Supreme Court New South Wales Medium Neutral Citation: Rich v Attorney General of New South Wales & Ors 2 [2013] NSWSC 891 Hearing dates: 19 June, 3 July 2013 Decision date: 04 July 2013 Jurisdiction: Common Law Before: Barr AJ Decision: (1) The application is dismissed. (2) I vacate the non-publication order made on 19 June 2013 Catchwords: NON-PUBLICATION ORDER - review of decision of Coroner - whether necessary Legislation Cited: Coroners Act 2009 Court Suppression and Non Publication Orders Act 2010 Cases Cited: John Fairfax & Sons Limited v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 John Fairfax & Sons Limited v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465 Rinehart v Welker [2011] NSWCA 403, Category: Separate question Parties: Andrew Rich (Plaintiff) Attorney General of NSW (First Defendant) New South Wales State Coroner (Second Defendant) Jeremy Holcombe (Third Defendant) Australian Broadcasting Commission (Intervening) Representation: Counsel: B Haverfield (Plaintiff) P Aitken (First Defendant) J Sheller, T Phillips (Third Defendant) ATS Dawson (Intervening Party) Solicitors: Walter Madden Jenkins Solicitors (Plaintiff) Crown Solicitor's Office (First and Second Defendant) Sweeney Tiggemann Solicitors (Third Defendant) File Number(s): 2013/103209 Rich v Attorney General of New South Wales & Ors 1On 19 June 2013, at the commencement of this proceedings, I made an order in accordance with short minutes of order signed by counsel, making the proceedings subject to a non-publication order pursuant to s 8(1)(a) of the Court Suppression and Non Publication Orders Act 2010. Counsel desired such an order to preserve the integrity of an order the Court was told the State Coroner, the second defendant, had made when delivering judgment, though the terms of that order were not identified. My order was an interim order, expressed to have effect until further order of the Court. 2Yesterday I made orders in the proceedings and published my reasons. Counsel asked that the non-publication order continue to have effect until they had the opportunity to address the Court on the question whether and what further order should be made affecting publication of my reasons. I adjourned the matter to permit counsel to read my reasons and prepare further argument. 3The plaintiff and the first and third defendants continued to be represented and on resumption Mr Dawson also appeared, representing the Australian Broadcasting Commission. 4As is more fully related in my reasons for judgment the plaintiff is a police officer who shot and killed a young man, Elijah Holcombe. He was called to give evidence before the State Coroner. He objected to giving evidence on the grounds that the evidence might tend to prove that he had committed an offence against or arising under an Australian law or that he was liable to a civil penalty. He was permitted to retire while counsel argued whether the State Coroner should direct him to give evidence. Her Honour considered the matter and gave judgment, at the conclusion of which she directed the plaintiff in accordance with s 61(4) Coroners Act 2009 to give evidence. Her Honour said that she would give the plaintiff a certificate under subs (5) of that section. 5In the summons before me, the plaintiff sought an order quashing her Honour's direction. I refused to quash the direction and dismissed the summons. It is to be expected that the plaintiff will be required to give evidence. 6On the resumption of the proceedings before me Mr Haverfield, for the plaintiff, sought an order in these terms - Pursuant to section 7 of the Court Suppression and NonPublication Orders Act 2010, the court orders that the fact that an objection was made before the State Coroner by the plaintiff to giving evidence on the ground that the evidence may tend to prove that the witness has committed an offence must not be published unless the Coroner gives express permission to do so, pursuant to section 76 of the Coroners Act 2009. 7The order was opposed by Mr Dawson. The other representatives, while not taking any position in the application, remained to assist the Court, and I gratefully acknowledge their assistance. Open Justice 8The Court's power to make orders restricting the publication of its proceedings is now found in the Court Suppression and Non Publication Orders Act 2010. The sections of that Act relevant for present purposes are - 6 Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. 7 Power to make orders A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of: (a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or (b) information that comprises evidence, or information about evidence, given in proceedings before the court. 8 Grounds for making an order (1) A court may make a suppression order or non-publication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice, (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security, (c) the order is necessary to protect the safety of any person, (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency), (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. (2) A suppression order or non-publication order must specify the ground or grounds on which the order is made. 9This Court is bound to follow the principle of open justice. In John Fairfax & Sons Limited v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465 McHugh JA with whom Glass JA agreed, said at [476]-[477] - The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. 