In regional NSW, slight cover from the harsh glare of Open Justice

HIV Australia | Vol. 10 No. 2 | October 2012

Iain Stewart Brady canvasses issues surrounding a legal case in regional NSW involving HIV.

Fear of courtroom disclosure of a person’s HIV status is always a concern, even in busy inner city courts where the hustle bustle means that matters can sometimes escape particular attention. In relatively sleepy regional courts, however, anonymity is impossible. The way practitioners and courts deal with HIV disclosure and suppression throws into sharp relief the jeopardy HIV-positive people can face in access to justice.

The HIV/AIDS Legal Centre (HALC) has been working on the issues of court suppression of HIV status and access to justice for some time. (See Melissa Woodroffe’s article on Court suppression in HIV Australia. ¹ )

Fear of unwanted disclosure of a person’s HIV status in court can prompt some individuals to decide not to place that information, though relevant, before the court. It can prompt others to abandon recourse to court at all, and so deny HIV-positive people access to justice and to protections under the law. When the court process is foisted upon a person, with HIV writ large on the agenda of the court, the practical problems posed for HIV-positive people in obtaining justice and privacy are shown in high contrast.

Early this year, HALC was approached by a sexual health nurse from a regional centre. A local court hearing was underway concerning a suspicious death. Many of the people involved in the hearing were clients of the Sexual Health Centre and some clients had been called as witnesses. Most were gay men; some were HIV positive. It was suggested by the court that the HIV status of some parties was relevant to the hearing.

The hearing had already commenced when we (HALC) were contacted. Significant evidence had already been published in the local newspaper. The lawyers representing the main suspect had not sought suppression of the sensitive HIV information and the idea of suppressing names or other delicate and possibly extraneous evidence had not been raised until now.

The culture of ‘open justice’

In NSW there is a very strong culture of ‘open justice’: the notion that as a rule, justice processes need to be transparent and public, above all other considerations. Although local court decisions are not published and obtaining court transcripts and records can be an obscure and Kafkaesque process, anyone can attend court and watch the play of courtroom theatrics. Having viewed the hearing, people are then at liberty to report, gossip and relay the information in public as they please.

Open justice aims to protect us from the tyranny of the Star Chamber – namely arbitrary, secretive proceedings and secret untested evidence and trials. It is argued that public airing of the information is a curative for crime and a protection from false testimony, as airing material which is false may prompt truth tellers to come forward and correct the record.

This same robust culture of ‘open justice’ does not exist equally in all Australian jurisdictions. In Victoria, for instance, section 133 of the Public Health and Wellbeing Act 2008, provides that if evidence is proposed to be given in a matter before a court or tribunal of any matter relating to HIV, or any other prescribed disease, the court may be closed to the public, may restrict persons present from hearing the information and/or prohibit publication of the material. The main consideration for the court is the social or economic consequences to a person if the information is disclosed. Even in NSW, strong suppression provisions apply in relation to victim’s evidence in sexual assault matters. ²

Victoria remains a strongly democratic jurisdiction despite the fact that it has legislated to allow closed courts in HIV-related matters. Protection of the vulnerable in court processes has been achieved without any appreciable loss of democratic freedom or corruption of the rule of law. Why can’t similar protections be made available in NSW?

Case study from regional NSW

At the time HALC was contacted about the NSW case, the media’s reporting of the hearing and evidence had already caused a great deal of anxiety and fear among the HIV-positive community and clients of the Sexual Health Service. In a small town, that kind of court hearing would raise considerable local interest anyway, but with the local gay community and HIV infection thrown into the mix the interest was amplified.

When we were contacted, several gay men, some with HIV, were scheduled to give evidence. We contacted the Magistrate’s associate to enquire about HALC acting as a ‘friend of the court’ and making an application for suppression. We didn’t yet have contact with any of the witnesses (witnesses in court cases are not ordinarily represented by lawyers), and we had no client with standing before the court to give us instructions. Nonetheless, we were able to make oral representations to Counsel assisting the court regarding the arguments for affording protection to the witnesses’ health information by making suppression orders. To our surprise, those arguments were heeded, and Counsel assisting the court recommended suppression of the HIV status of the witnesses.

As it was, the hearing was inconclusive. No conviction was recorded. No determination about the death or its human causes was made.

Some months later reporting of the case persisted in the local paper. Paucity of material for the local news cycle means that old salacious matters are more likely to be rehashed. In low news periods, review articles detail highlights of local unresolved crime stories – much like campers telling horror stores round a campfire.

We were again contacted by the sexual health nurse asking for help. The main suspect in the court case had had his HIV status, sexuality and life travails exposed in public under the glare of the hearing and the local media interest wasn’t going away. The man was depressed and indicating self-harm. He felt he would have to move from the town where he grew up and where his family lived. He feared further public humiliation and even harm from other townsfolk.

