Full Court overturns landmark judgment that suppression orders have limited value in the age of social media

SECRECY orders still can, and should, be imposed on evidence in criminal trials even if has already been accessed by thousands of people online, the state’s highest court says — overturning a landmark judgment on the public’s right to know.

Chief Justice Chris Kourakis and Justice Sam Doyle, pictured standing, and Justice Malcolm Blue said any broader publication could prompt “unfiltered and uncontrolled” public speculation.

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SUPPRESSION orders still can, and should, be imposed on evidence in criminal trials even if it has already been accessed by thousands of people online, the state’s highest court says.

In a unanimous ruling on Friday, the Full Court of the Supreme Court overturned a landmark judgment that secrecy orders had only limited value in the digital age.

It granted an appeal, by a man accused of filming demonstrations of how to kill Jewish people, against greater transparency of his case.

However, the court also agreed with The Advertiser that segments of videos allegedly filmed by the man could be shown, so long as they were pixelated.

Chief Justice Chris Kourakis, and Justices Malcolm Blue and Sam Doyle, said any broader publication could prompt “unfiltered and uncontrolled” public speculation.

“It is obviously much more likely potential jurors would see the videos if no suppression order were made and (traditional and social) media outlets were permitted to publish,” they said.

“This is so notwithstanding that the videos might remain in an obscure portion of the internet, notwithstanding the suppression order, and could be accessed by an inquisitive member of the public.

“An order ... would greatly reduce the likelihood of potential jurors finding the videos still accessible on the internet.”

The man, whose identity is suppressed, has yet to plead to four counts of advocating terrorism in videos he allegedly recorded and posted online in 2016.

He is the first person ever charged, in Australia, with the offence and the videos were accessed more than 100,000 times before authorities had them deleted.

In August last year, District Court Judge Stephen McEwen declined to suppress the videos, saying it would be ineffectual as “there is a permanent record in cyberspace”.

He said sharing of the videos over social media meant they could be seen “irrespective” of any bans imposed upon journalists.

The man challenged that decision in the Full Court, while The Advertiser argued pixelated videos posed no prejudice to the trial process.

In its judgment, the court said evidence in criminal cases usually only became public once a trial began, protecting the impartiality of juries.

“When the videos are tendered and admitted into evidence at trial, the position will be radically different ... open justice will then have full application,” it said.

“It is unlikely any party would seek a suppression order (then, and) it is difficult to see that it would be successful.”

The judge said that, while courts could take steps to minimise the risk of juror prejudice, “prevention is better than cure”.

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