Suppression orders, the presumption of innocence and the enduring digital cost of an allegation that is never proved.

Recent debate about suppression orders in Australian courts has focused heavily on whether wealthy or high-profile defendants are able to use their resources to keep their names out of the media.

It is an important debate. Open justice is a fundamental feature of our legal system, and there should rightly be scrutiny of any order that prevents the public from knowing what occurs in a courtroom.

But much of the commentary overlooks a more fundamental issue.

A person charged with a criminal offence is innocent unless and until proven guilty.

That principle is repeated so often that there is a danger of forgetting what it is supposed to mean.

If an accused person’s name, photograph and the allegations against them are published nationally when they are charged, but their subsequent acquittal receives little or no publicity, what practical protection did the presumption of innocence actually provide?

The Argument Against Suppression Orders

Recent articles and discussions criticise what it described as an “unfair court system” in which wealthy offenders can hide behind secrecy or suppression orders.

The criticism arises from suppression applications involving prominent defendants and the substantial legal resources sometimes devoted to preventing their identification.

There is an understandable concern underlying that criticism.

Justice should not depend upon wealth. A person with substantial financial resources should not receive a fundamentally different form of justice from somebody who cannot afford senior counsel, first-rate solicitors, expert witnesses or prolonged litigation.

There is also an important public interest in courts operating openly. Open justice allows the community to scrutinise the courts, promotes confidence in judicial decision-making and permits the media to report on the operation of the criminal justice system.

Those principles should not lightly be displaced.

But describing the issue as wealthy defendants seeking to “hide” assumes something that the criminal justice system expressly tells us we must not assume. It assumes guilt.

An Accused Person Is Not an Offender

Even the language used in this debate can expose the problem.

A person who has been charged with an offence is an accused person. They are not, merely by reason of being charged, an “offender”. That distinction is not semantic.

The prosecution carries the burden of proving guilt beyond reasonable doubt. The accused does not have to establish their innocence. Until guilt has been established according to law, the person remains entitled to the presumption of innocence.

Yet outside the courtroom, the practical reality can be very different. A headline announces the charge. The person’s name is published. Their photograph appears online. The allegations are repeated. Social media circulates them. Search engines index them. Friends, colleagues, clients and employers see them.

More commonly in this era, complainants are also automatically seen as victims or survivors before any allegations are contested in court – again a way that designates the accused as having done something wrong from the outset.

The allegation becomes permanently associated with the person’s name. All of that can occur before a single witness has been cross-examined and before a court has determined whether the allegation is true.

The Headline at the Beginning — and the Silence at the End

There is another aspect of the debate that deserves considerably greater attention: what happens if the accused is found not guilty?

The laying of a serious criminal charge can attract extensive publicity. An arrest or first court appearance may generate prominent headlines precisely because an allegation is new and therefore newsworthy. A trial may not occur until months or even years later.

If the accused is ultimately acquitted, there is no guarantee that the outcome will receive anything approaching the same coverage. Sometimes it receives considerably less. In our experience, more often than not it receives none at all.

There is generally no obligation upon every media organisation that reported the original allegation to publish an equally prominent report announcing the person’s acquittal. There is no requirement that the original headline disappear. There is no mechanism that automatically removes the original articles from search engines. There is no automatic restoration of the person’s reputation.

The accusation may therefore remain considerably more visible than the acquittal.

That creates a profound problem when discussing suppression orders. The consequences of refusing suppression are potentially permanent, even where the criminal justice system ultimately determines that the prosecution has failed to prove the charge.

‘Not Guilty’ Matters

There is sometimes a tendency to diminish an acquittal by saying that “not guilty does not necessarily mean innocent”. That observation risks fundamentally misunderstanding the criminal process.

Our system does not require an accused person to prove innocence. The prosecution alleges criminal conduct and bears the burden of proving it beyond reasonable doubt. If it cannot do so, the accused is entitled to an acquittal. For the purposes of the criminal justice system, that is the end of the matter.

Yet reputationally, it may be only the beginning.

A prospective employer conducting an internet search years later may find the article reporting the charge without ever discovering the acquittal. A client may see the allegation. A child’s school community may see it. Business associates may see it.

The qualification “charges were later dismissed” or “the accused was subsequently acquitted” is of little assistance if it appears in an article nobody reads — or was never published at all.

That is the modern reality against which debates about suppression orders should occur.

The Internet Has Changed the Consequences of Open Justice

The principle of open justice developed long before Google, Facebook, X, online news archives and instantaneous publication.

Historically, being named in a newspaper did not necessarily mean that an allegation would follow a person for the remainder of their life. Today’s media environment is fundamentally different. An allegation published online can be searchable indefinitely.

