Director of Public Prosecutions v EN

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0243

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
EN	Accused

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 and 10 November 2023
FURTHER SUBMISSIONS:	14, 17 and 20 November 2023
DATE OF RULING:	6 December 2023
CASE MAY BE CITED AS:	Director of Public Prosecutions v EN
MEDIUM NEUTRAL CITATION:	[2023] VSC 724

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CRIMINAL PROCEDURE – Application for proceeding suppression order – Accused charged with murder of infant son – Accused suffering from complex mental health conditions – Evidence of self-harm – Risk of psychological harm – Whether suppression order necessary to protect the safety of the accused – Whether risk can be prevented by other reasonably available means – Proceeding suppression order not made – Open Courts Act 2013 (Vic), ss 4, 5, 8, 17, 18, 19.

CRIMINAL PROCEDURE – Application for pseudonym order – Pseudonym order previously made by Magistrates’ Court – Whether pseudonym order necessary to prevent a real and substantial risk to the proper administration of justice – Whether risk can be prevented by other reasonably available means – Pseudonym order made subject to further order.

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APPEARANCES:	Counsel	Solicitors
For the prosecution	D Glynn	Office of Public Prosecutions
For the accused	P Matthews with K Ballard	Emma Turnbull Lawyers
For the Australian Broadcasting Corporation	C Jankie (solicitor)	Australian Broadcasting Corporation Legal, Disputes & Litigation

HIS HONOUR:

A. Introduction

On 25 October 2023, an application was made by the accused, who I will refer to as “EN”, for a proceeding suppression order pursuant to section 17 of the Open Courts Act 2013 (Vic).[1] In the notice of application, EN also sought an order that all documents filed in this proceeding remained confidential.
[1]Notice of the application was provided in accordance with s 10 of the Open Courts Act, and notifications were given to the relevant news media organisations in accordance with s 11.
The application originally sought orders prohibiting the disclosure of any information that would tend to identify EN or the deceased in this proceeding, a report of the whole or any part of the proceeding, and any information derived from the proceeding. However, the scope of EN’s application has since been significantly narrowed, and a suppression order is now only sought in relation to the publication of any details of EN’s alleged offending beyond the fact that she has been charged with murder. This narrower form of order is sought both under the Open Courts Act and pursuant to the court’s inherent jurisdiction. Further, EN no longer seeks an order for documents filed in the proceeding to remain confidential.[2]
[2]The notice of application provided for such an order to be made pursuant to r 28.05(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). However, as this is a criminal proceeding, r 1.11(4) of the Supreme Court (Criminal Procedure) Rules 2017 (Vic) applies with the result that all documents filed are not open for inspection unless otherwise directed. On this basis, counsel for EN accepted that the order sought in the notice of application was unnecessary.
EN also seeks a pseudonym order, which would effectively, at the very least, maintain a pseudonym regime that was originally put in place pursuant to orders made on 7 February 2023 in the Magistrates’ Court of Victoria at Melbourne.[3] This regime provides for both EN and the deceased to be referred to with the use of pseudonyms.
[3]That pseudonym order was most recently extended by the Magistrates’ Court on 13 October 2023 and expired on 31 October 2023. On 30 October 2023, an interim proceeding suppression order was made by this court which continues to operate until the hearing and determination of this application.
It is contended that both the proceeding suppression order and the pseudonym order are necessary to protect the safety of EN.[4] The prosecution opposes the orders sought by EN. The application is also opposed by the Australian Broadcasting Corporation (“the ABC”).[5]
[4]In relation to the application for a proceeding suppression order, see Open Courts Act, ss 17, 18(1)(c).
[5]The ABC has standing to appear and be heard in relation to the proceeding suppression order application: Open Courts Act, s 19(2)(e). There was no objection to the ABC also making submissions in relation to the application for a pseudonym order.