10In John Fairfax & Sons Limited v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 Spigelman CJ, with whom the other members of the Court of Appeal agreed, dealing with the failure in the judgment appealed from to accord weight to the principle of open justice, said this at [97] - [99] 97. The third legal error that his Honour committed is found in the passage where he said: "The wider publication of his guilt in relation to very similar conduct would serve no end other than to prejudice the likelihood of a fair trial". 98. This comment discounts the principle of open justice which is a fundamental value of our legal system. It suggests a pre-occupation with the incidents of a "fair trial" to the exclusion of other values served by the justice system and of the mechanisms for ensuring the efficacy of that system. 99 The principle of open justice is not simply a means of attaining a fair trial. In a free society public access to the conduct of the courts and the results of deliberations in the courts is a human right, as well as a mechanism for ensuring the integrity and efficacy of the institutions of the administration of justice. The publication of findings of guilt are of value in and of themselves. It cannot be said that such publication "could serve no end other than to prejudice the likelihood of a fair trial". 11In Rinehart v Welker [2011] NSWCA 403, the majority of judges of the Court of Appeal, Bathurst CJ and McColl JA, having cited the passage I have extracted from John Fairfax & Sons Limited v Police Tribunal of New South Wales said at [29] - [33] - 29. A number of authorities are cited in the Discussion Paper (at [10.92]) as authority for the proposition that the test for making a suppression or non-publication order should be that it be "necessary". Of those authorities, the clearest statement, and that which appears to underlie the form of s 8, appears in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 (at 476 - 477) per McHugh JA (Glass JA agreeing): "The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient." (Emphasis added) John Fairfax & Sons Ltd v Police Tribunal (NSW) was the principal authority on the subject of making non-publication orders in New South Wales prior to the enactment of the CSPO Act: John Fairfax Publications Pty Ltd & Anor v District Court of NSW (at [38]). French CJ referred to this passage with approval in Hogan v Hinch (at [21]). 30. The necessity requirement may also be stated by quoting Isaacs J's statement in R v Macfarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518 (at 549) (approved by the plurality (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) in Hogan v Hinch (at [87]): "The final and paramount consideration in all cases is that emphasized in Scott v Scott namely, 'to do justice' (Viscount Haldane LC). All other considerations are means to that end. They are ancillary principles and rules. Some of them are so deeply embedded in our law as to be elementary and axiomatic, others closely approach that position. Of the latter class is publicity, which can only be disregarded where necessity compels departure, for otherwise justice would be denied to those whom Earl Loreburn termed 'the parties entitled to justice.' " 31. Significantly, an order is not "necessary" if it appears to the court "to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some 'balancing exercise', the order appears to have one or more of those characteristics": Hogan v Australian Crime Commission (at [31]). Further, it is not a sufficient basis for such an order that the information is inherently confidential as distinct from personal or commercial information the value of which as an asset would be seriously compromised by disclosure: Hogan v Crime Commission (at [38]). Open justice 32. By way of reinforcement of the proposition in [31], s 6 of the CSPO Act requires the court when considering whether to make an order under the Act to "take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice". The principle of open justice is one of the most fundamental aspects of the system of justice in Australia: John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344 (at [18]) per Spigelman CJ (Handley JA and Campbell AJA agreeing). Open justice ensures public confidence in the administration of justice: see Moti v R [2011] HCA 50 (at [100]) per Heydon J; Hogan v Hinch (at [20]) per French CJ; R v Tait (1979) 46 FLR 386 (at 401 - 403) per Brennan, Deane and Gallop JJ . It is unnecessary to add to the large body of judicial opinions discussing the concept. It is sufficient, in our view, to illustrate the proposition embedded in s 6 by referring to Lord Atkinson's statement in Scott v Scott [1913] AC 417 (at 463) , that "in public trial is [to be] found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect." 33. "The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public": John Fairfax Publications Pty Ltd v District Court of NSW (at [20]). Media interests had standing at common law to be heard on the making of orders affecting the publication of court proceedings (see generally John Fairfax Group Pty Ltd (Receivers and Managers appointed) v Local Court of New South Wales (1992) 26 NSWLR 131) a position now enshrined in s 9(2)(d), CSPO Act at least insofar as a "news media organisation" is concerned. 