HIS HONOUR: Nationwide News Pty Ltd, the publisher of The Daily Telegraph newspaper, applies for access to several exhibits tendered on behalf of Harriet Wran in her sentencing proceedings. Specifically, Nationwide News Pty Ltd seeks to be provided with copies of the several references or testimonials provided to the Court by members of Ms Wran's family, her friends and long-time acquaintances. An alternative application is made for access to just the names of those who provided them.
Harriet Wran was sentenced by me today: see R v Wran [2016] NSWSC 1015. Part of the evidence upon which I relied in sentencing Ms Wran included references from nine individuals. None of them gave evidence in open court and none was required for cross-examination. Their identities are presently unknown beyond the parties to these proceedings.
In sentencing Ms Wran I was urged by Mr Boulten SC who appeared for her to adjust the sentence having regard to matters published about her by The Daily Telegraph and The Sunday Telegraph. My remarks on sentence include references to these publications and my comments and concerns about the appropriateness of some of the published material. It is presently unnecessary in detail to repeat what I have already said in those remarks.
It is sufficient to observe that I formed the view that the articles published by those papers, to which my attention had been directed, were unfair to Ms Wran, damaging to her reputation notwithstanding her current position and that they gave an erroneous and misleading impression about her involvement in the events that led to the charges that she faced. Some of the material that has been published appears to be sourced from private and confidential material to which these papers have in some as yet unexplained way obtained access.
During the course of the sentencing proceedings I made reference to the fact, based upon the self-documented conduct of these papers in their dealing with Ms Wran, that I was concerned that a not dissimilar approach might be taken by the same papers to those who have innocently and generously provided her with support in these proceedings. I expressed the view at that time that, unless persuaded otherwise, I would withhold the references and the names of the referees from public scrutiny in the interests of the people who provided them. I indicated that it was my view that as a matter of general principle it was in the interests of justice that prospective referees should not be discouraged from assisting the Court with testimonials because of the fear of being pilloried or attacked for supporting people facing serious charges, sometimes for offences attracting general societal opprobrium and disgust.
The Crown was appropriately indifferent to my preliminary approach. It was supported by Ms Wran.
The present application was foreshadowed last night and was made at the first available opportunity. Ms Mullins appeared on behalf of the paper. Mr Boulten SC continued to oppose the application. The Crown maintained its earlier position.
Ms Mullins submitted that it was consistent with the principles of open justice that the public should be given access to evidence in public criminal proceedings upon which a judge, and presumably upon which a jury, might have relied in forming conclusions on sentence or in reaching a verdict. Indeed, the Court itself has a practice note that ensures that appropriately interested non-parties should have access to court files, including pleadings, transcripts and exhibits "unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential": Practice Note SC Gen 2 par 7. Ms Mullins effectively contended that it was inimical both to the wider principle of open justice and to the particular inspiration for the Practice Note to constrain or deny access to the names of what she characterised as potentially high status individuals or to the text of what they have had to say in support of Ms Wran in her sentencing proceedings. Ms Mullins emphasised that such access had regularly been given in several other cases that she nominated and that there was neither a point of general significance nor an issue of special sensitivity that should guide me to take any different approach in these proceedings. Ms Mullins submitted that Ms Wran was for better or worse a person of significant public interest, being the daughter of a former Premier of this State, and that both the identity of those who she was able to marshal in her defence, as well as the things said by them in her favour, were matters that warranted publicity and publication. The predicate of these submissions was that there is or ought to be no principled impediment to their publication in this case that sets it apart from any other similar proceeding.
Mr Boulten took a different approach. He contended that it was overwhelmingly in the public interest and the administration of justice that prospective referees not be discouraged or dissuaded from assisting the Court. He maintained that, far from this case being like so many others before it, there was in contrast a very significant reason why the publication of the references and the names of the referees should be restrained. That was in simple terms because of the egregious conduct of The Daily Telegraph and The Sunday Telegraph already. In summary, Mr Boulten contended that the conduct of these papers, in this particular case, has already been so disgraceful that it could not confidently be assumed or predicted that a similar approach would or might not be taken towards the individual referees or one or other of them. In short, Mr Boulten's submission, properly understood, was that these papers could not be trusted. That was said to be so notwithstanding Ms Mullins' offer, which I am prepared to accept without qualification, that she would undertake to communicate directly to Nationwide News Pty Ltd the concerns expressed by me and by Mr Boulten about the standard of reporting demonstrated by these papers' previous reporting about Ms Wran.
