The powers of a court to make closed court, suppression and non-publication orders are primarily contained in the Court Suppression and Non-publication Orders Act 2010 (“the Suppression Act”) which commenced on 1 July 2011. Provisions commonly relevant in criminal proceedings are also in the Criminal Procedure Act 1986 and the Children (Criminal Proceedings) Act 1987.

Consideration of whether orders should be made under any of the relevant statutory provisions should, where practicable, be dealt with at the outset of proceedings. A checklist of the matters to be considered is at the end of this Chapter: see Checklist for suppression orders.

The onus is on the parties to make an application for appropriate orders at the hearing. Such orders may include an application for a pseudonym order or the suppression of certain evidence, such as evidence related to assistance given during the proceedings: Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69 at [13]–[14]. Note the observations of the court concerning the approach usually taken to assistance at [31]–[34], although these must be read in light of HT v The Queen [2019] HCA 40: see Sentencing Bench Book at [12-210] Procedure (in Power to reduce penalties for assistance to authorities).

When a prohibition is to remain in force (as it often does) advise everyone, including the entire jury panel, of the legal position.

Consistent with the general rule that costs are not awarded in criminal proceedings, a court does not have jurisdiction to award costs in respect of applications for suppression and non-publications orders in such proceedings — nothing in the Suppression Act suggests otherwise: R v Martinez (No 7) [2020] NSWSC 361 at [33]ff.

See the Supreme Court of NSW, “Identity theft prevention and anonymisation policy” for guidance as to the publication of personal or private information in court judgments.

See also Supreme Court Practice Note CL 9 and District Court Criminal Practice Note 8, both titled “Removal of judgments from the internet”.

The principle of open justice is a fundamental aspect of the system of justice in Australia and the conduct of proceedings in public is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public: John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 per Spigelman CJ at [18]. However, in appropriate cases courts have jurisdiction to modify and adapt the content of general rules of open justice and procedural fairness and to make non-publication orders for particular kinds of cases: HT v The Queen (2019) 269 CLR 403 at [44], [46].

Section 6 of the Suppression Act requires a court deciding whether to make a suppression or non-publication order, to take into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”. Section 6 must be considered even if one of the grounds of necessity under s 8 (see further below) is established: DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [30]. Decisions since the commencement of the Act confirm the continuing importance of the open justice principle: Rinehart v Welker (2011) NSWLR 311 at [26], [32]; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at [9]; Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159 at [52]–[53]. Section 6 also reflects the legislative intention that orders under the Act should only be made in exceptional circumstances: Rinehart v Welker at [27].

The public interest in open justice is served by reporting court proceedings and their outcomes fairly and accurately: AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046 at [101]; John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324 at [20]. In some cases, where reporting of particular proceedings is misleading, emotive and encourages vigilante behaviour, the message disseminated may be “antithetical to institutionalised justice” and a non-publication order may not compromise the public interest in open justice: see, for example, AB (A Pseudonym) v R (No 3) at [102]–[110].

The principle of open justice may require publication of a judgment confirming the making of non-publication or suppression orders with appropriate redactions to maintain the anonymity of parties or particular aspects of proceedings as have been determined to be necessary. Although the parties may reach agreement as to appropriate redactions, the court must determine for itself whether the proposed redactions should be the subject of a suppression order, having regard to, in particular, the emphasis in s 6 on the need to safeguard the public interest in open justice: D1 v P1 (No 2) [2012] NSWCA 440 at [6]. The redacted judgment must remain intelligible, particularly as to the matters of principle justifying the decision to suppress the particular information: D1 v P1 (No 2) at [7]. For an example where this course was taken see Medich v R (No 2) [2015] NSWCCA 331.

The Suppression Act confers broad powers on courts to make suppression or non-publication orders: s 7. Such orders may be made at any time during proceedings or after proceedings have concluded: s 9(3). The power in s 7 is broad and may, depending on the particular circumstances, extend to a judicial officer in one court (for example, the District Court) making non-publication orders with the capacity to affect proceedings in another (for example, the Supreme Court): Munshizada v R [2021] NSWCCA 307 at [31]–[33]; cf Sultani v R [2021] NSWCCA 301 at [15]–[16].

A “non-publication order” and a “suppression order” are defined in s 3. A “party” is broadly defined in s 3.

A court can make a suppression or non-publication order on its own initiative or on application by a party to the proceedings or by any other person considered by the court to have sufficient interest in the making of the order: s 9(1). Those persons entitled to be heard on an application are set out in s 9(2)(d) and include news media organisations.

