Citation: R v Gilson [2017] NSWSC 989
Court: Supreme Court of New South Wales
Date: 5 July 2017
Judge: Button J
Background
This decision arose during a murder trial before Button J in the Supreme Court of New South Wales. The deceased's 15-year-old daughter was due to give evidence about her father's death via audio-visual link (AVL).
The child witness preferred to give her evidence in a closed court. The Crown did not press for closure, but the issue came before the court for a ruling on whether the court should exercise its discretion to exclude the public for the duration of the child's evidence.
Legal Issues
- Whether any statutory provision mandated closing the court for the evidence of a child witness in a murder trial
- Whether the court should exercise its inherent discretion to close the court in the circumstances, despite the absence of a legislative mandate
- Whether the interests of open justice outweighed the witness's preference for a closed court
Decision
Button J found there was no statutory provision mandating closure of the court in these circumstances. While Parliament has enacted specific legislative requirements for closed courts in certain criminal proceedings involving children and adults, none of those mandatory categories applied here.
The court acknowledged its undoubted discretionary power to close proceedings in appropriate circumstances, drawing on the established principles in Hogan v Hinch and Scott v Scott. However, Button J declined to exercise that power for six reasons set out in an ex tempore ruling.
First, s 15A of the Children's (Criminal Proceedings) Act 1987 (NSW) already prohibits publication of any material that could directly or indirectly identify the child witness, and the court had twice warned those in the gallery that breach of this provision constitutes a criminal offence carrying imprisonment. Second, the use of AVL was itself expected to reduce the potential for trauma to the witness. Third, Button J expressed confidence that experienced counsel on both sides would approach cross-examination of the child forthrightly but sensitively, with s 41 of the Evidence Act 1995 (NSW) available to control improper questioning.
Fourth, and most significantly, Button J held that closing the court without parliamentary mandate would amount to conducting criminal proceedings effectively in secret. The court emphasised the powerful public interest in open justice, noting the presence of a reasonably large gallery of observers who were entitled to observe the criminal justice system in operation. In the absence of any legislative direction to do so, Button J declined to take what he described as "a very large step" by ordering closure.
Orders Made
No orders were made in this decision.
Key Takeaways
- Button J confirmed that no NSW statutory provision mandates closing a court solely because a child witness gives evidence in a murder trial; any closure in circumstances not covered by parliamentary mandate requires the court to exercise a discretionary power.
- Under s 15A of the Children's (Criminal Proceedings) Act 1987 (NSW), publication of material identifying a child witness in criminal proceedings is a criminal offence regardless of whether the court is closed, providing a layer of protection independent of court closure.
- The availability of AVL evidence is a relevant consideration when the court weighs potential trauma to a vulnerable witness against the principle of open justice.
- The Supreme Court reaffirmed that the public interest in open justice is a weighty consideration, and that conducting proceedings in effect in secret without legislative authority is a step courts should not readily take.
- Section 41 of the Evidence Act 1995 (NSW) remains available to the trial judge to control improper, misleading, or unduly offensive questioning during sensitive witness evidence.
Legislation and Cases Referenced
Legislation
- Children's (Criminal Proceedings) Act 1987 (NSW), s 15A
- Court Suppression and Non-Publication Orders Act 2010 (NSW)
- Evidence Act 1995 (NSW), s 41
Cases
- Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
- Scott v Scott [1913] AC 417 (HL)