Biber, Katherine --- "Open secrets, open justice" [2015] UTSLRS 4; Secrecy, Law and Society (Routledge, 2015) Ch 13

Last Updated: 16 February 2017

OPEN SECRETS, OPEN JUSTICE

Katherine Biber

Abstract:

What happens to intimate and criminal secrets in a regime of open justice? This chapter argues that, in some instances, criminal evidence should not be disclosed or released publicly. It proposes a ‘jurisprudence of sensitivity’ for making decisions about material that is intimate, harmful, humiliating or secret. It focuses particularly on photographic and other visual evidence, including images released by the court following the murder and sexual assault of Jill Meagher in Australia in 2012, and photographs taken by Kohei Yoshiyuki in Japan in the early 1970s.

Biographical note:

Katherine Biber is a legal scholar, criminologist and historian in the Faculty of Law at the University of Technology Sydney. She is author of Captive Images: Race, Crime, Photography (Routledge, 2007), and co-editor of The Lindy Chamberlain Case: Nation, Law, Memory (Australian Scholarly Publishing, 2009). This chapter derives from a funded project titled “Open Justice and Open Secrets: The Cultural Afterlife of Criminal Evidence” supported by an Australian Research Council Discovery Grant (DP130102224).

What happens to intimate and criminal secrets in a regime of open justice? This chapter addresses this question and will argue that, in some instances, the law ought to guard the secrets disclosed in criminal proceedings. The principles of open justice demand that law’s work be conducted in public. Open justice is “one of the most pervasive axioms of the administration of justice”,^[1] “the best means of winning [...] public confidence and respect” for the administration of justice;^[2] it takes seriously Bentham’s aphorism that “publicity is the very soul of justice”.^[3] In order to be accountable, the law must be transparent; law must be seen to be done. Law occurs in public. Bringing one’s disputes to the law, or being brought before the law, is to surrender to publicity what might otherwise not have been disclosed. Law already has the capacity to protect some disclosures on the grounds that they may be private, personal, sensitive, privileged, confidential, or secret. This chapter is about whether and how the law might make an exception to open justice, keeping some criminal secrets hidden from our view.

To explain how the law could keep these secrets, I attempt to articulate a ‘jurisprudence of sensitivity’. Public spaces, including court rooms, are frequently the sites of acts and disclosures that might be personal, humiliating, intimate or secret. A jurisprudence of sensitivity enables the law to assume responsibility for these secrets. Criminal lawyers recognise that criminal conduct is usually characterised by its clandestine nature.^[4] These hidden facts, once they form the basis for criminal charges, are resolved in public, in the court room; they become open secrets. But criminal lawyers also recognise that, in revealing criminal secrets, additional harm might be done – to defendants and others – and a jurisprudence of sensitivity aims to address this.

This chapter is structured in four parts. Part I uses a photographic series, Kōen/The Park to illustrate the illicit pleasures and dangers of viewing criminal images. Through these photographs (which were never used in criminal proceedings) and other artworks made from candid photography, I will open up a discussion about the sensitivities and ethics involved in seeing someone’s intimate secrets. These images show us that, when we are spectators to an event that was never intended to be seen, special responsibilities are conferred upon us. Part II sets out what I mean by a ‘jurisprudence of sensitivity’, and Part III explores some cultural and theoretical approaches to secrecy, in the context of intimate secrets. Part IV deals with another photographic series, the photo books tendered at the committal proceedings against Adrian Bayley, charged with the murder and sexual assault of Jill Meagher in Melbourne, Australia, in 2012. The images were released by the court following a media application. In that final part, the chapter examines those proceedings to show what it might mean to be sensitive about the secrets contained in criminal evidence.

1. Kōen/The Park

In the early 1970s in Tokyo, a young photographer walked through Chuo Park in Shinjuku with a colleague at night. He saw a couple having sex on the veranda of a model home, and several men watching them furtively from a short distance. The photographer returned to the park, and visited other Tokyo parks, several times; enough to learn that many couples frequented these parks for sex, and that many men visited those parks to watch the couples, and sometimes to touch them. The photographer learned to take photographs in the dark and began to capture images of this activity.

These are photographs about looking; specifically, an illicit kind of looking: looking without permission, looking for pleasure, looking secretly. The series Kōen/The Park was first exhibited at a small gallery in Tokyo in 1979 and the photographer used the pseudonym “Kohei Yoshiyuki”. The images were blown up to life size, the gallery was in complete darkness, and visitors were given a torch. Despite the exhibition’s success, afterwards, for reasons that are not clear, the prints were destroyed.^[5] New attention was drawn to his work in 2006,^[6] after which Yoshiyuki, whose real name has never been revealed, was contacted by a New York gallery owner. Yoshiyuki agreed to reprint photographs from the remaining negatives.^[7] Between April and September 2007, images from the series had been acquired for the collections of major public galleries,^[8] and were then exhibited in New York at the Yossi Milo Gallery, attracting considerable interest from the media, the arts world, and the public. The photographs were celebrated for their audacity, for their surprising content, and for their representation of a world otherwise-unfamiliar to American art audiences: public sex in Japan.

One striking feature of these illicit images is the absence of the police. In Japan at that time these acts were crimes, but they were largely unpoliced. Under the Japanese criminal code, it was and remains a criminal offence to have public sex, to photograph people having public sex, and to display images of these acts in a public context.^[9] Yoshiyuki’s photographs constitute the only surviving evidence of transgressions that eluded the law. As such, they document intimate secrets, but they cannot be properly labelled as ‘crimes’. Whilst looking at these images now might be titillating, fascinating, perhaps even shocking, special sensitivities are not demanded from their display. Instead, I argue that different critical responses to intimate secrets are required when the law is engaged. Were these images to have been used in criminal prosecutions, different sensitivities arise. It is not my intention to argue that artworks made from criminal facts are benign, nor that when artists illicitly capture secrets, that their practice is unproblematic. However, all of these artworks teach us about both the pleasures and ethics of looking at secrets.

