Deakin Law Review
The Right Honourable Beverley McLachlin, P C[*]
In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.
The words are those of 19th Century English Philosopher Jeremy Bentham, warning against secrecy in the administration of justice. These words are as true and relevant today as they were when they were uttered well over a century ago. The open court principle is thus a fundamental element of the law of many countries including Canada, the United Kingdom, the United States, Australia and New Zealand. In these countries, openness is a principle of constitutional significance. Internationally, it has also been recognised as a norm of great importance. For example, Article 14 of the International Covenant on Civil and Political Rights guarantees the right to a public hearing in both criminal and civil matters. Openness signifies that the public and the press have free access to the courts of justice and are entitled to attend and observe any hearing. It signifies that court records and documents are available for public examination. The rule of openness entails that reasons for judgment are public and, therefore, subject to the scrutiny of the parties, the media, the bar, legal scholars and, ultimately, the populace. And, under the open courts principle, the public and the press may freely discuss and publish accounts of court proceedings, hearings, examinations and decisions.
Much has changed since Bentham’s time. The courtroom scene, however, remains remarkably similar. An observer from the 19th Century would have no difficulty recognising the players in the modern courtroom. Behind the bench sits the judge. At the counsel table sit the lawyers. The witness sits in the witness box and the parties listen from pews behind the bar. Sometimes members of the public, perhaps people with a special interest, perhaps casual observers, join the parties in the audience. And occasionally, usually in the public seats but sometimes at a special bench to one side, one finds a member of the press. This is how things were in Bentham’s time, and this is how, by and large, they remain.
Yet, although we cannot see it, something has changed in the courtroom scene – and changed profoundly. In the old days, only those who bothered to attend the court and the class of literate newspaper readers followed court proceedings. While in principle, most courts were open to the public, as a practical matter they were closed to all but those who attended or read the papers. Today, television and the Internet have expanded the audience of court proceedings exponentially. At the flick of a button or the press of a key, virtually anyone can tune into the courtroom world. Courtroom drama has become a mainstay of the 6 o’clock suppertime news, and is there to greet us when we rise in the morning.
The technological advances of recent decades have put new pressures on the open court principle and have created new dilemmas for the courts, the media and the public. The open courtroom remains as essential today as it was in Bentham’s time. Yet the omnipresent and immediate reach of modern dissemination networks makes it increasingly apparent that openness may exact costs – costs that require judges and the media to reassess the means by which they further the principle of open justice. How, in the face of mass dissemination, can we preserve the right to privacy of litigants and witnesses? How, in the face of immediate dissemination of police information, can we preserve the right to a fair trial by an impartial jury? And how, in the face of the attraction of sensationalisation, can we ensure that the public obtains a balanced and accurate impression of how the justice system functions? These are questions of fundamental importance for the justice system and, more broadly, for society as a whole. If we care about justice and our society, we should consider them.
In the balance of this article I propose first to briefly examine these questions, exploring in more detail the harms that may be the unintentional costs of the open court in the modern age of technology. I will then turn to the open court principle with a view to establishing the core values it represents and distinguishing them from more peripheral concerns. Finally, I will attempt to build on the conclusions of these inquiries and suggest how judges can act to preserve the open courts principle without sacrificing privacy, justice and balance. I will suggest that the answer lies first, in recognising the tensions that exist between the open court principle on the one hand and the interests of privacy, justice, avoidance of sensationalism and security on the other hand; and second, in working out the appropriate balance contextually as issues arise — all for the better advancement of justice.
The first cost of the open court principle is to privacy. When a matter is submitted to the courts of justice, the parties cannot expect that the details of their dispute shall remain private. Traditionally, the courts have indicated that the embarrassment that results from having one’s affairs subjected to public viewing is an insufficient justification for curtailing the openness of court proceedings. Under the open courts principle, the public may attend any court hearing, consult any court document and examine any judgment, regardless of whether intimate or embarrassing details of one’s life would thereby be revealed. Openness comes, therefore, at a cost to privacy.
That cost is not negligible. The right 'to be let alone' and to define a protected sphere of individual autonomy within which neither one’s neighbours nor the state can intrude without permission, is an important aspect of fundamental human dignity. In Canada, as in other countries, we have come to recognise that the right to privacy has constitutional dimensions. The facility with which modern media and communication networks can intrude into people’s lives has increased our awareness of the importance of our interest in privacy. In the past, technical barriers to the mass collection and distribution of information offered limited but effective protection of the privacy of participants in the justice system. Now that protection has disappeared.
