26. Suppression orders

26.1 General

On rare occasions it may be necessary to apply to the court to have a report of proceedings (or part thereof) suppressed from publication until further order of the court. In determining whether to make such an application, the following principles will be applied.

Where there is no specific statutory power the Supreme Court has power in its inherent jurisdiction to suppress the proceedings (see Hogan v Hinch (2011) 243 CLR 506 per French CJ at [26]; R v Matterson & Anor; Ex Parte Moles (No. 2) [1993] TASSC 75).

Where a suppression order is made it may extend to conducting the whole or part of the proceedings in camera or it may be confined to the suppression from publication of some part of the evidence (see R v Matterson & Anor supra, per Underwood J at [9]).

Suppression orders will only be given in exceptional cases. It is a fundamental principle that our court proceedings are open. As Pearce J said in Tasmania v G, DP, T, PL [2014] TASSC 71:

• There is a paramount public interest in the due administration of justice, freedom of speech, a free media and an open society which requires court proceedings to be open and able to be reported. Informed public debate is promoted. In Hogan v Hinch, French CJ said at [20]:
• An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts.” [References omitted]
• In most cases it is also in the public interest that, if possible, proceedings be publicised contemporaneously and not retrospectively. The interest of the public in contemporaneous reporting is to be contrasted with the interest of media outlets in contemporaneous reporting.

However, another fundamental principle is that an accused person is entitled to a fair trial and is only convicted on admissible evidence presented at trial.

The law regards as fundamental to the preservation of the rights and freedom necessary for the maintenance of an open and democratic society that a person should not be convicted of a serious criminal offence save by the verdict of a jury after a fair trial upon the evidence presented at that trial. (see Hinch v A-G (1987) 164 CLR 15 per Gaudron J at 86)

However, on occasion, these two principles will conflict and a suppression order may be required in proceedings to protect the accused person’s right to a fair trial (see General TV Corp v DPP (2008) 182 A Crim R 496).

Particular circumstances where the need for a suppression order may arise are where an accused pleads guilty and the publication of those proceedings may prejudice the fair trial of a co-offender, or in cases where separate trials are ordered.

Generally speaking, however, courts will trust a jury to follow directions and exclude material they have heard outside the court from their minds (see Glennon v R (1994) 179 CLR 1; Leaman v R [1987] TASSC 21). Further, the prejudice can be reduced if the trial of the co-offender is delayed for a considerable period of time.

Thus, a suppression order will normally only be applied for by the Office where:

• a case is likely to attract significant publicity and such publicity is likely to cause a real risk of prejudicing a person’s fair trial
• the trial of the co-offender cannot be delayed in the public interest or the material would be so prejudicial that the prejudice could not be cured by delay.

Prior to requesting such an application, prosecutors must:

• seek authorisation from the Director or Deputy Director
• inform counsel for all interested accused that an application will be made
• inform the various media organisations of the intention to make the application as they have a legitimate interest in the outcome of such an application

If an application is granted, care should be taken to inform the various media organisations.

26.2 Preliminary proceedings

Section 64 of the Justices Act 1959 provides that preliminary proceedings are to occur in a closed court.

Section 69A further provides that unless otherwise ordered by a magistrate or judge, information given or produced in preliminary proceedings, an account of preliminary proceedings or any information relating to preliminary proceedings must not be published.

There are some exceptions to this prohibition contained in s69A(2), including where it is necessary for the prosecutor or defendant to publish the information or account in order to effectively conduct his or her case.