That changes the practical consequences of identifying an accused person.

This does not mean that open justice has ceased to be important. Nor does it mean that every accused person should automatically receive anonymity. But it does mean that the consequences of publication should not be dismissed as temporary embarrassment or inconvenience.

For an accused person who is ultimately acquitted, publication may constitute a punishment that the criminal justice system itself never imposed.

The Queensland Position

The issue is particularly significant in Queensland following changes to the law governing the identification of people accused of prescribed sexual offences.

Since October 2023, adults charged with rape and other prescribed sexual offences may generally be identified before their matters are finally determined. An accused person can apply for a non-publication order, but must establish one of the statutory grounds for making the order.

The legislation expressly recognises the primacy of open justice. That is an important principle.

But the policy question remains: has sufficient weight been given to the presumption of innocence and to the irreversible consequences of publication where an allegation is ultimately not proved?

Sexual offence allegations provide perhaps the starkest example. Merely being publicly accused of rape or another serious sexual offence can have catastrophic reputational, professional and personal consequences.

Those consequences do not wait for a verdict. And they do not automatically disappear following an acquittal.

Does Suppression Allow the Wealthy to ‘Hide’?

There is a legitimate concern that access to suppression orders should not depend upon financial resources.

A person capable of funding specialist lawyers, senior counsel and expert psychiatric evidence plainly has greater capacity to pursue an application than an accused person of limited means.

But that is an argument about access to justice. It is not necessarily an argument against suppression itself.

If an accused person has a legitimate basis for protection before the allegations against them have been tested, the fact that one defendant can afford to pursue that protection while another cannot should lead us to ask whether the protection should be more accessible. It should not automatically lead to the conclusion that nobody should receive it.

Removing a protection from one person because another person cannot afford to seek it does not necessarily produce equality. It may simply produce equality of injustice.

Open Justice Does Not Necessarily Require Naming an Accused

There is also an important distinction between conducting proceedings secretly and temporarily preventing publication of an accused person’s identity.

A court can remain open. Journalists can attend. The evidence can be reported. The conduct of police, prosecutors, defence lawyers and judicial officers can be scrutinised. Legal arguments and judicial decisions can remain public. The community can know that a prosecution is occurring.

The narrower question is whether open justice invariably requires publication of the accused person’s identity before the prosecution has proved the allegation.

Those two concepts should not automatically be treated as synonymous.

What Happens if the Prosecution Fails?

Any serious discussion about suppression orders should confront the possibility that seems too often absent from the debate: what if the accused did not do it?

What if the prosecution withdraws the charge? What if a magistrate finds there is insufficient evidence? What if a jury returns a verdict of not guilty? What if an appellate court overturns the conviction?

If the answer is that the accused simply has to live with years of online articles identifying them with an allegation that was never proved, then we should at least acknowledge that consequence when deciding where the balance between open justice and suppression should lie.

It is difficult to reconcile a system that says “innocent until proven guilty” inside the courtroom with a public discourse that effectively says “named when accused, forgotten when acquitted”.

Perhaps the Debate Is Asking the Wrong Question

The current debate tends to ask: why should a wealthy or prominent accused person be allowed to keep their identity secret?

Perhaps there is another question that should be asked first: why should any person who is presumed innocent suffer permanent reputational damage from an allegation before the State or Commonwelth has proved it?

That does not necessarily lead to a system of blanket anonymity.

There are powerful arguments in favour of identification. Publication can encourage witnesses to come forward. There may be an overwhelming public interest in identifying an accused person. There will be cases where suppression would interfere with the proper administration of justice.

Those considerations matter. But so does the presumption of innocence.

A Debate That Needs to Consider Both Outcomes

There is an inherent asymmetry in the publicity surrounding criminal proceedings. An allegation is news. An arrest is news. A charge is news. Sometimes, years later, an acquittal is not.

The media cannot simultaneously argue that publication of an accused person’s identity is essential to open justice while treating the ultimate vindication of that person as insufficiently newsworthy to report.

If the public interest requires the community to know that a person has been accused, there is a compelling argument that the same public interest requires the community to know — with comparable prominence — when the accusation has not been proved.

Until there is some effective mechanism to achieve that balance, suppression orders cannot fairly be dismissed merely as tools by which wealthy defendants “hide” from scrutiny.

For an accused person, the issue may be much more fundamental. It may be the only effective means of ensuring that the presumption of innocence has practical meaning before the allegation has been tested.

Open justice is fundamental. So is the presumption of innocence. A fair justice system must find room for both.