Suppression Orders

One contentious issue with which the Council often has to advise the public is the question of the naming of defendants in preliminary hearings of court cases. Jack Herman outlines the case.

In a recent case before the ACT Supreme Court, the judges considered the issues involved in the granting of suppression orders and came down on the side of naming names.

The case has been brought to the Council's attention by The Canberra Times. It involved a doctor, defending a series of sexual assault allegations, who had, in the lower court, successflly had his own name, as well as the names of the complainants, suppressed.

The defendant had then applied to the Supreme Court of the Australian Capital Territory for an order permanently staying 14 charges brought against him. The application was granted but the Director of Pubic Prosecutions appealed that order.

At a preliminary hearing of the appeal, the judge was informed that a confidentiality order had been made in the Supreme Court, precluding publication of the defendant's name and also of the names of the complainants. He was asked to make a similar order in respect of the appeal proceedings in this Court and did so. When the matter was called for a further hearing before the Supreme Court, a journalist employed by ABC Radio applied to the Court for a variation of the suppression order, so as to enable the publication of the defendant's name, but not that of the complainants. Counsel for the Director of Public Prosecutions expressed neutrality on the application but it was opposed by counsel for the doctor. He referred to the likelihood that, if the variation were allowed, there would be media publicity about the case in which his client would be named. He said that this publicity could have a prejudicial effect upon a jury if the appeal succeeded and his client was put on trial. He submitted that if, contrary to his primary argument, the Court was disposed to interfere with the suppression order at all, it ought to abrogate it entirely, thus allowing publication of the complainants' names as well.

At the conclusion of argument on the application, the Court indicated that it should be granted and an order made in the terms sought to permit publication of the doctor's name but not those of the complainants.

The Court's Reasons

"It seems that, even without disclosure of the [doctors's] name, this case has attracted media interest. Especially under those circumstances, we accepted the virtual certainty that, if we granted the application, [his] name would be reported in the media. The Canberra community is relatively small and we accepted the probability that some of the jurors (if not all of them) who were eventually empanelled to try these charges, if any went to trial, would read or hear any fresh media report and remember [the doctor's] name. Under those circumstances, there would be a possibility of one or more jurors being influenced by the report. However, that statement may be made in relation to any case. In Canberra as elsewhere, the media habitually report pre-trial proceedings, including evidence given in committal proceedings. Whatever their motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. [Emphasis added.] This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them. This includes the names of the parties to proceedings, which are ordinarily known to everyone in court.

"There are a few exceptions to this general principle. One exception concerns people claimed to be victims of crime; particularly sexual offences. Most, if not all, Australian legislatures have enacted legislation providing anonymity to some such people. They did so, presumably, because their members felt that publication of those people's complaints or evidence might seriously affect their lives, whatever the outcome of the proceedings. The legislatures apparently made the judgment that, notwithstanding the public interest in freedom to report court proceedings, this consideration justifies suppression of complainants' names in many sexual assault cases. We felt we should take this community attitude into account in determining whether to allow the complainants' names to be published. There being no special circumstances requiring a departure from the general rule, there was no justification for permitting publication of the complainants' names in this case.

"However, the position is different in relation to the names of persons charged with criminal offences. In that area there is no general rule or practice in favour of suppression. In some jurisdictions, there is some legislation to this effect; but in most Australian jurisdictions, including the Australian Capital Territory, names may be reported. Of course, this situation comes at a price. In the case of an innocent person, that price may be great. At the same time, publicity has occasionally caused undiscovered witnesses to come forward, a matter which should not be overlooked where names are suppressed, whether of an accused or, indeed, of complainants. In a case where a jury trial follows publicity, nobody could doubt that jurors sometimes come to court with a recollection of a media report naming the accused and a preconceived idea about the case, even about the accused person's guilt or innocence. This is why judges routinely instruct jurors to put media reports out of their minds and to decide the case only on the basis of what they hear and see in court. We cannot know to what extent jurors heed this instruction; but the system assumes that they do.

"Whether or not there should be a general change in the rules regarding pre-trial publicity is not for us to determine. Momentous issues are involved. If there is to be a change, this should occur only after widespread public debate. [The doctor's Counsel] assumed the existence of the normal rule but argued this was a special case. We did not think it was. Even if he was correct about the manner in which this proceeding will be reported by the media, and about the possibility of jurors remembering any reports, we felt there was nothing special about those facts. Accordingly, there was no warrant for departing from the general rule that an accused person's name may be published."

see also
Suppression Orders
An unintended victim of a suppression order questions their worth

Guidelines on suppression of names -
GPR 50 and GPR 53

Index of Material on Courts and Contempt

Return to APC News 1997 Index

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