What is the Relevance of the Charter to ‘Open Justice’ and the ‘Public Interest’?

During the coronial inquest into the fatal shooting of a teenager by the Victoria Police, the Victorian State Coroner considered an application by the Chief Commissioner of Police (‘CCP’) for an order prohibiting the publication of certain documents.  The application was made pursuant to s 73(2)(b) of the Coroners Act 2008, which states that a coroner must order that a report about any documents, material or evidence provided to the coroner as part of an inquest not be published if the coroner reasonably believes that the publication would be contrary to 'the public interest'. In deciding whether or not to grant the application, the Coroner considered how s 73(2)(b) ought to be approached in light of the Charter of Human Rights and Responsibilities Act 2006 (Vic), in particular, the impact of the Charter in weighing up what is in the 'public interest.'

Facts

On 11 December 2008, 15 year old Tyler Cassidy was fatally shot by police.  A coronial inquest into the circumstances surrounding Tyler's death is currently underway.

The CCP applied for suppression of two categories of documents produced to the inquest:

• first, the contents of internal workings, debriefs and reviews of the processes of policing in Victoria; and
• second, the details of procedures, training, protocols and methods of operational police in Victoria including operational training and tactics of Victoria police.

The CCP applied for an order seeking non-publication of both categories of documents on the grounds that publication would be contrary to the public interest in 'police being effective in exercising their duties as police'.  In relation to the first category of documents, the CCP submitted that the publication of such material might put in jeopardy the 'full and frank discourse' of future reviews and debriefs, as it would mean such communications would no longer be guaranteed to be confidential.  In relation to the second category of documents, the CCP submitted that the publication of police tactical, operational and training documents would undermine the ability of the police to effectively engage with volatile members of the public who have been made aware of police tactical approaches through such publication.

A number of objections to the suppression order were raised by Tyler's family, Victoria Legal Aid, and the ABC.  The Human Rights Law Resource Centre also provided submissions to the Coroner as to the appropriate way to assess the public interest in light of the Charter.  The focus of these objections and submissions was largely on the manner in which the principle of open justice ought to be balanced against other matters of public interest, and how the rights enshrined in the Charter needed to be taken into account, in particular, the right to freedom of expression, and the procedural dimension of the right to life – being the right to a public and independent investigation of a death at the hands of a State authority.

Decision

In reaching a view as to what is contrary to the public interest in any particular application pursuant to s 73, the Coroner noted that there will be competing considerations which must be balanced to reach a decision in the particular context.  Consideration must be given to the purpose, function and role of the coronial jurisdiction generally and in a particular case, as well as considerations of what is best in a free and democratic society and the relevant rights enshrined in the Charter, in particular the right to freedom of expression and the procedural obligations connected to the right to life.

The Coroner stated that the starting point for consideration of a suppression application is the fundamental principle of the need to have the courts open to public scrutiny, including scrutiny by the media.  This principle of open justice has particular resonance in the coronial jurisdiction where certain deaths are mandated to be investigated by public hearing and where, in Victoria, the Parliament has made clear the importance of the publication of coronial findings.  The Coroner accepted that the principle of open justice means that:

• an order prohibiting the publication of documents tendered into evidence or prohibiting the reporting of oral evidence is an incursion into the principle of open justice;
• any non-publication order should not be wider than necessary, should be proportionate to the harm sought to be avoided, and should not routinely be made;
• embarrassment or distress because of the publication of evidence given in open court is not sufficient to make an incursion into the principle of open justice; and
• the risk of ill-informed debate or inaccurate reporting is not a basis for ordering the non-publication of evidence.

The Coroner noted, however, that the principle of open justice is not absolute and is subject to exceptions in order to preserve the integrity of the court process and to ensure an injustice is not caused.

Charter Considerations

The Coroner agreed that when the Coroner's Court comes to interpreting the meaning of 'public interest' in this case, it should look to the rights enshrined in the Charter as building blocks.  Her Honour accepted the submission of the Human Rights Law Resource Centre and other parties that, because Parliament enshrined a set of rights in the Charter, there is a presumption against interfering with those rights.  In particular, the Coroner referred to the right to freedom of expression, which is enshrined in s 15 of the Charter and noted that freedom to obtain information is expressly linked to the freedom of expression.  Her Honour also noted, however, that freedom of expression is not an unlimited right, and is restricted by s 15(3) of the Charter, as well as by s 73(2) of the Coroners Act.  When using the power in s 73(2) of the Coroners Act to limit the right, however, that power must be exercised with the least infringement of the right possible, and in a manner that is proportionate to the harm sought to be avoided.

Her Honour also referred to the right to life contained in s 9 of the Charter, and in particular the requirement that in the event a life is lost as a result of any action or inaction by the State, what must follow is an independent and effective investigation into that loss of life.  Her Honour agreed that a public hearing carried with it a requirement that the publication of the evidence produced at the public hearing should be generally available, but considered there are limits on that obligation which, again, must be exercised with the least infringement of the human right as possible, and in a manner that is proportionate to the harm sought to be avoided.

Findings

Notwithstanding her recognition of the importance of the principle of open justice and the impact of Charter rights on the public interest balancing exercise, her Honour largely found in favour of the CCP's application for non-publication.

Her Honour observed that it is plain that the principles of open and public hearings carry with them a right to the media to attend and report on the proceedings and to have access to all relevant information, and there is a public interest in the media having open access to all the relevant evidence provided to the inquest so that they may report as fully as possible on the proceedings in open court.  However, she observed that this is subject to some limitations.  Her Honour noted that the interest in publication needs to be balanced against the need to not put at risk either police members or the community by allowing public access to details of police training and tactics and operational equipment, thereby potentially giving forewarning to enable persons to take actions in retaliation or to avoid being apprehended.

The Coroner concluded that, for documents which detailed operational resources, tactics and procedures, safety principles, police equipment, training, and internal reviews in which individuals involved in the incident had been interviewed and identified, the public interest would be best served by ensuring those documents are not released into the public arena.

Her Honour ordered that only parts of the reports (category (a) above) were not to be published, but ordered that all of the documents relating to procedures and training etc (category (b) above), were not to be published.

Discussion

The Coroner's decision in this case made it clear that the principles of open justice and the rights enshrined in the Charter inform the consideration of what constitutes the 'public interest' in s 73(2) of the Coroners Act.  In considering the public interest, Her Honour also took into account the fact that the documents in question had been made available to the Coroner and to the interested parties, and that Victoria Police members would be giving evidence during the inquest and could be drawn on the issues contained in those documents generally, in terms that would not risk the safety of other police members or the community.

The ruling has not been published.

Verity Quinn is a Senior Associate with Allens Arthur Robinson and is representing the Human Rights Law Resource Centre as an intervener in the Cassidy inquest