Consideration and resolution of the appeal
24 In John Fairfax Publications Pty Limited v District Court of New South Wales, Spigelman CJ discussed the development of the principles of open justice and a fair trial and their significance to the integrity of the judicial process. His Honour said (at 352):
"As often happens in a context involving fundamental principle, two such principles are in conflict and a judgment must be made as to which principle is to prevail in the circumstances. The principle of open justice and the principle of a fair trial each inform and energise many areas of the law, as I have sought to show in extra-judicial addresses. (See, J J Spigelman, "Seen to be done: the principle of open justice" (2000) 74 Australian Law Journal 290, 378 and J J Spigelman, "The truth can cost too much: the principle of a fair trial" (2004) 78 Australian Law Journal 29.)
It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public. (See Scott v Scott [1913] AC 417 at 473 ; Dickason v Dickason (1913) 17 CLR 50 at 51 ; Daubney v Cooper (1829) 10 B & C 237; 109 ER 438 at 440 ; Russell v Russell (1976) 134 CLR 495 especially at 507 and 520-521, 532 .) The taking of a verdict is something which occurs in the ordinary course of criminal proceedings. (See, for example, Coulter v The Queen (1988) 164 CLR 350 at 356, 357 and cf 359-360, 362 .)
It is also well established that the exceptions to the principle of open justice are few and strictly defined. (See, for example, McPherson v McPherson [1936] AC 177 at 200 ; R v Tate (1979) 46 FLR 386 at 402 .) It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any Constitutional constraints. (See, for example, Dickason (at 51) ; Russell (at 520) ; John Fairfax Publications Pty Ltd v Attorney General (NSW ) (2000) 158 FLR 81 at 93 [70]-[73] .)
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 .)
From time to time the courts do make orders that some aspect or aspects of court proceedings not be the subject of publication. Any such order must, in the light of the principle of open justice, be regarded as exceptional. (See, for example, Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 50D-E and 54G .)
The principle of a fair trial has been characterised in numerous High Court judgments in the most forceful of terms. It has been described as "the central thesis of the administration of criminal justice": McKinney v The Queen (1991) 171 CLR 468 at 478 ; as "the central prescript of our criminal law": Jago (at 56) ; as a "fundamental element" or a "fundamental prescript": Dietrich v The Queen (1992) 177 CLR 292 at 299, 326 ; and as an "overriding requirement": Dietrich (at 330) . It is not a new principle. As Isaacs J put it in 1923 with reference to "the elementary right of every accused person to a fair and impartial trial": "Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle": R v MacFarlane; Ex parte O'Flanagan & O'Kelly (1923) 32 CLR 518 at 541-542 .
There is no aspect of preparation for trial or of criminal procedure which is not touched by, or indeed determined by, the principle of a fair trial. As Lord Devlin once put it: "... [N]early the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accuseds": Connelly v Director of Public Prosecutions [1964 AC 1254] at 1347."
25 Spigelman CJ was, of course, speaking of the principles developed by the common law. Those principles must of necessity give way or accept modification to ensure that the proceedings are conducted in a manner which serves the overall interests of society. In John Fairfax Group v Local Court of New South Wales Kirby P said (at 141):
"If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourage its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of the particular case."
26 I do not believe Kirby P's remarks should be given a confined operation but are of general application. As his Honour makes plain the common law will, in appropriate circumstances, protect the identity of informers and the interests of national security. Just as the rule of openness has in appropriate circumstances been modified by the courts it may also be modified by the Parliament. In this respect the Commonwealth Parliament has legislated to protect the security and defence interests of the Commonwealth. To this end ss 85B and 93.2 authorise a court to exclude some or all of the members of the public, prohibit publication of part or all of the proceedings or prohibit any person from having access, inter alia, to information or other documents used in the proceedings.
27 Neither the Crimes Act or the Criminal Code expressly acknowledges the principle of open justice or a fair trial. However, by the use of the word "may" the Court is given a discretion as to whether to make an order. Accordingly, the Court must determine whether the relevant interest of the security of the Commonwealth is present and, after considering the principle of open justice and the objective of providing the accused with a fair trial, determine whether, balancing all of these matters, protective orders should be made.