Kohei Yoshiyuki was interviewed in 1979 by Nobuyoshi Araki, another photographic provocateur. In their conversation, Araki said: “They [the photographs] are powerful enough to thrill anyone who comes to see them”.^[10] A curator at the Museum of Contemporary Photography in Chicago, Karen Irvine, said, “our appetite for observing people in extremely personal circumstances doesn’t seem to wane”.^[11] Artists and art critics draw upon a haphazard range of legal terms, loosely grasped, when talking about capturing intimate secrets in photography, and some of them don’t notice the law at all. Looking at Yoshiyuki’s photographs, Benjamin Genocchio described as “naughty, clandestine” the effect of looking at these images.^[12] The curators of the ‘Exposed’ exhibition, at the Tate Modern in 2010, in which some of Yoshiyuki’s photographs were included, said the images pose “difficult questions” about whether we ought to collude with their capture, or not.^[13] Naomi Cass, who curated ‘In camera and in public’, a 2011 exhibition of candid and surveillance art in Melbourne, also showed some images from Kōen and wrote that, in candid photography of this kind, “the contract between the photographer and subject has been broken”.^[14] She pointed out the two diverging consequences of candid photography: it has taught us things we might never have known (it is evidentiary), and it has also “hurt, harmed and destroyed people”.^[15]

The artist Cherine Fahd, who has also worked in the candid tradition, said “I never considered asking anyone if I could take their photo. It would have defeated the whole point. People change when they know there is a camera present, better to let them be”.^[16] She explained that she stopped taking candid photographs because “audiences became obsessed with whether I had permission to photograph people. [...] The moral dilemmas engulfing candid photographer are not something I am interested in addressing in my work”.^[17] Luc Delahaye, describing his art practice, wrote, “I stole these photographs between ’95 and ’97 in the Paris metro. ‘Stole’ because it is against the law to take them, it’s forbidden”.^[18] Whilst, initially, he was talking about the proscription against taking a photograph without seeking the subject’s permission, he added, “there’s another rule, that non-aggression pact we all subscribe to: the prohibition against looking at others. Apart from the odd illicit glance, you keep staring at the wall. We are very much alone in these public places and there’s violence in this calm acceptance of a closed world”.^[19] Here, Delahaye was defending his art practice, reliant upon his process of looking without permission, as a kind of pro-social gift. It is as if glancing, peeping, or outright voyeurism gives – to the furtively looked-at subject – a value; by looking at them, even if unlawfully, we have gifted them with recognition and inclusion; we have transformed them into social subjects. Whilst Delahaye doesn’t photograph people engaged in transgressive acts, his images nevertheless convey some of the intrusion he has perpetrated in capturing them. A similar sense emerges from Mark Wallinger’s 2010 series “Unconscious”, in which he photographed people, including children, who had fallen asleep on public transport. Whilst they were sleeping in a public space, which is neither transgressive nor necessarily humiliating, there is something insensitive about his creation of a permanent record of an act that was never intended to be represented.

New York artist, Arne Svenson, sat at his apartment window holding a camera with a telephoto lens, and captured photographs of his neighbours, immersed in the photogenic details of their private lives as visible through their windows, or through gaps in their curtains. When his series, “The Neighbors” opened in Los Angeles in 2013, his neighbours’ attention was first drawn to his work, and they responded with predictable anger and indignation. Svenson was reported to be “surprised and upset” by their reactions, stating “I was looking for the most quiet moments, the most human moments. [...] People get crazed by the concept and don’t see the art”.^[20]

All of these photographs fit into a tradition of artists whose work relies, for its power, upon the intimacy of its subjects. Where that work derives from sources that might be transgressive or secret, the image’s power becomes more forceful, given the significant heft of illicit or covert capture. Not all covert imagery is illicit, and with ever-reaching technological capabilities, we don’t yet have fully-formed ethical or jurisprudential responses to covertly-made images. Whilst there is a great deal more that can be said about the relationship between technology, intimacy and secrecy,^[21] these issues need not be canvassed in this chapter. However, in the conflation of technological innovation and the hitherto unimagined intrusion into hidden spaces, new intimate media are inaugurated, posing new challenges for the capture and disclosure of secrets. I would argue that this new visibility, the ability to see secrets, demands a sensitive response. For Roland Barthes, the hidden photographer was the perfect operator; the subjects of the photograph unknowingly ‘perform’ for him, and his photographs – if they are good – will ‘surprise’ them.^[22] Barthes wrote,

I imagine... that the essential gesture of the Operator is to surprise something or someone (through the little hole of the camera), and that this gesture is therefore perfect when it is performed unbeknownst to the subject being photographed. From this gesture derive all photographs whose principle (or better, whose alibi) is ‘shock’; for the photographic ‘shock’ (quite different from the punctum) consists less in traumatizing than in revealing what was so well hidden that the actor himself was unaware or unconscious of it.^[23]

The photographer Diane Arbus said “a photograph is a secret about a secret”.^[24] Part of Arbus’ artistic objective was to find a medium in which to represent individuals who operated outside of society’s visual register – ‘freaks’ – and whilst some of her subjects were vulnerable, she never carried a hidden camera. When Arbus spoke about photographic secrets, she was talking about the camera’s ability to simultaneously capture and liberate something that was hidden. As I have written elsewhere, in the context of surveillance cameras:

The photograph seems the ideal place to conceal a secret, given its confident manipulation of darkness and light. Both darkness and light rely upon each other for their existence, and the photograph is the zone in which one yields to the other. [...] And the photograph taken by a hidden camera [...] reminds us that photographic secrets are produced constantly, autonomously, and in unverifiably large numbers.^[25]

We now have an apparently-limitless capacity to make images from secrets, creating a permanent record of events that were intended to be ephemeral. And we now have new media enabling us to view images that were never intended to be seen by a wider audience of strangers. Given the nature and quantity of this imagery, we now need to ask ourselves: Do I need to see this?

