Lindt Café Inquest, Part 27: Accessing the Inquest’s Documents  

by Mary W Maxwell

Some of the articles that comprise this series are reports of what happened at the Inquest. Others are opinion pieces.  The article at hand does not even reach to the heights of being an opinion piece. It is a simple excursion into the question: Why are the transcripts of the Inquest not published for all to see?

In this technological era nearly every document is available electronically. In fact some important “papers” in this world are no longer available in paper form!

The Screening of Documents

When I attended the Royal Commission into Institutional Responses to Child Sexual Abuse in Sydney in 2015, I noted that the documents being discussed were posted up on a big screen in the room so we all could read them.

At the Lindt Café Inquest there are screens on which we can see the witness, the judge, and so forth, but I did not see any documents.

I doubt that this is because the Justice Department has not transferred paper documents to digital documents by scanning. It may be that they do not have such resources as the Royal Commission has, for doing the screen-display business.

However, the documents are not even accessible – at one’s leisure – online.  For example, a police officer is in the witness box; Counsel Assisting says “Look at Tab 14.5, page 32 where you said at your walk-through that you didn’t find any glass on the floor.” We do not see the offending tab, nor can we look it up when we get home that night.

Copyright

The current Inquest states on its website that it holds the copyright to documents. That’s a help, as I have been told in the US that in some states the court reporter holds the copyright. (Seems crazy, no?)

For any federal court case in the US you can hop onto the website PACER.gov and purchase any page of any case  (instantly) for 10 cents a page. Even that seems naughty to me, as all court cases are public. As I am fond of saying, it is society that runs the judicial system.

But here in Sydney I was told by the clerk that the transcripts of the Inquest cost one dollar per page, and that there are so many pages (including preliminary work such as statements collected by police) that the whole shebang would cost $65,000.00.

Who Gets Access?

Our Lindt Café Inquest Coroner, Magistrate Michael Barnes, is operating under the authority of the Coroners Act 2009 of New South Wales. Its Section 65 says:

 (1) The coroner in coronial proceedings is to ensure that the evidence of every witness in the proceedings is recorded.

(2) Subject to this section, a coroner … is to supply a person with a copy of a coroner’s file (or a part of that file) at the request of the person if:

(a) the coroner … is satisfied that it is appropriate for the person to be granted access to the file (or a part of the file), and

(b) the person pays the fee that is payable in the Local Court …

How does the Coroner know when it’s appropriate to grant access? He must make the determination with regard to the following matters:

(3) (a) the principle that coronial proceedings should generally be open to the public,

(b) if the coroner’s file relates to a deceased person – the impact on the relatives of the deceased person of allowing access,

(c) the connection that the person requesting access has to the proceedings concerned,

(d) the reasons why access is being sought,

(e) any other matter that the coroner … considers relevant.

 (5) A direction by a coroner under subsection (4) must include a statement of the coroner’s reasons for the direction.

 (7) In this section:  “coroner’s file” means the documents (including the depositions of witnesses, transcripts and written findings) that form part of the file kept by a coroner in respect of a death, suspected death, fire or explosion.

What Can a Coroner Declare To Be Secret?

Section 74 of the Coroners Act 2009 does permit the Coroner to suppress information by issuing non-publication orders. He/she also has the power to clear the court. As I have said in previous reports, the court rather often got cleared during my Sydney visits — at times only for 15 minutes, but once for the whole day. I only occasionally heard the judge give a reason.

The coroner’s discretion is very wide. I quote Section 74:

1) A coroner may, if of the opinion that it would be in the public interest to do so, order:

(a) any or all persons (including witnesses in the proceedings) to go and remain outside the room or building in which the proceedings are being heard, or

(b) that any evidence given in the proceedings not be published, or

(c) that any submissions made in the proceedings concerning whether a known person may have committed an indictable offence not be published.

The guiding NSW precedent for suppressing matters that affect children or the need for witnesses to be protected is found in Mirror Newspapers V Waller (1985).

How To Know What Is in the Public Interest?

Section 74 (2) The Coroner may …have regard (without limitation) to the following matters:

(a) the principle that coronial proceedings  should generally be open to the public,

(b) in the case of an order that is proposed to be made in relation to a witness in the proceedings-the likelihood that the evidence of the witness might be influenced by other evidence given in the proceedings if the witness is present when that other evidence is given,

(c) national security,

(d) the personal security of the public or any person.

If you publish what you are ordered not to publish the maximum penalty is: “10 penalty units or imprisonment for 6 months (in the case of an individual) or 50 penalty units (in any other case).”

Tori Johnson’s Phone Call to Triple Zero

On March 21, 2016 the Coroner made a ruling refusing a request by lawyers for the Johnson family to suppress publication of the audio of Tori’s emergency phone call. I quote from the ruling:

The audio records Tori interacting with the “000” operator… It is known that Mr Monis instructed Mr Johnson what to say during the call, and he can be heard interacting with Tori in the background…. The call comprises the primary trigger for the police response to the siege.

As a result the audio contains highly relevant evidence above and beyond that which can be gleaned from the transcript alone.   [Hence] I decline the application.

I was sad in Sydney to see so few citizens take advantage of the chance to attend the hearings. At the Royal Commission into… Child Sexual Abuse there is no doubt in my mind that the large presence of mature-age abused children in the gallery had a significant effect on the way the hearings were conducted.

Regarding the legality of the coroner requiring us to show photo identification and “register” each morning, I never did quite find out about that but it gave me some souvenir bracelets. I’d have preferred anonymity.

In any case, it’s too late now to attend the Lindt Café hearings but it seems you can make arrangements to view documents. The media has been given access to them and the purpose of the media, after all, is to pass the information to the public.

Isn’t it?

— Mary W Maxwell and Dee McLachlan are co-authors of Truth in Journalism (2015), freely downloadable at GumshoeNews.com

photo credit: William West