B. Background

EN is charged with the murder of her 3-year-old son, who I will refer to as “IL”.[6] IL is alleged to have been killed on 6 February 2023. On 13 October 2023, EN was committed to stand trial for the offence of murder and was remanded to appear before this court for a post-committal directions hearing. There has been no contested committal hearing. EN presently remains in custody.
[6]This pseudonym was also the subject of the orders made by the Magistrates’ Court on 7 February 2023 and extended on 13 October 2023.
At a directions hearing held on 30 October 2023, the court was told that it was unlikely there would be much dispute about the key facts surrounding the death of IL. In addition, the court was informed that there was to be an assessment of EN by a forensic psychiatrist in the middle of November 2023, with a report due to be provided by 12 January 2024.
In support of her application, EN relies on 2 reports of Dr Adam Deacon, consultant psychiatrist at the Bromham Clinic, dated 17 September 2023 and 25 October 2023. Without descending to the detail, in the first of these reports Dr Deacon opines that EN suffers from complex mental health disorders, including persistent depressive disorder, major depressive disorder with anxious distress and generalised anxiety disorder. Consistent with these complex disorders, Dr Deacon’s report records that EN experiences the “full spectrum of depressive symptoms, including chronic suicidal ideation”. Since being remanded in custody, EN has received formal diagnoses for each of these conditions, and Dr Deacon’s report records that she has responded well to medication and is engaging in supportive psychological therapy.
In concluding his first report, Dr Deacon states that in his assessment, EN could not reason with a moderate degree of sense and composure about whether her conduct, as perceived by reasonable people, was wrong. On this basis, he expresses the view that a mental impairment defence under section 20(1)(b) of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) (“the Mental Impairment Act”) can be supported.
Dr Deacon’s second report is self-described as “a brief letter” in response to a request from EN’s solicitor to provide an opinion as to whether media coverage would be likely to have an effect on EN’s health and, if so, whether there is a likelihood that EN’s health would deteriorate as a result. After referring to his first report and some of EN’s diagnoses, Dr Deacon’s second report opines that media coverage would likely impact EN’s health. After acknowledging that it is difficult to predict the specific impact, Dr Deacon states that “it is reasonable to opine that the impact could be significant”. It is also stated that EN has been susceptible to experiencing suicidal ideation, particularly when overwhelmed with anxiety.
There has already been media coverage of the death of IL. Although the relevant articles were not tendered as part of the evidence on this application, it was agreed by the parties and the ABC that articles had been published in the mainstream press. The publications were in early February 2023, which was at or around the time the matter first came before the Magistrates’ Court and shortly after EN had been charged. These articles were also published online and remained online at the time of the hearing of this application. It was also common ground that information was published about the relevant circumstances without EN being specifically identified, in light of the pseudonym order already being in place.
For the purpose of preparing his first report, Dr Deacon assessed EN on 7 July, 2 August, 18 August and 6 September 2023. There is no suggestion in either of Dr Deacon’s reports that EN made any reference to this earlier media coverage or suggested that her condition had been impacted in any way by these publications.
EN’s application for a proceeding suppression order and pseudonym order was heard on 1 November 2023. At the hearing of this application, an indication was given by counsel for EN that a defence under section 20(1)(b) of the Mental Impairment Act would be advanced. An issue was raised with the parties as to whether this proceeding fell within the ambit of the Mental Impairment Act such that the making of a proceeding suppression order under section 17 of the Open Courts Act would be proscribed by section 8(1A) and (2)(d) of the latter Act.[7] Leave was granted for the filing of supplementary submissions on this point, and submissions were later filed by the parties and the ABC.
[7]See pars 17-18 below.
On 10 November 2023, in response to a subpoena to produce issued on behalf of EN, Justice Health produced medical records for EN for the period from 30 October 2023 to 8 November 2023. Those records reveal that on 2 November 2023, EN engaged in self-harming acts while in custody, cutting both arms with a razor blade. During a review conducted by a senior psychologist on the same afternoon, EN disclosed that she had been feeling more distressed over the last few days after attending “directions court hearings”, and stated that the proceeding was serving as a reminder and a trigger about the alleged offending. She is reported to have spoken of “realising more and more that [IL] is actually deceased”, resulting in “pangs of profound grief and guilt since her denial defence mechanism is breaking down”. EN also disclosed to the psychologist that the media’s opposition to her suppression order application was causing her to be worried that her identity and alleged offending would be revealed.
In a further review conducted by a psychiatric nurse later that day, EN again reported having felt overwhelmed recently “due to legal matters around court”. EN also disclosed that she had recently been experiencing issues “on the unit”, including bullying from other inmates, which were adding to her anxiety and stress. The notes from the review record that EN described using self-harm to cope with stress, and note that previous instances of self-harm by EN had usually occurred in the context of stressors, poor coping and increased anxiety.
The subpoenaed medical records detail various support services and protective measures that were put in place by Justice Health following this incident, including making an at-risk referral, placing EN under observation, adopting a “no sharps” policy, and increasing supportive services and protective factors such as contact with family members. At further reviews conducted by psychiatric nurses on 2, 3 and 4 November 2023, EN denied having engaged in further acts of self-harm and stated that she had not experienced any further thoughts of self-harm or suicidal ideation.

