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Suppression orders granted too readily in Victoria’s paternalistic system

Suppression orders granted too readily in Victoria’s paternalistic system

By Karin Derkley

Courts 

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A paternalism that assumes juries can’t distinguish between fact and falsity underlies the system of suppression orders in Victoria, a forum heard this week.

Former Supreme Court judge Frank Vincent, who conducted a review of the Open Courts Act in 2017, said Victoria had a culture of too easily granting suppression orders.

That culture was rooted in the fact that much of the law is paternalistic and assumes that ordinary citizens can't be trusted with certain classes of information, he said at the Law and You forum Suppression orders in Victoria: supporting or distorting justice? hosted by the Victoria Law Foundation.

“Much of our law reflects the inherited prejudices of earlier generations. It wasn't long ago you couldn't rely on evidence of women and children. (This prejudice) is still lurking in the corners of the minds of many judges. And these notions come from a time of an almost elitist approach to juries that was never justified and is certainly not appropriate in this day and age.”

ABC journalist and author Louise Milligan, who wrote a book about the Cardinal Pell case, pointed out there were 1200 suppression orders granted in Victoria last year compared with just 490 in NSW. “They are sought by people who have done something wrong and are embarrassed about it.”

In other jurisdictions, juries are trusted to be able to make decisions “unpoisoned” by the press, Ms Milligan said. “The OJ Simpson case (in the US) couldn't have had more publicity, and the jury made their decision contrary to the idea that a person can't get a fair trial if there's a whole lot of stuff in the public domain that is prejudicial against him.”

Granting suppression orders has been the path of least resistance for a judge, Victoria Bar president Dr Matt Collins said, “because if something goes wrong with the trial and the jury is discharged, the judge faces the risk of being criticised and (the trial being) reversed on appeal. The Court of Appeal is never going to criticise that the trial has not been conducted on a fair basis if a suppression order has been granted.”

Dr Collins said that in every other aspect of the law judges demand evidence before they make a ruling. “But in this area we work on an instinct that juries can't be trusted, (even though) there is very little evidence that supports that proposition.”

The media no longer has the resources to go into court to argue that a suppression order should not be granted, he pointed out. “So there is often nobody speaking out against granting a suppression order.”

Victims of Crime Assistance Tribunal principal registrar Rod Ratcliffe said anything that delays a trial is going to run the risk of re-traumatising a victim. “It's a dangerous thing to breach those orders. It doesn't help the victim.”

But he said some victims wanted more openness, and that given the media did not have the resources to fight suppression orders, a meaningful voice has to be given to victims that stands outside that realm.

As a way of stemming the flood of suppression orders, Judge Vincent called for a public interest monitor which would have a reserve power to challenge orders and ensure orders were necessary and appropriate.

Dr Collins said judge-only trials should also be an option in Victoria. “Victoria is the only jurisdiction where it is not possible for an indictable crime to be tried before a judge sitting alone. In cases of particular notoriety it is a tool in the armoury to deal with the problem of prejudicial publicity.

But Judge Vincent said this was a proposition he did not accept, except in situations of national security or when dealing with witness protection when people's lives are in danger. “There is absolutely no justification for a judge-only trial just because a particular individual is well known and there might be community attitudes expressed about that person.”

“We have jury trials all the time in the country where everybody may know what's happened, but no suppression orders are made. You can't go in with this idea that juries would never go into a trial with any prejudice of any kind. We have to accept there is a much more sophisticated community that daily is forced to discriminate what is true and what is not.”

But Dr Collins said that while in the vast majority of cases criminal trials will be determined by juries and the problem of publicity will be determined by jury directions, “in some rare cases if there was a choice between judge-only trial or no trial at all, the lesser evil is a judge-only trial”.

Watch a video of the forum here.


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