Citation: [2011] NSWLC 28
Court: Local Court of NSW
Date: 2 September 2011
Judge(s): Dunlevy LCM
Background
A defendant was facing criminal charges in Wilcannia Local Court arising from an incident in which a police officer used a taser on him. The prosecution tendered a DVD recording of the incident as Exhibit 1. The appropriateness of the taser use was a live and contested issue in the proceedings, which were adjourned part-heard to December 2011.
The Australian Broadcasting Corporation (ABC), through a journalist based at its Broken Hill studio, applied for permission to copy the DVD with a view to broadcasting its contents on television and the internet. The Magistrate had already granted the ABC immediate viewing access to the DVD at an earlier hearing; the remaining question was whether the ABC could also make a copy.
The police, represented by solicitors, did not oppose the ABC ultimately obtaining a copy, but argued that any such order should be deferred until the conclusion of the substantive criminal proceedings.
Legal Issues
- Whether the ABC, as a non-party, should be granted leave under rule 8.10(3)(b) of the Local Court Rules 2009 to copy a DVD exhibit from ongoing criminal proceedings.
- Whether the open justice principle supported granting access to a media organisation before the proceedings concluded.
- Whether there was sufficient risk of harm or prejudice to the parties or the proceedings to justify delaying any order.
Decision
The applicable rule: Rule 8.10(4) of the Local Court Rules 2009 confers a discretion on a Magistrate to grant a non-party leave to copy court records if it is "appropriate to do so in the circumstances." Rule 8.10(5) sets out the factors to be considered, including the open justice principle, any impact on a protected person or victim of crime, the applicant's connection to the proceedings, and the reasons access is sought.
Open justice and the media's role: The Magistrate applied the principle, drawn from John Fairfax Publications Pty Ltd v District Court of NSW, that open justice is a fundamental aspect of the Australian justice system and that the media's ability to report on court proceedings is a corollary of public access to courts. Once a DVD is admitted as a public exhibit, a prima facie right arises for the public to access it, rebuttable only in wholly exceptional circumstances (following R v Xu (No 1)). The Magistrate accepted that, for the ABC to function as the "eyes and ears" of the public, broadcasting the footage was necessary to give practical effect to that right.
Timing and risk of prejudice: The Magistrate declined to defer the order until the end of the proceedings. The court found no evidence that broadcasting the footage would cause injustice to either party, and accepted the ABC's submission that speculation about potential wrongdoing by unknown viewers should not be given undue weight. The defendant supported the application, and there was no suggestion of the kind of mental harm concerns that had influenced other decisions.
Public interest: While expressing some caution about whether it was for the court to evaluate the editorial importance of media content, the Magistrate observed that the footage touched on matters of genuine public interest, including the use of police powers, the treatment of Aboriginal people, and broader debate about the deployment of tasers by police. These considerations reinforced rather than undermined the case for granting access without delay.
Orders Made
- The ABC is permitted to make a copy of Exhibit 1 of the substantive proceedings by any non-destructive means of its choosing.
Key Takeaways
- Once an exhibit is admitted as a public exhibit in open court proceedings, a prima facie right of public access arises, and leave to copy it should be refused only in wholly exceptional circumstances.
- Under rule 8.10(5) of the Local Court Rules 2009, a Magistrate must weigh the open justice principle, the impact on any protected person or victim, the applicant's connection to the proceedings, and the reasons for the request when deciding whether to grant a non-party access to court records.
- Merely viewing an exhibit may be insufficient to give practical effect to open justice where the subject matter is audio-visual; in such cases, permission to copy and broadcast may be necessary to allow the media to fulfil its role as the "eyes and ears" of the public.
- A risk that some members of the public may react adversely to broadcast footage is not, without more, a sufficient basis to withhold or delay access, particularly where the footage engages matters of genuine public interest.
- The absence of opposition from the defendant, the lack of any identified risk of harm to a protected person, and the absence of any demonstrated prejudice to the ongoing proceedings were each relevant factors supporting the grant of immediate rather than deferred access.
Legislation and Cases Referenced
Legislation
- Local Court Rules 2009
Cases
- Attorney-General v Guardian Newspapers Ltd (No 2) (1990) 1 AC 109
- John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344
- R v Xu (No 1) (2005) 152 A Crim R 17
- R v Sam (No 5) [2009] NSWSC 543
- R v Sam (No 16) [2009] NSWSC 544