2. A Jurisprudence of Sensitivity

The purpose of proposing a jurisprudence of sensitivity is to provide some conceptual framework for thinking through difficult questions of judgment where hurt, harm, humiliation and danger might result from the operation of the principles of open justice. A jurisprudence of sensitivity might – I would like to argue – provide robust justifications for why, in some circumstances, criminal facts and criminal evidence ought not to be released to the public. I have named it a ‘jurisprudence of sensitivity’ to take advantage of the existing recognition in law of the category ‘sensitive’. Particularly in areas of law regulating information management, the concept ‘sensitive’ already operates as a justification for non-disclosure. Information management principles recognise a range of reasons why information might not, in certain circumstances, be released, including: privacy, personal information, health records, protected confidences, trade secrets, disclosures against the public interest or matters of national security. ‘Sensitive information’ is distinct from ‘personal information’. For example, under the Australian Privacy Principles ‘sensitive information’ is personal information that is also information or an opinion about an individual’s: racial or ethnic origin; political opinions; membership of a political association; religious beliefs or affiliations; philosophical beliefs; membership of a professional or trade association; membership of a trade union; sexual orientation or practices; criminal record; or health information; genetic information; biometric information or biometric templates.^[26]
There are other examples of legal instruments defining ‘sensitive’ in order to manage or protect information,^[27] as well as many which use the term ‘sensitive’ without defining it,^[28] and whilst none of them capture the kinds of harm that criminal disclosures might provoke, they offer a promising starting point. None of them recognises ‘sensitivity’ in any way that demands a sensory response; I would propose that the legal recognition of sensitivity demands recognition of the senses. As I have written elsewhere:

Listing what is ‘sensitive’ is an intellectual undertaking; recognizing what is ‘sensitive’ demands feeling something. A jurisprudence of sensitivity recognizes sensibilities, emotions and harm. It acknowledges the special susceptibility of some individuals, especially those whose context or experience makes them vulnerable in some circumstances. It recognizes that certain materials require special care, delicate handling, tact.^[29]

I do not adopt Joseph Jaconelli’s view that privacy considerations – which he sometimes conflates with sensitivity – are “capable of objective determination”.^[30] Jaconelli asks rhetorically: “Should the courts defer to the needs of the person of above-average sensitivity? Or should the standard be objective? How, in any event, are the courts to gauge whether or not the particular individual ... reaches the applicable standard?”^[31] I argue that the language of objectivity and standards is antithetical to being sensitive. As I hope to explain, a jurisprudence of sensitivity would help us to respond to criminal evidence, and the context in which it is collected, displayed and received, in a manner that combines openness and secrecy, exposure and sanctuary, disclosure and tact.

3. Open Secrets

In his work on ‘the closet’ in the context of gay and queer identity, D.A. Miller used the term ‘open secret’ to capture the tension between knowledge and discretion.^[32] The open secret seems to encapsulate something of the ‘sensitivity’ that I am working towards, in trying to articulate a space for guarding secrets within a regime of transparency. In an anthropological discourse, Michael Taussig used the ‘public secret’ to describe the double power of the secret: firstly that it is a secret and will not be disclosed, but secondly that its existence is publicly acknowledged as a secret.^[33] In cultural and legal scholarship, there is an evident conflation of secrecy, privacy and intimacy,^[35] each of which is tethered to decisions about disclosure or non-disclosure: not-telling, not-showing and not-looking.

Lauren Berlant invoked the term ‘intimacy’ for its capacity to unsettle the distinction between the public and the private. Berlant and Warner use the term ‘counterpublic’ to describe spaces which might be ephemeral or ‘secret’ sites,^[36] and which Berlant has broadly theorised as the “intimate public sphere”.^[37] Berlant and Warner call for a queer refusal of the public/private distinction, arguing that the privatisation of sex, and of representations of sex acts, renders unnoticed the heterosexual hegemony at work in the demonization of certain practices (as perverted, obscene, exploitative, criminal).^[38] Berlant and Warner’s work might be drawn into a much wider discourse in which the ‘private’ sphere is a zone of intimidation, exclusion, invisibility and violence, and so joins with writers from Catharine MacKinnon to Pat Califia and Peggy Phelan, who call for a radical visibility of otherwise-hidden individuals, groups and practices. I don’t reject that scholarship here, but I argue that within criminal proceedings, and for the artefacts they leave behind, there are times where we might legitimately be told: you don’t need to see this.

In my earlier writing on illicit public sex, with Derek Dalton, we used the term “secret sex” to describe sex acts that occurred in public spaces but which were not meant to be seen, nor permanently recorded.^[39] That writing was motivated by an artwork named Tearoom (1962-2007) by William E. Jones, a Los Angeles artist with a partially archive-based practice, much of whose work portrays gay sexuality. Tearoom is made from 55 minutes of film footage taken by police officers in 1962 in a men’s public toilet in Mansfield, Ohio. The footage was captured secretly by a police officer hiding behind a two-way mirror, and caught men engaged in illicit homosexual sex acts; at least 31 men were convicted of sodomy as a result of the footage, serving mandatory minimum prison terms of 12 months. After a process that we’ve written about elsewhere,^[40] Jones acquired the film, re-arranged some of the footage, and gave it the title of Tearoom, a term which in archaic American gay argot means a public place where men meet for illicit, anonymous sex. In our writing about Jones’ work, the word ‘secret’ conveyed some of the inadequacy of the term ‘private’ for illicit conduct which occurs in public space. Bennett and Grant draw a distinction between “privacy as an intrinsic or aesthetic value” and “privacy as an instrumental or ‘strategic’ value”.^[41] Tearoom seemed to capture this distinction, as many of the work’s critics argued that it breached the privacy of the film’s subjects, a charge which Jones both defended and denied. We wrote that the discomfort of many of the film’s viewers arose because the notion of aesthetic privacy (illicit, risky, hidden sex) and strategic privacy (safe, lawful, bounded space) were incompatible with tearoom sex and that, in either event, United States privacy jurisprudence demonstrated that privacy – whether as a right or a privilege – is incoherent, undefinable and usually incapable of protection.^[42] Instead, we argued, privacy was more likely this aesthetic affinity, an aspiration for secret spaces in which to live out hidden desires.