This man had exhausted his personal and family financial resources on lawyers to represent him at the hearing. He could not afford more legal representation. Legal Aid had refused him assistance previously, since they do not usually assist in matters where there is no risk of custodial sentence. HALC couldn’t assist the man directly due to our previous engagement with the matter. Tactically there would also be a risk that if the man applied for suppression orders himself, it would raise still more adverse media attention if the application failed.

We were in discussion with Positive Life NSW about this matter. They, too, were getting reports of the distress, anxiety and fear raised by the media attention to the HIV aspects of the story. Positive Life instructed us to seek suppression of the names and/or HIV status of the parties to the hearing, even at this late stage, to afford some protection to them and the local HIV-positive population. As the case had concluded, but without determination, it seemed there was scope for such orders. The principle of ‘open justice’ had been served. If any benefit was to arise from the public airing of the material would have occurred by now. Only the sensational and pejorative content of the material was now playing out in the public arena; there was no justice interest in that.

An application was made to the court. In such proceedings the issue of suppression is purely a question of public interest. In practice, the balance is of the principle of open justice against that of the public interest, relevantly, in the administration of justice (would it deter witnesses coming forward), or safety of the public or a person.

We believed we had a good case to make. We provided evidence from the sexual health nurse of the stress and anxiety expressed by HIV-positive clients pursuant to the media interest on the hearing. She spoke of the fear they held of their own status being disclosed and similarly publicly reported, and of the potential stigma and discrimination flowing from such disclosure. We also provided evidence from Positive Life indicating the stigmatising nature of the media reporting; highlighting the link between HIV stigma and health outcomes in terms of testing, treatment and transmission-preventive behaviours; underscoring that people with HIV living in regional areas are often more isolated and have fewer supports, noting the greater impact of such stigma and negative publicity on them; and emphasising the public health interest in reducing stigma and combatting it where it arises.

Further to this evidence, we believed the context of the case favoured suppression. The hearing had concluded some months earlier. There was no finding against the main suspect. There was no particular evidence or finding that the HIV content of the story was essential or relevant to the death. The court had already given weight to concerns of other witnesses by giving suppression orders for their status. The court presumably considered the threat to individuals or the public in that consideration. The ongoing reporting was purely salacious with a derogatory slant and not substantive to the matter. The court itself noted that the case was unlikely to be enlivened, though it was not formally closed as no finding had been made. The local Health Department officers were raising the concerns about the local impact for their HIV-positive clients. We saw a strong case where the public interest in open justice was exhausted.

Despite all this, the Magistrate dismissed the application. Finally, the court determined that the public interest in having the names and evidence at large in the public domain outweighed the damage it might cause to individuals or HIV-positive people in the community.

The decision was all round a reaffirmation of the most extreme view of open justice. It was a rebuttal to the notion that public health or specific community concerns might effectively moderate the scope of that principle.

In the shadow of these proceedings, Area Health had contacted other organisations to achieve a remedy. The Australian Federation of AIDS Organisations (AFAO) had previously engaged with media in South Australia with some success when an HIV endangerment case was attracting attention. AFAO’s media kit ³ and persuasive arguments had modified the media’s treatment of that case toward more sober, balanced reporting. AFAO and ACON now engaged in the issue, contacting the media outlet directly and attempting the same persuasive engagement with them.

Some months down the track, we believe the persuasion has worked. Most recent media reporting of the NSW case has significantly toned down the salacious aspects of the case, and shown more balance and maturity in its treatment. It was always hoped that time would quieten interest in the case. Indeed, this was one reason the court gave for not intervening with suppression orders. However, the intervention by AFAO and ACON has given more confidence that regard for the social impact of the reporting will also work to stifle further stigmatising reporting.

Conclusion

The case highlights the vulnerability of HIV-positive people when they are before the courts. Those vulnerabilities are amplified in regional locations where local news content is at a premium. Unlike Victoria, NSW legislation provides no general protections for the HIV-positive community from the flow of such stigmatising content from court hearings. So strong is the principle of open justice in NSW that lawyers are unlikely to even advert to the possibility of court suppression of sensitive HIV status information. With any intervention on reporting news, there is fear of a backlash reaction. The fear is that the failure of the intervention will meet with a reaction of heightened interest mixed with righteous cries for media freedom and denunciation of so-called attempts to muzzle the free press. Fortunately, the efforts of AFAO to engender a more mature and responsible media stance have proven successful, as currently in such cases in NSW we have no other defences in our arsenal.

References

1 Woodroffe, M. (2011). Closed courts for open justice. HIV Australia, Volume 8, Number 4, Australian Federation of AIDS Organisations (AFAO), Sydney.

2 See Crimes Act 1900 (NSW) S578A and Criminal Procedure Act 1986 (NSW) Section 291.

3 See Forbes, L. (ed.) (2011). Reporting HIV in Australia: Information for Journalists. AFAO, Sydney. Retrieved from: http:// healthequitymatters.org.au/media-centre/mediaguide

Iain Stewart Brady is a solicitor at the HIV/AIDS Legal Centre (NSW).