C. Legislative regime and relevant principles

C.1 Proceeding suppression orders

The court’s power to make suppression orders is primarily regulated by the Open Courts Act, however the inherent jurisdiction of the court to make orders of this nature is preserved under this legislative regime.[8] The main purposes of the Open Courts Act are, amongst other things, to recognise and promote the principle that open justice is a fundamental aspect of the Victorian legal system.[9] This is to maintain the integrity and impartiality of courts and strengthen public confidence in the system of justice.[10]
[8]Open Courts Act, s 5(1).
[9]Ibid, s 1(aa).
[10]Ibid.
The Open Courts Act does not limit or otherwise affect the operation of a provision made by or under another Act that prohibits or restricts, or authorises a court to prohibit or restrict, the publication or other disclosure of information for or in connection with any proceeding.[11] It also does not limit the operation of provisions within several other Acts which provide for the making of suppression orders.[12]
[11]Ibid, s 8(1).
[12]Ibid, s 8(1A), (2).
Relevantly for present purposes, this includes section 75 of the Mental Impairment Act, which empowers the court to make broad non-publication orders in “any proceeding before a court under this Act” where it is satisfied that it is in the public interest to do so. In that regard, to the extent that section 75 of the Mental Impairment Act prohibits or restricts, or authorises the court to prohibit or restrict, the publication or other disclosure of information for or in connection with any proceeding, the court must not make a suppression order pursuant to the Open Courts Act that prohibits or restricts the publication or other disclosure of information which is already prohibited or restricted by section 75.[13]
[13]Ibid, s 8(1A), (2)(d).
In considering an application for a suppression order, the court is required to have regard to the primacy of the principle of open justice and the free communication and disclosure of information.[14] The court may only make a suppression order if satisfied that the specific circumstances of a case make it necessary to override or displace these objectives.[15]
[14]Ibid, s 4(1).
[15]Ibid, s 4(2).
Although the principle of open justice does not provide an absolute requirement that all cases be heard in public, any order restraining, restricting or postponing the report of a court proceeding or any part of a court proceeding will be exceptional.[16] Further, because of the salience of the principle of open justice, ordinarily courts must construe any statutory provision which permits suppression of publication of any part of a proceeding narrowly and strictly.[17] As was observed in John Fairfax & Sons Ltd v Police Tribunal of New South Wales:[18]
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principal of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in a courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it.
(Emphasis added.)
[16]News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 259 [35] (Warren CJ and Byrne AJA). It should be noted that this case concerned a suppression order made under antecedent legislation, namely s 18 of the Supreme Court Act 1986 (Vic) (now repealed).
[17]Herald & Weekly Times Pty Ltd v Director of Public Prosecutions (2007) 170 A Crim R 313, 318 [22] (Kaye J), citing Re Applications by Chief Commissioner of Police (2004) 9 VR 275, 288 [30] (Winneke P, Ormiston and Vincent JJA).
[18](1986) 5 NSWLR 465, 476G-477A (McHugh JA, with whom Glass JA agreed).
A fair and accurate report of a hearing ordinarily includes the names of the parties to a proceeding, as well as details of the testimonial, documentary or physical evidence that has been given in the proceeding.[19]
