Research Brief 15
The principle of open justice – referring to the transparency of the trial process – has a long history. Courts in ancient Greece, for example, were constructed with low walls so the public could observe the proceedings while attending to their ordinary business. Similarly, following the Norman Conquest, courts were held in open air (Mulcahy, 2011). The idea that the public should be permitted to see justice in action has become a fundamental part of common law criminal justice systems. Under this view, the members of the public gallery act as regulators and protectors of the rule of law. Historically this meant permitting the public to observe trials involving highly sensitive, often violent, allegations and scenarios. In the days before the public could satisfy their curiosity with saturation coverage of salacious celebrity scandals, the public galleries of courtrooms offered noisy entertainment venues. Such courtroom realities seem at odds with the ideals embodied by the concept of open justice, in which sensitively observing courtroom proceedings might approach a form of ‘civic duty’.
The difference between characterisations of those in the public gallery as protectors of the rule of law on the one hand and morbid-minded spectators on the other was at the heart of a New South Wales Quarter Sessions case in 1930. During the proceedings Judge Coyle had ordered spectators to leave the courtroom for the child’s evidence. The child was giving evidence against the accused, her step-father who had been charged with indecently assaulting her. It was reported in the press that Judge Coyle had wanted to ‘prevent the morbid section of the community…from listening to details of one of the most unpleasant cases it had been his duty to try.’
The defendant was convicted and sentenced to seven years imprisonment. He appealed his conviction on a number of grounds, one of them being Judge Coyle’s order to close the courtroom. The New South Wales Full Court of Criminal Appeal quashed the conviction, finding that Judge Coyle had exceeded his powers. Chief Justice Street emphasised that a trial must be held in open Court. He said this principle was ‘so clear upon authority that I do not think it is necessary to refer to the authorities in any detail.’
Judge Coyle’s motivations for clearing the court were, the Full Court held, insufficient. In applying the law as it stood at that time, the only justification for closing a court was in circumstances where the securing of justice was doubtful unless such orders were made, for example where a child witness was struggling to give evidence in a crowded courtroom. ‘A mere desire to consider feelings of delicacy’ or to prevent publication of details of the case were considered not good enough reasons to close courtrooms to the public.
Not surprisingly the case attracted significant media attention. Acknowledging that courts had regularly been cleared in the past, the Sydney tabloid Truth emphasised Judge Coyle’s apparent ‘attack’ on a ‘treasured possession of British peoples’. The headline sensationally read ‘Press and Public have been shut out when nobody had any right to put them out’. While suggesting that Judge Coyle had ‘fine motives…in the interests of a little girl to save her from a gaping, morbid-minded crowd’, the tabloid had no such concerns about protecting the parties to the proceedings or the public. It reported every sickening detail of the evidence that had been given. Having pointed out this public service that the newspaper had performed, namely that the public had all of the details of the case thanks to its reporting of them, the newspaper article concluded by emphasising that open courts were a ‘fundamental principle of British justice’ and ‘the salvation of the people’.
In this case the Full Court of Appeal and Truth were on similar ground. Both saw some justification for Judge Coyle’s actions but both were also of the view that the principle of open justice had to be upheld.
Unlike Truth, the Full Court wasn’t so sure that the principle of open justice necessitated public attendance at each and every hearing. In the decision of the Full Court, Chief Justice Street wrote ‘…the question of whether the law is satisfactory is one, not for the Courts of justice, but for the Legislature…I hope that the legislature will give consideration to the question whether an alteration in the law should be made.’ There were, they thought, cases like Judge Coyle’s in which judicial officers should be empowered to close their courtrooms. This is where the difference between the role of judges and the role of the legislature is apparent. Judges are bound to apply the law whether they agree with it or not. They do not make new law. The legislature makes new law. It would take another fifty years or so, however, before the New South Wales legislature heeded the Full Court’s call and passed the Children (Criminal Proceedings) Act 1987 giving judges the discretion to close courts to the general public where a child was a party to the proceedings.
Author: Robyn Blewer, PhD candidate
To cite this research brief: Robyn Blewer, ‘The court as spectacle’, The Prosecution Project, Research Brief 15, https://prosecutionproject.griffith.edu.au/the-court-as-spectacle (24 August 2015, viewed 19 July 2016).
Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (London: Routledge, 2011).