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Supreme Court 26 July 2016

R v Wran

[2016] NSWSC 1026

Other
CRIMINAL LAW EVIDENCE OPEN JUSTICE PARTIES

Citation: R v Wran [2016] NSWSC 1026
Court: Supreme Court of New South Wales
Date: 26 July 2016
Judge: Harrison J

Background

The defendant in the underlying sentencing proceedings had been sentenced by Harrison J on the same day as this judgment: see R v Wran [2016] NSWSC 1015. As part of those proceedings, nine individuals provided written references to the Court in support of the defendant. None of the referees gave evidence in open court or were cross-examined, and their identities remained unknown to anyone outside the parties.

Nationwide News Pty Ltd, publisher of The Daily Telegraph, applied for access to those exhibits, seeking either copies of the references themselves or, in the alternative, the names of the people who had written them. The defendant opposed the application. The Crown maintained a position of indifference.

The application arose against a backdrop of extensive prior reporting about the defendant. Harrison J had already commented in his sentencing remarks that articles published by The Daily Telegraph and The Sunday Telegraph were unfair, damaging to the defendant's reputation, and gave a misleading impression of her involvement in the events giving rise to the charges. Some of that material appeared to have originated from private and confidential sources.

  • Whether a non-party publisher has a right of access to exhibits tendered in open criminal proceedings, specifically written references relied upon at sentence
  • Whether the principle of open justice operates as an enforceable right or as a guiding principle in the exercise of a discretion to grant access
  • Whether the Court should exercise its discretion to grant access in the particular circumstances of this case, having regard to the prior conduct of the applicant newspaper

Decision

Harrison J refused the application. His Honour began by confirming the applicable principle drawn from John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512: open justice is a principle, not a freestanding right. There is no common law right to access documents filed in court proceedings. Access for non-parties requires leave of the Court, and whether to grant that leave is a matter of judicial discretion guided by, but not dictated by, the open justice principle.

His Honour identified four reasons for declining to exercise that discretion in favour of Nationwide News. First, the newspaper had demonstrated, through its prior reporting on the defendant, what Harrison J characterised as "disentitling conduct." The history of harmful and misleading coverage amounted to a reason in itself to refuse the exercise of a favourable discretion toward the applicant.

Second, his Honour held that he had no confidence the newspaper would treat the referees differently from the way it had treated the defendant. He noted the real risk that referees, who had provided support innocently and generously, might become targets of the same campaign. Third, Harrison J pointed to The Daily Telegraph's 2007 publication identifying 59 referees of an accused facing charges for possessing child pornography, under the headline "Pervert's legal pals." That history demonstrated a prior willingness to expose and vilify those who had supported accused persons in high-profile cases.

Finally, his Honour observed that the sentencing remarks themselves were already public and contained sufficient information about the role the references played in the outcome. The additional disclosure of the referees' identities and the contents of their testimonials was not, in his view, a matter of genuine public interest rising to the level of open justice. It was, in his words, "far removed from the lofty heights of open justice."

Orders Made

  • Leave refused: Nationwide News Pty Ltd was denied access to the references and the names of the referees tendered as exhibits in the sentencing proceedings.

Key Takeaways

  • Open justice is a guiding principle, not an enforceable right: the Court of Appeal confirmed in John Fairfax Publications v Ryde Local Court that there is no common law right to access court documents, and the principle operates to guide the exercise of a discretion rather than to compel a particular outcome.
  • A non-party media organisation seeking access to exhibits must obtain leave of the Court, and that leave may be refused where the applicant's prior conduct gives the court reason to withhold it.
  • The past conduct of a media applicant is a relevant and potentially determinative consideration: Harrison J held that a pattern of unfair, misleading, and harmful reporting about a party amounted to "disentitling conduct" warranting refusal.
  • Protecting the willingness of referees to assist courts in sentencing proceedings is a legitimate interest in the administration of justice, particularly where charges attract public condemnation and where referees may face reputational harm if identified.
  • The fact that sentencing remarks are already publicly available may reduce the weight of any open justice argument for further disclosure of the underlying exhibits, at least where those remarks sufficiently describe the nature and effect of the evidence in question.

Legislation and Cases Referenced

Cases:
- John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors [2005] NSWCA 101; (2005) 62 NSWLR 512
- R v Wran [2016] NSWSC 1015 (the substantive sentencing decision)

Practice Notes:
- Supreme Court of NSW Practice Note SC Gen 2, paragraphs 6 and 7 (access to court files by non-parties)