12At [34] their Honours cited the judgment of Viscount Haldane his Lordship in Scott v. Scott [1913] AC 417. After dealing with some exceptions to the principle, his Lordship, continued - As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity. (Emphasis added) The Coroner 13The principles that apply in proceedings before the Coroner are quite different. Part 6.4 of the Coroners Act provides a wide range of restrictions and invests the Coroner with the power in various ways to prevent or inhibit the publication of proceedings before the Coroner. The part recognises the special nature of an inquest following a death where the official calling the witnesses is the Coroner, where the proceedings are not adversarial and where an important object is to ascertain the manner and cause of that person's death. 14Part 6.4 is as follows - Part 6.4 Disclosure of information 73 Meaning of "published" (cf Coroners Act 1980, s 46) For the purposes of this Part, matter is published only if it is: (a) inserted in any newspaper or any other periodical publication, or (b) publicly exhibited, or (c) broadcast by radio or by television, or (d) published by means of the Internet. 74 Powers of coroner to clear court and prevent publication of evidence or submissions (cf Coroners Act 1980, ss 44 (1), (5) and (6) and 45 (1) and (4)) (1) A coroner in coronial proceedings may, if of the opinion that it would be in the public interest to do so, order: (a) any or all persons (including witnesses in the proceedings) to go and remain outside the room or building in which the proceedings are being heard, or (b) that any evidence given in the proceedings not be published, or (c) that any submissions made in the proceedings concerning whether a known person may have committed an indictable offence not be published. (2) For the purposes of subsection (1), the coroner may, in forming an opinion as to the public interest, have regard (without limitation) to the following matters: (a) the principle that coronial proceedings should generally be open to the public, (b) in the case of an order that is proposed to be made in relation to a witness in the proceedings-the likelihood that the evidence of the witness might be influenced by other evidence given in the proceedings if the witness is present when that other evidence is given, (c) national security, (d) the personal security of the public or any person. (3) A person must not contravene an order made under this section. Maximum penalty: 10 penalty units or imprisonment for 6 months (in the case of an individual) or 50 penalty units (in any other case). 75 Powers of coroner in relation to reports or proceedings concerning self-inflicted deaths (cf Coroners Act 1980, ss 44 (2)-(4) and 45 (1), (2) and (4)) (1) A coroner may make an order under this section (a non-publication order) if it appears to the coroner (whether by reason of information reported or received under Chapter 4 or during the course of coronial proceedings) that a death or suspected death is self-inflicted. (2) A non-publication order may prohibit or restrict any or all of the following: (a) the publication of any report (or any further report) of the proceedings (or any specified part of the proceedings) until after the coroner has made his or her findings or, in the case of an inquest held before a jury, the jury has brought in its verdict, (b) the publication of any matter (including the publication of any photograph or other pictorial representation) that identifies any particular person: (i) as being a person whose death or suspected death may have been self-inflicted, or (ii) as being a relative of a person whose death or suspected death may have been self-inflicted. (3) For the purposes of subsection (2) (b), the following persons are relatives of a person whose death or suspected death may have been self-inflicted: (a) the spouse of that person, a parent of that person, a person who stands in loco parentis to that person, a guardian of that person or a child of that person, (b) a person who, at the time of the death or suspected death, was living with that person as her husband or his wife, (c) a brother or sister of that person. (4) To the extent to which a non-publication order prohibits the publication of any matter referred to in subsection (2) (b), the order continues to have effect after the coroner has made his or her findings, or after the jury (if any) has brought in its verdict, but only if the order expressly so provides. (5) If a finding is made in an inquest to the effect that the death of a person was self-inflicted, a report of the proceedings (or any part of the proceedings) must not be published after the finding unless (and to the extent that) the coroner holding the inquest makes an order permitting the publication of the report. (6) A coroner may make an order under subsection (5) only if the coroner is of the opinion that it is desirable in the public interest to permit a report of the proceedings (or part of the proceedings) of the inquest to be published. (7) A person must not contravene (or cause the contravention of): (a) a non-publication order, or (b) the provisions of subsection (5). Maximum penalty: 10 penalty units or imprisonment for 6 months (in the case of an individual) or 50 penalty units (in any other case). 