While at common law there were conflicting views as to whether a court could make non-publication orders which were binding on third parties (see Hogan v Hinch (2011) 243 CLR 506 at [23]), a concern to resolve that issue underlies the enactment of s 7: Rinehart v Welker (2011) NSWLR 311 at [25]; see also the “Agreement in Principle Speech” for the Court Suppression and Non-publication Orders Bill 2010, NSW, Legislative Assembly, Debates, 29 October 2010, p 27195. This seems to be put beyond doubt by the decision in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 where Basten JA (with whom Bathurst CJ and Whealy JA agreed) concluded that, provided they do not purport to bind the “world at large” and that certain conditions are met, orders can be made which are binding on third parties: [92]–[102].

Section 8(1) of the Suppression Act sets out the grounds upon which an order can be made and each is prefaced in terms of whether the order is “necessary”. That term should not be given a narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at [8], [45]. What is necessary depends on the particular grounds relied upon in s 8 and the factual circumstances giving rise to the order: Fairfax Digital at [8]. It is sufficient that the order is necessary to achieve at least one of the objectives identified in s 8(1)(a)–(e): Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97 at [20]. The word “necessary” describes the connection between the proposed order and the identified purpose; its meaning will depend on the context in which it is used: Fairfax Digital at [46]. Mere belief that an order is necessary is insufficient: John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 477. Nor is it enough that it appears to the Court that the proposed order is convenient, reasonable or sensible. Whether necessity has been established depends on the nature of the orders sought and the circumstances in which they are sought: D1 v P1 [2012] NSWCA 314 at [48]; Hogan v Australian Crime Commission (2010) 240 CLR 651 at [31].

Delay in making an application for an order is a relevant consideration when determining whether an order should be made: Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69 at [28]–[30]. Where there has been a delay, the way the proceedings were originally conducted should be considered, although delay of itself does not preclude making an order. For example, in Darren Brown (a pseudonym) v R (No 2), at [38]–[39], the court referred to the “gross delay” in making the application but concluded the particular orders sought should be made because of the serious potential risk to the appellant’s physical safety.

An order may be made even though it has limited utility or may be ineffective: AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR at [116]–[117]; Dowling v Prothonotary of the Supreme Court of NSW [2018] NSWCA 340 at [25]. Once a ground under s 8(1) is established, an order must be made: AB (A Pseudonym) v R (No 3) at [117]–[118]; Hogan v Australian Crime Commission at [33].

The expression “administration of justice” in s 8(1)(a) extends to the protection of confidential police methods as well as the investigation and detection of crime: R v Elmir [2018] NSWSC 308 at [19]–[20], [23].

In R v Elmir, Davies J made suppression orders with respect to protected images, the methods used to obtain those images and a messaging application used during a police investigation of foreign incursion offences, on the basis those orders were necessary to prevent prejudice to the administration of justice (s 8(1)(a)), the interests of the Commonwealth in relation to national security (s 8(1)(b)) and otherwise necessary in the public interest (s 8(1)(e)): at [23]–[25]. An order preventing publication of a complainant’s name was found to be necessary within s 8(1)(e) in Le v R [2020] NSWCCA 238. It encouraged victims of crime, such as sex workers, who may otherwise be humiliated by reason of their occupation, to report crimes: at [227]–[229]. In such a case, where all other facts could be read by the public, anonymising the complainant’s name encroached on the principle of open justice to a very limited degree: at [229].

In SZH v R [2021] NSWSC 95, a bail application, Garling J made suppression orders relying on s 8(1)(a) to ensure the applicant’s fair trial as the court was required to consider evidence relied on by the Crown, which may not have been admitted in the trial, to determine the strength of the Crown case. Other remedies are available. For example, orders may be made at the beginning of the trial for such decisions to be removed from NSW Caselaw for the duration of any trial, or publication of the judgment deferred until the trial is complete.

Another relevant consideration is whether “the order is necessary to protect the safety of any person”: s 8(1)(c). “Safety” includes psychological safety, including aggravation of a pre-existing mental condition as well as the risk of physical harm, by suicide or other self-harm as a result of the worsening of a psychiatric condition: AB (A Pseudonym) v R (No 3) at [59]. The person’s safety must be considered in the context of all the circumstances, including the nature and severity of the psychological condition and the severity of any possible aggravation. In the context of a risk of self-harm, there should be some expert evidence enabling the court to assess the likelihood and gravity of the risk. Mere embarrassment, discomfort, reputational damage or even financial loss are not sufficient: A Lawyer (a pseudonym) v Director of Public Prosecutions NSW [2020] NSWSC 1713 at [55], [84], [97]. When considering s 8(1)(c), the “calculus of risk approach” should be adopted, which requires consideration of the nature, imminence and degree of likelihood of harm occurring to the person. If the prospective harm is very severe, it may be more readily concluded the order is necessary even if the risk does not rise above a mere possibility: AB (A Pseudonym) v R (No 3) at [56], [59]; Darren Brown (a pseudonym) v R (No 2) at [37].

