Open Justice is Not Absolute – Media Reporting of Criminal Cases: Anonymity, Pseudonyms and Suppression Orders

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Doogue + GeorgeThe article Open Justice is Not Absolute – Media Reporting of Criminal Cases: Anonymity, Pseudonyms and Suppression Orders is written by Doogue + George Defence Lawyers.

Doogue + George are experts in criminal law and have been involved in thousands of criminal matters and defended clients in hundreds of jury trials and thousands of other criminal cases. Our experienced lawyers have unparalleled experience in criminal law.

Media Attention on a Criminal Case With No Suppression OrdersFor many people charged with a criminal offence, one of their biggest concerns is media attention. Criminal cases are widely reported on many media platforms, including social media sites where anyone can add comments and weigh in with their opinions.

Some people may think that once a person is found guilty of a crime, they lose any right to privacy. That can be debated. However, we regularly see media reports claiming that someone has been interviewed by police, or that charges have been laid. No one has been proven guilty. In fact, any charges could be withdrawn at court or successfully defended. This publicity about allegations can have far-reaching consequences, sometimes resulting in someone losing their employment and being unable to work for the months or years that it takes for their case to be determined. This media attention can also result in an accused’s family members being identified and sometimes targeted.

As difficult and upsetting as this publicity can be, there is often little than can be done to prevent it. Defence lawyers warn clients that media attention is possible, even if a client has no public profile. There are certain types of criminal cases that always seem to get media attention – especially if it’s a slow news day.

The principle of ‘open justice’ is fundamental to our legal system. This means that court proceedings are public, and anyone can walk into any courtroom and watch any case, including the media. Open justice is meant to allow the public to stay informed about the justice system, to see the law being applied fairly, and to hold the system to account if needed.

However, open justice is not absolute. There are some cases where it is overridden, and a court needs to make a suppression order that prohibits or restricts publication about a case. These orders are rare and difficult to get, but important for certain situations.

A court can only make a suppression order if it is satisfied that an order would be necessary for one or more of the following reasons:

  • To prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
  • To prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
  • To protect the safety of any person;
  • To avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence or a family violence offence; or
  • To avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding.

There are also other grounds that apply for proceedings in VCAT and the Coroner’s Court.

The test of “necessity” imposed by the Open Courts Act 2013 (Vic) is a very high bar. One of the most common questions we receive is whether we can obtain a suppression order to stop reporting that may be embarrassing or humiliating. Unless supported by evidence that goes to one of the grounds identified by the Act (as above), usually the possibility of reputational damage or embarrassment is not enough to obtain a suppression order.

For a suppression order application to be successful, it will generally need to be accompanied by evidence. For example, if arguing that an order is needed to protect the safety of the accused person, you need to provide evidence to show that there is a real risk to their safety (physical or psychological) if there is publicity about their case. This may include medical evidence from an appropriate professional or expert, such as a psychologist.

Each case is unique, and so are the circumstances of each accused person. There is no set type of case or person who can get a suppression order. If you are charged with a criminal offence and believe you may have grounds for a suppression order, you should speak with an experienced lawyer to get advice. We can discuss your options and the material that would be needed for the best chance of success.

Suppression orders are rare, but essential in some cases. They are needed to protect the safety of certain accused and relevant people involved in a case. They are also needed to ensure particular cases can be run fairly. These things are more important than an interesting news story.

Date Published: 10 May 2023

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