[19]Hogan v Hinch (2011) 243 CLR 506, 532 [22] (French CJ). See also PQR v Secretary to the Department of Justice and Regulation (No 1) (2017) 53 VR 45, 72-74 [69]-[71] (Bell J) and the cases there cited.
A suppression order of any kind cannot be made other than on the basis of evidence or sufficient credible information that establishes the grounds for making the order.[20] In this context, “sufficient credible information” is a lesser standard than admissible evidence and may include inferences drawn not only from the available evidence but also from judicial knowledge and experience.[21]
[20]Open Courts Act, s 14.
[21]Director of Public Prosecutions (Cth) v Brady (2015) 252 A Crim R 50, 60 [60] (Hollingworth J).
Proceeding suppression orders are dealt with under Part 3 of the Open Courts Act. Section 17 empowers a court to make an order prohibiting or restricting the disclosure by publication or otherwise of a report of the whole or any part of a proceeding and any information derived from a proceeding where it is satisfied of any 1 or more of the grounds set out in section 18(1). Relevantly for present purposes, these grounds include that the order is necessary to protect the safety of any person.[22]
[22]Open Courts Act, s 18(1)(c).
Each of the grounds outlined under section 18(1) require the court to be satisfied that a suppression order is “necessary” in the circumstances. The same test of necessity applies where a suppression order is sought pursuant to the court’s inherent jurisdiction.[23] A suppression order will be necessary where, absent the order, “particular unacceptable consequences will flow that ought be prevented to preserve the proper function of the court”.[24] Necessity in this context is a “stringent standard”[25] requiring a high degree of satisfaction.[26] It is insufficient that the making of a suppression order is merely “convenient, reasonable or sensible”.[27] It is also not enough that a failure to make a suppression order may result in embarrassment, shame or humiliation for an applicant.[28] The applicant bears the onus of persuading the court that the suppression order sought is necessary.[29]
[23]Herald & Weekly Times Pty Ltd v A (2005) 160 A Crim R 299, 306 [30]-[32] (Maxwell P and Nettle JA).
[24]Attorney-General v Khan (Suppression Order) [2022] VSC 627, [5] (John Dixon J), citing Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 [31]-[32] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).
[25]Napier v Treasury Wine Estates Ltd [2020] VSC 765, [26] (Nichols J).
[26]AB v CD (2019) 279 A Crim R 357, 368-369 [68] (Ferguson CJ, Beach and McLeish JJA); Chaarani v Director of Public Prosecutions (Cth) [2018] VSCA 299, [41] (Maxwell P, Beach and Hargrave JJA).
[27]Director of Public Prosecutions v QPX [2014] VSC 211, [15] (Bongiorno JA), citing Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 [31]-[33] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).
[28]Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267, 295 [93] (Hedigan J); John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131, 142G-143A (Kirby P).
[29]Director of Public Prosecutions (Cth) v Brady (2015) 252 A Crim R 50, 60 [59] (Hollingworth J); Attorney-General v Khan (Suppression Order) [2022] VSC 627, [4] (John Dixon J).
Insofar as the “necessity” test is directed towards the ground of safety of any person, it requires the establishment of a causal link between the absence of the order and some increased risk to the person concerned.[30] Thus, if the level of danger faced by a person would not be materially advanced were a suppression order not to be made, it is unlikely that such an order could truly be considered “necessary”.[31]
[30]AB v CD (2019) 279 A Crim R 357, 370 [77]; R v Pomeroy [2002] VSC 178, [13] (Teague J).
[31]Director of Public Prosecutions (Cth) v Magistrates’ Court of Victoria [2011] VSC 593, [15] (T Forrest J); R v Pomeroy [2002] VSC 178, [13].

