Open Courts Act Quiz

Fact Set 1

Jared Atkins, a prominent ‘underworld’ figure, has been arrested and charged with trafficking a commercial quantity of a drug of dependence (under Drugs, Poisons and Controlled Substances Act 1984 s 71AA), and conspiring to traffick a large commercial quantity of a drug of dependence (under Drugs, Poisons and Controlled Substances Act 1984 ss 71 and 79).

Atkins’ arrest gives rise to significant media attention. Articles covering the story appear on the front pages of the websites and newspapers of several leading news media organisations, with titles such as ‘DRUG KING BACK IN BUSINESS’, ‘MASTER OF METH MANUFACTURING AGAIN’, and ‘THE ATKINS DIET: METH, METH AND MORE METH’. The articles have levels of emotional language commensurate with their inflammatory titles, and have, at a minimum, the potential to alter the views of potential jurors.

At a preliminary directions hearing held in the Magistrates’ Court, counsel for the accused applies to the Court to make an order requiring the internet articles to be removed from the websites on which they are hosted.

1:What kind of order does counsel for the accused apply for in the Magistrates’ Court?
A)

 A proceeding suppression order.

Incorrect

Proceeding suppression orders prohibit or restrict the disclosure of ‘a report of the whole or any part of a proceeding’ or ‘any information derived from a proceeding’: Open Courts Act s 17. The internet articles are merely information related to the proceedings, but not a report of the proceeding nor information derived from the proceeding. Thus, an order requiring removal of the internet articles cannot be a proceeding suppression order.

B)

 A broad suppression order.

Correct

The internet articles are ‘any specified material, or any material of a specified kind, relevant to a proceeding that is pending in the Court’: Open Courts Act s 26(1). Thus, an application to prohibit publication of the internet articles is an application for a broad suppression under Open Courts Act s 26(1).

C)

 A closed court order

Incorrect

Counsel for the accused does not apply for the whole or any part of a proceeding to be heard in closed court.

D)

 An order made pursuant to the implied jurisdiction of the Magistrates’ Court of Victoria.

Incorrect

The Magistrates’ Court of Victoria has no implied jurisdiction to make an order prohibiting or restricting the publication of information in connection with any proceeding: Open Courts Act s 5(3).

2:Several news media organisations, including one that has not published any material about the accused, seek to appear and be heard on the application. Do these organisations have a right to be heard?
A)

 No, news media organisations do not have a right to be heard on applications for suppression orders; rather, the court retains a discretion to hear them or not.

Incorrect

The Open Courts Act explicitly provides a right to news media organisations to appear and be heard on applications for proceeding suppression orders: s 19(2). While the Act does not explicitly provide a similar right in the context of broad suppression orders, it is likely that news media organisations also have a right to appear and be heard in line with common law authorities: see The Age Co Ltd v Magistrates’ Court of Victoria [2004] VSC 10 at [39]; Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435 at [17]; Herald & Weekly Times Ltd v Medical Practitioners Board (Vic) [1999] 1 VR 267.

B)

 No, news media organisations have a right to be heard only on an application for a proceeding suppression order, not broad suppression orders.

Incorrect

While the Open Courts Act does not explicitly provide a right to the media to appear and be heard on applications for broad suppression orders, it is likely that news media organisations do have such a right, in line with common law authorities: see The Age Co Ltd v Magistrates’ Court of Victoria [2004] VSC 10 at [39]; Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435 at [17]; Herald & Weekly Times Ltd v Medical Practitioners Board (Vic) [1999] 1 VR 267.

C)

 Yes, but only the news media organisations which will be affected by the order.

Incorrect

News media organisations have a right to appear and be heard on applications for proceeding suppression orders regardless of whether or not they are affected by them: Open Courts Act s 19(2). While the Act does not explicitly provide a right to news media organisations to appear and be heard on applications for broad suppression orders, pursuant to common law authorities, it is likely that they do, irrespective of whether or not they are affected by the order: see The Age Co Ltd v Magistrates’ Court of Victoria [2004] VSC 10 at [39]; Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435 at [17]; Herald & Weekly Times Ltd v Medical Practitioners Board (Vic) [1999] 1 VR 267.

D)

 Yes, news media organisations have standing to appear and be heard on applications for suppression orders.

Correct

The Open Courts Act explicitly provides a right to news media organisations to appear and be heard on applications for proceeding suppression orders: s 19(2). While the Act does not explicitly provide a similar right in the context of broad suppression orders, it is likely that news media organisations also have a right to appear and be heard in line with common law authorities: see The Age Co Ltd v Magistrates’ Court of Victoria [2004] VSC 10 at [39]; Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435 at [17]; Herald & Weekly Times Ltd v Medical Practitioners Board (Vic) [1999] 1 VR 267.