In Bentham’s day, the open court principle meant limited loss of privacy. In the era of 21st century technology, it can mean an enormous loss of privacy. More and more, parties and witnesses protest that their legitimate expectations of privacy are being trampled on and their lives and reputations damaged by the open court principle. Recognising the potentially embarrassing and sometimes damaging nature of the publicity that may attend judicial proceedings, they are increasingly seeking to limit the application of the open court principle. Courts are consequently seeing an ever-increasing number of applications for publication bans, in camera hearings and orders sealing court files to protect the privacy and reputations of those who appear as litigants and witnesses.
The law has long recognised that while the core values served by the open court principle must be respected, the principle may be limited where sensitive privacy concerns arise. For many years, courts have uncontroversially protected the privacy right of litigants in disputes involving trade secrets on the ground that the revelation of the secrets in open court would defeat the very purpose of seeking recourse to justice. More recently, we have come to recognise the importance of protecting the privacy of victims of sexual abuse. The concern here is both individual and social. Complainants may find their lives devastated by the glare of media scrutiny. More broadly, the administration of justice may be harmed if complainants refuse to pursue complaints because of privacy concerns. To meet these concerns, Canada has introduced amendments to the Criminal Code to protect the privacy of complainants in sexual assault trials. Likewise, litigants in family disputes may seek to protect their private lives from the disruption of public exposure. Finally, our justice systems are increasingly concerned with protecting children from the harmful consequences of publicising child welfare hearings, custody battles and criminal proceedings involving young offenders. Thus we have put in place measures to reduce the trauma of testifying for children and to prohibit the publication of the names of juvenile offenders.
In an age of mass media, electronic filing, and on-line access to court documents, it is becoming ever more difficult to reconcile concerns for the privacy, reputation and the well-being of individuals engaged in the justice system, with the principle of the open and public administration of justice. If we are serious about peoples’ private lives, we must preserve a modicum of privacy. Equally, if we are serious about our justice system, we must have open courts. The question is how to reconcile these dual imperatives in a fair and principled way.
The second 'cost' of the open administration of justice may be trial fairness. As we shall see, one of the purposes of the open court principle is to protect trial fairness by preventing abuses of judicial authority. Paradoxically, in some cases, openness can operate to impair trial fairness and, in particular, finding an impartial jury. In countries sharing the common law tradition, trial by a jury of one’s peers is viewed as one of the ultimate bastions protecting our liberty from government oppression.
Originally, jurors were required to decide cases on the basis of their personal knowledge of the parties and their dispute. However, we have long rejected intimate familiarity with the matter before the court as incompatible with impartiality. We insist rather on impartiality. We accept as axiomatic that the court’s decision must be based solely and entirely on facts introduced in evidence and tested in the arena of the adversarial trial. It follows that jurors must not bring with them preconceptions about the case.
The problem is that pre-trial publicity about the events before the court may give potential jurors inappropriate prior knowledge or inflame their passions in favour of or against a party, thus endangering trial fairness. In extreme cases, publicity can make it difficult, even impossible, to constitute an impartial jury. The right to trial by an impartial jury is a fundamental pillar of the criminal justice system in common law countries. It benefits accused persons and serves society’s interest in ensuring that those accused of crimes are dealt within a fair trial before an impartial tribunal. Courts have responded by recognising that, in some cases, the open justice system must yield to these concerns and consequently limit pre-trial publication of information.
But ordering a partial or complete publication ban may not solve the problem. The Internet has complicated the effectiveness of publication bans issued to protect trial fairness. In a recent Canadian case involving the alleged disappearance and murder of numerous women from the Vancouver area, the Crown sought an order banishing media from the preliminary inquiry. The judge, seeking to preserve the open court principle as well as the fair-trial principle, permitted the media to attend but issued a publication ban on the evidence. The Canadian media respected the ban. But news organisations in the United States published the banned information on the worldwide web. The Internet knows no boundaries, and the information became immediately available to Canadians. Next time, will the judge be forced to order exclusion? If not, will choosing an impartial jury in the case become difficult, if not impossible? The case illustrates the difficulties of maintaining both the principle of open administration and the fair-trial principle in the age of modern media.
