Academic journal article Melbourne University Law Review

Open Justice and Suppressing Evidence of Police Methods: The Position in Canada and Australia

Academic journal article Melbourne University Law Review

Open Justice and Suppressing Evidence of Police Methods: The Position in Canada and Australia

Article excerpt

[The purpose of this article is to identify and analyse, from the perspective of the principle of open justice, the response of courts in Canada and Australia when requested by the police to suppress publication in the mass media of evidence given in open court concerning a particular police method that has been used to solve cold cases. Part One discussed the source of the courts' power to make non-publication orders and compared the tests that are used in these two jurisdictions to determine whether such orders should be made. It then identified several practical, procedural and technical issues posed by non-publication orders that were highlighted in these cases, as well as some unresolved issues of statutory interpretation, and considered how these issues impacted on open justice. Part Two will deal with the substance of the decisions of courts and will evaluate them from the perspective of open justice.]

CONTENTS

I     Open Justice and Suppressing Evidence of Police Methods and
      Identities: The Substantive Issue
        A The Position in Canada
             1 The Ban on Operational Methods
             2 The Ban on Police Identities
        B The Position in Australia
            1 The Connection between the Orders and the Statutory
              Powers in Sections 18 and 19
            2 The Principle of Open Justice
            3 The Practical Utility of the Orders
        C Admissibility of the Evidence versus Publication of the
          Methods
II    Conclusion
III   Editors' Note

I OPEN JUSTICE AND SUPPRESSING EVIDENCE OF POLICE METHODS AND IDENTITIES: THE SUBSTANTIVE ISSUE

A The Position in Canada

1 The Ban on Operational Methods

In R v Mentuck ('Mentuck'), the Crown claimed that it was not seeking a complete suppression of the hallmarks of the operational methods, (1) only that they should be kept out of the mass media, (2) the assumption being that the types of person selected as targets of the crime boss scenario were more likely to access newspapers and television news programmes than law reports and legal journals. The bans sought in R v ONE ('ONE') were described as 'effectively identical'. (3) However, in ONE, the trial judge worded the ban in such a way that it went beyond publication in the mass media and prohibited outright 'publication in print'. (4) The Supreme Court of Canada did not comment on this apparent discrepancy. The same situation occurred in Victoria in Re Applications by Chief Commissioner of Police (Vic) for Leave to Appeal ('Re Applications 2004'), (5) and is discussed below. (6) It demonstrates that the way in which a publication ban is worded has a significant impact on the extent to which open justice is abridged.

Pursuant to the first limb of the modified Dagenais v Canadian Broadcasting Corporation ('Dagenais') test, (7) the Supreme Court of Canada in Mentuck had to ascertain whether a ban prohibiting publication of operational methods was necessary in order to prevent a serious risk to the administration of justice. (8) Despite urging caution in deciding what can be regarded as part of the administration of justice, the Court thought it 'obvious' that the use of police operatives and informers is part of the administration of justice, (9) and was satisfied that the administration of justice was at risk insofar as it accepted that police operations would be compromised if suspects learned that they were targets. (10) However, the stumbling block for the Crown was that it had failed to establish that there was a serious risk that the efficacy of present and future police operations would be reduced by the publication of the hallmarks of the technique. The Court took the view that there are a limited number of ways that undercover operations can be run, and that criminals who might extrapolate from a newspaper story that their own situation could be a police construct might arrive at the same conclusion using their common sense or by reference to similar situations depicted in popular books or films. …

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