3:Is it within the power of the Magistrates’ Court to order that the articles be removed from the websites?
A)

 No, because suppression orders may only prohibit publication of information, not the removal of information that has already been published.

Incorrect

Broad suppression made by the Magistrates’ Court may prohibit the disclosure of information, by publication or otherwise: Open Courts Act s 26. The definition of publish in s 3 includes the provision of access, and thus the power to prohibit publication extends to prohibiting the provision of access.

B)

 No, because suppression orders may only prohibit the disclosure of information, whether by publication or otherwise, but not the removal of information that has already been disclosed.

Incorrect

Broad suppression made by the Magistrates’ Court may prohibit the disclosure of information, by publication or otherwise: Open Courts Act s 26. The definition of publish in s 3 includes the provision of access, and thus the power to prohibit publication extends to prohibiting access by ordering the takedown of articles.

C)

 Yes, because suppression orders may prohibit disclosure of information, and the concept of ‘disclosure’ encapsulates the disclosure of information whether or not already published.

Incorrect

While prohibiting disclosure may encapsulate the disclosure of information that has already been published, the definition of ‘publish’ in Open Courts Act s 3, applied to the Magistrates’ Court power in s 26, provides a less unclear route to the conclusion that broad suppression orders may require the removal of information from websites. The definition of publish in s 3 includes the provision of access, and thus the power to prohibit publication extends to prohibiting access by ordering the takedown of articles.

D)

 Yes, because suppression orders may prohibit the publication of information, and publication is broadly defined to include the provision of access.

Correct

Broad suppression made by the Magistrates’ Court may prohibit the disclosure of information, by publication or otherwise: Open Courts Act s 26. The definition of publish in s 3 includes the provision of access, and thus the power to prohibit publication extends to prohibiting access by ordering the takedown of articles.

4:Without determining whether the ground is actually made out, which Open Courts Act ground could be relied on to make an order requiring takedown of the internet articles?
A)

 Where the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.

Correct

The issue before the Court is whether or not the articles, as pre-trial publicity, have the capacity to influence potential jurors and cause them to prejudge the case. Such an influence may prejudice the proper administration of justice, which would be the ground relied on: Open Courts Act s 26(1)(a).

B)

 Where 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.

Incorrect

The national security ground is not available to the Magistrates’ Court when making broad suppression orders: see Open Courts Act s 26(1). Furthermore, it is unlikely that the interests of the Commonwealth or a State or Territory in relation to national or international security would be raised by the proceedings

C)

 Where the order is necessary to protect the safety of any person.

Incorrect

The safety of persons does not, on the facts provided, appear to be in issue.

D)

 Where the order is necessary in the interests of justice.

Incorrect

The interests of justice ground is not available to the Magistrates’ Court when making broad suppression orders: see Open Courts Act s 26(1).

5:Which of the following considerations is not relevant in determining whether or not to order that the internet articles be removed from the websites on which they are hosted?
A)

 Whether or not the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.

Incorrect

The administration of justice ground will be relevant, as on the facts provided it will be the ground that must be satisfied in order for the order to be made: see Open Courts Act s 26(1)(a).

B)

 The presumption in favour of disclosure of information.

Incorrect

When determining whether or not to make a suppression order, courts and tribunals must have regard to the presumption in favour of disclosure of information: Open Courts Act s 4.

C)

 The requirement in Open Courts Act s 31 that courts and tribunals cause a copy of closed court orders to be posted on the door of the court or tribunal or in another conspicuous place where notices are usually posted.

Correct

While Open Courts Act s 31 does mandate the posting of notices, and may be relevant in determining whether or not to close a court, it is not relevant in determining whether or not to make a suppression order.

D)

 The time between the publication of the articles and when the trial will commence.

Incorrect

The time between publication and the trial will be a factual matter that will bear on whether or not potential jurors will prejudge the case, thereby affecting the risk of prejudice to the administration of justice. The time between publication and the trial has been considered relevant in a number of cases including: National Safety Council of Australia Victoria Division (in liq); re Friedrich (1989) 1 ACSR 64; Re an application to set aside an order for non-publication; R v Williams [2004] VSC 413 at [24]-[35]; General Television Corporation v Director of Public Prosecutions (2008) 19 VR 68 at [8] and [55].

