Citation: Regina v MTN; Regina v CVH [2002] NSWSC 493 revised - 29/10/2009
Court: NSW Supreme Court (Common Law Division)
Date: 30 January 2002
Judge(s): O'Keefe J
Background
The Crown sought to have a particular witness give evidence by audiovisual link under the Evidence (Audio and Audiovisual Links) Act 1998. The witness's stated basis for the application was fear and apprehension arising from the alleged involvement of a gang known as Sing Wa (variously spelled in the materials before the court) in the proceedings.
Before making a final determination on the audiovisual link application, counsel for both accused sought to cross-examine the witness on the voir dire (a preliminary hearing to determine an evidentiary or procedural question). The Crown then applied for that cross-examination to be conducted in a closed court, primarily because of the witness's concern about being identified by persons other than the accused.
O'Keefe J had already found that the Crown had established a threshold case for the audiovisual link application, and the question before the court at this stage was whether the voir dire cross-examination should proceed in the absence of the public.
Legal Issues
- Whether the court had power, under statute or inherent jurisdiction, to order that proceedings be conducted in a closed court
- Which provisions of the Supreme Court Act 1970 (specifically ss 22, 23, and 80) were engaged
- Whether the circumstances, including the gang-related nature of the proceedings and the witness's fear of identification, justified closing the court
- Whether the standard for closing the court differed as between a voir dire hearing and a substantive trial
Decision
O'Keefe J affirmed the foundational common law principle that courts should ordinarily conduct their business in public. Departing from that principle requires good reason and adequate legal support. The court noted that this commitment to transparency is especially strong when the rights and liabilities of individuals are being finally determined.
The court identified two relevant statutory sources of power. Section 23 of the Supreme Court Act 1970, which confers all jurisdiction necessary for the administration of justice in New South Wales, was held to be of itself an adequate basis to order a closed court in appropriate circumstances. Section 80 of the same Act provides more specific grounds, permitting the court to conduct business in the absence of the public where the public's presence would defeat the ends of justice, among other circumstances. Two of the three listed circumstances in s 80 were found not to apply: the proceedings were plainly contentious (ruling out the "formal or non-contentious" ground), and the proviso to the interlocutory application ground excludes its use while a witness is giving oral evidence. The court therefore relied on s 80(b), which permits closure where the presence of the public would defeat the ends of justice.
O'Keefe J drew a clear distinction between a voir dire hearing and a trial. Because a voir dire does not finally determine the rights or liabilities of any party, the common law's disinclination to exclude the public is not as strong in that context. The gang-related nature of the proceedings, and the witness's specific concern about identification by persons beyond the accused, reinforced the case for closure.
On both the statutory and inherent jurisdiction grounds, O'Keefe J held that the discretion to close the court was established and that the circumstances justified exercising it.
Orders Made
- The cross-examination of the witness on the voir dire is to be conducted in a closed court.
Key Takeaways
- The strong common law presumption in favour of open justice can be displaced where statute or inherent jurisdiction provides a sound basis and the circumstances justify departure, but good reason is required.
- Under s 80 of the Supreme Court Act 1970, a court may exclude the public where their presence would defeat the ends of justice, even though the "interlocutory application" ground in the same section does not operate while a witness is giving oral evidence.
- A superior court of record such as the Supreme Court also retains inherent jurisdiction to regulate its own procedure so as to best serve the interests of justice, providing an additional source of power independent of statute.
- The distinction between a voir dire and a full trial is legally material: because no rights or liabilities are finally determined on a voir dire, the countervailing weight against closing the court is reduced.
- Gang-related proceedings, where a witness's fear of identification extends beyond the accused persons in the courtroom, can constitute circumstances in which the public's presence would defeat the ends of justice.
Legislation and Cases Referenced
Legislation:
- Evidence (Audio and Audiovisual Links) Act 1998 (NSW)
- Supreme Court Act 1970 (NSW), ss 22, 23, 80
Cases cited: No cases were cited in the judgment.