Part 8Publication of evidence

Part 8—Publication of evidence 68—Interpretation court includes any person acting judicially; evidence includes any statement made before a court whether or not the statement constitutes evidence for the purposes of the proceedings before the court; interim suppression order means a suppression order under section 69A(3); news media means those who carry on the business of publishing; newspaper means a newspaper, journal, magazine or other publication that is published at periodic intervals; primary court, in relation to an appeal, means the court by which the decision or order subject to appeal was made; publish means publish by newspaper, radio or television, or on the internet, or by other similar means of communication to the public; suppression order means an order— (a) forbidding the publication of specified evidence or of any account or report of specified evidence; or (b) forbidding the publication of the name of— (i) a party or witness; or (ii) a person alluded to in the course of proceedings before the court, and of any other material tending to identify any such person. Division 2—Orders for clearing court or suppressing publication of evidence etc 69—Order for clearing court (1) Where a court considers it desirable in the interests of the administration of justice, or in order to prevent hardship or embarrassment to any person, to exercise the powers conferred by this section, it may order specified persons, or all persons except those specified, to absent themselves from the place in which the court is being held during the whole or any part of the proceedings before the court. (1a) Where the alleged victim of a sexual offence is a child and is to give evidence (including evidence admitted in the form of an audio visual record) in proceedings related to the offence, an order must be made under subsection (1) requiring all persons except— (a) those whose presence is required for the purposes of the proceedings; and (b) a person who is present at the request or with the consent of the child to provide emotional support for the child; and (c) any other person who, in the opinion of the court, should be allowed to be present, to absent themselves from the place in which the court is being held while the child is giving evidence. (1b) Where child exploitation material (within the meaning of section 62 of the Criminal Law Consolidation Act 1935) is adduced, or is to be adduced, as evidence in proceedings before the court, an order must be made under subsection (1) requiring all persons except— (a) those whose presence is required for the purposes of the proceedings; and (b) any other person who, in the opinion of the court, should be allowed to be present, to absent themselves from the place in which the court is being held while the evidence is adduced. (2) The court may, on the application of a person against whom an order under subsection (1) operates, make available to him a transcript of evidence, and a record of proceedings, taken before the court during the operation of the order. (3) Where a court refuses an application under subsection (2), the applicant may appeal against the refusal. 69A—Suppression orders (1) Where a court is satisfied that a suppression order should be made— (a) to prevent prejudice to the proper administration of justice; or (b) to prevent undue hardship— (i) to an alleged victim of crime; or (ii) to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or (iii) to a child, the court may, subject to this section, make such an order. (1a) Without limiting subsection (1), a court may, subject to this section, make a suppression order in relation to evidence given by, or relating to, a defendant if— (a) the defendant asserts that an offence with which the defendant is charged occurred in circumstances of family violence; and (b) the evidence relates to those circumstances of family violence; and (c) the evidence is of a humiliating or degrading nature (whether to the defendant or another person). (2) If a court is considering whether to make a suppression order (other than an interim suppression order), the court— (a) must recognise that a primary objective in the administration of justice is to safeguard the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings; and (b) may only make a suppression order if satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify the making of the order in the particular case. (3) Where an application is made to a court for a suppression order, the court may, without inquiring into the merits of the application, make such an order (an interim suppression order) to have effect, subject to revocation by the court, until the application is determined; but if such an order is made the court must determine the application as a matter of urgency and, wherever practicable, within 72 hours after making the interim suppression order. (4) A suppression order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order. (5) Where an application is made to a court for a suppression order— (a) any of the following persons, namely: (i) the applicant for the suppression order; (ii) a party to the proceedings in which the suppression order is sought; (iii) a representative of a newspaper or a radio or television station; (iv) any person who has, in the opinion of the court, a proper interest in the question of whether a suppression order should be made, is entitled to make submissions to the court on the application and may, with the permission of the court, call or give evidence in support of those submissions; (b) the court may (but is not obliged to) delay determining the application to make possible or facilitate non-party intervention in the proceedings under paragraph (a)(iii) or (iv). (6) A suppression order may be varied or revoked by the court by which it was made, on the application of any of the persons entitled to make submissions by virtue of subsection (5)(a). (7) On an application for the making, variation or revocation of a suppression order— (a) a matter of fact is sufficiently proved if proved on the balance of probabilities; (b) if there appears