Open courts are a constitutional requirement in Papua New Guinea, not a matter of practice. The rule is in the Basic Rights provisions, and it applies to the Supreme Court as much as to a District Court in a provincial town.
The rule
Except with the agreement of the parties, or by order of the court in the interests of national security, proceedings in any jurisdiction of a court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.
The section sits in section 37, protection of the law, which section 37(11) links to the right to a fair hearing by an independent and impartial court. Publicity is treated as a guarantee of fairness: anyone may come in, see who is deciding and hear the reasons. Section 37(12) also covers the announcement of the decision, so reserved judgments are delivered in open court and not merely posted to the parties.
The exceptions
| Situation | Basis | What happens |
|---|---|---|
| All parties agree to a closed hearing | s 37(12), first limb | The Court may, but need not, sit in closed court; it retains a discretion in the public interest |
| National security | s 37(12), second limb | The Court orders the public excluded for the relevant part; reasons are given publicly so far as possible |
| Child witness or victim, sexual offence appeals | Criminal Code, Evidence Act and the Court’s inherent power | Names suppressed in the judgment; hearing usually open with the public gallery cleared for sensitive evidence, though fresh evidence in the Supreme Court is rare |
| Commercially confidential material | Inherent power; O 11 r 8 on custody of exhibits | The document is sealed on the file and referred to without disclosure; the hearing stays open |
| Chambers matters: directions, status conferences, urgent applications, settlement of the appeal book | O 13 rr 2, 8, 10, 14; O 7 Division 14 | Held in the Judge’s chambers or the Registrar’s office; parties and lawyers only, though nothing prevents a Judge sitting in open court |
| Deliberation | Judicial independence, Constitution s 157 | Always private; the conference of the Judges is never disclosed |
The appellant in custody
Except with the consent of the appellant, the hearing of an appeal shall not take place in the absence in custody of the appellant, unless the appellant so conducts himself as to render the continuance of the proceedings in his presence impracticable and the Court orders him removed. The prisoner is brought to Court by the Correctional Service on the Registrar’s production order, and sits in the dock during the hearing. See whether you must attend your criminal appeal.
Attending a hearing
The Supreme Court sits at Waigani in Port Moresby, and on circuit in provincial centres according to the Annual Circuit Calendar published under Order 13 Rule 4. The Hearing List under Order 13 Rule 12 is posted at the Registry and, increasingly, on the National Judiciary website, giving the courtroom, bench and time; the Registry can confirm by telephone. Members of the public sit in the gallery, stand when the Judges enter and leave, and do not speak, use phones, photograph or record. Lawyers appear robed in the Supreme Court. Media may report proceedings; recording requires the Court’s leave, and a suppression order, where made, binds publication. Students and law clerks attend freely and often. See what happens at a Supreme Court hearing and when the Supreme Court sits.
Access to documents
Openness of the hearing does not make the file public. The appeal book, affidavits and submissions are available to the parties; a non-party wanting a document applies to the Registrar, who may require a Judge’s leave. Judgments are different: once delivered they are public, are published on PacLII, and may be quoted and reported. Sealed orders are obtained from the Registry on payment of the copying fee. See finding and citing a Supreme Court judgment and what the Registrar does.
Constitutional references
References under sections 18 and 19 of the Constitution and section 57 enforcement applications are heard in open court like appeals, and Order 4 Rule 19 allows any person with a sufficient interest to apply to intervene, so these hearings often have several parties and full galleries. The Court sometimes sits in a larger courtroom, or arranges an overflow room, for references of wide public interest. See intervening in a constitutional reference.
Sources
- Constitution — ss 37(11), (12), 157
- Supreme Court Act (Chapter 37) — s 9
- Supreme Court Rules 2012 — O 4 r 19; O 7 Division 14; O 11 r 8; O 13 rr 2, 4, 8, 10, 12, 14
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.