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Suppression orders in the open courts era

Suppression orders in the open courts era

By Karin Derkley

Courts Sentencing 


The blanket ban on reporting of the conviction of cardinal George Pell has raised questions about the use of suppression orders.

Alongside the explosive news in late February that Cardinal George Pell had been convicted of sex offences was the almost equally fiery debate around the suppression orders that had kept this news out of mainstream media since mid December.

While news of the conviction was reported in overseas media outlets and was the top trending topic on Twitter on the day Pell was convicted, Australian-based media were under strict instructions to not even allude to the case on the basis that it could taint the outcome of a second trial scheduled for March.

When newspapers including The Age and the Herald Sun made unspecific references in front page articles to a “high-profile” case they were not permitted to mention, the reaction from the County Court was one of outrage. In a hearing to discuss the articles, County Court Chief Judge Peter Kidd described them as “flagrant breaches” of the suppression orders, made “in the most egregious way possible”. The suppression order was finally lifted when the second “swimming pool trial” was called off because of insufficient evidence. However, while this meant that media outlets were now free to publish accounts of the trials (even though the matter is now under appeal) it also revealed more than 50 journalists had been given notice of intention of contempt proceedings by the Director of Public Prosecutions.

While most accepted the necessity to suppress details about the first Pell conviction in order to protect the second trial, some have expressed concerns that the blanket ban that made illegal even the mention of the existence of a suppression order is symptomatic of an entrenched culture of suppression in Victoria.

Melbourne Law School professor Jeremy Gans has described Victoria as “world leaders in suppression orders”. Media lawyer Justin Quill has said the Victorian judicial system is the subject of “derision and scorn on the issue of openness” among his interstate colleagues. “Melbourne is known as the suppression capital of Australia,” he says.

“We definitely have more blanket bans than anyone else,” says Centre for Media and Communications Law deputy director at Melbourne Law School Jason Bosland. Blanket bans mean that even mentioning a suppression order exists is in contravention of the order.

The Open Courts Act 2013 was introduced to “strengthen and promote open justice” in Victoria following concerns that too many suppression orders were being made in the state. But Associate Professor Bosland says the numbers of suppression orders have not reduced and may even have increased since the Act. News Corp put the number issued in 2017 at 443, compared to 259 in 2012. There were 181 in New South Wales in 2017.

Of those in Victoria, 40 per cent of suppression orders were blanket bans, according to Associate Professor Bosland. “Blanket bans are extreme and should only be made in the rarest of circumstances,” he says.

Investigations editor at The Age Michael Bachelard, who was among the journalists who received a so-called “show cause” letter from the DPP, Kerri Judd QC, says the Pell case has just been the most high profile example of a “plethora, you would say a web of suppression orders that is often very difficult to untangle.

“There is arguably a much more stringent regime in Victoria than the other states,” he says. “The consequence is that it makes it difficult for us to tell the full story because we are hemmed in by suppression orders.”

Law Council of Australia (LCA)president Arthur Moses QC says the bar for granting a suppression order in Victoria seemed to be lower than in other states. “In NSW an order can only be made if necessary to prevent prejudice to the proper administration of justice. In Victoria a judge may grant an order to prevent a real and substantial risk of prejudice – so there is a lower bar to get that order,” he told ABC News.

The LCA has called for suppression orders to operate in a consistent manner across Australian jurisdictions to ensure “the right balance is achieved between open justice and the need for suppression”.

The LIV says there is a tension between the principle of open justice and the use of suppression orders in Victoria. “The Law Institute believes in transparency in the legal system, so that the Victorian community can be confident that justice is seen to be done,” LIV president Stuart Webb says.

Concern in Victoria around the number of suppression orders and their impact on open justice has been such that in 2017 the state government appointed former Court of Appeal Justice Frank Vincent to conduct a review of the Open Courts Act 2013 into whether the laws were operating effectively.

The state government is reviewing the state’s suppression order laws in line with most of the 18 recommendations made by Justice Vincent. The government has also asked the Victorian Law Reform Commission (VLRC) to review contempt of court laws, including sub judice contempt and contempt by publication.

Justice Vincent was critical of several aspects of the suppression regime, suggesting there was a “cultural dimension” behind the courts’ substantial difficulties in finding the right balance between transparency and “other values and interests”.

