Criminal matters running through the Court have always attracted media attention. Crime is a hot topic in the media and, if you attend Court, you will see journalists in Court taking notes or outside Court filming for the news. Journalists can report on anything said in open Court so long as there are no non-publication orders.
The Meaning of ‘Open Court’
In Victoria, we value open courts. This means that, unless there are valid reasons as to why the Court should be closed and a case not publicised in the media, they should remain open so that any person who wants to watch a case can enter the Court. There are of course standard exceptions, which include where an alleged victim in a sex offence case is giving evidence or where a child witness is giving evidence. In these cases, the court must be closed to try and protect the privacy of the witness giving evidence. Similarly, where identifying the accused would also identify the victim of a sex crime, the media are not allowed to report on the matter.
As previously alluded to, the media are also unable to report of cases where there are non-publication orders are in place. Such orders are made so as to protect the safety of persons (such as witnesses) or to ensure the fair running of the trial. For example, if the accused person has been charged with another offence (which is being run as a separate trial), there may be non-publication orders in place to prevent the jury learning about the other matter. Juries should not know that accused persons are facing other charges, because they might inappropriately infer that the accused is a bad person and is guilty. This will affect and prejudice the trial, as they will have pre-judged the accused before hearing all of the evidence.
The Rules Around Lawyers Speaking to the Media
Save for what is said in open Court, lawyers are not permitted to speak to the media openly. This is why you will not see lawyers holding press conferences where the matter that they are speaking about is currently being heard and determined before the Court. There are a number of reasons for this. These include:
- It would be improper to put information into the public sphere that has not been admitted as evidence in Court. Once the genie is out of the bottle, it is hard to put it back in!
- It can appear that the lawyer is trying to influence the outcome of the proceedings by making public statements intended to inflame and influence; and
- It can appear that the court proceedings are being treated in a frivolous manner because lawyers are grand standing and seeking free publicity.
Rules Around the Media Accessing Court Documents
However, in addition to reporting on matters occurring in Court, the media can also make applications for documents from the Court file. This is particularly common in the early stages of the proceedings where the Court appearances are administrative in nature and the media only has some very basic information about the case, usually from the Police media release. Accordingly, they can apply to the Magistrates’ Court (usually) for a copy of the charge sheets and Police summary of the offending. Usually, the Court will release the charge sheets (with the address of the accused redacted) and, if the facts are agreed, the summary of offending. However, if the Police summary is disputed, most magistrates’ will not release the Police summary until such time as it is agreed upon (for example, if the accused person pleads guilty).
Restricting Media Coverage of a Case
There are very limited circumstances where an accused person can apply for an order from the Court that would limit or prohibit media reporting on a criminal case. A party to the proceeding, or an interested third party (such as Victoria Police), can apply for a suppression order over the proceedings. The grounds for the making of a proceeding suppression order, include:
- The order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonable available means;
- The order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national and international security (for example, if the proceeding relates to an allegation of terrorism);
- The order is necessary to protect the safety of any person;
- The order is necessary to avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence of family violence offence; or
- That the order is necessary to avoid causing undue distress or embarrassment to a child witness.
Importantly, if you are considering making an application for a proceeding suppression order, you must have evidence to support your application. An experienced criminal lawyer can explain the provisions of the Open Courts Act and your options in relation to preventing inaccurate information being released by the media, or having the proceedings in which you are an accused publicised. Contact us for more information.
