Australian Press Council Submission to the NSW Attorney-General on the Criminal Procedure Further Amendment (Evidence) Bill 2005 and on recent amendments to the Children (Criminal Proceedings) Act 1987 (NSW)

20 April 2005

Executive Summary

• The proposed amendment to section 291 of the Criminal Procedure Act 1986 should be reworded so that courts would retain a discretion as to whether or not to proceed in camera.
   
• S 281F should make a distinction between images which are obscene or which portray deceased persons and those which are not indecent but which do invade a person's privacy. The act should clearly define what constitutes an interference with a person's privacy, and the media should not be excluded from access to images unless it is clearly established that those images would constitute an invasion of privacy.
   
• S 11 of the Children (Criminal Proceedings) Act 1987 should grant the courts some discretion as to whether a deceased person who was a minor at the time of a sexual assault can be identified by the media.

Introduction

It has come to the attention of the Australian Press Council that the NSW government has introduced a bill into parliament which would make amendments to the Criminal Procedure Act 1986 and that these amendments will have consequences for media access to certain criminal proceedings. The Criminal Procedure Further Amendment (Evidence) Bill 2005 proposes several changes to the conduct of hearings in sexual assault matters, primarily aimed at protecting complainants who give evidence.

The Australian Press Council supports the notion that complainants should be treated with sensitivity. However, the Council is concerned that some of the proposed amendments may cause an unnecessary impediment to public and media access to the courts.

Amendment to section 291 of the Criminal Procedure Act 1986

The existing s 291 gives the court the discretion to hold proceedings in camera. The amendment would require the court to be closed for that part of the proceedings where the complainant is giving evidence. The court would retain the discretion to hold proceedings in open court, but only if the complainant consents. If there are "special reasons in the interests of justice" the court can hold proceedings openly, regardless of whether the complainant consents.

The Australian Press Council acknowledges the need to treat victims of sexual assault with sensitivity and that, for this reason, some parts of proceedings to be held in camera. However, the council is of the view that it would not be appropriate for legislation to presume prima facie that the courts will always be closed.

The Council recommends that instead of a presumption in favour of hearing evidence in camera, the court should retain a discretion as to whether proceedings should be held in camera during the complainant's evidence, and that in exercising that discretion the views of the complainant should be taken into consideration. Where the court elects to proceed in camera, transcripts or summaries should be available to the media.

Insertion of a new Part 2A into the Criminal Procedure Act 1986

The proposed section 281F prevents the copying of "sensitive evidence" except for the purposes of criminal investigations or proceedings or for the exercise of official functions. Thus the media would be excluded from access to "sensitive evidence".

"Sensitive evidence" would include three categories of image:

1. Obscene images,
    
2. Images of a dead body or
    
3. Images which would invade the privacy of a protected person.

Publication of images in the first two categories would be likely to offend readers and audiences and breach censorship guidelines. With respect to such images the Press Council accepts the necessity of restricting access.

However, the issue of images which would invade the privacy of the person photographed is more problematic. It is not clear from the proposed definition of "sensitive evidence" whether such evidence would be limited to images which are indecent or whether images which "interfere with the protected person's privacy" would encompass a broader notion of privacy. The context implies that an image would have to display the relevant person in a manner that is indecent in order to fall within the definition, but this needs to be clarified. A distinction should be made between images which do no more than invade a person's privacy and those which are obscene or indecent. Unless a significant invasion of privacy can be clearly established the media should not be prohibited from having access to images or from be able to publish such images.

Amendment to s 11 of the Children (Criminal Proceedings) Act 1987

Section 11 of the Children (Criminal Proceedings) Act 1987, as amended by the Crimes Legislation Amendment Act 2004, prohibits a publication from identifying a witness or victim mentioned in the proceedings if they were a child at the time of the offence. The Press Council recognizes the importance of protecting the identity of minors involved in sexual assault proceedings. However, the Press Council is concerned that the prohibition continues to apply even if the relevant child has died. The Council is of the view that identification should be permissible after the child's death, unless such identification would be likely to cause the identification of another involved person who was also a minor at the relevant time. The Council is also of the view that the court should retain some discretion as to whether or not identification is permissible.

Conclusion

The Australian Press Council is aware of the importance of protecting victims of sexual assault and recognizes that media access to the courts in these matters cannot be entirely unfettered. However, the Council is of the view that the courts should be closed to the public only when necessary and that courts should retain some discretion as to whether proceedings should be held in camera.

See also
Index of material on courts and contempt

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