Having proposed ‘secrecy’ as an alternative space to the public and the private, I’d now like to explore the possibilities and limits of secrecy as a jurisprudential and a critical concept, specifically the way that secrets demand sensitivity. Mark Fenster is a legal scholar who accepts that secrecy harbours a paradox: if secrecy represents the boundary between those who are permitted to know and those who are not, then the secret must be communicated by those inside the boundary in order for the secret to be identified, and also for the boundary to be perceived.^[43] Fenster writes, “A secrecy regime commands an organization’s members to practice quiet and control, but it also demands that they obsess as an organization over information”.^[44] In Jacques Derrida’s writing on the secret, the same paradox is evident. For Derrida, the secret must by nature be shared because one must identify what is secret in order for the secret to come into being. Thus, the secret begins to be lost as soon as it appears.^[45]

Secrecy, Derrida demonstrated, is not something that is concealed by a single individual, but a shared cultural, religious and – significantly for Derrida – now a technological phenomenon. Democracy, for Derrida, had proven damaging to notions of privacy and secrecy and he argued that, “if a right to the secret is not maintained, we are in a totalitarian space”.^[46] In his book A Taste for the Secret, Derrida argued that transparency – “the demand that everything be paraded in the public square and that there be no internal forum” – exposes the “totalitarianisation of democracy”.^[47] This fear of a “totalitarian public” can, Jeremy Gilbert cautions, be taken too far. Gilbert writes, “Not to put too fine a point on it: no-one has a taste for the secret like Monsanto or Microsoft, so perhaps it isn’t a taste we should be too relaxed about cultivating”.^[48]

Instead, Gilbert notices that postmodern political discourse has been transformed by secrets; we have lost our traditional and open public sphere, and with it a robust sense of what is ‘private’ or separate from it; we now live with the realisation that in the space where that public sphere once was “we now find ourselves inhabiting a culture constituted by moments of (often sensational) disclosure”,^[49] noting that these disclosures are often “discursively constitut[ed] as secrets”.^[50] For Gilbert, we are faced with a new challenge: not only do we now need to recognise these “gestures of disclosure” as an inherent feature of modern public life; we also need to find ways of distinguishing “mere telling of secrets” from “real acts of [...] ‘publicity’”.^[51] He says we need to retain “respect for the secret” without becoming “addicted to it”.^[52] He worries that “it might be that all that remains is the endless and fragmentary production of pieces of knowledge whose legitimacy is partially guaranteed by their discursive constitution as secrets, always on the verge of disclosure or having only-just-been-disclosed”.^[53]

Secrecy can be a strategy. For a secret to retain its power, one needs to remain within the logic of the secret, and its necessary paradox. It is known and hidden, released but guarded. Perhaps this is crucial to law’s management of criminal secrets. Within the regime of open justice, justice must be seen to be done, but the disclosure of the secret demands that somebody is there to see it. Law’s gatekeepers generally function with cold efficiency, effectively excluding all those who cannot speak law’s language, cannot access law’s domain, or cannot decode law’s secrets. Whilst much of my recent work focuses upon instances of striking, and sometimes shocking, disclosures – where one of law’s secrets has fallen out of place, resulting in harm or humiliation – we also need to concede that, most of the time, law’s secrets are safe, because nobody has bothered to seek them out.

Law has developed a range of terms and principles which might guard secrets against disclosure, and these principles emerge from the recognition that sometimes disclosure is harmful, and sometimes knowledge is distributed according to a hierarchy of interests, where one party’s interest in disclosure is measured against another party’s interest in non-disclosure. There are many contexts in which disclosure is – or feels – wrong. The law attempts to protect these feelings, recognising that some information or relationships might be private, personal, confidential, privileged, intimate, sensitive, or secret. Not all of these feelings have consistent and coherent legal definition, and not all of these feelings are protected by law all of the time; sometimes the law will recognise the feeling but say that it is outweighed by a greater interest in disclosure. Sometimes the law will recognise the feeling and regret that it cannot be protected; that it is too late, too soon, or too hard. Sometimes these feelings are protected through a legal doctrine that recognises autonomy, or control over the secret, or ownership of the secret, or responsibility for the secret. Legal remedies might flow where the secret has been taken without permission, or distributed without consent or by accident, or where harm has been done – to the person or to another – by the disclosure, or where a law has been violated by the disclosure. But often it is the case that there is another competing legal principle that is satisfied through the disclosure: the disclosure might be evidentiary, it might be lawful or it might be in the public interest.

Mark Fenster, argues that legal mechanisms for regulating secrets are doomed to fail, and that the more effective techniques for keeping secrets are likely to be political or ethical. He also argues that the binary between secrecy and disclosure cannot be sustained and, since secrecy is implausible, we would be better to focus our efforts into more effective management of disclosure.^[54] This is the point at which a jurisprudence of sensitivity might be engaged; in the sensitive management of intimate and criminal secrets.

4. Jill Meagher’s Grave

In early 2013 in the Melbourne Magistrates’ Court, a group of media agencies sought access to a wide range of documents, including photographs, tendered against Adrian Bayley, who was on that day being committed to trial for the murder and sexual assault of Jill Meagher. Meagher’s disappearance and the subsequent discovery of her body had galvanised intense and widespread public interest and concern, which was matched – or possibly fed – by persistent media reportage. In announcing that there was a media application before the court, Deputy Chief Magistrate Felicity Broughton acknowledged that the principles of open justice would guide her decision, but she also articulated sensitivity to some of the visual evidence:

So I raise [the media application] now as an issue that will need to be considered. In the appropriate and dignified manner in which these proceedings need to take place, be very mindful of having some fruitful discussions as to how [the media application] might be managed in accordance with the principles of open justice, but having regard to what I already anticipate are some extremely distressing and sensitive materials which certainly, on the face of it, without having made any final decision in relation to that that, certainly give me some concern.^[55]

As the proceedings unfolded, she twice interrupted counsel for the media to correct him about the degree of sensitivity involved.

Mr Cashen: I understand there has also been an indication from Your Honour that there is some sensitive material--

Her Honour: Extremely sensitive material.

Mr Cashen: I should say from the outset my client certainly doesn’t seek any of that sensitive material. We are obviously in the invidious position of not knowing what’s in the brief. It is often the case that there is some material that’s sensitive--

Her Honour: ... Very sensitive and very distressing.^[56]

Later in the proceedings, Broughton DCM revealed where the greatest sensitivities arose for her: “I’m talking about the scene of the grave”;^[57] images of Meagher’s partially-naked body buried in a shallow grave. Her Honour appeared to recognise a sensory concept of sensitivity, although she did not attempt to provide any legal framework for her feelings. It was clear, from the audio recording of the proceedings that was released to me by the court, that she felt there was something wrong with showing these images, and that everyone in the courtroom felt it too. This could be an illustrative example of how a jurisprudence of sensitivity might start, but I would argue that there needs to be something more to make it clear that whilst everyone in the courtroom is feeling something, the wheels of justice are actually turning.