6:Which of the following considerations is not relevant in determining whether or not the ground in s 26(1)(a) is made out?
A)

 Whether or not the ground is established on the basis of evidence or sufficient credible information.

Incorrect

Open Courts Act s 14 requires that, in making a suppression order, a court or tribunal must be satisfied on the basis of evidence, or sufficient credible information that is satisfactory to the court or tribunal, that the grounds for making the order are established.

B)

 Whether or not the risk of prejudice to the proper administration of justice can be addressed by other reasonably available means.

Incorrect

Open Courts Act s 26(1)(a) does not, like s 18(1)(a), explicitly require that the concern cannot be prevented by other reasonably available means. Nevertheless, having regard to the presumption in favour of disclosure of information in s 4, it will be difficult to find that a broad suppression order is ‘necessary’ under s 26(1) when other reasonably available means can address the concern in the case.

C)

 Whether or not takedown of the internet articles would be futile given that cached versions of the articles will remain on the internet.

Incorrect

The presence of cached versions of the articles on the internet is a factual matter which will bear on the question of whether or not it is necessary to make an order: News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248.

D)

 The degree of embarrassment, shame or humiliation that Atkins may suffer as a result of the publication.

Correct

Distress or embarrassment are only relevant under the Open Courts Act in the context of sexual offences, family violence offences, and cases involving children. Furthermore, distress or embarrassment are only relevant in the context of proceeding suppression orders and closed court orders, and the distress or embarrassment must be ‘undue’: ss 18(1)(d)-(e) and 30(2)(d)-(e). Common law authorities have long held that mere embarrassment, shame or humiliation are not relevant in determining whether it is necessary to make an order that qualifies the principle of open justice: see Scott v Scott [1913] AC 417 at 438-439 and 463; John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143; Herald & Weekly Times Ltd. v Medical Practitioners Board of Victoria [1999] 1 VR 267 at [93]; DPP (Cth) v Kam Tin Ho (Ruling No 2) [2009] VSC 388.

Fact Set 2

The key information leading to Atkins’ arrest was provided by a prison informer with whom Atkins recently shared a cell while serving a sentence for offences unrelated to the drug offences for which he is currently being tried. The informer is an inmate at one of Victoria’s highest security prisons and the prison has recently had spike in inmate violence. At a preliminary directions hearing, the prosecutor seeks to adduce evidence from the informer, particularly in support of the conspiracy charge. The prosecutor requests that an order be made to protect the identity of the informer, and that to effectively protect his identity, it should last until further order or if no further order is made, 10 years.

7:What type of order could prevent identification of the informer?
A)

 Common law pseudonym order

Correct

A common law pseudonym order or anonymity order, made in the implied jurisdiction of the Magistrates’ Court, which would mandate reference to the informer in court by a pseudonym only, could address the concern in this case. A proceeding suppression order, which would achieve a similar end by prohibiting publication of the identity of the informer, could also be appropriate.

B)

 Proceeding suppression order

Correct

The identity of the informer is ‘information derived from the proceeding’: Open Courts Act s 17(b). An order that prohibits identification of the informer in reports of proceedings will be effective in preventing identification of the informer. A common law pseudonym order could also address the concern, by mandating that the informer only be referred to in court by pseudonym.

C)

 Broad suppression order

Incorrect

Open Courts Act s 24 prohibits the making of broad suppression orders in respect of information which could be the subject of a proceeding suppression order, and the identity of the informer could be the subject of a proceeding suppression order.

D)

 Closed court order

Incorrect

Closing the Court will effectively prevent identification of the informer. However, having regard to the presumption in favour of open court in Open Courts Act s 28, closing the Court will not be necessary, given that the concern can be addressed in a way that impacts the principle of open justice less, such as by the making of a proceeding suppression order.

8:What ground would be relied upon to make an order to prevent disclosure of the identity of the informer?
A)

 Where the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.

Correct

The protection of the identity of informers has long been accepted as necessary to ensure the proper administration of justice, because if it is not, ‘sources of information would dry up and the prevention and detection of crime would be hindered’: R v Smith (1996) A Crim R 308 at 311. An order in this case could also likely be made to protect the safety of the informer, as the facts suggest that identification of the informer may put him in considerable danger.

B)

 Where 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

Incorrect

On the facts provided, the interests of the Commonwealth or a State or Territory in relation to national or international security are not in issue.

C)

 Where the order is necessary to protect the safety of any person.

Correct

An order preventing disclosure of the informer’s identity may be necessary to protect him from reprisals in prison which may be likely given that he is housed in one of Victoria’s highest security prisons which has recently had spike in inmate violence.

