By Bruce Grundy (15 September 2003)
Without any basis in law a Queensland court administration official has again denied The Justice Project access to the public records of a court proceeding.
In addition he has seriously misrepresented the circumstances in which the hearing took place.
As well as wrongly claiming that the entire hearing concerned was the subject of a suppression order, the official has now claimed that the proceedings were held in camera and were closed to the public.
Neither claim is true.
A limited suppression order in place for some of the hearing was specifically lifted before the hearing was concluded, and the hearing was open to the public and was covered by the Brisbane news media.
The transcript being sought highlights the legal double standards that apply in Queensland which have seen an ordinary citizen treated differently before the law compared with the way in which with powerful public officials and politicians have been dealt with.
The Justice Project had sought the reversal of two decisions denying it access to Queensland magistrates court proceedings.
However, in determining to refuse access to the record of one of the hearings concerned, a court official said a "suppression order was in force for the entirety of the committal proceedings".
The Justice Project is aware that a suppression order (on just the publication of the name of one person) was lifted before the hearing was concluded.
The magistrate involved in the matter, Mr Bevan Manthey, told the court, emphatically: "The suppression order is lifted".
Despite this statement, The Justice Project's request for access to the court records was denied after a court official determined: "In accordance with s 154 Justices Act I am not of the opinion sufficient interest has been displayed and further a suppression order was in force for the entirety of the committal proceedings".
The official has also said the hearing was conducted "under the provisions of Section 70 of the Justices Act" thus precluding any entitlement on the part of The Justice Project to copies of the record of the proceeding concenred.
Section 70 covers the issue of closed courts and conducting hearings in camera.
The proceeding involved in this matter was not closed to the public. Various members of Justice Project as well as the public and the local media attended.
At the conclusion of the hearing three Brisbane news organisations reported that a man had been committed to stand trial on a charge under s 129 of the Criminal Code (destroying evidence) or alternatively s 140 (attempting to pervert justice).
However, they failed to report the fact that for years the public of Queensland had been told that in the circumstances of the case it was not possible to sustain a charge under s 129.
The man committed to stand trial had cut up the pages of a diary in which a young girl had written details of her molestation by another man.
Five years later she went to the police and the man who had interfered with her was dealt with by the courts.
The police then charged a second man over the destruction of the diary pages.
However, for over ten years authorities and agencies in Queensland have claimed a court action relevant to any material likely to be required as evidence had to be under way before a charge of destroying such evidence could be sustained.
In early 1990 a number of senior public servants and politicians authorised or carried out the destruction of public records knowing they were required for legal action.
They were excused by a range of other public officials on the grounds that no court action requiring the documents concerned was actually under way at the time.
In the case of the individual referred to above (who was committed to stand trial) no court action was under way at the time he cut up the pages of the girl's diary. That action did not occur for five years.
Because of the glaring discrepancy between the two circumstances, The Justice Project sought access under s 154 of the Justices Act to the transcript of the hearing before Mr Manthey.
Access has been now been denied by the official responsible for keeping the record -- twice.
However, The Justice Project is aware that contrary to the views of a former Director of Public Prosecutions, a currently serving magistrate, the former Criminal Justice Commission and the newly appointed State Coroner, the record reveals that the prosecutor in the case before Mr Manthey said a court action did not have to be under way (at the time materials likely to be needed in evidence were destroyed) for an offence under s 129 to occur.
In committing the man to stand trial, Mr Manthey clearly concurred.
In refusing The Justice Project's request for access to the record of that hearing, the court official concerned has chosen to ignore a vast amount of highly significant law clearly establishing that the courts and court proceedings should be accessible to the public.
These determinations include:
The landmark case, Scott v. Scott 1913 AC 417, including the words of Lord Shaw at pp. 476, 477 and in particular " … Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the very spur to exertion and the surest of all guards against improbity".
Lord Hewart CJ in R v. Sussex JJ, Exparte McCarthy (1924) 1 KB 256 at 259 " … justice should not only be done but manifestly and undoubtedly be seen to be done".
In Mahliklili Dhalamani v. The King (1942) AC, 583 at 590, the Privy Council pronounced: "Prima facie, the failure to hold the whole of the proceedings in public must amount to such a disregard of the forms of justice as to lead to substantial and grave injustice".
And Lord Justice Bowen has made the point the "public" is meant to include "a portion of the public".
As well, The High Court of Australia has determined (in Lange v Australian Broadcasting Corporation, 1997) that the public has a right to be informed about the activities of government and its officials.
Further efforts are being made to have the decision of the court official overturned.
In a second case, the Justice Project was denied access to the record of a court appearance in which a young woman was returned to custody for a parole breach.
In particular, access had been sought to the warrant used to give effect to her return to jail.
The Justice Project was advised (Friday, 12 September 2003) that an appeal against the ruling that access be denied had been accepted.
The material has now been viewed (Thursday, 25 September 2003).
(However, access to the documents has raised more questions than have been answered).
For background see: What They Did To A Girl In Care.
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