal declined to overrule an order of the lower court refusing the press access to certain documents relied on by parties in certain extradition proceedings in the Magistrates Court, even though the documents had been referred to in open court. 
 The Court held that, despite the enhanced role of the press, greater than members of the public, it did not have a right to access the relevant documents which would require an extension of Article 10 rights. 
 It seems to me that the current application is not, on the present state of human rights law, assisted by the jurisprudence on s 16 of the Human Rights Act. 
 Statutory provisions, however, have now intervened and a number of courts have made rules which permit inspection, sometimes by leave of the court. Some courts have proceeded by practice direction. 
In this Court, files of the court are open for inspection. For criminal proceedings, r 4053 of the Court Procedures Rules 2006 (ACT) permits anyone to inspect files and see documents filed in the Registry, with some specified exceptions where leave is required. That the default position is that persons may inspect the files is consistent with the open court principle. 
An exhibit, however, does not seem to me to be a document ordinarily filed in the Registry; it is usually handed up in court. Even when exhibited to an affidavit, it is not usually filed with it, but handed up in court when the affidavit is read. See Robowash Pty Ltd v Robowash Finance Pty Ltd (2000) 158 FLR 338 at 340-3; [10]-[23]. The common law then applies, it seems to me, to exhibits. ...
 In any event, it seems to me that I should approach the application on the basis that the public has a prima facie right to have access to exhibits that are tendered in open court, unless there has been some express direction of the court that they not be inspected. This is the approach adopted elsewhere in other courts. See, for example, R v Xu (No 1) (2005) 152 A Crim R 17 at 21; [23]. 
I have also been assisted in this task by certain Western Australian authority. In Nicholson v Morgan [2012] WASC 65 at [32], Corboy J analysed the relevant authorities and concluded as follows:
(a) an application for leave to access relevant documents is to be determined according to the interests of justice, which includes that justice be administered in the open so that ordinarily access will be granted to non-parties to material read in court or tendered in evidence; 
(b) the principle of open justice applies where access is sought to material that was not tendered in evidence or read or shown in court but which was placed before the judge for the purpose of the proceedings; 
(c) the interests of justice involve different considerations where access is sought to documents that have not been referred to, or used for the purpose of, proceedings in open court, so that the principles of open justice are not generally engaged when documents are filed in the registry but rather when they are used in or for the court; 
(d) it is not necessary to decide whether there is a presumption against granting access to documents which may only be inspected with leave, especially documents such as unread affidavits which may never be used or read and should ordinarily not be made public until then for the reasons set out in Dobson v Hastings [1992] Ch 394 at 401-2; and 
(e) caution must be exercised in granting access to documents on the court file which have not been used in open court. 
The occasions where access is not granted should, it has been suggested in cases such as R v LMW [1999] NSWSC 1111 and David Syme & Co Ltd v General Motors-Holden Ltd [1984] NSWLR 294 at 310 per Samuels JA, be wholly exceptional. I respectfully agree.   
The present application is, of course, not merely for access to the exhibits, but leave to copy them so that the video or excerpts, including single images, can be published. 
There is, it seems to me, a qualitative difference between a report in words and the publication of pictures or video, particularly where the images may be graphic. There are obvious images which should ordinarily be subject to exclusion, such as gruesome or sexual images or images of children. Care needs also to be taken to respect privacy, which may raise issues about images which include people who are no more than witnesses or are unconnected with the proceedings completely. 
For example, there are, in the video seen here, a number of people who are merely potential bus passengers waiting for their expected bus but who, because of the fact the incident happened to occur in front of them, were captured by the video. Of course, not many were or, perhaps, could be identified, not in some cases even by themselves as the CCTV video did not show a particularly clear picture and, in any event, it is not clear to me that a mere bystander could or would be shown in a detrimental light. 
Further, it does not seem to me that I should be too speculative. I could construct a scenario where it is possible that someone may be identified as being at the Interchange even though it turns out that they had told another person (perhaps a partner) that they were somewhere else at the time and that this could be harmful to them if the images are displayed. It seems to me that, in general terms, this goes too far. 
The question, then, is whether, in the circumstances of this particular trial and the particular exhibit sought, it is proper to characterise the circumstances as wholly exceptional so as to require me to decline to permit access. 