In addition to necessity, the utility or efficacy of a suppression order is also a relevant consideration.[32] If it cannot be said that a suppression order would have the effect of materially reducing the risk to the safety of a person, it is unlikely that the order will be made.[33] Thus, in circumstances where a suppression order would have little practical effect because a proceeding has already garnered significant publicity and it would be difficult to stem any further publication of the matters sought to be suppressed, a court will generally refuse to make a suppression order.[34]
[32]D1 v P1 [2012] NSWCA 314, [52] (Bathurst CJ, with whom McColl JA and McClellan CJ at CL agreed).
[33]See, for example, AB v CD (2019) 279 A Crim R 357, 370 [75]-[77].
[34]See, for example, Cooper v Herald & Weekly Times Pty Ltd [2013] VSC 589, [15] (Ferguson J).
Safety in the context of section 18(1)(c) is to be given a broad construction, and the provision has been held to encompass risks to both physical and psychological safety.[35] However, an important distinction can be drawn between “harm” and “safety”, the latter concept being a “conclusion informed by the nature, imminence and degree of likelihood of apprehended harm”.[36] In AB v CD, Nettle J observed that “[t]he criterion is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person”, adding that:[37]
… because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of “necessary to protect the safety of any person” that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.
[35]Director of Public Prosecutions v QPX [2014] VSC 211, [15]. See also R v Kannan (No 2) [2019] VSC 531, [34]-[35], [41], [43] (Champion J).
[36]AB v CD (2019) 364 ALR 202, 205 [14] (Nettle J), citing D1 v P1 [2012] NSWCA 314, [49]-[51] (Bathurst CJ, with whom McColl JA and McClellan CJ at CL agreed).
[37]Ibid, 206 [15], applied in Attorney-General v Khan (Suppression Order) [2022] VSC 627, [8]-[9] (John Dixon J).
Relevant to any assessment of the necessity of a suppression order to protect the safety of a person is the availability of care and treatment for that person and any protective measures that are or will be put in place.[38] In Cooper v Herald & Weekly Times Pty Ltd,[39] Ferguson J considered an urgent application for non-publication orders made by an individual with a severe mental illness who had been charged with a number of serious offences. Medical evidence was provided in support of the application which disclosed a risk of self-harm on the applicant’s part, which risk was said to be likely to increase the longer and more widespread the media coverage of his offending.[40] On this basis, it was contended that non-publication orders were necessary in order not to prejudice the administration of justice and not to endanger the applicant’s physical safety.[41] In refusing to make a non-publication order, Ferguson J held:[42]
Whilst I accept that the applicant is suffering from a severe illness and that there is a risk of self-harm which may be exacerbated by publicity, he is receiving expert care and treatment with protective measures being put in place. In those circumstances, I cannot be satisfied that the non-publication orders are necessary to ensure that the physical safety of the applicant is not endangered.
Also in this regard, courts have recognised and, in the absence of evidence to the contrary, generally proceed on the basis that prison authorities are capable of protecting persons whose safety might be at risk.[43]
[38]Cooper v Herald & Weekly Times Pty Ltd [2013] VSC 589, [15] (Ferguson J).
[39]Ibid.
[40]Ibid, [1]-[2].
[41]Ibid, [6].
[42]Ibid, [14].
[43]R v Rintoull [2010] VSC 30, [15]-[17] (Curtain J).

