Director of Public Prosecutions v EN

[2023] VSC 724

Supreme Court of Victoria

Built by Barristers,
For Australian Law.

1. Criminal procedure
2. › Suppression orders
3. › Proceeding suppression order under Open Courts Act 2013 (Vic)
1. Criminal procedure
2. › Suppression orders
3. › Necessity to protect safety of accused
1. Criminal procedure
2. › Pseudonym orders
3. › Inherent jurisdiction of court
1. Criminal procedure
2. › Open justice
3. › Primacy of open justice principle

Evidence that an accused suffers complex mental health conditions and has engaged in self-harm does not, without more, establish the causal link between absence of a suppression order and materially increased risk to safety required to meet the stringent 'necessity' standard under s 18(1)(c) of the Open Courts Act 2013, particularly where the distress is attributable to the existence of the proceeding itself rather than media coverage, and where protective measures are in place in custody.
A pseudonym order, being a comparatively lesser interference with open justice than a proceeding suppression order, may be granted on a lower threshold where there is cogent evidence of a genuinely and reasonably held fear of psychological or physical harm from identification, even where the evidence is insufficient to support a full suppression order.
A proceeding is not yet one 'under' the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 for the purposes of s 75 merely because a mental impairment defence has been foreshadowed from the bar table but not formally raised, and accordingly s 8(1A) and (2)(d) of the Open Courts Act does not preclude the court from considering a suppression order application under s 17.