While access to inspect an exhibit in the absence of a suppression or non-publication order under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) is, therefore, to be generally permitted unless there are exceptional circumstances, the media will not be given permission to copy or uplift an exhibit as a matter of course and, it seems to me, this still remains a matter over which the court must exercise control. Nevertheless, in appropriate, perhaps many, cases, probably with an emphasis on open justice, such leave would be granted. 
I note that R v RIK [2004] NSWSC 75, Kirby J released video footage that was poignant and graphic where a person, harassed by a juvenile at a railway station, stood up and walked away and jumped on the railway tracks to make his way to the opposite platform but a train coming in the opposite direction collided with him before he reached safety. 
His Honour held that there were issues of public safety and deterrence. It was more powerful than any description of the same events. 
On the other hand, in R v Benbrika (No 26), Bongiorno J refused to release video footage which would identify an agent of the Australian Security Intelligence Organisation which would be contrary to s 92 of the Australian Security Intelligence Organisation Act 1979 (Cth). 
There is, also, an obvious difference between the release of such exhibits during a trial, when a jury is still empanelled, and after the trial. Some of the issues are discussed in R v Sam (No 5) [2009] NSWSC 543 at [19]-[22], [26], [28]-[29]. 
It is particularly relevant that the video material was played in open court where any member of the public could have seen it had they been in court. Spigelman CJ, with whom Mason P and Beazley JA agreed, considered in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at 521; [32] that use of material in open court would often be determinative of the question whether the media should be given access to the material used, though that case concerned documents used in the court to which access was sought, rather than images which were to be copied from the exhibit. 
So far as the leave to have such access as will permit publication of the CCTV footage is concerned, I have been assisted by, again, the general approach of the courts that access should generally be granted. See, for example, Brown v Health Services Union (No 4) [2012] FCA 1376 at [44]-[46].
 He notes at [53]
I am also prepared to accept, as have other judges, that I should proceed on the assumption that the media will produce a fair and accurate report using the material. See, for example, R v Elomar (No 3) at [44], R v LMW at [18]. In Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643 at 652; [39]-[40], Austin J considered that it was inappropriate to assume that the media “cannot be trusted to report, or even understand, the refined distinctions upon which it is said that the law is required to operate”. This approach was adopted by Barrett J in Jagelman v Sheahan (in liq of Mooge Ltd (in liq) (2002) 41 ACSR 487 at 489; [12]. 
Unfortunately, not all media representatives can be assumed to act in an appropriate manner as Johnstone DCJ discovered in A M v Department of Community Services (DOCS); ex parte Nationwide News Pty Ltd (2008) 6 DCLR(NSW) 329 at [6]-[9]. .... 
In Van Stokkum v Finance Brokers Supervisory Board [2002] WASC 192 at [27] McLure J set out a series of factors which are relevant to the exercise of a discretion such as this. They were: 
(a) whether and if so to what extent the document has been referred to in open court; 
(b) the stage reached in the proceedings; 
(c) the contents of the document (to assess the nature and seriousness of any allegations made and whether there is any information on any subject matter which has the potential to damage the private or commercial interests of a party); 
(d) the nature of the proceedings;  
(e) whether access to the document is necessary or desirable to facilitate an understanding of the proceedings and thus of the judicial process; 
(f) the purpose for which access is required. 
This approach was followed and expanded by Kenneth Martin J in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 285. 
In following that approach, I note that the video footage was played in open court. The proceedings have now reached the stage of sentencing. The footage, subject to one matter of privacy, will not have a potential to damage private or commercial interests. The proceedings are, of course, criminal proceedings in which the public have a significant interest, especially where the crime was committed in a public place. In my view, the footage was very relevant to an understanding of the case.
 Refshauge J also considered privacy aspects, commenting
The parties raised as an issue the privacy of Mr Jovanovic’s then partner. They are no longer in a relationship and, indeed, she has now entered another relationship. For this reason, it is sought that no image of her be broadcast. In my view, that is a reasonable restriction.
After a cogent discussion of matters relating to Jovanovic’s associate, awaiting trial, Refshauge concludes that he permitted
an authorised person from the Australian Broadcasting Commission and The Canberra Times such access to the CCTV material exhibited in the trial as to allow them to be able to copy them and broadcast or publish them or images from them, save that no broadcast or publication is permitted of Mr Jovanovic’s partner and I made orders accordingly.