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Opinion: Suppression orders and open justice

News

Cite as: Jan/Feb 2015 89 (1/2) LIJ, p.30

Victorian Law Reform Commission chair the Hon Philip Cummins reflects on excepting the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)1 from the Open Courts Act 2013.

Supported across party lines, the Open Courts Act 2013 (Vic) was introduced on 1 December 2013. In his second reading speech, then Victorian Attorney-General Robert Clark said the purpose of the Act is to reinforce “the primacy of open justice and the free communication of information in relation to proceedings in Victorian courts and tribunals”.2 The Act provides for a general presumption in favour of disclosure of information and of holding hearings in open court.3 Significantly, the Act eschews the public interest test proposed in the Model Court Suppression and Non-publication Orders Bill 2010 (Standing Committee of Attorneys-General) for the making of suppression orders;4 rather, it provides the test of necessity for the making of such orders.5 This test is clearly the correct general test.

The rationale of the open courts principle is well known at common law. It is seen as a “fundamental aspect of the common law and the administration of justice” and is demonstrated through procedures being conducted in open court, presenting information and evidence publicly to all those in the court and allowing the fair and accurate reporting of proceedings by the media.6 The principle of open courts is also enshrined in the Charter of Human Rights and Responsibilities Act 2006 (Vic) which provides for a “fair and public hearing” for accused persons.7

Significantly – and relevantly for this article – the Open Courts Act 2013 (Vic) excepts from its operation the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA).8 In so doing, Parliament acknowledged that there is a limited and special category of persons who may not be responsible for their otherwise criminal actions because of mental impairment, or who may be unfit to be tried at all. Parliament acknowledged that for such persons, because of their incapacity or mental impairment, and because they have not been and may never be found guilty of a crime, very different considerations apply. egally, they are a distinct category; medically, they are a vulnerable cohort.

Further, in contrast to the principle of necessity for issuance of suppression orders provided by Parliament in the Open Courts Act 2013, in the CMIA Parliament provided a public interest test.9 Again, such provision proceeds from a recognition by Parliament of the special legal category of persons who come under the CMIA, and their medical vulnerability.

I stated the rationale for this differentiation in PL:10

“It must be remembered that applicants found not guilty by reason of mental impairment (or previously insanity) have not been convicted of a crime. Characteristically, they have suffered from a mental illness. The court’s jurisdiction in that respect is protective. It should be remembered that ultimately the best protection for the community is that persons found not guilty by reason of mental impairment are able to return to the community as useful citizens”.11

I stated that CMIA suppression orders should not be granted lightly, and that to justify a suppression order “[T]he degree of likely negative impact [on the person] needs to be examined in each case”.12

A suppression order presently can be made under the CMIA to prevent the publication of any evidence given in the proceeding, the content of any report or other document put before the court in the proceeding, or any information that might enable an accused or any person who has appeared or given evidence in the proceeding to be identified. A party to the proceeding may apply for a suppression order or the court may make it on its own initiative.13 This has been so since 1997.

The Victorian Attorney-General, pursuant to s5(1)(a) of the Victorian Law Reform Commission Act 2000 (Vic), in August 2012 referred the CMIA to the VLRC for examination and report. This the VLRC did. It was the first comprehensive review of the CMIA since its introduction in 1997. The issues of unfitness to stand trial and of mental impairment arise only in some 1 per cent of criminal cases coming before the Victorian Supreme and County Courts. However, these cases usually involve very serious offences, which understandably cause terrible harm to those affected and legitimate and widespread concern about community safety.

The VLRC undertook a substantial review and delivered its report to the Attorney-General in June 2014. It was tabled in Parliament in October 2014. The recommendations in the report were informed by four key principles: protection of the community; respect for victims, accused and their families; due process; and, importantly, therapeutic outcome. The report was the subject of an article in the October 2014 LIJ.

In its submission to the CMIA review, the Victorian Institute of Forensic Mental Health (Forensicare) stated that open proceedings may have “significant negative consequences” for a person subject to a supervision order under the CMIA and also for the community. Forensicare submitted that these negative consequences may result from mental illness being a “highly stigmatising diagnosis” and that this poses challenges to persons subject to the supervision order in their recovery from mental illness and their reintegration into the community, and make it more difficult for persons to “engage with community services, gain employment and form relationships”.14

The VLRC, guided by the four key principles above, concluded that it was appropriate to extend to a limited degree the capacity of the courts to make suppression orders under the CMIA. By its recommendation 63, the VLRC proposed that a statutory principle be added to the CMIA stating that the purpose of a suppression order under that Act is recovery and community reintegration. By recommendation 64(a) the VLRC proposed a presumption, which can be rebutted, in favour of suppression of the accused’s name and identifying information (in the CMIA presently, the power to suppress is provided, but there is no presumption in its favour); and by recommendation 64(b) the VLRC proposed extension to any time during the CMIA process of the right to apply to the court for a suppression order.