to be no serious dispute as to a particular matter of fact, the court (having regard to the desirability of dealing expeditiously with the application) may— (i) dispense with the taking of evidence on that matter; and (ii) accept the relevant fact as proved. (8) If a court makes a suppression order, the court must— (a) as soon as reasonably practicable forward to the Registrar a copy of the order; and (b) except in the case of an interim suppression order—within 30 days, forward to the Attorney-General a report setting out— (i) the terms of the order; and (ii) the name of any person whose name is suppressed from publication; and (iii) a transcript or other record of any evidence suppressed from publication; and (iv) full particulars of the reasons for which the order was made. (9) If a court orders the variation or revocation of a suppression order, the court must as soon as reasonably practicable forward a copy of the order to the Registrar. (10) The Registrar— (a) will establish and maintain a register of all suppression orders; and (b) will, immediately after receiving a copy of a suppression order, or an order for the variation or revocation of a suppression order, enter the order in the register; and (c) will, when an order is entered in the register, immediately transmit by fax, email or other electronic means notice of the order to the nominated address of each authorised news media representative. (11) The register will be made available for inspection by members of the public free of charge during ordinary office hours. (12) Without limiting the ways in which notice of a suppression order, or an order varying or revoking a suppression order, may be given, the entry of such an order in the register is notice to the news media and the public generally (within and outside the State) of the making and terms of the order. (13) In this section— authorised news media representative means a person— (a) who is nominated by a member of the news media to be the member's authorised representative for the purpose of receiving notices under subsection (10)(c); and (b) who has given the Registrar a notice specifying the representative's nominated address for the receipt of notices under subsection (10)(c); and (c) who has paid the relevant fee or fees (which may consist of, or include, periodic fees) fixed by the regulations; nominated address of a nominated representative means the fax number, email address or other address for the receipt of electronic communications nominated by the representative as the address to which notices may be sent to the representative by the Registrar under subsection (10)(c); Registrar means a person to whom the functions of the Registrar under this section are assigned by the Attorney-General. 69AB—Review of suppression orders (1) Subject to the regulations, a suppression order becomes liable to review as follows: (a) if the order relates to criminal proceedings and is in force at the time, the order becomes liable to review as follows: (i) on the completion or termination of committal proceedings; (ii) on the withdrawal of a charge after the completion of committal proceedings; (iii) on the acquittal of the defendant; (iv) when an appeal against conviction or sentence has been determined or all rights to appeal against conviction or sentence have been exhausted or expired; (v) on the defendant being declared under Part 8A of the Criminal Law Consolidation Act 1935 to be liable to supervision; (vi) in any other case—when the proceedings are otherwise concluded or terminated, (and, if more than 1 such occasion for review occurs in the course of the same proceedings, the order becomes liable to review on each such occasion); (b) if the order relates to a coronial inquest, the order becomes liable to review when the coroner gives his or her findings on the inquest; (c) if the order relates to civil proceedings, the order becomes liable to review when the court gives its judgment in the proceedings or the proceedings are settled or withdrawn. (2) When a suppression order becomes liable to review, the court that made the order must conduct a review as soon as practicable. (3) The following persons are entitled to be heard on a review: (a) the applicant for the suppression order; (b) a party to the proceedings in which the suppression order was made; (c) a representative of a newspaper or a radio or television station; (d) any other person who has, in the opinion of the court, a proper interest in the matters to be considered on the review. (4) On a review, the court may confirm, vary or revoke the suppression order. 69AC—Appeal against suppression order etc (1) An appeal lies against— (a) a suppression order or a decision by a court not to make a suppression order; or (b) the variation or revocation of a suppression order or a decision by a court not to vary or revoke a suppression order; or (c) a decision by a court on the review of a suppression order. (2) Any of the following persons is entitled to bring, or to be heard on, an appeal under this section: (a) the applicant for the suppression order; (b) a party to the proceedings in which the order or decision subject to appeal was made; (c) a representative of a newspaper or a radio or television station; (d) a person who appeared in proceedings before the primary court related to the making or review of the suppression order; (e) a person who— (i) did not appear in proceedings before the primary court related to the making or review of the suppression order but has, in the opinion of the appellate court, a proper interest in the subject matter of the appeal or proposed appeal; and (ii) satisfies the appellate court that the failure to appear in the proceedings before the primary court is not attributable to a lack of proper diligence. 