In the Melbourne courtroom, the term ‘sensitive’ operated flexibly, protecting a disparate range of values and individuals at different moments. Sometimes it referred to the dignity of Jill Meagher, at other times it was used when protecting her family from distress. At times, it appeared to protect the sensibilities of strangers – casual consumers of the news media. And on at least one occasion, it referred to Adrian Bayley, as the release of this material could cause unfair prejudice to him at a future trial, given that the media application was made and resolved before he had been committed to stand trial.

Significantly, and worthy of further study, is the issue of sensitive jurisprudence as a form of labour; it demands effort, time and care in a courtroom which is already busy and under pressure. In Adrian Bayley’s committal, the labour of sensitivity is apparent, although the court lacks a language for valuing it as a jurisprudential technique. Counsel for three media agencies, Jean-Paul Cashen, acknowledged the effort that would be required to sort the distressing/sensitive/excluded materials from those which could be released. Her Honour replied, “Well, we all agree that the principles of open justice are paramount. So I don’t think we need to go any further in terms of the effort that needs to be made...” Here, the court made clear that open justice, moderated with sensitivity, is worth the effort. Meanwhile, Bayley’s counsel, Helen Spowart, wanted to take care to go through the hand-up brief and the tendered witness statements to ensure that any inadmissible or controversial material was not released to the media. Her Honour had asked for “considered submissions” and Spowart, who had not had advance notice of the media application, offered to have written submissions before the court at 9.30 the following morning. Her Honour responded that she wanted to release some materials today; whilst the defence counsel wanted to work closely, the court wanted to work fast. Her Honour offered the parties a short adjournment in order for them to identify the materials that would not be released, and for providing some legal justification for the non-disclosure. When they returned, the order was made.

The next morning, as a result of the media application in the Melbourne Magistrates Court, visitors to the Herald Sun, The Age and the Australian Broadcasting Commission (ABC) websites could take a look inside Jill Meagher’s handbag. Photographs of her handbag and its contents were included in the police photo books released to the media in the name of open justice. Whilst, of course, Broughton DCM was concerned about disclosures that would have been worse, it isn’t clear that opening Jill Meagher’s handbag is an act of open justice.^[58] Looking inside a woman’s handbag is a recognised transgression of a boundary;^[59] that her violent rape and murder by a stranger might erase the transgression and produce a right to rummage in her bag seems to pervert the objects of open justice. During the proceedings, Her Honour said, “I think it’s pretty clear, obviously some of the traumatic and distressing material, I think we’re all on common ground that there’s no public interest in that”.^[60] However, it is difficult to identify the public interest in the images that were disclosed: whilst tendered, they were not the subject of any submissions or arguments before the court; whilst published, they were not the basis for any reporting or analysis. The images appeared on at least three media websites in the form of a ‘slideshow’, without any commentary, and sometimes without captions, doing nothing other than driving traffic onto these sites. There is jurisprudential uncertainty about whether media access of this kind is required by the principles of open justice. Whereas Lord Halsbury LC said in 1889 that “such publication is merely enlarging the area of the court”,^[61] more recently Mahoney JA stated, “the principle that the courts are to be open and that the media may publish what is done in them is not an end in itself. The principle is adopted because it is judged to be the means by which other and more fundamental goods will be achieved”.^[62]

Whilst, as I have argued elsewhere, the release of the handbag photographs likely does not promote the objectives of open justice,^[63] it is also not clear where the line might be drawn. As heartbreaking as it feels to ask this question: Why can’t we see photographs of Jill Meagher’s dead, naked body in a shallow grave? We can see photographs of a squalid suburban home, taken after the discovery of the bodies of twin toddlers, starved to death as a result of parental neglect and dysfunction.^[64] We can watch the video captured by a traffic camera that shows a man being killed by a drunk driver.^[65] We can watch footage of the final moments of a woman’s life, as her fiancé dragged her into their apartment, his hand pressed hard across her mouth, her eyes recording her abject terror just before he threw her off their balcony to her death.^[66] Are we entitled to examine images of a victim’s most wretched humiliation? Should we share the final despairing moments in the lives of these strangers? Can we poke through their personal effects, inspect the contents of their bedroom, their lounge room, their laundry, their car?^[67] If these people had secrets, does their arbitrary encounter with criminal proceedings disentitle them to keep those secrets? The answers to these questions are probably moral and not legal ones, but contemporary judicial practices of open justice force us to ask these questions, and sometimes, given the nature of online media, they are graphically answered before we’ve had the opportunity to reflect: Do I need to see this? Did I need to see that?

In November 2013, media reports revealed that a Victoria Police detective had shown one of the grave photographs of Jill Meagher to a civilian audience during a fundraising presentation, and there was a brief performance of public outrage about this – “shock”, “sadness”, “sickening”, “error of judgment” – defended robustly by the Victoria Police association.^[68] The next day, the detective said he had shown the image with the support of Meagher’s parents, and that it was “never, ever intended to demean the victim”, and that the image was visible to the audience for “one second”.^[69] Given the prurient nature of so many of these disclosures, and the courts’ willingness to surrender such intimate secrets in the purported pursuit of open justice, how might we reclaim a space for sensitivity?

For Sissela Bok, secrecy is the intentional concealment of information.^[70] Secrecy is a withholding; it isn’t an outright refusal to disclose. The secret might be revealed reluctantly, it might be revealed only to certain others, it might be redacted, or we might get a quick peek at it before it is snatched from view. The withholding might be to protect something that is vulnerable, or to protect something that is powerful, or the withholding might itself be a source of pleasure. It reminds us that disclosure is both a thing and a practice; the secret and its revelation. Sensitivity applies to both: the disclosures we make, and the way that we disclose them, demand sensitivity because disclosures, once made, cannot be reversed, and the effects of disclosure operate upon a cohort who had taken refuge in a secret.