This so-called “culture of suppression” in Victoria is traced back by many to the gangland war trials of the 2000s and its complex web of interrelated individuals. This triggered a slew of suppression orders to protect the safety of witnesses. “That got people [within the court system] into the habit of issuing suppression orders,” says Monash University associate professor of journalism Margaret Simons. The “cultural shift” that occurred at that time has been difficult for courts to shake off, says Associate Professor Bosland.

At the same time, courts’ confidence in the media has been eroding as court reporting expertise has declined, Associate Professor Simons says.

“The collapse of the business model that supports journalism has led to a huge reduction in the number of court reporters and the departure of the really experienced old hands. [Media are] increasingly trying to cover courts without being in court – and that creates a climate in which it is harder to do the job well.”

What Associate Professor Simons describes as “ill-informed reporting on things like sentencing” has not helped. “I can understand why judges are angry about that ill-informed and crude campaigning. Courts have responded to that by being suppression order happy because it gives them a sense of security – and because they can.”

The Age’s Mr Bachelard says the courts’ broadbrush lack of trust and confidence in the media in Victoria has made it difficult for journalists to do their jobs. “There seems to be a very real belief in the judiciary that journalists are irresponsible and incapable of being responsible. By all means whack us if we’re wrong, but it is unfair to pre-emptively whack us on the basis that we are incapable of getting it right.”

In his critique of the media regarding the Pell conviction, Chief Judge Kidd claimed that none had appealed against his suppression order. But with suppression orders coming in thick and fast on a daily basis, media organisations say it is difficult to keep track of them all, let alone mount appeals against the bans. Media organisations have few resources available to litigate, Associate Professor Bosland points out.

The Vincent Review recommended the establishment of a public interest monitor that could be requested by a judge to appear as a contradictor to have input into opposing a suppression order. The LIV has supported this recommendation as a vehicle for arguing in court for open justice.

“At the moment, when both prosecution and defence seek a suppression order, there is currently no objector. That makes it hard for the judge to oppose a suppression order when it is supported in the interests of a fair trial,” the LIV's Mr Webb says.

However, Associate Professor Bosland says that rather than a judge seeking that input, what is needed is an independent advocate which would receive a notice whenever there is any order that impacts on open justice “and they would make an independent evaluation as to whether to go to court and put in a submission.

“That way there is much more of an independent oversight of open justice, which would give public greater confidence around openness.”

Journalists’ union the Media, Arts and Entertainment Alliance (MEAA)has also recommended an open courts advocate to argue for the public interest, saying that it is not viable for media organisations to constantly monitor, analyse and play the role of a contradictor.

It has also been suggested that there may be ways other than blanket bans of ensuring fair trials. “The government needs to consider whether other options for ensuring fair trials, such as enhanced jury directions and judge alone trials, would be as effective,” Mr Webb says. Victoria is among the very few jurisdictions in Australia to not have judge-only trials.

Associate Professor Simons says a practical approach in the Pell case could have been to allow the reporting of the conviction verdict without allowing the details of the evidence to be reported on. “The really prejudicial stuff was not so much the verdict but the details of the case, which only the people sitting in the court had access to,” she says.

However, one of the biggest problems with suppression orders is the inconsistent way in which they are policed and enforced, she says. “It’s a mess – and speaking as a journalist educator it’s really hard to teach this area,” she says. “The problem is that you have the law of sub judice contempt, which is in effect held in contempt because it is so often breached and no action is taken. It is bringing the whole law into disrepute. We need it to be codified, which it isn’t at the moment. It’s largely common law and that gives rise to a great deal of confusion about where the rules lie – it varies between states and between advising lawyers. Suddenly for some reason the authorities will crack down and everyone says ‘what?’ – especially when for years there has been contempt and the DPP hasn’t taken any action.”

But Associate Professor Bosland believes it is not the actual law that is the problem, but the way in which it is being implemented by lawyers and judges. “I understand judges have competing demands . . . They have to ensure a trial doesn’t go off the rails because of adverse publicity. So there is a natural tendency on the part of a judge to protect a trial as much as possible.”.

Courts should provide more detailed written statements of the reasons for suppression, Associate Professor Bosland says. "That would have a disciplining effect on the judicial decision-making and process around suppression orders and would allay some of the concerns around the overuse of suppression orders in terms of the public perspective because they would know why certain suppression orders have been made.

“There would be transparency around that decision-making process – and the very act of having to provide reasons would make sure the judge in question absolutely considers the necessity of the order because they have to explain it." 

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