22 June 2018

The right to a fair trial and the right to open justice

Director of Public Prosecutions Kerri Judd QC

As Director of Public Prosecutions, it is my responsibility to ensure that the prosecution of serious criminal offences is fair.  I must also ensure prosecutions proceed in a manner that will not put the safety of any person at risk or cause undue distress or embarrassment to children, victims of sexual offences and victims of family violence.

Our justice system is open and transparent. Anyone can walk into our courts and watch justice at work. The media reports extensively on criminal justice hearings and the courts are doing more to communicate the work they do.

Sometimes the unrestricted reporting of a case by the media will compromise the right to a fair trial, lead to national or international security concerns or lead to the inappropriate identification or location of vulnerable members of our society.

In these situations it is my duty to either apply for or support the making of a suppression order.

A suppression order will often prevent the media reporting certain aspects of a prosecution such as the name of a witness or the methodology used by police to detect crime.  It will sometimes delay the media reporting on a case so as to ensure a jury hearing a separate future trial does not receive information that could unfairly impact upon their deliberations.  However, in almost all of these cases, any suppression order obtained will not put a blanket prohibition on the media reporting the proceeding.

In the Herald Sun recently there was comment about “open justice” which claimed prosecutors were ignoring requirements of the Open Courts Act 2013 to give media outlets three days’ notice of suppression order applications.

Prosecutors do not ignore the law and in cases where it is practical to give three days’ notice, it is given.  Notice is not given when an issue arises unexpectedly during the course of a proceeding or when the giving of notice would compromise the safety of a person.

Under the Open Courts Act applications can be considered without notice if there is a good reason for it not being given, or if it is in the interests of justice that the court hears the application without notice being given.

In cases where notice is not given, a court will sometimes make an interim order for suppression for a short period of time, enabling media outlets to make submissions before any final order is made.

It has been said that there are too many suppression orders in Victoria. A recent review of the Open Courts Act by former Supreme Court Justice Frank Vincent found that courts made relatively few suppression orders in comparison to their overall caseloads. He made a number of recommendations to improve existing suppression laws.

Orders are only made by Judges when they are necessary and appropriate, and they only remain in force for a specified period.

Victoria has led the way in maintaining and distributing a database of suppression orders through our courts to all media outlets.

I will continue to apply for suppression orders as they play an important role in the administration of criminal justice.  I will continue to balance requirements for open justice, a fair trial, protecting the community from danger, enabling the police to properly investigate and detect crime and the protection of vulnerable victims and witnesses.

This opinion piece was published in the Herald Sun on Friday, 22 June, 2018.