In the case of Yoshiyuki’s photographs, as with other secret photography, special sensitivities might arise because his subjects were not even conscious that they were taking refuge in a secret. As Yoshiyuki said to Araki, “at that time, nobody ever dreamed they’d be photographed”.^[71] The subjects of all of these images failed to anticipate the technological innovations which, when paired with the motivations of their makers, enabled their capture. Do the circumstances of secret capture create an ethical obligation upon those of us who might look at them? Does it limit our motivations for looking? Are we, for example, restricted to looking for the purpose of learning? Might we look in order to investigate unlawful conduct, or to calculate the probative value of these images? Are we also entitled to look for pleasure? A jurisprudence of sensitivity needs to recognise that disclosures will have multiple effects, not always predictable or governable, and not capable of being ranked in a pre-formed hierarchy. And so a jurisprudence of sensitivity also needs to retain a space for regret; for the disclosure that, upon reflection, ought not to have been made.

Where evidence is tendered in criminal proceedings, laws operate to protect the accused from most of the unfair consequences of the evidence, and victims from some of the effects of giving evidence. But the law does not control every consequence, nor does it control the effects of the evidence upon other people. Mark Fenster, writing about information management, said: “information is akin to liquid – capable of flowing from the place it is stored in directions and at a speed that are not capable of being fully controlled”.^[72] Whilst Fenster does not argue that information must therefore be tightly locked away, I argue that a jurisprudence of sensitivity is one that responds to harms that are unpredictable, unknowable or uncontrollable. It might do so by working slowly, by asking questions, consulting widely, deliberating, acting and then reflecting, and maybe then re-thinking, articulating concerns, regrets, and new ways forward.

Whilst evidence is adduced in order to disclose the hidden crimes of the accused, it might also make further disclosures that demand sensitivity, to the accused and to others. Separately from – although not necessarily after – the criminal trial, historians, artists, curators, scholars and journalists come to this evidence with fresh new questions, sometimes unconnected with the guilt of the accused. A jurisprudence of sensitivity would be responsive to the effects of these extra-legal projects. It would not aim to prevent this work from being done, it favours negotiation over censorship, but it demands an active engagement with the unforeseen consequences of disclosing criminal secrets in an open justice regime.