However, Mr Boulten went further. He drew attention to the publication by The Daily Telegraph on 25 April 2007 of the names of 59 referees who provided references to the Court in support of a former Crown prosecutor who was facing sentence upon charges of possessing child pornography. Those referees included judges and members of the legal profession. The headline accompanying that article read "Pervert's legal pals". A publication by The Daily Telegraph on 5 May 2007 contained the headline "Pervert and his 59 mates" and the sub-heading "Revealed: Society's elite backing [the accused]". To adopt the vernacular of the criminal courts, Mr Boulten's submission was that The Daily Telegraph had form and was not entitled to the benefit of any doubt suggesting that it would not resort to the equivalent journalistic standards employed on a previous occasion if given the chance.
The principles that apply are well known: see John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors [2005] NSWCA 101; (2005) 62 NSWLR 512 at [27]-[29], [31]:
"[27] The principal submission of the Claimants was that the public and, therefore, the Claimants, had a right to inspect documents used in open court. They submitted that the Local Court had no power to deny access to any such document. The Claimants rely on the principle of open justice.
[28] The Claimants' submissions proceeded as if the proposition that needed to be answered was whether the Local Court had an implied power to prevent access to material in the court file, rather than whether the Local Court had an implied power to grant access to such material. They submitted that 'absent statutory authority, any denial of access can only occur when in the administration of justice, it is necessary in a particular case' (par [24] of Written Submissions). The Claimants restricted their claim in this regard to material that had been used in court.
[29] 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.
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[31] There is no common law right to obtain access to a document filed in proceedings and held as part of a court record. (See R Lucas & Son (Nelson Mail) Ltd v O'Brien [1978] 2 NZLR 289 at 305-307; Dobson v Hastings [1992] Ch 394 at 401-402; Smith v Harris [1996] 2 VR 335 at 347-350; R v Clerk of Petty Sessions; Ex parte Davies Brothers Ltd (Unreported, Supreme Court of Tasmania, Slicer J, 19 November 1998); Titelius v Public Service Appeal Board (1999) 21 WAR 201 at [74]-[88], [99]; Note 'The Common Law Right to Inspect and Copy Judicial Records: In Camera or On Camera' (1982) 16 Georgia L Rev 659.)"
It follows that the present application is directed to the exercise of a judicial discretion to grant access to the material in question rather than an adjudication of whether Nationwide News Pty Ltd is able to enforce a right to obtain the material. As such, the exercise of the discretion is at large. Its exercise is necessarily informed by a consideration of the interests respectively competing for access or the denial of access. It should in my opinion take account of the position of the individuals who have provided the references, the position of Ms Wran about whom the referees have commented and the position of the newspaper that insists that the material is of public interest and worthy of reporting.
In my opinion, the application for access to the material in question should be denied. This is for a number of reasons. First, the newspaper in question has clearly evinced an insidious inclination to print material that is harmful to Ms Wran. Quite apart from the interests of the authors of the testimonials in question, that appears in my opinion in this particular case to amount to disentitling conduct. I can see no basis for the favourable exercise of a discretion in the face of an historical disregard for the interests of at least one opponent to the application.
Secondly, I have no confidence, based upon the newspaper's past performance, that it will not proceed to treat Ms Wran's referees in the same unpleasant and misleading fashion in which it has already treated her. One could be excused for forming the view that The Daily Telegraph has some form of vendetta against Ms Wran. There is no reason to assume that, if the opportunity arose, her referees might not also soon become victims of the very same campaign.
Thirdly, as the publications in 2007 reveal, The Daily Telegraph has not been inclined in the past to protect those who have supported accused people, whose criminal conduct has attracted general condemnation, if it did not appear to be in the paper's interests to do so. Indeed, quite the opposite is true. I am of course without power to dictate to The Daily Telegraph what it can and cannot publish. That is as it should be. However, if circumstances exist, such as in this application in this case, in which the Court is asked to make a decision that to some extent must be guided by a prediction about what The Daily Telegraph might do with the information it seeks, the Court is at the very least entitled to be cautious. I propose to be cautious.
Finally, my sentencing remarks are themselves already in the public domain. The extent to which I have taken the opinions of Ms Wran's supporters into consideration will presumably be apparent. In contrast to the basis upon which this application is made, I am unable to accept that the specifics of the referees or their references is of any general or particular public interest beyond the material already set out in my sentencing remarks. Publication of the material in question is far removed from the lofty heights of open justice.
Access to material in any proceedings is restricted to parties, except with the leave of the Court: Practice Note SC Gen 2 par 6. I consider in this case that leave should not be given to Nationwide News Pty Ltd for access to the material that it seeks.
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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 27 July 2016