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Name suppression not automatic in diversion cases

By Steven | March 6, 2008

Fairfax has won a significant victory in the Court of Appeal, which has ruled that people who have been given diversion should not automatically have their names suppressed. Justice Wild had held that they should, absent “compelling reasons” or “very special circumstances”. That effectively upended the usual presumption of openness.  The Court of Appeal said:

… Wild J has put the matter too high in so far as diversion is treated as, in itself, a special circumstance justifying a departure from the open justice principle.

The Court of Appeal noted that suppression in these cases is usually granted by the Registrar, but insisted that Registrars actually use discretion not a rubber-stamp. What’s more, under the statute, the police must “agree” to the suppression. It seems that the current practice is for police “not to object”. The court said that’s not enough.

Still, it’s not a complete victory for the media, for three reasons:

1. While the court said Registrars must turn their minds to the balancing exercise (that is, open justice vs particular interests of the offender), it ought not to be a heavy decision-making burden, and Registrars

 … are not likely to require a great deal of information in order to be satisfied of the need for suppression. In that context, the effect of publication on rehabilitation in particular will in many cases be obvious.

2. It is now clear that the media have no right of appeal in name suppression cases (though they may take judicial review against District Court orders). This gap in the law ought to be filled (that’s my view, not the court’s).

3. Technically, that means the court’s points about diversion are obiter (that is, not strictly necessary to decide the case, and therefore not part of the core of the decision), though it’s pretty thoughtful and high-powered obiter.

Interesting point for train-spotters: check out the court’s use of Hansard to determine the proper interpretation of the statute at paras [59] to [62].

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