Criminal Law

By Bridie Harders

12.03.19

Are suppression orders now a fallacy and if so, what should we do about it?

The availability of suppression orders in criminal proceedings has been considered, by some, to be a controversial concept. There is the tension between the need to administer justice in an open and transparent way on the one hand; and the need to protect from public view and scrutiny other important (and often very personal) matters, on the other. Suppression orders are available in criminal matters for many reasons, and the test for what is required to secure one differs across different States and Territories in Australia. Typically, however, the idea is that no information or evidence in a criminal proceeding should be suppressed, unless there is some good reason to do so – whether it is because there is a risk of harm to a person (whether it be a witness or the accused), or some other public interest consideration, to safeguard against the dissemination of information to the public.

The merit (or otherwise) of suppression orders came into sharp focus in the last couple of weeks, after a suppression order in Cardinal George Pell’s criminal trial was lifted. The suppression order existed in the first place because it was apprehended that, with two separate criminal trials on foot, a guilty verdict in the first could seriously compromise a jury hearing the second. The order was lifted after prosecutors made a decision to discontinue the second series of charges; and so, the verdict in George Pell’s criminal trial number 1 was finally “exposed” for all to see.

But was it? If you weren’t aware of the finding in December last year when the jury returned its verdict in Pell’s trial, you would be one of the very few people who missed it. Notwithstanding the fact the suppression order was made by the Court, the verdict found its way across several continents within minutes. It was the worst-kept secret in Australia; you’d be hard pressed to find an Australian who didn’t know about it.

So where does that leave suppression orders, in the grand scheme of the criminal justice system – particularly in the electronic age? Are they entirely worthless in a system which has to deal with overseas media outlets who can report on the internet, and have information disseminating internationally (including via the Twitter-sphere) within seconds? And what scope and power do the Courts have to ensure the information they considered in the public interest to keep secret, actually a secret?

The answer is, regrettably – very little at the moment.

And what should we do about it? Persevere, and try to come up with some solutions. Whilst they are controversial, suppression orders are important. Not only from the perspective of a witness who could be harmed if the information is released (think, for example, the Victorian barrister turned police informer, whose identity suppression was another of the worst kept secrets in Australia), but also from the perspective of complainants who may find dissemination of information embarrassing, or make people reluctant to report offences in the first place. Or – perhaps more controversially – what about the high-profile person charged with a criminal offence? How can they possibly have a chance of a fair trial, with information disseminating in media over which our Courts have no control?

Securing the support of other democratic nations, who also hold important the concept of a suppression order, could be a useful starting point. Cross-border penalisation of the dissemination of information, in contravention of a suppression order, would likely be difficult, but a step in the right direction.

There is much said about the need to overhaul, and make consistent across jurisdictions, the law in this area. Until we have some concrete ideas as to a way forward, however, we are really only paying lip service to the need to maintain suppression orders in some circumstances, when it comes to a criminal matter.