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^[1] JJ Spigelman, “The Principle of Open Justice: A Comparative Perspective”, University of New South Wales Law Journal, Vol 29 (2), 2006, 147 at 150.
^[2] Rinehart v Welker and Ors [2011] NSWCA 403 at [32] (Bathurst CJ and McColl JA), citing Scott v Scott [1913] UKHL 2; [1913] AC 417 at 463.
^[3] Jeremy Bentham, cited in Scott v Scott [1913] UKHL 2; [1913] AC 417, 477, per Shaw LJ. An excellent synthesis of open justice principles is Emma Cunliffe, “Open Justice: Concepts and Judicial Approaches” (2012) Federal Law Review 40, 385- 411.
^[4] See, for example, Peter Rush, Criminal Law, Sydney, Butterworths, 1997, 235; Yifat Hachamovitch, “The Dummy: An essay on malice prepensed”, in P Rush, S MacVeigh, A Young (Eds) Criminal Legal Doctrine, 1992, Aldershot, Dartmouth, 28-62; both cited in Alison Young, “The Art of Public Secrecy”, Australian Feminist Law Journal 35, Dec 2011, at 57, fn 1.
^[5] In Philip Gefter, “Sex in the Park, And Its Sneaky Spectators”, New York Times, 23 September 2007, Art, AR 37
^[6] With the publication in 2006 of Martin Parr’s The Photobook: A History – Volume 2 (2004), London, Phaidon, in which Yoshiyuki was briefly mentioned as a “little-known innovator”.
^[7] In Rachel Wolff, “A Lost Voyeur’s Paradise: Images from Tokyo’s furtive sex life, brought to life again”, New York magazine, 3 September 2007, Art section, 2007. Accessible at: http://nymag.com/guides/fallpreview/2007/art/36605/
^[8] Including the New York Museum of Modern Art, The Museum of Contemporary Art in Chicago, the Museum of Fine Arts in Houston, and the San Francisco Museum of Modern Art
^[9] See Milton Diamond and Ayako Uchiyama, “Pornography, Rape and Sex Crimes in Japan” (1999) International Journal of Law and Psychiatry 22(1), 1-22. See also Mark McLelland, Queer Japan: From the Pacific war to the internet age, Oxford: Rowman and Littlefield, 2005.
^[10] “Down in The Park: Yoshiyuki Kohei’s Noctures: Interview by Araki Nobuyoshi”, translated into English and published in Aperture, Issue 188, Fall, 2007, 74-83; at 76. Originally published in Japanese in Weekend Super, described in Aperture as a “porn magazine”, in 1979.
^[11] In Gefter, New York Times, above, 23 Sept 2007, AR 38
^[12] Benjamin Genocchio, “Kohei Yoshiyuki: The Park”, New York Times, ‘The Listings, Sept 7 – Sept 13’, 7 September 2007.
^[13] “Exposed: Voyeurism, Surveillance and the Camera”, Tate Modern, London, exhibition, 28 May – 3 October 2010, online catalogue accessible at:
http://www.tate.org.uk/whats-on/tate-modern/exhibition/exposed/exposed-voyeurism-surveillance-and-camera-exhibition-guide-2
^[14] Naomi Cass, In camera and in public, Centre for Contemporary Photography, Melbourne, exhibition catalogue, introduction, 2. (Exhibition dates: 16 September – 23 October 2011. Curated, and with a catalogue introduction by Naomi Cass).
^[15] Cass, p2.
^[16] Cherine Fahd, artist statement in Cass, p9.
^[17] Cherine Fahd, artist statement in Cass, 9
^[18] Luc Delahaye, from his book L’Autre, extracted in Cass, 13
^[19] Luc Delahaye, from his book L’Autre, extracted in Cass, 13
^[20] In Raffi Khatchadourian, “Stakeout”, The New Yorker, May 27, 2013, 25.
^[21] A considerably body of literature, but a selection of pertinent references may include: David Cohen, “Peeking In on the Social Set”, The New York Sun, 6 September, 2007, Arts& Letters section, page 15, cont’d p19. Also see Bill Henson in Cass, “In camera and in public” exhibition catalogue, Henson artist statement, 6; see Luc Delahaye from his book L’Autre, extracted in Cass, 13. Jacques Derrida, Of Hospitality, Stanford CA, Stanford University Press, 2000, at 47, 61; Leslie J. Moran and Derek McGhee, “Perverting London: The Cartographic Practices of Law” (1998) Law and Critique, Vol IX, No 2, 207-224; David Bell, “Bodies, Technologies, Spaces: On ‘Dogging’” (2006) Sexualities 9(4), 387-407; Phil Hubbard, “Sex Zones: Intimacy, Citizenship and Public Space” (2001) Sexualities 4(1), 51-71; Derek Bambauer, “Exposed”, Arizona Legal Studies, Discussion Paper No. 13-39, August 2013, accessed via SSRN; Kenneth Tam, “Disappearing in Plain Sight, or How We Used to have Casual Sex before Craigslist”, Master of Fine Arts thesis, University of Southern California Graduate School, August 2010; Steven Maynard, “Through a Hole in the Lavatory Wall: Homosexual Subcultures, Police Surveillance and the Dialectics of Discovery, Toronto 1890-1930” (1994) Journal of the History of Sexuality, Vol 5(2), 207-242; Kevin Walby and André Smith, “Sex and Sexuality under Surveillance: Lenses and Binary Frames”, in Paul Johnson and Derek Dalton, eds, Policing Sex, London, Routledge, 2012, 54-66; Melissa Miles, “Photograph, Privacy and the Public” (2012) Law, Culture and the Humanities, online version published 19 January 2012, 1-24; Herman Tavani, “Philosophical Theories of Privacy: Implications for an Adequate Online Privacy Policy” (2007) Metaphilosophy, 38(1), 1-22.
^[22] Roland Barthes, Camera Lucida: Reflections on Photography, New York: Hill and Wang, 1981, 32.
^[23] Barthes, Camera Lucida, 32
^[24] Cited in Susan Sontag, Styles of Radical Will, New York: Farrar, Straus and Giroux, 1976, 111.
^[25] Katherine Biber “The Spectre of Crime: Photography, Law and Ethics” (2006) Social Semiotics 16(1), 133-149 at 141.
^[26] Currently Privacy Act 1998 (Cth), Schedule 3
^[27] For example, Australian Government (2011), Information Security Management Guidelines, 19 July, available online at
http://www.protectivesecurity.gov.au/informationsecurity/Documents/Australian%20Government%20classification%20system.pdf. See also Health Records and Information Privacy Act 2002 (NSW), Guideline 4.4(d); NSW Data Protection Principles, Information and Privacy Commission New South Wales, Principle 11; Information Act 2002 (Northern Territory), Information Privacy Principle 10; Office of the Information Commissioner of the Northern Territory, Privacy Policy, definition of “sensitive information”; Information Privacy Act 2009 (Queensland), Schedule 4 adopting National Privacy Principle 9; Personal Information Protection Act 2004 (Tasmania), Schedule 1 containing Personal Information Protection Principles, s.10; Information Privacy Act 2000 (Victoria), Schedule 1 containing Information Privacy Principles (IPP), definition of “sensitive information”, and also IPP 10. The Australian Law Reform Commission has various reports pertaining to ‘sensitive information’, including “Review of measures designed to protect classified and security sensitive information in the course of investigations and proceedings”, Background Paper 8, 2003; “Protecting Classified and Security Sensitive Information”, Discussion Paper 67, 2004; “Keeping Secrets: The Protection of Classified and Security Sensitive Information”, Report 98, 2004. The South African Law Reform Commission distinguishes between ‘critical’ information and ‘sensitive’ information: “Privacy and Data Protection”, Discussion paper 109, Project 124, October 2005, see 3.6.5, 3.6.10, 3.6.11, 3.6.18, 4.2.149. In the United Kingdom, “sensitive personal data” is defined in the Data Protection Act 1998 (UK) at s. 2. Schedule 3 of the Act provides specifically for ‘sensitive personal data’ and includes provisions as consent (which must be explicit), processing (where required for the administration of justice, amongst other specifics), and medically necessary processing. In the United States, “sensitive information” is defined in 5 USCA. §552a: Records Maintained on Individuals; see also 18 USC §1905: Disclosure of Personal Information generally. Canada has opted to rely on a model of sensitivity relying, in part, on context: see National Standards of Canada Model Code for the Protection of Personal Information, CAN/CSA-Q-830-96, Schedule 1 at 4.3.4, enacted in part in Personal Information and Electronic Documents Act (2000)(Canada). For more on this see Teresa Scassa, “Text and Context: Making sense of Canada’s New Personal Information Protection Legislation” (2000-2001) 32 Ottawa Law Review 1. For the contextual approach to privacy more broadly, see Helen Nissenbaum, Privacy in context: technology, policy, and the integrity of social life, Stanford CA., Stanford Law Books, 2010. See also Daniel Solove, Understanding Privacy, Cambridge MA., Harvard University Press, 2008.
