It’s the starting point in Australian courts that proceedings are conducted publicly. Afterall, how can the public be expected to believe in justice if they can’t see it? Justice can’t just be done, it must also be seen to be done.
The openness of the court system means freedom of the press to report on what happens inside a courtroom. Unless otherwise ordered in specific circumstances, literally anybody is entitled to walk into a courtroom anywhere in this country and fairly and accurately report on social media or elsewhere about the goings-on in any court proceedings.
David Warner withdrew his application appealing a lifetime leadership ban from Cricket Australia.Credit:Getty
Of course there are exceptions. The suppression orders made in the aborted ACT criminal trial of Bruce Lehrmann serve as a recent example, where for a period all reporting was forbidden with the threat of contempt because the central witness had begun but couldn’t finish her cross-examination for medical reasons.
So the starting point is transparency even though there are limits to this openness.
In some circumstances, the interests of open justice must give way to other interests. Indeed, to protect open justice, open justice itself must sometimes stand aside for other imperatives. The media’s reporting of a high-profile criminal trial could make it difficult to select an unbiased jury.
A court might shut out the public and the media in a case concerning the interests of a vulnerable person or a witness might be given a pseudonym if that person’s own interests might be seriously at risk. The list goes on …
David Warner addresses the media in Sydney after the 2018 Cape Town Test.Credit:Getty
I raise all of this to give context to the debate around whether David Warner’s appeal against his lifetime leadership ban should have been held in public.
It is uninformed, and also incorrect, to suggest that any “appeal” or re-examination of Warner’s situation should be conducted behind closed doors.
It’s bad enough that the hasty, draconian and never-adequately-explained sanctions Cricket Australia handed down to Warner almost five years ago for his part in the ball-tampering plot were delivered behind closed doors.
But it’s entirely wrong to expect that the righting of any of CA’s wrongs might also take place in secret.
Proceeding on that basis certainly isn’t tantamount to organising a “public lynching”, as Warner suggested. More newspaper ink has been spilt over what happened during the third Test match in Cape Town in March 2018 than any other incident in Australian sport during the intervening half-decade. CA’s processes back then were flawed. Repairing the wrongs occasioned on Warner or anyone else requires an open and transparent process.
Otherwise, at the conclusion of the hearing the public is still likely to be left with more questions than answers.
While it’s definitely the case that parts of Warner’s case could have been held behind closed doors if relevant factors properly warranted that, an entirely closed re-adjudication process would have been inappropriate when considering the wider interests of the sport and the questionable reputation that has been a product of the entire saga.
It was kneejerk and wrong for Warner to object to the entire process and then withdraw his commutation petition in totality, all because not everything would be kept secret. A process of secrecy would not have served cricket’s interests or the public’s right to know that has arisen from all the circumstances surrounding Sandpapergate. Similarly, a process underpinned by secrecy would have done nothing to serve Warner’s own interests, although one can readily understand his legitimate concerns for the welfare of his family.
There’s a fine and delicate balance to be struck with these things. Proceedings before AFL and NRL tribunals are open to the media, as they should be given obsessions over outcomes. Hearings before the Court of Arbitration for Sport are confidential, except where all parties agree that they will be open, as happened with Chinese swimmer Sun Yang’s 2019 doping appeal case before the CAS that was even live-streamed, such was the notoriety of the subject matter. One can question whether secrecy should be the default position.
Sports judicial matters involving allegations of doping are usually conducted behind closed doors, but that’s due to the irreparable damage that can otherwise be caused, even in the case of an athlete who successfully defends themselves against wrongdoing within a rules structure under which someone can be adjudged as guilty even in the absence of any fault on their part.
Justice must be done, but we must also have relatively unfettered access to see that justice is done and indeed how it’s done. There’s no substitute for openness and transparency; bad things happen when you lurk in shadows.
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