Cardinal George Pell was today revealed to have been found guilty of sexually assaulting two boys in the 1990s. Although the guilty verdict was delivered in December last year, this has only been revealed now. This was due to suppression orders made by the Court.
In this article, we’ll discuss what suppression orders are, and whether they teeter on the edge of censorship. Fundamentally, the case of Cardinal Pell demonstrates that justice is complex. It’s a balance between ‘open’ justice, the public’s right to know, and the right to receive a fair trial.
Suppression orders
A suppression order is an order a Court makes when certain information about proceedings needs to be withheld from the public. This can be specific information, such as prior convictions of the defendant. It can also be much broader, such as the defendant’s name. Rooted in the sub judice rule, it essentially means that reporting on a matter that is under judicial consideration can mean you’re in contempt of Court.
In New South Wales, the Court Suppression and Non-publication Orders Act 2010 (NSW) states that the “primary objective of the administration of justice is to safeguard the public interest in open justice.” Further, specific grounds have to be met. In Victoria, there is a presumption in favour of disclosing information under the Open Courts Act 2013 (Vic). Further, suppression orders are normally subject to a time limit. Other Australian jurisdictions have similar legislation.
Why censor justice?
The purpose of a suppression order is to ensure that a defendant receives a fair trial. In cases that attract media attention, there is the risk that a jury may be influenced by media reporting on the case. Further, it’s important for a jury to have no knowledge of any prior convictions of the defendant. This is because it’s widely believed that if a jury has knowledge that a defendant has been convicted of a prior offence, they are more likely to convict them.
Jurisdictional issues
Suppression orders are only active in specific jurisdictions. In Pell’s case, the ‘media blackout’ applied nationwide. However, this didn’t prevent other international news outlets from reporting on the trial. The aim here was to prevent members of the jury from reading anything that was prejudicial to Pell. For the most part, Australian media didn’t report on Pell. One news publication from the United Kingdom even had to cancel deliveries of their paper to Australian shores. This was so that they would be in compliance with the Order.
However, this can be a difficult order to enforce properly when one considers the global nature of the internet. Long term, suppression orders will be more difficult to enforce, and journalists and the public will become more vigilant in the way they obtain news online.
Competing interests
The justice system often has to balance competing interests. This is especially true in criminal cases, that weigh up both the rights of the accused and the public. The question is fundamentally whether an accused person can be prejudiced at trial in favour of open media coverage, or whether this should wait until after a verdict has been delivered.
As there’s no explicit right to freedom of speech in Australia, it can be easier for these orders to be made, and harder to overturn. For example, the United States has overruled suppression orders on more than one occasion. The Supreme Court set a precedent when they allowed the New York Times to publish the Pentagon Papers. The United States’ government attempted to prevent the papers from being released due to ‘national security’ concerns.
Is it time to turn to a judge-only model?
Perhaps a perfect balance can never be struck between the rights of a defendant and the public interest, but all hope is not lost. Queensland, NSW and the ACT all have options for Judge-only trials, where Courts don’t have to worry whether a jury will be influenced by what they read in the media. In Victoria, this doesn’t yet exist.
Media reporting is ubiquitous when it comes to public interest issues. Although protecting someone from prejudicial treatment is important, so too is transparency.
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