Case: Mirror Newspapers Limited v Harrison [1982] HCA 50 ; (1982) 149 CLR 293
Outcome: applied
In Mirror Newspapers Limited v Harrison [1982] HCA 50 ; (1982) 149 CLR 293 at 300-301 Mason J said: '...there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. ... The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.' 27 I am of opinion that a similar principle is well known to members of the community in respect of civil litigation. The proposition that untested allegations in civil proceedings are somehow to be shielded from public view merely because they are untested allegations and could only possibly be properly understood in the context of a fully contested hearing is, in my opinion, not one that can sit with the principle of open justice or the right of anyone fairly to report proceedings in a court of justice. 36 Those who report untested allegations in court do so every day when they report what happens in Local and Magistrates Courts, when persons are first brought before those courts charged with serious criminal offences. Generally, all the allegations that are made on behalf of the prosecution are untested allegations about some of the most serious things that can be said of persons. Those persons stand daily before such courts charged with crimes which might be thought to be minor or as major as crimes like murder, sexual assault or those of a terrorist nature. Members of the public, as Mason J made clear in Mirror Newspapers v Harrison (1982) 149 CLR at 300-301, understand that it is fundamental to the open administration of justice that, as a routine, courts have allegations made in them which are untested at stages in the course of proceedings. At the end of the day the ordinary reasonable member of the community understands that it is the responsibility of the court, be it a judge or jury, to make findings about those allegations and then to decide cases. Ordinary members of the community understand that those matters are part of the administration of justice. Members of the media generally have a similar understanding. 37 I am of opinion that the material put to the court for the purposes of seeking to have access to the application and statement of claim denied under order 46, rule 6 , was utterly inadequate to justify that claim. I note that, when offered the opportunity over night to either put on evidence or further submissions, the parties to the proceedings chose, and they may well have done so for other reasons, not pursue that matter. However, in seeking to restrict the rights of inspection under O 46 r 6 given to every member of the public, including the media applicants who appeared before the court yesterday and today, the parties to the proceedings caused the court to convene yesterday on an urgent basis because the right of access to the court's files was being interrupted. 38 Such matters are, in my opinion, matters which ought to be dealt with promptly and urgently. Interferences with the principle of open justice are matters which are of fundamental importance to the administration of justice and require prompt adjudication.