In the interests of justice and to protect the integrity of the trial process, there may be times during a case when restrictions will apply to the information that can be made public.
Information may be suppressed by law (known as “statutory prohibitions’). There may be an existing suppression order of the court, a lower court or an order made in the court of delivering judgement. The order may be an interim suppression; this is when details are suppressed while a Judge considers a suppression application, a permanent suppression or suppression until the matter is disposed of by the courts. It is the responsibility of anyone publishing information about a trial to be informed of and observe these prohibitions, suppression orders and media coverage conditions. If unsure, check with the appropriate court registry. If necessary, you should seek your own legal advice.
There are additional considerations and rules in relation to filming, photographing or recording court cases relating to sexual offences.
The Crown must notify the registrar of the complainant's views about your media coverage application and if the complainant opposes the application, the judge is likely to decline your application.
If the complainant supports the application but only on certain conditions, the judge will show special regard for their views and permission to cover the case may be subject to relevant restrictions.
In a criminal trial, witness protection from identification is normally available for any witness who seeks it. This does not apply to the defendant or certain official witnesses.
Protection under this rule can be sought from the presiding judge at any time before the witness gives evidence.
Witness protection means the witness should not be recognisable if published or broadcast giving evidence. In the case of still photography, the witness should not be photographed while they are in court or giving evidence.
The judge may also rule that the witness may not be filmed, photographed or recorded by anyone anywhere between the time of the protection ruling and the end of the trial.
All witnesses in criminal trials or hearings, including official witnesses and the defendant can apply for an additional level of protection.
Any witness or party proposing to call that witness may apply for a ruling that the witness not be filmed, photographed or recorded.
When additional witness protection is applied for, the applicant must notify all other parties including any media who have been granted authority to cover the trial.
The judge will consider any application for additional discretionary witness protection with specific regard for matters such as whether:
In a case where the judge has ruled that the witness must not be filmed at all, the video camera should be either removed from the court or turned away from the witness so that it is obvious to the witness that they are not being filmed. The judge may impose additional conditions at any time.
In accordance with the Criminal Procedure Act 2011, a judicial officer or registrar may make an order forbidding the publication of a person's name, address, occupation or other particulars likely to lead to identification and of evidence or submissions in a criminal case.
In some instances, suppression applies even when a court order has not been made. This is because there is a statutory prohibition which provides that there will be an automatic suppression. For instance, if reporting on matters of a sexual nature, the law forbids identifying people or publishing details that may identify people.
It is wrong and misleading to suggest that the Judge has prohibited publication of details that are protected by statutory prohibition. It is Parliament’s direction that these details are automatically and absolutely suppressed.
If a suppression order is made or there is automatic suppression, in relation to a person's name the law says you may not publish, show or repeat that person's name or any particulars likely to lead to the person's identification. In some cases, there may also be other details in addition to the person's name that are suppressed.
When suppression is dealt with under the Criminal Procedure Act 2011, the media have the right to tell the court their views on any application to make or change a suppression order. The media also have the right to appeal a court's decision on an order and to apply for a suppression order.
You can check with the registrar if you are unsure whether suppression was granted in respect of any details of a case. Each case will be different, and your media organisation is advised to seek legal advice if any doubt exists.
For high profile trials in the High Court, media representatives will be invited to provide their contact details so that during the course of the trial any suppression orders made will be emailed to the registered media representatives.
There are penalties available to the court if a suppression order is broken. Note that although not all information may be suppressed, it is important to ensure that you do not publish anything that would prejudice a fair trial.
The courts publish a guide on those statutory provisions that prohibit the publication of certain information. It is intended as a guide only as exceptions may apply. The Guide can be found in Appendix G and here.(external link)
General suppression on reporting bail applications is outlined in section 19 of Bail Act 2000. If you are in court and wish to report on a bail application, it is advisable to seek clarification as to whether that is permissible from the judge. There may be material discussed in submissions or in the judgment, which if reported, could prejudice the defendant's fair trial rights, such as the defendant's criminal record, or the judge's assessment of the strength of the evidence against the defendant.
To protect fair trial rights, there is a statutory prohibition on reporting or referring to a sentencing indication before either a defendant has been sentenced should they choose to plead guilty after hearing the indication, or the case has been dismissed. Media may attend a sentencing indication hearing and take notes for later reference if there is subsequent conviction and sentencing. See s63 of the Criminal Procedure Act.
In a jury trial, jurors should not be filmed, photographed or otherwise identified and no publication or broadcast may show the jury or any member of it.
In addition, the jury should not be interviewed, and no comment offered by a juror or jury may be reported.