C.2 Pseudonym order

The power to make a pseudonym order is not found under or affected by the Open Courts Act,[44] and any such order is instead made under the inherent jurisdiction of the court.[45] The procedural requirements in the Open Courts Act therefore do not apply to pseudonym orders.
[44]Open Courts Act, s 7(d)(i). See also Cargill Australia Ltd v Viterra Malt Pty Ltd (No 23) (2019) 58 VR 611, 619 [43].
[45]MSB v Chief Commissioner of Police (2018) 57 VR 360, 372 [48] (McLeish JA, with whom Maxwell P and Almond AJA agreed); Secretary to the Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19, [3] (Santamaria, Ferguson and McLeish JJA); ABC-1 v Ring [2014] VSC 5, [15]-[16] (Bell J).
In considering an application for a pseudonym order, the court is required to determine whether such an order is necessary to prevent prejudice to the administration of justice.[46] In so determining, the court is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice.[47] In this regard, a common consideration is whether there is a real risk that the person in question will suffer physical or psychological harm as a result of the publication of their name or the name of another party.[48] It will usually not be necessary for a person to show that they objectively would or might suffer psychological harm, provided that a genuinely and reasonably held fear of psychological harm can be demonstrated.[49]
[46]ABC v D1 [2007] VSC 480, [67] (J Forrest J), applied in Secretary to the Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19, [4].
[47]Ibid, [68].
[48]Ibid. See also TTT v State of Victoria [2013] VSC 162, [18] (Cavanough J).
[49]XYZ v State of Victoria [2016] VSC 339, [21] (T Forrest J); TTT v State of Victoria [2013] VSC 162, [18].
In most cases, cogent proof of the circumstances said to give rise to the necessity of a pseudonym order is required and courts will not be satisfied by mere belief on the part of a party that such an order is necessary.[50] However, in certain cases, courts may be entitled to act on experience or plainly incontrovertible facts and draw appropriate inferences in making such a determination.[51]
[50]PQR v Secretary to the Department of Justice and Regulation (No 1) (2017) 53 VR 45, 75 [73] (Bell J); ABC v D1 [2007] VSC 480, [62], [71].
[51]ABC v D1 [2007] VSC 480, [62], [71] (J Forrest J), citing The Age Company Ltd v Magistrates’ Court of Victoria [2004] VSC 10, [13] (Kaye J), in turn referring to R v Pomeroy [2002] VSC 178.
Importantly, and in contrast to a suppression or closed court order, a pseudonym order represents a less significant interference with the principle of open justice. An order that a party not be identified has no effect on the public nature of a proceeding, and reporting of the proceeding is still permitted, subject only to the identification restrictions imposed by the pseudonym order. Thus, in determining whether to make a pseudonym order, the relatively lesser degree of derogation from the principle of open justice involved is a relevant consideration.[52]

D. Submissions

[52]Ibid, [70].

D.1 EN’s submissions

As a starting point, EN submits that both a proceeding suppression order and a pseudonym order are necessary to mitigate the risk of her suffering psychological harm as a result of the disclosure of her identity or details of the alleged offending. Referring to the opinions and observations expressed in Dr Deacon’s reports as well as the details of EN’s recent act of self-harm as disclosed in the subpoenaed medical records, it is submitted on behalf of EN that any ventilation of the alleged offence through media reporting is likely to have a significant deteriorative effect on EN’s mental health and therefore represents an ongoing risk to her safety.
Specifically in relation to the application for a proceeding suppression order, EN submits that the present situation is exceptional so as to warrant such an order both due to the complex mental disorders from which she suffers as well as the particular allegations made against her. EN submits that the reports of Dr Deacon and evidence of EN’s recent acts of self-harm establish a risk of psychological harm of sufficient seriousness to warrant overriding the principle of open justice. Referring to the more limited form of suppression order that is now sought,[53] it is submitted by EN that such an order would allow for reporting of some details of the proceeding whilst simultaneously ensuring that matters which might jeopardise EN’s mental health (namely, details of the alleged offending) are not published.
[53]See par 2 above.
In support of her application for a pseudonym order, EN submits that the opinions of Dr Deacon establish a real risk that EN will suffer psychological harm if her name is published in connection with this proceeding. Such an order, in EN’s submission, would not inhibit any reporting of the proceeding and would thus represent a minimal interference with the principle of open justice.
As regards the issue raised with the parties at the hearing of this application on the interaction between section 8(1A) and (2)(d) of the Open Courts Act and section 75 of the Mental Impairment Act,[54] the submission made on behalf of EN, which is adopted by both the prosecution and the ABC, is that the present proceeding is not a proceeding under the Mental Impairment Act for the purposes of section 75 and is instead properly characterised as a criminal prosecution under the Criminal Procedure Act 2009 (Vic) at present. On this basis, EN submits that the court’s power to make a suppression order under section 17 of the Open Courts Act is not curtailed by section 8(1A) and (2)(d).
[54]See par 12 above.

D.2 Prosecution’s submissions

The prosecution submits that neither a proceeding suppression order nor a pseudonym order is warranted in the circumstances. Rather than being caused by the prospect of media coverage, the prosecution submits that the difficulties experienced by EN, including her recent act of self-harm, are an unavoidable consequence of having to confront the reality of her circumstances and the alleged offending. As EN will be required to address and discuss the relevant events at various stages in this proceeding in any event, the prosecution submits that the added impact of media coverage on EN’s psychological wellbeing is unlikely to be significant.
In light of this, it is contended that it cannot be said that either order is necessary to protect EN’s safety. However, the prosecution does concede that EN’s application for a pseudonym order would appear to be stronger than her application for a suppression order, given the lower threshold requirement for the imposition of such an order.