In A Lawyer (a pseudonym) v Director of Public Prosecutions NSW, the possible further exacerbation of the appellant’s mother’s psychological state was not of such gravity and prejudice to her safety that the risk was above the level that might reasonably be regarded as acceptable, having regard to the competing interest in open justice.

In Lacey (a pseudonym) v Attorney General for New South Wales [2021] NSWCA 27 the court concluded that the “otherwise necessary” requirement in s (8)(1)(e) could, in circumstances involving cultural issues, operate to extend the effect of s 8(1)(d) to proceedings involving matters other than offences of a sexual nature: at [27]–[31]; [41]–[43]; [85]. The offender, an Aboriginal teenage girl, sought an order prohibiting men from viewing video footage of her being strip-searched. The court found a magistrate may have the power to make such an order.

It may be necessary to make separate (and different) orders in respect of different types of information in the same proceedings. See for example, Bissett v Deputy State Coroner [2011] NSWSC 1182 where RS Hulme J concluded that the nature of the medium, publication of which was sought to be suppressed, was a relevant matter to be taken into account. In that case, his Honour concluded that a DVD of relevant events was likely to have a greater impact than the transcript of evidence and that publication of the DVD should therefore be suppressed: at [25]–[27].

Limited non-publication orders may be appropriate in some cases. For example, in State of NSW v Williamson (No 2) [2019] NSWSC 936, limited orders, that there be no publication of his address or his employer’s identity or location, were made in respect of the defendant, a high risk offender who had served his sentence. Those orders were necessary so his rehabilitation and ability to refrain from re-offending would not be jeopardised. Given the limited scope of the order, it only infringed any interest in open justice to the smallest extent: State of New South Wales v Williamson (No 2) at [42]–[43].

In some cases, consideration may be required of the interaction between orders made under the Suppression Act and statutory protections provided under other Acts. Orders under the Suppression Act should not conflict with orders or directions made under other Acts: Medich v R (No 2) [2015] NSWCCA 331 at [25]. In Medich v R (No 2), the court considered that, in the particular circumstances, a partial non-publication order was required for a judgment dealing with whether a compulsory examination justified a permanent stay, to avoid nullifying a non-disclosure direction under s 13(9) of the New South Wales Crime Commission Act 1985 (rep): at [26]–[27]. See also R v AB (No 1) (2018) 97 NSWLR 1015 where the court concluded that orders under the Suppression Act were not necessary since s 15A of the Children (Criminal Proceedings) Act 1987 applied and non-compliance with s 15A did not meet the requirements of necessity in s 8 of the Suppression Act: at [39]–[40]. See also [1-359] Self-executing prohibition of publication provisions.

It is important that the right of certain persons to waive a statutory protection, such as in ss 15D and 15E of the Children (Criminal Proceedings) Act 1987, not be foreclosed by the unnecessary making of an order under the Suppression Act.

As to necessity at common law see: John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 per Spigelman CJ at [40]–[45]; O’Shane v Burwood Local Court (NSW) [2007] NSWSC 1300 at [34]. See also BUSB v R (2011) 80 NSWLR 170 per Spigelman CJ at [33] which addressed the test of necessity in the context of a screening order.

The Suppression Act does not limit the operation of a provision under any other Act permitting a court to make orders of this kind: s 5. Other provisions fall into three broad groups: those conferring a power on a court to make suppression or non-publication orders in particular circumstances, those requiring or enabling the closing of a court and those that either require the making of an order for non-publication or prohibit publication of information.

See also Non-publication and suppression orders at [62-000]ff of the Local Court Bench Book, in particular [62-040], [62-060] and [62-080] for comprehensive lists of provisions for automatic non-publication or suppression orders and of those requiring a court order.

Following is a non-exhaustive list of specific provisions enabling a court to make suppression or non-publication orders. Many will not require consideration in the context of a criminal trial.

A number of statutory provisions prohibit the publication of information in particular circumstances. The statutory prohibitions do not depend on a court order. Trial judges should note in the judgment, reasons or orders, that the relevant prohibition (for example, s 15A of the Children (Criminal Proceedings) Act or s 578A of the Crimes Act) applies: Carrington v R [2021] NSWCCA 257 at [8]–[9].

Note: Where a statutory protection automatically applies, it is important that court reporters endorse the transcript to this effect and do not attribute it to the court having made an “order”.

See the following:

Relevant legislation: Court Suppression and Non-publication Orders Act 2010

Note: certain other legislation contain mandatory provisions that may obviate the need to make suppression or non-publication orders in particular proceedings or in relation to particular persons (eg children and complainants in prescribed sexual assault proceedings) or witnesses. See [1-356] Other statutory provisions empowering no-publication or suppression; [1-358] Closed courts; [1-359] Self-executing prohibition of publication provisions.