I come to a third cost - the risk of sensationalisation and distortion. Openness and public reporting on court proceedings is essential to informing the public about the operation of the courts, their role in a democratic society and the rights and obligations of all citizens. In the modern context, however, unlimited reporting of court proceedings risks sensationalisation and distortion. By and large, journalists act with integrity and seek to report accurately. However, the temptation to sensationalise and distort court proceedings cannot be ignored. Both the written press and the electronic media operate in a highly competitive environment and both are aware that the sensational and the salacious sell paper and increases audience ratings. And beyond all this lies the wild, unregulated world of the web, where anyone can say, quite literally, anything about anyone and spread it to a vast audience.
The most disturbing manifestation of sensationalisation and distortion of the judicial process by the media may be the increasing incidence of personal attacks on judges. The press and the public have a fundamental right to disagree with court judgments and to critique them vigorously. This is beneficial to democracy. However, unwarranted personal attacks on members of the judiciary may lead to vilification. In a recent Canadian case, a trial court judge courageously rendered an extremely unpopular decision striking down the criminal prohibition on possession of child pornography. Much of the media responded appropriately, reporting and debating the serious legal issues the decision raised. But other comments focussed personally on the judge rather than on the merits of his decision. His intellectual ability was attacked, and he was castigated as a closet paedophile. The vitriol in the press inflamed public passions on a subject that was already very sensitive. The reaction became so extreme that the individual judge received threats and required police protection. Such sensationalisation and distortion does little to help people understand the issues or the justice system, and imposes serious costs in terms of the security of judges, the independence of the judiciary, and the repute of the judicial system.
Finally, the open court principle can conflict with security concerns. It has long been the rule that if disclosure of an informer’s identity would put his life at risk, it can be refused. Post September 11, the issue arises of limits placed on the openness of judicial proceedings under anti-terrorist legislation. Canadian courts have yet to rule on the validity of secrecy provisions in the current legislation. There can be no doubt that such provisions will yet again test the open court principle.
It thus seems evident that in contemporary society, the open court principle, however vital, imposes important costs in terms of diminished privacy, trial fairness and maintaining the security, independence and repute of judges and the judicial system. As a result, the law has come to recognise that we must sometimes limit the open court principle. The question is not whether limitation is permissible, but rather what principles or values should guide the courts as they attempt to strike a just and workable balance between open administration and avoidance of these harms. In my view, we must begin by ascertaining the core values served by the open justice principle. Only then will we be in a position to determine what limits can be placed on public access to the courts of law in particular situations.
The open court principle furthers a variety of important values which can be grouped under three heads. First, it assists in the search for truth, and is essential to the effective exercise of the right to free expression and freedom of the press. By permitting access to and dissemination of accurate information, it plays an important role in educating the public. Second, openness enhances judicial accountability. Finally, since openness permits the community to see that justice is done, it has a therapeutic function. A single unifying purpose animates all these benefits of the open court principle – the preservation of public confidence in the administration of justice. By promoting and preserving public confidence in the judicial system, the open court principle serves to maintain the authority of the courts and the rule of law in a civil society.
The first value served by the open court principle is the informational and educational value linked to freedom of expression and freedom of the press. Freedom of expression protects the right of each citizen to publicly comment on, discuss and critique the operation of the courts and their decisions. This important right is greatly diminished if the public is not allowed to gather the information necessary in order to permit individuals to form opinions and express them. If publicity of court proceedings is to be meaningful, 'the press must be guaranteed access to the courts in order to gather information'. For the majority of citizens, it is only through the press that the right of public access to the courts can in any relevant way be exercised. Attending court hearings is for most people impractical if not impossible on account of professional and familial obligations. Only through accounts in the press can many members of the public learn about the operation of the courts, their rights and other legal issues. The press effectively acts as the public’s proxy by reporting on court proceedings and disseminating the information essential to public discussion of issues relating to the administration of justice.
Open justice also plays an important educational role in the broader sense of informing people about rights, obligations and the role of the courts in democratic governance. How better can the public learn about the legal system, justice issues, and the judicial branch of government than by directly observing the processes of the courts or receiving full and accurate accounts of court hearings and decisions from the media. Members of the public learn about their rights, their obligations and what to expect should they ever have direct personal involvement with the justice system.
Information and democratic dialogue are tied to the second value of the open courts principle – promoting judicial accountability. Publicity is a deterrent against malversation and misconduct by both judges and the state. As stated by Chief Justice Spigelman of New South Wales:
The principle of open justice, in its various manifestations, is the basic mechanism of ensuring judicial accountability. The cumulative effect of the requirements to sit in open court, to publish reasons, to accord procedural fairness, to avoid perceived bias and to ensure fairness of a trial, is the way the judiciary is held accountable to the public.