D.3 The ABC’s submissions

While acknowledging the seriousness of EN’s mental health issues and recent self-harm incident, the ABC similarly submits that the “very high bar” of necessity has not been met by EN. As such, it is contended the making of a proceeding suppression order or a pseudonym order in the circumstances of this case would amount to a serious and impermissible derogation from the principle of open justice.
The ABC submits that, rather than publication of EN’s name or details of the alleged offending, it is the very existence of this proceeding and the alleged offending that threatens EN’s psychological wellbeing and represents a risk to her safety. This risk, in the ABC’s submission, is an unavoidable by-product of the proceeding and does not provide a proper basis for the making of a suppression order or pseudonym order. Further, the ABC submits that the very fact that EN’s recent self-harm incident occurred while the interim suppression order was in effect demonstrates the futility of such an order in protecting EN’s safety.
The ABC also refers to the protective measures already in place around EN and the existence of other (and potentially more effective) means of reducing the risk to EN’s safety as factors weighing against the necessity of the orders sought by EN. The ABC’s submissions raise the possibility of alternative measures being put in place in relation to EN’s care in custody, such as restricting her access to razor blades or limiting her exposure to news media. Without evidence relating to these measures, the ABC submits that the court cannot be satisfied of the necessity of a suppression order or pseudonym order.

