13 Jun Suppression Orders and Open Justice
Recently in the Victorian case of Cardinal George Pell we saw the two sides of suppression orders and open justice. First, there was a suppression order on the publication of the fact that Cardinal Pell had been convicted. But once that was lifted, the sentencing of him and his subsequent appeal were broadcast live on the internet. These occurrences illustrate the need for open justice, but also the need for suppression orders in certain cases.
South Australian Courts are empowered to suppress from publication certain matters; and in certain circumstances are allowed to, or are compelled to, close the court to the public for certain hearings.
Australia has inherited a common law which places a high emphasis on open justice. Open justice serves the community in three key ways:
- It ensures that those accused of crimes receive fair trials by making sure the public are aware of what has occurred in court;
- It ensures that the public are aware that they will not be convicted of an offence unless they have first been provided with the due process of a fair trial; and
- It enables public awareness of matters of public interest.
‘Public interest’ in this context means the matter is of a common concern of citizens in the management of local, state, national and international matters. It does not mean matters about which the public are interested out of curiosity.
There are certain matters which are suppressed by statute, there are others where the court has to exercise its discretion.
The Court has a power to suppress from publication certain things in order to:
- Prevent prejudice to the administration of justice; or
- Prevent undue hardship to:
- An alleged victim;
- A witness; or
- A child.
But in determining whether it should grant a suppression order the court must:
- Take into account that the primary consideration is the public interest in open justice; and
- Only grant a suppression order in special circumstances.
As can be seen the test as to whether a suppression order should be granted is a strict one. Nevertheless, they are granted in certain circumstances.
Prevention of prejudice to the administration of justice
Examples of preventing prejudice to the proper administration of justice include the granting of a suppression order regarding the conviction of Cardinal Pell at his first trial to prevent potential jurors in the proposed, but subsequently abandoned, second trial from being prejudiced against the accused.
Suppression orders on this basis tend to be of a temporary nature and are usually lifted after a certain stage of the trial is reached; once they are no longer necessary to prevent the prejudice.
The aim of the Court is to ensure that justice is done. Open justice is a means to achieve this, and sometimes must give way to the greater need of keeping the public unaware temporarily in order to ensure justice is done.
The prevention of undue hardship basis does not extend to those accused of crimes.
An example would any suppression of the identity of George Pell’s accusers.
This basis serves two purposes, (1) it protects the privacy of those who have not been accused of crimes, and by doing so, (2) it encourages them to assist police and prosecuting authorities in the prosecution of alleged offenders.
Suppression orders on this basis are often permanent, but relate only to the personal particulars of witnesses and anything which might identify them. There is usually very limited public interest in the identities of victims, witnesses and children being published. Though it should be noted, the accused will still be aware of their identities.
It should also be noted that it is ‘undue hardship’ which is sought to be prevented. It is accepted that some hardship will result by involvement in the process of justice.
In South Australia the identity of victims of sexual assaults are suppressed unless the victim consents to the publication.
Open justice and public interest
While many may have watched the sentencing of Cardinal Pell out of mere curiosity, its broadcast served an important public interest.
By allowing the broadcast, the Court enabled the general public to have a better understanding of the sentencing process and the competing considerations taken into account by the Court. This advances any debate to be had as to whether the Court, as dictated by Parliament, is weighing all appropriate considerations appropriately in any given matter, or whether a different approach should be taken in the future.
If you are involved in the criminal justice system as an alleged victim, a witness or know a child who is involved, you can contact us to discuss the process and merit of applying for a suppression order.