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Shh, Silent Hearings in Victoria

By 10 October 2013Criminal Law

“Silent” Magistrates Court Hearings

Media personalities and concerned citizens have been looking into the controversial provision of Section 136 in the Victoria Magistrates Act, which provides:

“The Court may, except where otherwise provided by this or any other Act, at any stage of a proceeding, give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination.”

What is a Silent Hearing?

Generally, court proceedings are open to the public. The purpose of which is to provide fair and efficient trial conducted by an impartial Judiciary. This is essential in a common law country that supports democracy. Only under the most exceptional of circumstances are hearings silent, generally those cases will deal with national security, minors, or sexual offences.

The provision on silent hearings is unique to Victoria. Section 136 of the Magistrates’ Court Act gives the Courts the power to make orders that will keep the proceedings away from the prying eyes of the public.  The applicant must only prove that by doing so, the proceeding is more “effective, complete, prompt and economical.”  A case that is hidden from the public will now become a silent hearing.

When a Hearing is Closed to the Public

Under exceptional cases, the Act had identified cases where the hearing can be closed to the public or information suppressed.

Under Section 26 of the Magistrates’ Court Act (1989). (Power to Close Proceedings in Public) 

The provision provides that:

“(1) Court may make an order under this section if in its opinion it is necessary to do so in order not to:

  • endanger the national or international security of Australia; or
  • prejudice the administration of justice; or
  • endanger the physical safety of any person; or
  • cause undue distress or embarrassment to the complainant in a proceeding that relates to a charge for a sexual offence ; or
  • cause undue distress or embarrassment to a witness under examination in a proceeding that relates wholly or partly, to a charge for sexual offence as defined in Section 35 of the Crimes Act 1958.”

Under this provision, the Court has the discretion to order the case closed to the public. The restriction is for the purpose of protecting the parties or due to the nature and sensitivity of the issue. Criminal cases involving minors are held in closed court. In civil cases, most family law proceedings and cases involving the mental competency of a person are dealt with in closed court.

Under Section 136 of the Magistrates’ Court Act (1989)

In the silent hearing direction, the court can prevent the public from witnessing and obtaining information, and  viewing the outcome of the entire court process in the interest of an effective complete and prompt proceeding. Some people say, Section 136 is a vague law. The law has been the subject of discussion in the elite legal community particularly those who espouse fairness, equality and justness in law.

It is believed S 136  has been used in the Victorian Magistrates Court approximately 4 times in 2012, ensuring the public will not view the outcomes and process of the trial. The proceedings being closed to the public, we may have no opportunity to glance how the court proceeds with the trial, the nature and the status of the case in particular. The Court and the court personnel are bound by law not to disclose the outcome of the case as well.

Questions were raised as to how these “silent” cases became exceptional in the context of speedy and cost-efficient justice. In one of its posts, the Heraldsun states: “COURTS are using an obscure law to keep cases hidden from the public eye” (Heraldsun, Law and Order, 9.15.2013).

Accordingly, a Magistrates’ Court spokesperson said. “The Court has the power, in exceptional circumstances, to refrain from publishing details of any particular case which it is to hear.” “This involves the exercise of a discretion, which must be exercised judicially and is capable of review by an appellate court.”

Arguably effective, complete, prompt and economical proceedings are often counter-intuative to the ideal of justice. S 136 does not mention that directions should be made in the interest of an effective, complete, prompt, economical and fair determination. Whilst a determination may be good for time and money, the purpose of a Court is foremost justice, and secondly effectiveness and efficiency.