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  • Australia - "seen to be done": the principle of open justice
  • 01/02/2019 Make a Comment
  • Contributed by: Pikey ( 6 articles in 2019 )
By the Honourable J J Spigelman, then Chief Justice of New South Wales
"The principle that justice must be seen to be done - to which I will refer as the principle of open justice - is one of the most pervasive axioms of the administration of justice in our legal system. It informs and energises the most fundamental aspects of our procedure and is the origin, in whole or in part, of numerous substantive rules. It operates subject only to the overriding obligation of a court to deliver justice according to law.

"Accordingly, it is timely to recognise the principle of open justice as one of the most fundamental rules of our legal system. It is reflected in a wide range of characteristics of the judicial process and in specific rules:

(i) The fundamental rule is that judicial proceedings must be conducted in an open court, to which the public and the press have access. The exceptions to this fundamental rule are few and are “strictly defined”.

(ii) The obligation of a court is to publish reasons for its decision, not merely to provide reasons to the parties. This has its “foundation” as Justice McHugh said, in “the principle that justice must not only be done but it must be seen to be done”.

(iii) The principle informs the determination of whether a function conferred on a judicial officer is incompatible with the office, under the separation of powers in the Constitution.

(iv) The guarantee of judicial impartiality by the disqualification for bias of a judicial officer, is determined by a test of what fair minded people - not just the parties, but the public - might reasonably apprehend or suspect. The High Court has expressly rejected the less strict “real likelihood of bias” test. It has also applied the reasonable apprehension test to the conduct of a juror.

(vi) The power of a court to prevent abuse of process is also based in part on the need to maintain public confidence in the administration of justice.

(vii) The operation of various principles designed to ensure the fairness of a trial is based on appearances: for example, the prohibition of undue interference by a judge and of improper conduct by a court officer; or the obligation of a judge when sitting without a jury to enunciate any warning that he or she would have to give to a jury.

(viii) Open justice also serves the important function that victims of crime, and the community generally, may understand the reasons for criminal sentences.

(ix) Open justice affects the weight to be given to the public interest in the determination of claims of privilege.

(x) The public interest in the appearance of justice in part explains the reluctance to order a stay of criminal proceedings.

(xi) The role of legal practitioners as officers of the Court creates a public interest to restrain a legal practitioner from acting against a former client, which is also reflected in skepticism about the efficacy of ‘Chinese walls’.

"The principle of open justice, in its various manifestations, is the basic mechanism of ensuring judicial accountability. The cumulative effect of the requirements to sit in open court, to publish reasons, to accord procedural fairness, to avoid perceived bias and to ensure the fairness of a trial, is the way the judiciary is held accountable to the public."


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