76 Publication of certain questions, warnings, objections, submissions and comments (cf Coroners Act 1980, s 45 (3) and (4)) A person must not publish any of the following matters without the express permission of the coroner in the coronial proceedings concerned: (a) any question asked of a witness that the coroner has forbidden or disallowed, (b) any warning that a coroner has given to a witness that he or she is not compelled to answer a question, (c) any objection made by a witness to giving evidence on the ground that the evidence may tend to prove that the witness has committed an offence, (d) any submissions made by or on behalf of a person appearing or being represented in the proceedings or by a person assisting the coroner, or any comment made by the coroner, concerning whether an inquest or inquiry should be suspended under section 78. Maximum penalty: 10 penalty units or imprisonment for 6 months (in the case of an individual) or 50 penalty units (in any other case). 77 Certain matters not prohibited or prevented Nothing in this Part prohibits or prevents: (a) the publication of a judgment of a court that contains matter the publication of which would otherwise have been prohibited by this Part, or (b) the publication of matter in such other circumstances as may be prescribed by the regulations. 15The statutory restrictions appear in s 76. That section is relevant in the present case because, so far, subs (c) has prohibited publication of the fact that the plaintiff has objected to giving evidence. Section 76 has to be understood in the light of s 73, which defines publication for the purposes of the part. So s 76(c) has prohibited only the kind of widespread publication identified in s 73. A person would not contravene s 76 (c) who communicated to others in circumstances falling short of those identified that the plaintiff had objected to giving evidence. 16In addition to restricting widespread publication of such matters the Part gives the Coroner wide powers. Although proceedings are generally to be open to the public, the Coroner can control who may be present and can order that evidence and submissions in the proceedings be not published. "Published" would bear the meaning given to s 73. But the Coroner can in an appropriate case go much further, excluding the public and effectively confining knowledge of the proceedings to those taking part. 17The line between the special principle applying to the Coroner and the principle of open justice that applies in this Court is drawn by s 77(a). If the Court gives judgment containing matter the publication of which is prohibited by Part 6.4, the Court's judgment may be published. Published, that is, in the widespread manner provided for in s 73. The Parliament has recognised by the enactment of s77(a) that a different principle applies in the Court. Resolution 18Mr Haverfield submitted that the Court should make the orders sought because it was necessary to do so to prevent prejudice to the proper administration of justice: Court Suppression and Non Publication Orders Act 2010 s 8(1)(a). He observed that so far s 76(c) has prohibited publication of the fact that the plaintiff has objected to giving evidence. The order of the Court, it was submitted, was necessary because, having started with the prohibition effected by s 76(c) the Parliament has, by enacting s 77(a), rendered that prohibition superfluous. Whereas lawful publication of matter contemplated by s 76 depended on the permission of the Coroner, the need to obtain that permission had been effectively removed. It was unreasonable that a party having the protection of s 76 should lose that protection merely by seeking a review of the Coroner's decision. 19I do not accept that submission. The meaning and intent of s 77(a) are clear. A party who brings a case to this Court must recognise the Court's obligation to conduct its business in public and the public's right to know what happens in court. I do not accept that there exists any proper basis, once a case is brought to this Court for review, for a party to perpetuate the effect of s 76(c). I do not agree that it is inappropriate for matters now to be published which could not formerly be lawfully published except with the express permission of the Coroner. The position in which the plaintiff finds himself is not inappropriate. It is that which the Parliament has determined is appropriate. 20In my opinion it is not necessary for this Court to make the orders sought in order to prevent prejudice to the proper administration of justice. 21The application is dismissed. 22I vacate the non-publication order made on 19 June 2013. ********** 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: 04 July 2013