D)

 Where the order is necessary in the interests of justice.

Incorrect

The interests of justice ground is not available to the Magistrates’ Court when making proceeding suppression orders: see Open Courts Act s 18(1).

9:If the prosecutor failed to give 3 business days’ notice of the making of the application as required by Open Courts Act s 10, should the application nevertheless be heard?
A)

 Yes, because there was a good reason for the notice not being given within the required time period.

Incorrect

Given that the prison informer is one of the lead witnesses, if not the lead witness, with information provided by him leading directly to Atkins’ arrest, the prosecutor would have known well in advance of the committal that an order would be required to protect the identity of the informer.

B)

 No, because there was not a good reason for the notice being given within the required time period.

Incorrect

On the facts provided there does not appear to be a good reason for the notice not being given within the required time period. Nevertheless, it is likely to be in the interests of justice that the application be heard. If the application is not heard, the likely result is that either the informer will give evidence under his true identity which may imperil his safety, or that the informer will refuse to give evidence such that, without the benefit of the lead informer, the prosecution of Atkins’ will likely either be discontinued or, at a minimum, substantially weakened. In either case the interests of justice are negatively impacted, such that the application should be heard, notwithstanding the failure of the prosecutor to give 3 business’ days notice

C)

 Yes, because it is in the interests of justice that the Court hear the application without notice being given.

Correct

If the application is not heard, the likely result is that either the informer will give evidence under his true identity which may imperil his safety, or that the informer will refuse to give evidence such that, without the benefit of the lead informer, the prosecution of Atkins’ will likely either be discontinued or, at a minimum, substantially weakened. In either case the interests of justice are negatively impacted, such that the application should be heard, notwithstanding the failure of the prosecutor to give 3 business’ days notice.

D)

 No, because it is not in the interests of justice that the Court hear the application without notice being given.

Incorrect

If the application is not heard, the likely result is that either the informer will give evidence under his true identity which may imperil his safety, or that the informer will refuse to give evidence such that, without the benefit of the lead informer, the prosecution of Atkins’ will likely either be discontinued or, at a minimum, substantially weakened. In either case the interests of justice are negatively impacted, such that the application should be heard, notwithstanding the failure of the prosecutor to give 3 business’ days notice.

10:What does not need to be specified in the terms of the order?
A)

 The duration of the order.

Incorrect

Open Courts Act s 12(1)(b) requires that the period for which a suppression order operates be specified in the order.

B)

 The purpose of the order.

Incorrect

Open Courts Act s 13(2)(a) requires that the purpose of the order must be specified in the order.

C)

 The ground relied on in making the order.

Incorrect

Open Courts Act s 13(2)(b) requires that the applicable ground on which the order is made be specified in the order.

D)

 The reasons for making the order.

Correct

While courts and tribunals have general obligations to given reasons for orders, the Open Courts Act, nor any common law authority, requires that reasons be specified in the terms of the order. They may, for example, be published subsequently to the making of the order.

11:Why does the duration of the order proposed by the prosecutor fail to conform to the requirements of the Open Courts Act?
A)

 The order is fixed by reference to an event which may not occur.

Incorrect

Suppression orders may operate by reference to an event which may not occur: Open Courts Act s 12(2)(b). However, where the event may not occur, the order must also specify a period from the date of the order not exceeding 5 years after which the order expires: Open Courts Act s 12(3).

B)

 The order may operate for longer than 5 years

Incorrect

Orders may operate for any fixed or ascertainable period, whether longer than 5 years or not (provided that the period is not longer than is reasonably necessary to achieve the order’s purpose): Open Courts Act s 12(2)(a).

C)

 The order is fixed by reference to an event that may not occur and so must have maximum duration if the event does not occur no longer than 5 years.

Correct

The order is made to operate ‘until further order’, being an event which may not occur. Thus, the order must also specify a period from the date of the order not exceeding 5 years after which the order expires: Open Courts Act s 12(3).

D)

 The order operates for longer than is reasonably necessary to achieve its purpose pursuant to Open Courts Act s 12(4).

Incorrect

While the order should not operate for longer than is necessary to achieve its purpose, it is not apparent that the order does so on the facts provided. In fact, where a prison informer remains at risk for the duration of his or her imprisonment, it may be necessary for the order to operate until the end of his or her jail term. In some cases, it may even be necessary for the order to operate for the duration of the informer’s life.

Comments

The quiz is a grest idea and has encouraged me to look at an area that will rarely be relevant to me.

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