Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

Victorian Law Reform Commission
Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper
Suppression orders and the principle of open justice
9.111 Another potential issue that arises across the CMIA as a whole is the suppression of
information under the CMIA.
9.112 The principle of open justice requires that all court proceedings take place in public except
in limited circumstances. In Re Percy, Justice Kellam considered the principle of open
justice in the context of the CMIA:
The principle of open justice is deeply entrenched in our law. It rests upon a legitimate
concern that, if the operations of the courts are not on public view as far as possible, the
administration of justice may be corrupted. A court is open when at least members of
the public have a right of admission. … From this it may be thought ordinarily to follow
that the media in their various forms are also entitled to communicate to the whole public
what that public has a right to hear and see should they attend in court. 139
9.113 The principle of open justice is reflected in section 24 of the Charter of Human Rights and
Responsibilities Act 2006 (Vic) (‘Charter’) that provides for a ‘fair and public hearing’ for
accused people.
9.114 However, the principle of open justice can be limited, in some circumstances. Section
24(2) of the Charter, for example, provides that a court may exclude the media or the
general public from hearings if permitted to do so by other laws.
9.115 One of the main aims of non-publication or suppression orders is to protect the privacy of
the people involved in proceedings by preventing their identification. 140
9.116 The term ‘suppression order’ is used in the heading to section 75 of the CMIA. It is not
used in the Supreme Court Act 1986 (Vic) or the County Court Act 1958 (Vic). For orders
under these Acts, often the term ‘non-publication order’ is used. This accurately reflects
the fact that the court is open but proceedings cannot be published. In this paper the
term ‘suppression order’ is used as that is the term in the CMIA.
9.117 Generally, a court may make a non-publication order only if it is necessary to do so for
the proper administration of justice. 141 However, under the CMIA a court may make a
suppression order if it is in the public interest to do so.
9.118 The CMIA provides that in any CMIA proceeding if the court is satisfied that it is in the
public interest to do so, it may order that the following information not be published
(except in the manner and to the extent the court specifies in the order):
• any evidence given in the proceeding
• the content of any report or other document put before the court in the proceeding,
and
• any information that might enable an accused person or any person who has
appeared or given evidence in the proceeding to be identified. 142
9.119 A party to the proceeding may apply for a suppression order or the court may do it on its
own initiative. 143
9.120 In Re Percy, Justice Kellam accepted that the ‘public interest’ test under the CMIA was
wider than the test for granting suppression orders in other proceedings. 144 This is
perhaps because people subject to supervision orders have not been found guilty of
a crime. 145
210
139 Re Percy [2004] VSC 67 (2 March 2004) [37].
140 Director of Public Prosecutions Victoria, Director’s Policy: Suppression and Prohibition Orders (2008) 3.
141 See, eg, Supreme Court Act 1986 (Vic) ss 18, 19; County Court Act 1958 (Vic) s 80AA.
142 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 75(1).
143 Ibid s 75(2).
144 Re Percy [2004] VSC 67 (2 March 2004) [34], [35].
145 Ibid [15].