On the tabling of the CMIA report in August 2014 there was substantial support for many of the recommendations, particularly from the medical and legal professions and the service sector. A leading advocate against domestic violence was reported as saying: “Any implementation of the proposed changes needs to be very careful not to attribute family violence to mental illness in the absence of a thorough and professional risk assessment.”15 Indeed so, if the reference to “risk assessment” means established diagnosis of mental impairment as recommended by the VLRC.16

There was also criticism relating to recommendations 63 and 64. Such criticism should be given full and fair consideration. One leading and respected victims rights advocate was reported as saying: “It’s part of their punishment. They should be named and shamed”.17 While identification of accused who have been convicted, and denunciation of their conduct, are appropriate sentencing principles, they do not apply to a person unfit to stand trial or who has been found not guilty of a crime because of mental impairment. Such persons have not been found guilty of a crime.

Another criticism was that offenders could gain, or seek, anonymity by falsely claiming mental illness. However, if a claim to mental illness is rejected by a court – as it has done in a number of cases – the basis for a suppression order lapses. If a court grants a suppression order under the CMIA, and then determines that the case was not one of mental impairment, it would revoke the order unless there were established grounds for an order in accordance with the Open Courts Act 2013. Such a revocation would permit publication, although not contemporaneously with the initial hearing, a matter understandably of concern to the media, which relies on contemporaneous reporting for relevance and impact. On the other hand, if the suppression order were not made and the accused is found unfit to stand trial or not guilty because of mental impairment, there is substantial medical evidence that the accused’s rehabilitation – and thus community protection – could be jeopardised.

A leading media lawyer was reported as saying that the public interest in the community understanding court processes – particularly where issues of mental impairment are concerned – overrides concerns for the accused and could promote a better understanding of mental illness.18 The VLRC in its report acknowledged and supported the “powerful principle of open courts”.19 But having addressed the relevant considerations, the VLRC concluded that the vital interests of the community would best be secured through maximising the opportunity for recovery and rehabilitation of persons subject to the CMIA. Indeed that is the conclusion reached by the Victorian Parliament in excepting the CMIA from the Open Courts Act 2013.

You be the judge.


The Hon PHILIP CUMMINS is a retired Supreme Court judge and chair of the VLRC.

  1. This is the third of three articles published in the LIJ in relation to the 2014 Report of the VLRC of its review into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The first was published in the September 2014 issue and the second in the December 2014 issue.
  2. Victoria, Parliamentary Debates, Legislative Assembly, 27 June 2013, 2417.
  3. Open Courts Act 2013 (Vic), ss 4, 28.
  4. Clause 8(1)(e).
  5. Open Courts Act 2013 (Vic), s 18(1)(a),(c).
  6. Jason Bosland and Ashleigh Bagnell, “An empirical analysis of suppression orders in the Victorian Courts: 2008-2012” (2013) 35 Sydney Law Review 671, 674.
  7. Section 24.
  8. Open Courts Act 2013 (Vic), s 8(2). ikewise the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). The Protecting Victoria’s Vulnerable Children Inquiry in its Report (2012) by recommendation 50 recommended that ss182 to 186 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) (the power to make suppression orders under that legislation) should be repealed (p384). This has not yet occurred. Unlike the CMIA, the cohort under the Serious Sex Offenders (Detention and Supervision) Act 2009 are legally responsible for their criminal acts.
  9. CMIA, s75(1).
  10. [1998] VSC 209 (15 December 1998).
  11. Note 10 above. at [15].
  12. Note 10 above, at [27].
  13. CMIA, s75(1),(2).
  14. Forensicare, submission 19 to CMIA Review (2014).
  15. Steve Lillebuen, “Fears new law will shield killers”, The Age, Melbourne, 22 August 2014 p10.
  16. Recommendation 24.
  17. Note 15 above.
  18. Note 17 above.
  19. Report para 8.235.

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