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Supreme Court weighs in on name suppression

By Steven | May 16, 2024

Name suppression decisions can be tough sometimes. No matter your views on free speech, you have to be hard-hearted not to be torn by the tug of the competing arguments.

I think you can feel the Supreme Court wrestling with that in M v The King.

The case for suppression

The appellant’s offending happened when he was between the ages of 14 and 17. (There were two appellants, but I’m going to focus on this one. He was 18 by the time he was sentenced in the District Court).

Alcohol abuse played a part. He pleaded guilty. He was sentenced to a year on home detention. After his offending, it was discovered that he is autistic and has ADHD. He’s been in psychotherapy and alcohol and drug counselling. There was evidence that publication of his name would harm his mental health by creating stress and anxiety, exacerbated by his “cognitive thinking errors”. He was attacked on social media in a way the judges described as “fairly extreme (and disturbing)”. Some people were calling for vigilante justice. There were vigilante attacks at his home.

Corrections assessed him as at low risk of reoffending.

The suppression thresholds

The Court had to consider whether publication would cause him “extreme hardship”. In a nutshell, our name suppression laws automatically suppress the identities of child victims and witnesses, and sex victims, but defendants have to show “extreme hardship” before they can get name suppression. Others involved – other victims, family etc – have to show “undue hardship” to get suppression.

It sounds like he has a fair case, right?

Suppression and youth justice

In fact, I thought the Supreme Court was going to grant it. They held that our laws had to be interpreted consistently with the UN Convention of the Rights of the Child. Because his offending occurred when he was a youth, that means his best interests must be “a primary consideration” and given “powerful weight”. That in turn means his privacy should be respected, and it should be recognised that young people can be more impulsive, have greater capacity for rehabilitation, and may be affected by psychosocial, emotional and other external influences that can contribute to immature judgements.

The judges said “the reality is that if name suppression is not granted it will be very difficult for [him] to reintegrate himself into society unless he changes his name.”


And yet. They didn’t grant suppression. They didn’t find he would suffer “extreme hardship.”

The case against suppression

The case for naming him is also powerful. You’ll have noticed that I haven’t mentioned his crimes. They are bad. There were ten charges – including rape, sexual violation and indecent assault. One of the victims was 13 (though the court found this was consensual). Others were 14 or 15 and intoxicated.

Several of the victims themselves wanted him named. There’s a possibility that other victims might come forward. There’s also a strong public interest in people being named when they have committed serious crimes. They may repeat them. It is, anyway, part of being held accountable.

You might think he’d already caught a break with the sentencing – there were heavy discounts for his youth, guilty plea, mental health and remorse, so that a starting point of 7.5 years became that year-long home detention.

The Supreme Court emphasised that the “starting point” is open justice. It endorsed the two-stage approach taken by the Court of Appeal in name suppression cases. (Trainspotter point: the SC suggests, though does not actually hold, that appeals in suppression cases are evaluative not discretionary, so the appellate court can re-take the decision itself rather than look for errors of law or principle, a failure to consider a relevant matter or consideration of an irrelevant one, or a finding that is plainly wrong.)

How does the Bill of Rights fit in?

The SC also holds that the right to freedom of expression in the Bill of Rights Act is in play. Surely that’s right. It says it is “highly relevant to name suppression decisions.” Good. It also notes that the BORA right to a “fair and public hearing” is relevant. Well, sure, but it’s a bit odd to cite that provision – which is there to protect the defendant against abuses of justice in the dark – in a way that hurts the defendant.

More to the point: how, exactly, does the right to freedom of expression fit with name suppression decisions? What’s the mechanism? The BORA permits reasonable limitations that are demonstrably justified in a free and democratic society. Surely name suppression will sometimes qualify. When? How do we tell?

Infuriatingly, the Supreme Court doesn’t say. There’s no methodology. So I’m guessing judges will keep ignoring the right to free speech in suppression decisions, or just pay lip service. At best, it may be a thumb on the scales.

Reasoning for denying suppression

In the end, the SC found that public embarrassment goes with the territory when you’re convicted. His autism and ADHD were being managed. He had family support. The online hate was from people who already knew his identity and wasn’t as pervasive as in some other cases. The offences were serious. This wasn’t just a case of missing some social cues. The courts below had assessed risk of reoffending as, at best, closer to moderate.

So, name suppression was denied. As a result, he can be named on 14 June 2024, after the court gave him some time to prepare.

The lesson?

Whatever you may have read in the occasional media beat-up about name suppression, it’s usually not easy to get. This case underscores that. This case makes youth offending factors mandatory considerations, but not necessarily overriding ones. Embarrassment, effect on employment prospects, a degree of harm to mental health, youth… none of these will usually be enough to get name suppression.

Name suppression decisions are sometimes tough.

A warning?

The SC said “any commentary, in whatever medium, should be responsible” and hoped that it would not repeat “the inappropriate commentary that has featured, albeit infrequently, in social media to date.”

Of course, I agree. But just to be clear, the SC doesn’t have any say about that. They can’t punish speech for being “inappropriate”. It’s like what the SC said in Erceg v Erceg: the principle of open justice means “that media representatives should be free to provide fair and accurate reports of what occurs in court.” Actually, they’re free to provide unfair and inaccurate reports too. I’m not encouraging that! But it’s only in very rare situations that an unfair or inaccurate report of a court proceeding will cross the line into punishable contempt or defamation.

The courts are not the only body in the nation with the special right only to have truthful accounts published about them.

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