An informed public is an essential part of a transparent, fair and equitable justice system. The community receives much of its information about the criminal justice system through the media. Accurate and timely reporting by the media serves to educate the community and enhance public confidence in the administration of justice.

The purpose of this Chapter is to set out:

1. guiding principles for the ODPP response to media requests
2. matters that may and may not be disclosed
3. rules restricting access to court proceedings and prohibiting or restricting the publication and disclosure of material arising in a criminal matter.

The guiding principles for providing information to the media are to:

1. support the administration of justice and the integrity of the criminal justice system
2. respect the presumption of innocence and the accused’s right to a fair trial
3. respect the principle of open justice and recognise the public interest in receiving accurate and timely information about criminal proceedings
4. recognise that the media has an important role to play in providing accurate and timely information to the community about criminal proceedings that are of public interest
5. treat victims with courtesy and compassion and respect their dignity and privacy.

There is no general obligation to provide information to the media. However, the ODPP will endeavour to assist the media by confirming factual information already made public through the criminal justice system.

The ODPP has a Media and Communications Liaison Officer (MCLO) who should be the primary point of contact for media enquiries.

Information of an uncontroversial nature that is already in the public domain, such as confirmation of the charges that have been referred to in open court, a plea entered in open court, past and future listings, dates, venues, and the sentence or other outcome of the proceedings, may be provided to the media without referring the enquirer to the MCLO. 

All other media enquiries, including requests for statements, interviews, video footage, photographs or any other evidence should be directed to the MCLO. The approval of the Director or a Deputy Director is required to respond to media enquiries other than those of  an uncontroversial nature concerning matters in the public domain. The Director or Deputy Director must be advised if the enquiry relates to an accused person who is also facing trial on other charges.

Prosecutors with the conduct of matters that are likely to attract significant media attention should provide details of the matters, in advance, to the MCLO, particularly matters where proceedings are to be discontinued.

Prosecutors are not to speak on behalf of the Director or the ODPP without prior authorisation. Media releases on behalf of the Director or the ODPP are to be issued only by the MCLO with the approval of the Director or a Deputy Director.

Prosecutors must conduct themselves towards the media and the public in a courteous and dispassionate manner. Compliance with professional codes of conduct is expected and all communications with the media should be considered ‘on the record’.

Among the matters ODPP staff and Crown Prosecutors are not to publicly discuss with or disclose to the media are:

1. confirmation of whether a matter is under investigation or whether advice has been sought by or from an external agency
2. the prosecution’s intended approach in a case, including whether or not the matter is being reviewed
3. contact details for any victim or civilian witness
4. information that may lead to the identification of prisoners, informers and others who are giving evidence at some personal risk or assisting law enforcement officers
5. any information the disclosure of which is prohibited by law, such as privacy legislation
6. any matter the subject of a non-publication or suppression order
7. any information the subject of legal privilege or public interest immunity
8. any part of the proceedings not conducted in an open hearing
9. any evidence excluded at trial or not adduced in court proceedings
10.  expressions of the prosecutor’s personal opinions, including, but not limited to:
    a.   the possible or likely outcome of proceedings
    b.   the veracity of any evidence
    c.   the guilt or innocence of the accused
    d.   the correctness or otherwise of a judicial decision or verdict
    e.   the adequacy of a sentence
    f.    the prospects of any appeal. 

Prosecutors should not comment on current or future proceedings in any forum where there is a real possibility that such comments could be publicly reported and bring into question the prosecutor’s capacity to fulfil their prosecutorial duties in a fair and detached manner.

On request, prosecutors appearing for the Director may provide their names to the media; others may prefer to remain anonymous and are entitled to request anonymity.

If the media seeks to contact a victim or civilian witness, the prosecutor or a Witness Assistance Service officer may convey the request to the victim or witness. It will be for the victim or witness to decide whether to make contact with the inquirer directly.

Open justice is a fundamental tenet of our justice system and is particularly important in criminal proceedings. However, the law also recognises that there are some circumstances where restricting access to proceedings or prohibiting the publication or disclosure of information is justified in the public interest.

Closed courts

Prosecutors should be aware that the law requires the closing of a court in certain cases including:

• where the accused is a child
• where a complainant in a sexual assault matter is giving evidence
• other evidence in proceedings for prescribed sexual offences
• for proceedings for an offence of incest or attempted incest.

Mandatory non-publication

Prosecutors should be aware of the legislative restrictions on publication that automatically prohibit the publication of material that tends to identify certain persons, for example children involved in criminal proceedings or complainants in prescribed sexual assault proceedings.

Section 195 of the Evidence Act 1995 prohibits the publication of disallowed questions or questions in respect of which the court refused leave to ask.

A breach of any of the above provisions constitutes a criminal offence.

Applications for suppression and non-publication orders

The Court may prohibit or restrict the publication or disclosure of information under the Court Suppression and Non-publication Orders Act 2010 or by using the court’s inherent power to regulate its proceedings. Prosecutors should familiarise themselves with these laws and be prepared to apply for orders when necessary.

The MCLO should be contacted immediately if material is published in breach of a statutory provision or a court order or could otherwise be prejudicial to proceedings. If the matter is still before the court, a request may be made that the court issue an order for the material to be removed.

Inaccurate media reports about the conduct of a prosecution or any other matter concerning the ODPP must be reported to the MCLO for remedial action.