Page 624 - Week 02 - Thursday, 17 February 2005
So I think we have the ability already for a court to be closed, and that happens on quite a regular basis. By having a special clause now put in that the court must consider, I fear that that really does put pressure on a court to use that, over and above its normal discretion. I am sure and I have every confidence that a court will use it where the interests of the defendant, the defendant’s privacy, when taken in balance against the interests of society and openness of the court, would indicate that on that occasion the court should be closed. So I do have some concerns. Let us see how it goes, but I would be much happier if that was “may”.
I will now tell a little story about how sensible courts can be. I tell it simply because it was before Chief Magistrate Ron Cahill. The defence counsel was the now Chief Justice of the Supreme Court, one Terence Higgins, and I was the prosecutor. You might even recognise a couple of the main police witnesses, although I will not tell you who the defendant was, even though it was an open court, because the defendant is now dead but I think he still has family in Canberra and it is out of respect for them, in case anyone ever reported it. They probably would not want to be identified—
MR SPEAKER: This is all relevant, isn’t it?
MR STEFANIAK: It is all relevant. Ron Cahill as magistrate exercised his discretion in rather extraordinary circumstances. Basically, the accused, in a committal—
Mr Hargreaves: We are not reflecting on the courts now, are we? We are not reflecting on the judiciary?
MR STEFANIAK: No, no, I am not. I am actually praising the judiciary—and you can do that. The accused took offence at something that then Detective Senior Sergeant Ric Ninness said in terms of his evidence. It was lucky that there were five police there because the accused was a big boy and he decided he was going to run through the police, over my back and try to throttle the good detective. Luckily, the police restrained him. He took great offence at what had been said and was carrying on a fair bit.
Both the Chief Magistrate and the learned counsel, one Terence Higgins, decided that the best thing for all would be if his client were down in the cells so we could conduct the committal. That was a fairly extraordinary step. You normally have the accused there for the full hearing. But the Chief Magistrate had a discretion, it was okay with counsel for the accused and the committal proceeded, with occasional roars from the cells, without the accused, who then calmed down and was brought back.
It is perhaps a bit of a funny story but I use it to show the extent—and correctly so—of the court’s discretion to do a number of things that would not normally happen. A normal proceeding is all in open court and the defendant always stays there; courts are not normally closed. But courts do regularly get closed for various reasons. I just hark back and make the point that the courts will do this anyway. I just wonder whether we might be putting a bit of unnecessary pressure on them.
Another issue that has been raised with me relates to section 311 (1), which has been lifted from section 68 (3) of the Mental Health Tribunal Act. One of the practitioners I have spoken to who was experienced in this area said that, whilst there may be a better