69B—Appeals (1) An appeal under this Division lies to— (a) the court to which appeals lie against final judgments or orders of the primary court; and (b) where there is no such court—the Supreme Court constituted of a single judge, and where the appeal lies in accordance with the above principles to some court other than the Court of Appeal, a further appeal lies to the Court of Appeal from a judgment or order of the primary appellate court. (2) An appeal under this Division shall be heard and determined as expeditiously as possible. (3) Upon an appeal under this Division, the appellate court— (a) may confirm, vary or revoke the order or decision subject to the appeal; and (b) may make any order or decision under this Division that could have been made in the first instance; and (c) may make orders for costs and orders dealing with any other incidental or ancillary matters. (4) Except as provided in this Division, no appeal lies against a decision or order of a court made under this Division. 70—Disobedience to orders under this Division (1) If a person disobeys an order under this Division and the court by which the order was made has power to punish for contempt, the person is guilty of a contempt of the court. (1a) If a person disobeys an order under this Division, whether or not the court by which the order was made has power to punish for contempt, the person is guilty of an offence. (a) in the case of a natural person—$10 000 or imprisonment for 2 years; (b) in the case of a body corporate—$120 000. (2) A person shall not, in respect of the same act or default, be proceeded against under this section both for a contempt of court and a summary offence. 71—Attorney-General to provide annual report (1) The Attorney-General shall, on or before the thirty-first day of October in each year, prepare a report relating to the preceding financial year specifying— (a) the total number of orders made under this Division or a corresponding previous enactment; and (b) the number of such orders made by each of the various courts; and (c) a summary of the reasons assigned by the courts for making such orders. (2) The Attorney-General shall, as soon as practicable after the report is prepared, cause a copy of the report to be laid before each House of Parliament. Division 3—Sexual cases 71A—Restriction on reporting on sexual offences (2) A person must not, before the relevant time, publish any statement or representation— (a) by which the identity of a person who has been, or is about to be, charged with a sexual offence is revealed; or (b) from which the identity of a person who has been, or is about to be, charged with a sexual offence, might reasonably be inferred, unless the accused person consents to the publication. (2a) A police officer or any other person acting in a public official capacity who is responsible for conducting the criminal investigation in respect of a person who has been, or is about to be, charged with a sexual offence must, before the relevant time, ensure that all reasonable efforts are made to notify the victim about the expiry of the prohibition applying in respect of publication of the accused person's identity under subsection (2). (4) A person must not publish any statement or representation— (a) by which the identity of a person alleged in any legal proceedings to be the victim of a sexual offence is revealed; or (b) from which the identity of a person alleged in any legal proceedings to be the victim of a sexual offence might reasonably be inferred, unless the judge authorises, or the alleged victim consents to, the publication (but no such authorisation or consent can be given where the alleged victim is a child). relevant time, in relation to a charge of an offence, means the time at which the accused person's first appearance in a court (whether personally or by counsel or solicitor) in relation to the charge is concluded. Division 4—Cases generally 71B—Publishers required to report result of certain proceedings (a) a report of proceedings taken against a person for an offence is published; (b) the report identifies the person against whom the proceedings have been taken or contains information tending to identify that person; (c) the report is published before the result of the proceedings is known; (d) those proceedings do not result in conviction of the person to whom the report relates of the offence with which he was charged, the person by whom the publication is made shall, as soon as practicable after the determination of the proceedings, publish a fair and accurate report of the result of the proceedings with reasonable prominence having regard to the prominence given to the earlier report. (a) in the case of a natural person—$10 000; (b) in the case of a body corporate—$120 000. (2) A person required under subsection (1) to publish a report of the result of proceedings may apply to the Supreme Court for directions in relation to the manner in which he should comply with that subsection. (3) Where— (a) a report of proceedings taken against a person for an offence is published; (b) the report identifies the person against whom the proceedings have been taken or contains information tending to identify that person; (c) the report is published after the result of the proceedings is known; (d) those proceedings did not result in conviction of the person to whom the report relates of the offence with which he was charged, the person by whom the publication is made shall include prominently in the report a statement of the result of the proceedings. proceedings includes, in relation to an offence, the laying of a charge of the offence. 71C—Restriction on reporting of proceedings following acquittals (1) Where an application has been made for the reservation of a question of law arising at the trial of a person who was tried on information and acquitted, a person must not publish any report, statement or representation in relation to the application or any consequent proceedings— (a) by which the identity of the acquitted person is revealed; or (b) from which the identity of the acquitted person might reasonably be inferred, unless the acquitted person consents to the publication. (2) This section does not apply to the publication in printed or electronic form of material that— (a) consists solely or primarily of the reported judgements or decisions of a court or courts; or (b) is of a technical nature designed primarily for use by legal practitioners.