Open justice ends when the criminal justice system bungles

My efforts to acquire court documents

So there remained two missing links in my understanding of the chain of events. The first, already mentioned, was the content of the County Court judge's charge to the jury. The other was the precise terms of the grounds of appeal to the VSCA. There were five grounds of appeal against the conviction, and one ground of appeal against the sentence, but the VSCA judgment did not detail these grounds. The detailed grounds of appeal might shed some further light upon why, if the VSCA had not directed an acquittal, it was apparently contemplating a new trial. They might also point to defects other than the one discussed in the previous section.

These two pieces of information, namely (i) the judge's charge and (ii) the detailed grounds of appeal, should in any case assist me to make a sounder judgment as to whether the unfortunate driver had been imprisoned as a result of judicial incompetence at the County Court trial stage, or was rather tragically unlucky. Egregious incompetence, bad luck, or both?

I very soon discovered that I could not get the documents I was looking for, simply by asking the relevant courts. When requesting the documents, I told the courts only that I was researching the case; I did not go into the detail of the preceding sections.

I was informed that it was at the discretion of the County Court trial judge (that's right, the trial judge himself), whether to release a transcript of his charge to the jury, to a non-party. Similarly, release of the detailed grounds of appeal was at the discretion of the Prothonotary of the Supreme Court.

In neither case was the discretion exercised in my favour. All of this despite the fact that, as I pointed out when asking, I was seeking information that could have been heard by anyone in court at the time. And I also sought assistance from my local state member of parliament (who happens to be a minister), again to no avail. Nor was Freedom of Information (FoI) legislation of any help at this stage. The courts are exempt from FoI in respect of documents relating to their judicial functions.

I was about to give up, when I noticed from the transcript of the Court of Appeal judgement, that the appellant's counsel had been instructed by Victoria Legal Aid (VLA). VLA are not exempt from FoI. So I made a formal FoI application to VLA for the two documents I was seeking.

An appeal to the Victorian Civil and Administrative Appeals Tribunal (VCAT)

VLA fought my application every inch of the way, but the matter eventually reached the VCAT for hearing. VLA claimed exemptions under Section 33 of the Victorian FoI Act (disclosure of personal affairs), and under Section 38 (prohibition of disclosure under another Act). The Victorian Legal Aid Act prohibits disclosure of any information received in relation to an application for legal assistance.

I opposed the VLA claim under Section 33 on the grounds that (i) I was prepared to accept release with the name of VLA's client deleted, and was also prepared to give an undertaking that I would not disclose that name, and (ii) release was not unreasonable on public interest grounds. I once again emphasised that the information contained within the documents had already been disclosed in open court. I also opposed VLA's Section 38 claim, arguing that the so-called "public interest override" of Section 50(4) of the FoI Act applied. My overall theme in contesting both grounds of appeal was the importance of open justice.

The Tribunal was not persuaded by VLA's claim for exemption under section 33. It was of the view that the question of whether the driver had or had not committed a criminal offence, and the facts relied upon in determining that question, were both of public importance, and (presumably with the name deleted) not personal to the alleged offender. A strong endorsement of the open justice principle ! So far, so good.

However, the Tribunal upheld VLA's Section 38 exemption claim. It held that the protection afforded by Section 38 was "of the utmost importance", and concluded that my public interest claim was insufficient to override that protection.

In other words, it was the fact that the documents were acquired in the course of the VLA's functions, rather than the actual information they contained, that prevented the release of the information. The crucial factor was the history of the documents' acquisition, rather than the character of the information.

In retrospect, I was probably always battling uphill trying to invoke the Section 50(4) public interest override, given the recently well publicised Supreme Court decision in Osland (2007), which stated, inter alia, that for Section 50(4) to succeed, "the case for access must, in effect, be irresistible".