E. Consideration

The first issue to determine is whether this proceeding is properly considered “any proceeding before a court under this Act” within the meaning of section 75 of the Mental Impairment Act, such that the court is prevented from making a suppression order under the Open Courts Act by virtue of section 8(1A) and (2)(d) of the latter Act.
Section 4(1) of the Mental Impairment Act provides (subject to some exceptions which are not relevant) that the Act applies to, amongst other things, indictable offences in the Supreme Court and proceedings ancillary or incidental to or connected with or arising out of those trials, including committal proceedings. Notwithstanding the breadth of this provision, in circumstances where a defence of mental impairment has not yet been relied upon by EN and the court has no more than an indication from the bar table that a forensic psychiatric assessment of EN is to take place and, if available as a result of that assessment, such a defence is likely to be pursued,[55] I accept EN’s submission that the proceeding does not yet fall within the ambit of the Mental Impairment Act. Thus the court is not precluded from making a suppression order under section 17 of the Open Courts Act.
[55]As already noted, there has been no contested committal hearing (see par 5 above) and there has been no reservation of a question of the fitness of EN to stand trial for investigation under Part 2: see Mental Impairment Act, s 9.
Turning to EN’s application for a proceeding suppression order in relation to any details of the alleged offending, the starting point is the primacy of the principle of open justice. As the authorities make clear, the standard of “necessity” for the purposes of making a suppression order under the Open Courts Act or the court’s inherent jurisdiction is a high bar. In the circumstances, I do not consider that this has been met.
First, there is insufficient evidence to support a conclusion that publication of details of the alleged offending will cause EN additional psychological or physical harm which rises to the threshold of representing a risk to EN’s safety so as to necessitate a suppression order.As is clear from Dr Deacon’s report and the subpoenaed medical records, EN is experiencing immense guilt, grief, distress and despair in relation to the alleged offending, and these feelings are having a significant impact on her psychological wellbeing and have contributed to her recent act of self-harm. However, these feelings are an almost unavoidable and completely expected consequence of facing the charges relating to the alleged offending. Indeed, it is highly likely that these will be feelings that EN is forced to confront over the course of this proceeding, whether or not a suppression order is made.
Secondly, and relatedly, I do not consider that a sufficient causal link has been established between the absence of a suppression order and a materially increased risk to EN’s safety so as to render the making of the order truly necessary. Although in his second report Dr Deacon expresses the view that media coverage “would likely impact [EN’s] mental health” and that “it is reasonable to opine that the impact could be significant”, the basis for such a view is not elaborated any further. Further, no reference is made in either of Dr Deacon’s reports to any previous media coverage having jeopardised or affected EN’s safety or wellbeing,[56] nor to any concerns on EN’s part in relation to potential future media coverage. Likewise, while the subpoenaed medical records refer to the prospect of media reporting on EN’s identity and the alleged offending as a contributing factor in EN’s recent acts of self-harm, various other potential stressors and triggers are also referred to.[57] In summary, I cannot be satisfied that the reporting of details of the alleged offending without EN being identified would create any real risk of increasing the harm EN is already experiencing on an ongoing basis.
[56]See par 11 above.
[57]See pars 12-14 above.
Thirdly, and again relatedly, while accepting there must be some risk that EN’s mental health issues will be exacerbated by media coverage of the incident, the subpoenaed materials from Justice Health make clear that EN is receiving professional care and mental health treatment in custody and that various protective measures have been put in place to reduce the degree and potential consequences of any such risk.[58] In light of these measures and services, as well as EN’s apparently positive response to them thus far,[59] I cannot be satisfied that a proceeding suppression order in the form sought is necessary to protect EN’s safety.
[58]See par 15 above.
[59]Ibid.
Fourthly, in light of the view that I have formed in relation to EN’s application for a pseudonym order,[60] the concealment of EN’s identity for the duration of that order will act as an additional protective measure to reduce the risk that EN will suffer psychological or physical harm as a result of any reporting on the proceeding. In combination with the protective measures that are in place in custody, I am satisfied that any risk to EN’s safety can be appropriately addressed through other reasonable means such that a proceeding suppression order is not necessary in the circumstances.
[60]See pars 50-51 below.
In summary, I do not consider that a proceeding suppression order in the form sought is necessary to protect EN’s safety so as to warrant the significant departure from the principle of open justice that such an order would entail. It must follow that there is no basis to make an order either pursuant to the Open Courts Act or the inherent jurisdiction of the court, as the suppression order sought is not necessary to secure the proper administration of justice with respect to this proceeding.[61]
[61]See par 20 above.
In relation to EN’s application for a pseudonym order, as acknowledged by both the prosecution and the ABC, different considerations apply in this context. Although the necessity of such an order must be proven, it is generally sufficient to establish a real risk that a person will suffer psychological or physical harm in the absence of the order. Having regard to the opinions and observations of Dr Deacon and the matters disclosed in the subpoenaed medical records from Justice Health, I am satisfied that there is cogent evidence of a genuinely and reasonably held fear of both psychological and physical harm on EN’s part if media reporting of the alleged offending which identifies EN is permitted. Orders for the use of a pseudonym will reduce the risk, as well as the degree and severity, of any such harm.
Further, where a defence of mental impairment under section 20(1)(b) of the Mental Impairment Act has been foreshadowed by counsel for EN, and it is likely that an application for aspects of the proceeding to be suppressed will be made under this legislative scheme, the maintenance of the pseudonym regime already in place is appropriate, at least for a limited period.
As the manner in which this matter will proceed and the necessity and utility of measures to prevent the disclosure of EN’s identity will be further elucidated by the report from the forensic psychiatric assessment of EN which was due to be conducted in mid-November 2023, I am of the view that a pseudonym order should only be made for a limited period. As this report is due to be provided on 12 January 2024 and the matter is to return for directions on 12 February 2024, it is appropriate that the pseudonym regime be maintained, subject to further order, only until the completion of this directions hearing.

In circumstances where it is unlikely that there will be any hearing or other substantive step taken in the proceeding before 12 February 2024, the interference with the principle of open justice that such an order would entail is minimal.
Accordingly, on balance, and given the comparatively lesser interference with the principle of open justice that an order maintaining the pseudonym regime that is already in place would represent, I consider that such an order is necessary to facilitate the proper administration of justice in the circumstances of this case.

F. Conclusion

For the reasons stated, orders will be made that the accused is only to be referred to as “EN” and the deceased is only to be referred to as “IL” in this proceeding until 4.00pm on 12 February 2024 or further order of this court.
However, EN’s application for a proceeding suppression order will be dismissed.

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[2023] VSC 724

6 December 2023