Unfairness, partiality and other abuses would remain undetected if justice were permitted to operate behind closed doors. Secrecy has historically been a hallmark of unjust judicial institutions including, for example, the infamous Court of Star Chamber which operated in secret during the reign of the Stuart monarchs. To borrow from Chief Justice Barak of Israel, openness ensures that when judges 'sit at trial, [they also] stand on trial.'
A judge’s knowledge that his or her conduct on the bench is under observation and may be broadly reported offers a strong incentive to avoid any perception of bias and to ensure that trial fairness is respected. Similarly, the awareness of police officers and public prosecutors that their acts will be scrutinised in open court helps ensure fair conduct and may elicit public pressure to correct oppressive state practices.
Finally, open justice is therapeutic justice. Justice is a process fundamental to civil society. The citizen who is wronged seeks reparation through the justice system. It is essential that the system be open if the process is to function. The wronged person seeks not only private reparation, but public vindication. The judgment proclaims to the community the rightness – or perhaps the error – of the claimant’s pretension. Disputes must be resolved and people must move on. All this is best done if the system of justice operates openly and transparently.
These then are the values the open justice principle preserves: free speech and open debate and dialogue; judicial accountability; and therapeutic justice. Together these values assure an over-arching good – public confidence in the justice system.
The fact that judges hold public court and render public decisions plays an inestimable role in enhancing public confidence in the courts – the generally prevalent and well-founded belief that the courts administer justice fairly, impartially, independently and according to law. Judges and authors have repeatedly underscored the importance of openness to public confidence in the justice system. For example, in the 1976 case of Russell v. Russell, Justice Gibbs of the High Court of Australia wrote that 'the public administration of justice tends to maintain confidence in the integrity and independence of the courts.' Likewise, Chief Justice Spigelman recently noted that public confidence in the justice system is 'primarily maintained by the practical operation on a daily basis of the principles of open justice'. In the important case of Scott v Scott, the House of Lords addressed the propriety of an order providing for an in camera hearing in the context of a suit for the nullity of a marriage. Lord Atkinson eloquently stated the case for openness in the following manner
. . . in the public trial is to be found, on the whole, the best security for the pure impartial and efficient administration of justice, the best means for winning for it public confidence and respect.
The principle that justice is rendered in open courts, freely accessible to the public and the press, is crucial to ensuring that justice is 'manifestly and undoubtedly seen to be done'. Public confidence simply cannot exist without openness. It is impossible to be confident in that which we are precluded from perceiving. By observing the operation of the courts or examining public accounts of judicial proceedings, the citizen can see that the courts effectively administer justice fairly, impartially, independently and according to law. If such observation were not permitted, public confidence in the administration of justice would be an act of collective credulity rather than reason.
The courts preserve public confidence in the justice system, not egoistically to protect the power of the judiciary, but as a necessary and key element of maintaining the rule of law. Indeed, as my former colleague, Justice Peter Cory wrote, it is 'essential to a democracy and crucial to the rule of law that the courts are seen to function openly'. The rule of law cannot exist without an independent judiciary to uphold its authority. It is 'directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect'. Without public confidence in the judiciary and belief in the legitimacy of their pronouncements, the courts are impotent to maintain the authority of the rule of law. Public confidence in the courts is thus a prerequisite for the existence of the rule of law and a cornerstone of democratic civil society.
Chief Justice Spigelman has said that the open operation of the justice system 'is an important determinant of [the] institutional legitimacy' of the administration of justice. In like vein, Chief Justice Gleeson recently stated:
The general acceptance of judicial decisions, by citizens and by governments, which is essential for the peace, welfare and good government of the community, rests, not upon coercion, but upon public confidence.
These then are the core values preserved by the open court principle: free discourse and debate; judicial accountability and therapeutic justice – all linked to public confidence in the judiciary and the preservation of the rule of law.
The values that ultimately underlie the open court principle are of fundamental importance. So are the competing interests of the right to privacy, fair and impartial trials and accurate public information equally significant. The question is how the tension between these values is to be resolved.
One way to resolve the tension is the hierarchical approach. The open court advocate, on this approach, asserts as a fundamental principle that courts must be open, and that other goods, like privacy, fair trials by jury and accurate reporting, as lesser goods, must always yield to the open court principle.
In Bentham’s time, such a position might have been workable. However, in the era of modern communication technology, the gravity of the harms that unlimited openness may permit demand a more nuanced approach.