28 In my opinion, Whealy J approached his decision in the appropriate manner. His Honour appreciated that he was required to exercise a discretion and weigh the principles of open justice and the objective of providing a fair trial with the need to protect the security and defence interests of the Commonwealth.
29 The applicant referred to the decision of the Full Court of Victoria in Jarvie & Anor v Magistrates Court of Victoria at Brunswick & Ors [1995] 1 VR 84 and submitted that in that case a balancing exercise was carried out in circumstances analogous to the present case. Brooking J framed the task in a manner which favours disclosure. His Honour said (at 90):
"The balancing process accepts that justice, even criminal justice is not perfect or even as perfect as human rules can make it. But once it is demonstrated that there is good reason to think that non-disclosure may result in substantial prejudice to the accused, the balance has been shown to incline in his favour and disclosure should be directed."
30 Jarvie involved the question of whether the anonymity of a police operative who was called as a witness should be protected. The Court found that, because of the likely substantial prejudice to the accused if confidentiality orders were made, they were not appropriate. The case turned on its particular facts and provides no significant guidance to the resolution of the present matter. In any event, I am not persuaded that in the circumstances of the present case the protective orders in question will result in substantial prejudice to the applicant.
31 I have reviewed the evidentiary material considered by Whealy J including the affidavit of Mr O'Sullivan. It was argued that, because the concerns of ASIO relate to the protection of its dealings with other security agencies and individuals outside ASIO itself, the interests which are sought to be protected fall outside the concerns of the statute. To my mind, Whealy J was correct to reject this argument. If ASIO is to be effective it is plain that it must be able to engage in the mutual exchange of information with other security organisations and individuals. I accept that disclosure of its sources of information, whether from another organisation or an individual, may seriously compromise its future operational capacity. Although perhaps not registered informers, many of its sources of information will require protection so that they may be available in the future and so that others will not be discouraged from assisting ASIO's intelligence gathering activities.
32 The fundamental complaint by the applicant is the prejudice he may suffer by reason of the need to interrupt the hearing and close the court, perhaps on many occasions during the trial. I accept that interruptions may be necessary. However, that matter was carefully considered by Whealy J who was satisfied that, if there is a need, appropriate directions can be given to the jury. I share his Honour's view that any prejudice can be minimised in this manner.
33 It was further submitted that by providing for the Court to be closed Whealy J had made orders beyond those necessary to meet the identified need for the protection of national security. It was argued that non-publication orders would be sufficient to achieve this result. I do not accept this submission. If the Court was to remain open it would be possible for any person, including perhaps the very people who the Commonwealth would not want to have access to the information, to obtain and misuse it. A non-publication order would hardly be likely to be effective in relation to such a person.
34 Apart from the capacity to give directions to the jury his Honour had in mind that an edited transcript of the proceedings, which protects sensitive information, would be made available. The release of such a transcript will significantly ameliorate any adverse impacts from closing the court. However, if it is to be effective, arrangements must be in place to ensure its timely release, which should be as near as can practically be achieved to the giving of the evidence. I assume that consideration has been, or will be, given to this aspect of the matter.
35 No challenge is made to the order which his Honour made with respect to the screening of witnesses. Such an order is not authorised by the Crimes Act or the Criminal Code but may be made by the Supreme Court in the exercise of its inherent jurisdiction. Whether such an order could be made by a court of statutory jurisdiction does not need to be considered, although that question could arise if a trial was to take place in the District Court. Relevant principles are considered in John Fairfax Publications Pty Ltd v District Court (at [24]ff).
36 For the foregoing reasons I am satisfied that Whealy J both correctly identified and applied the appropriate principles when determining to make the orders which are challenged.
37 In my opinion, although I would grant leave to appeal, the appeal should be dismissed.
38 SULLY J: I agree with McClellan CJ at CL.
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