^[28] Under the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, the Expert Group concluded that “it is probably not possible to identify a set of data which are universally regarded as sensitive”, at para 9(a). In subsection B the Guidelines acknowledge a culturally specific understanding of ‘sensitive’ and defer to individual countries in deciding the specific level of protection afforded to certain information: see Explanatory Memorandum, section B, paras 3 and 7. Under the European Union Data Protection Directive (95/46/EC, seven principles from the OECD Guidelines were incorporated; see Article 8. Note that on 25 January 2012, the EU proposed an updated comprehensive data protection regime, recognising the particular “sensitive” nature of some personal data. See paras 41-42.
^[29] Katherine Biber, “In Crime’s Archive: The Cultural Afterlife of Criminal Evidence” (2013) British Journal of Criminology, 53(6), 1033-1049, 1043. Definition derived in part from Oxford English Dictionary, 2000–
^[30] Joseph Jaconelli, Open Justice: A critique of the public trial, Oxford: Oxford University Press, 2002, 169.
^[31] Jaconelli, 169.
^[32] Cited in Eve Kosofsky Sedgwick, “Epistemology of the Closet”, in H. Abelove, M.A. Barale and D.M. Halperin (eds) The Lesbian and Gay Studies Reader, New York: Routledge, 1990/1993, 45-61 at 45-46.
^[33] Michael Taussig. Defacement: Public Secrecy and the Labor of the Negative, Stanford CA, Stanford University Press, 1999. In her writing about spectatorship in some contemporary art practice, Alison Young shows how the concept of the secret-in-public operates to provoke the spectator to recognise the public secret, and also to actually see public spaces as public zones of secrecy.³⁴ These artworks, Young argues, enable us to see secrets (things that are unknown, unfamiliar, unverified) that are hiding in plain sight: Alison Young, “The art of public secrecy” (2011) Australian Feminist Law Journal 35, 57-74.
^[35] For example, Maryanne Dever, “The private in the public archive”, in Margherita Carucci, ed, Revealing Privacy: Debating the Understandings of Privacy, Frankfurt am Main: Peter Lang, 2012, 19-29; Christian Fuchs, “Towards an alternative concept of privacy” (2011) Journal of Information, Communication & Ethics in Society, 9(4), 220-237; Agnes Ku, “Boundary Politics in the Public Sphere: Openness, Secrecy and Leak” (1998) Sociological Theory, 16(2), 172-192; Stephen Margulis, “Privacy as a Social Issue and Behavioral Concept” (2003) Journal of Social Issues, 59(2), 243-261; Adam Moore, “Privacy: Its Meaning and Value” (2003) American Philosophical Quarterly, 40(3), 215-227; Jill Lepore, “The PRISM: Privacy in an age of publicity”, The New Yorker, 24 June 2013.
^[36] Lauren Berlant and Michael Warner, “Sex in Public” (1998) Critical Inquiry 24(2), 547-566.
^[37] Lauren Berlant, The Queen of America Goes to Washington City: Essays on Sex and Citizenship, Durham NC, Duke University Press, 1997; Lauren Berlant, The Female Complaint: The Unfinished Business of Sentimentality in American Culture, Durham, NC: Duke University Press, 2008.
^[38] Berlant and Warner, 550
^[39] Katherine Biber and Derek Dalton “Making Art from Evidence: Secret sex and police surveillance in the Tearoom” (2009), Crime Media Culture 5(3), 243-267.
^[40] Biber and Dalton, 245-247
^[41] C Bennett and R Grant, eds, Visions of Privacy: Policy Choices for the Digital Age, Toronto: Toronty University Press, 1999, 4.
^[42] For a wider-ranging critique of US privacy jurisprudence generally, see Lawrence M Friedman, Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy, Stanford University Press, Stanford CA, 2007.
^[43] Mark Fenster, “The Implausibility of Secrecy” (2013) electronic publication available at SSRN. Other examples of legal scholarship about secrecy (excluding scholarship on national secrecy) include Claire Grant, “Secret Laws” (2012) Ratio Juris 25(3), 301-317; Dina Siegel, “Secrecy, Betrayal and Crime” (2011) Utrecht Law Review 7(3), 107-119.
^[44] Fenster 12
^[45] Jacques Derrida, “How to Avoid Speaking: Denials”, in Sanford Budick and Wolfgang Iser, eds, Languages of the Unsayable: The Play of Negativity in Literature and Literary Theory, Stanford CA, Stanford University Press, 1987/1996, 25.
^[46] Jacques Derrida, A Taste for the Secret, Cambridge: Polity, 2001, 59. See here also Joseph Masco, “‘Sensitive but Unclassified’: Secrecy and the Counterterrorist State” (2010) Public Culture 22:3, 433-463.
^[47] in A Taste for the Secret: 59
^[48] Jeremy Gilbert, “Public Secrets: ‘being-with’ in an era of perpetual disclosure” (2007) Cultural Studies 21(1), 22-41, 36
^[49] Gilbert 37
^[50] Gilbert 24. Also see the special issue on “Secrecy and Transparency” in Theory, Culture and Society (2011), vol 28(7-8), and particularly Claire Birchall, “Introduction to ‘Secrecy and Transparency’: The Politics of Opacity and Openness”, 7-25. See also the special issue, “The Secret Issue”, in Cultural Studies (2007), vol 21(1).
^[51] Gilbert 38
^[52] Gilbert 40
^[53] Gilbert 23
^[54] Fenster 7. See also Paul Kockelman, “Enclosure and Disclosure” (2007) Public Culture 19:2, 303-305.
^[55] Victoria Police v Adrian Bayley, Melbourne Magistrates' Court (Criminal) - Court 13, 12 March 2013, C12725657, before Broughton F A, transcript made from audio recording released to me by the court.
^[56] In Victoria Police v Adrian Bayley. Emphasis added by me, during transcription.
^[57] Victoria Police v Adrian Bayley.
^[58] Katherine Biber, Peter Doyle & Kate Rossmanith, “Perving at Crime Scenes: A conversation”, Griffith Law Review, 2013, forthcoming.
^[59] “They [handbags] suggest womb, heart, breast, and psyche. They are worn or carried in the body’s most private zone. They are a small extension of the self that goes forth into the world while maintaining an utterly private dimension”: in Barbara Hagerty, Handbags: a peek inside a woman’s most trusted accessory, Running Press, Philadelphia & London, at 10.
^[60] Victoria Police v Adrian Bayley
^[61] McDougall v Knight (1889) 14 App Cas 194 at 200
^[62] John Fairfax Group Pty Ltd v The Local Court of New South Wales (1991) 26 NSWLR 131 at 164.]
^[63] Article submitted to journal; currently under review.
^[64] See, for example, Brooke Baskin, “Images released of home in which starved twins died in Brisbane’s Sunnybank Hills”, The Courier-Mail, 7 August 2013 (online edition).
^[65] http://au.news.yahoo.com/vic/a/19795075/cctv-captures-drunk-drivers-deadly-crash/
^[66] http://www.smh.com.au/nsw/video-reveals-the-moments-before-lisa-harnum-died-and-what-simon-gittany-did-next-20131101-2wq4h.html
^[67] Apart from the handbag and laneway photographs, most of the photographs released to the media in Adrian Bayley’s committal were taken in his car, and in the home he shared with his partner.
^[68] See for example <http://www.theage.com.au/victoria/senior-detective-shows-graphic-meagher-photos-at-fundraiser-20131127-2yanc.html> ^[69] http://www.theage.com.au/national/detective-senior-sergeant-ron-iddles-sorry-for-showing-jill-meagher-photos-20131128-2yblz.html
^[70] Sissela Bok, Secrets: On the ethics of concealment and revelation, New York: Pantheon Books, 1983, 5-6
^[71] Interview reproduced in Aperture, 78.
^[72] Fenster 21