The better approach today is to acknowledge that the open court principle may conflict with other values, and seek to resolve the tension by contextual balancing. On this approach, the principle that the courts administer justice openly and in public, like so many other fundamental axioms of our law, is not viewed as absolute. In reality, the conflicting interests are not so diametrically opposed as we might think. Protecting the privacy of victims is important to a good justice system. So is fair trial by jury and respect for judges. Instead of standing in opposition, these are all components of a good justice system. It is not a matter of all or nothing, one or the other. It is rather a matter of finding the right equilibrium, or balance, on a contextual and case-by-case basis.
The Supreme Court of Canada laid out a balancing test for open court issues in Dagenais v Canadian Broadcasting Corporation. It suggested that alternatives to bans should be considered such as trial adjournments, change of venue, sequestration of the jury, allowing challenges for cause and voir dires during jury selection, and strong judicial instructions. The Court has subsequently reaffirmed the propriety of this balancing approach in both the criminal and civil matters.
The Canadian experience demonstrates that balancing, in the context of the open courts principle, requires identification of the precise values that are at stake – confidence in the administration of justice, judicial accountability, the importance of accurate public information, privacy, and fair and impartial trials. Balancing requires an evaluation of how each value plays out in the precise circumstances of the case. It requires us to examine the benefits that would accrue as well as the harm that would be caused to each value by unlimited openness or by restrictions on publicity. The aim of the balancing exercise is to protect each of the conflicting values to the greatest degree possible and achieve harmony or an equilibrium between them. The court seeks to tailor a solution that protects privacy and fair trial rights, while preserving the values that underlie the open justice principle. This is a complex exercise, one that leads to different solutions in different contexts. Ultimately, however, it offers the only principled way by which judges can resolve the legitimate and competing demands of openness, privacy and fairness.
I have argued that, faced with the tension created by the competing demands of openness, on the one hand, and privacy, trial fairness and institutional protection, on the other hand, the courts must find a way to preserve all the values at stake to the maximum extent commensurate with fairness and maintenance of confidence in the justice system. The task is far from easy. But judges may find guidance in the unifying principle of the integrity of the administration of justice that underlies both the open courts principle and the values that – carried too far – it may threaten.
In Scott v Scott, Viscount Haldane suggested that exceptions to the open court principle 'are themselves the outcome of a yet more fundamental principle that the chief object of the Courts of Justice must be to secure that justice is done'. The principle that courts must conduct their business openly and in public is, therefore, subject to their overriding obligation to deliver justice according to law. Borrowing the words of Earl Loreburn, Viscount Haldane opined that the principle may yield where:
. . the administration of justice would be rendered impracticable by [the] presence [of the public], whether because the case could not be effectively tried, or the parties entitled to justice would be reasonably deterred from seeking it at the hands of the Court.
In the final analysis, the open court principle is not an end in itself, but a means to promote the rule of law and the administration of justice. It follows that openness may yield where the paramount object that it serves – preserving the integrity of the administration of justice – so requires. This paramount object underlies both the exceptions to the principle of openness and its limits. Where openness may defeat justice by effectively driving litigants from the judgment seat, it may be limited. Likewise, the principle of openness does not extend to measures that may bring the administration of justice into disrepute by impairing the fairness of court proceedings or transforming them into a means of entertainment. Openness that defeats justice by preventing litigants from accessing the courts, by endangering the safety of parties or witnesses, or by sapping public confidence in the integrity of the justice system, operates to prejudice rather than promote the rule of law. An appropriate balance between the publicity of court proceedings and other values of importance in a democratic society can be achieved and maintained by reference to the integrity of the administration of justice and the authority of the rule of law as the value which openness ultimately serves.
Recalling his exhortation against secrecy, what verdict then would Bentham render were he to sit in judgment of our courts today? I believe he would see not darkness, nor sinister interest and evil, but rather impartiality, independence and fairness brightly manifested in the penetrating light of public scrutiny. Would he be dismayed by the limits that are occasionally placed on publicity? I think not, for even Bentham recognised that openness was not absolute. And although Bentham did say that publicity is the soul of justice, I think he would agree that publicity is really her servant.
[*] Chief Justice of Canada. This is an edited version of the 2003 Deakin Law School Oration, delivered on 16 April 2003 at the Toorak Campus of Deakin University.
 Quoted in A G (Nova Scotia) v MacIntyre  1 SCR 175, 183 (Dickson J)
 A G (Nova Scotia) v MacIntyre  1 SCR 175.
 Scott v Scott  UKHL 2;  AC 417.
 Richmond Newspapers Incorporated v Virginia  USSC 154; 448 U.S. 555 (1980).
 Russell v Russell  HCA 23; (1976) 134 CLR 495.
 See Claire Baylis, 'Justice Done and Justice Seen to be Done – The Public Administration of Justice' (1991) 21 Victoria University of Wellington Law Review 177.
 See Scott v Scott  UKHL 2;  AC 417, 473 and 484 (Lord Shaw of Dunfermline); Richmond Newspapers
Incorporated v Virginia  USSC 154; 448 US 555 (1980) 575-576 (Burger CJ); Canadian Broadcasting Corporation v
New Brunswick (Attorney General)  3 SCR 480,  (Cory J); Re FN  1 SCR 880, ; J J
Spigelman, 'Seen to be Done: The Principle of Open Justice – Part I' (2000) 74 Australian Law Journal 290,
293; and Baylis, above n 6, 177.
 999 UNTS 171.
 A G (Nova Scotia) v MacIntyre  1 SCR 175.
 S D Warren and L D Brandeis, 'The Right to Privacy' (1890) 4 Harvard Law Review 193, 195.
 Hunter v Southam Inc  2 SCR 145, 159-160; R. v Mills  3 SCR 668,  and -; Katz v United States 389 US 347 (1967); See also Article 17 of the International Covenant on Civil and Political Rights and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
 R v Sherratt  1 SCR 509, 523.
 Christopher Granger, The Criminal Jury Trial in Canada (2nd ed, 1996) 18-19 and 22-23.
 Dagenais v Canadian Broadcasting Corporation  3 SCR 835, 879.
 Ibid, 875.
 R. v Pickton  BCJ No 2830.
 R. v Sharpe (1999) 169 DLR (4th) 536 (BCSC); affirmed (1999) 175 DLR (4th) 1 (BCCA); reversed  1 SCR 45.
 See Susan E Harding, 'Cameras and the Need for Unrestricted Electronic Media Access to Federal Courtrooms' (1995-1996) 69 Southern California Law Review 827, 845.
 See Richmond Newspapers Incorporated. v Virginia  USSC 154; 448 US 555 (1980).
 See Richmond Newspapers Incorporated v Virginia  USSC 154; 448 US 555 (1980) 575-577; Canadian Broadcasting Corporation v New Brunswick (Attorney General)  3 SCR 480, -; and Edmonton Journal v Alberta (Attorney General)  2 SCR 1326, 1339-1340.
 Canadian Broadcasting Corporation v New Brunswick (Attorney General)  3 SCR 480, .
 A G (Nova Scotia) v MacIntyre  1 SCR 175,183-184; see also M Lepofsky, Open Justice: The Constitutional Right to Attend and Speak About Criminal Proceedings (1985) 48.
J J Spigelman, 'Seen to be Done: The Principle of Open Justice - Part II' (000) 74 Australian Law Journal 378, 378.
 Russell v Russell  HCA 23; (1976) 134 CLR 495, 520.
 Barak, 'Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy', (2002) 116 Harvard Law Review. 16, 162.
 Russell v Russell  HCA 23; (1976) 134 CLR 495, 520.
 Spigelman, 'Seen to be Done: The Principle of Open Justice- Part II', above n 23, 378.
 Scott v Scott  UKHL 2;  AC 417, 463.
 R. v Sussex Justices; Ex parte McCarthy  1 KB 256, 259.
 Edmonton Journal v Alberta (Attorney General)  2 SCR 1326, 1339.
 United Nurses of Alberta v Alberta (Attorney General)  1 SCR 901, 931.
 Spigelman, 'Seen to be Done: The Principle of Open Justice- Part II', above n 23, 380.
 Murray Gleeson, 'Public Confidence in the Judiciary' (2002) 76 Australian Law Journal 558, 558.
 A G (Nova Scotia) v MacIntyre  1 SCR 175, 186-187.
 Dagenais v Canadian Broadcasting Corporation  3 SCR 835.
 R v Mentuck  3 SCR 442; Sierra Club of Canada v Canada (Minister of Finance) 2002 SCC 41.
 Scott v Scott  UKHL 2;  AC 417, 437.
 Spigelman, 'Seen to be Done: The Principles of Open Justice- Part I', above n 7, 292.
 Scott v Scott  UKHL 2;  AC 417, 446.
 Scott v Scott  UKHL 2;  AC 417, 437 (Viscount Haldane)
 See Jeremy Bentham, Rationale of Judicial Evidence Specially Applied to English Practice, vol I (1827) 541-542.