Mr XX marks the spot
It’s not only the organs of executive government where secrecy and suppression of information are obsessive.
In Canberra, the red-ink stamp is smacked on anything that the prime minister fancies, even if it is not much of a secret at all.
But the habit has also caught on in the judicial arm of government, where suppression orders are now a dime a dozen.
In recent years, general run-of-the-mill court and tribunal suppression and no-publication orders in civil and criminal proceedings have steadily escalated. They now run at about 1000 a year across Australia – with Victoria leading the way under the Open Courts Act.
There’s a special dispiriting genre of the species where judges sprinkle anonymity orders on the heads of solicitors, barristers and even other judges.
Take for instance the case of the New South Wales solicitor sentenced to a current jail term of eight years after pleading guilty to five counts of dishonestly obtaining a financial advantage by deception.
The solicitor left a trail of ruin. He operated out of three law practices, where he targeted vulnerable clients, stealing their money to pay his own debts and expenses.
He nicked $290,000 in veteran’s compensation from a former air force pilot, and from another client who was suffering dementia he took $50,000.
The parents of a District Court judge were almost evicted from their aged-care home after the solicitor misappropriated almost $1 million of their money.
In all, $3.2 million was expropriated from clients.
The plunder only came to light after a Law Society audit of his practice in 2018, which led to the charges being laid.
But nowhere can you find the name of this ex-lawyer in the court reports or the newspapers, nor the name of members of his family or any information that could identify his law practice.
All that information was suppressed in March by Justice David Davies of the NSW Supreme Court.
The solicitor has been anonymised as “Mr XX”, and it will stay that way until 18 months after he has been released on parole.
At the earliest, parole won’t be granted until August 2024, so his identity will stay under wraps until at least sometime in 2026.
And he could, of course, apply for a fresh order anonymising his identity once the current one runs out.
Justice Davies made these orders on the basis of three reports from psychiatrists engaged for the sentencing and the suppression application. The consensus was that not only had the clients been vulnerable, but so too was Mr XX.
The solicitor was bipolar and following the discovery of his Ponzi scheme he was admitted, in early 2019, to a private hospital.
Even so, he was still dealing with clients until August 2019, when the Supreme Court put a stop to his lawyering.
The psychiatrists thought that even though Mr XX was medicated, the stress of being caught, found guilty, imprisoned and identified could lead to “suicidal tendencies”.
The very thought of having his name associated with his misdeeds might push him over the edge.
It does not appear that the Law Society obtained separate medical advice and in fact did not oppose the order for anonymity.
Dr Richard Furst, one of the psychiatrists retained by the solicitor, advised that the non-publication order should be “extended over several years (including allowing [Mr XX]’s lengthy period of adjustment into the community when released on parole)”.
Justice Davies thought that 18 months’ worth of anonymity, at least for now, would be sufficient. He also ordered all references that would identify Mr XX be scrubbed from earlier judgements of the court.
Clearly, these are difficult circumstances. A judge was told by three mental health professionals that a prisoner might kill himself if his name was published.
And no doubt it’s a depressing business being sent to prison. But that would be true even where non-lawyers are sentenced.
Another recent case involving the cone of silence, from April this year, concerns a NSW barrister who chalked up a tax debt of $550,000.
The Court of Appeal decided his privacy should be protected, and his identity shielded from view – for 20 years. His wife’s name cannot be published either.
In this case, the consulting psychiatrist, Dr Brown, said of his patient:
“It’s possible that he suffered a mild, possibly moderate, persistent depressive disorder during that period but it wasn’t severe enough to impair his functional capacity to work and earn income.”
Nonetheless, the court has given the barrister the identity “DEJ” due to a “sufficiently realistic prospect of harm” if he is publicly named.
The case was accompanied by a degree of confusion. In 2012, the bar council placed conditions on the barrister’s practising ticket – namely, that he had to file business activity statements and tax returns.
Since he did not comply, proceedings were commenced in the administrative tribunal to expel him from the trade.
The tribunal found that he had lied to the bar council when he told them that the family home was the sole property of his wife and so could not be used to pay his tax bill.
Justice Anthony Meagher in the court of appeal found the barrister hadn’t lied. It seems the family home had been sold and the proceeds of $1.7 million were placed in the wife’s account, even though $550,000 was still owing to the Australian Tax Office.
In two separate affidavits, the barrister explained he’d transferred sole ownership of the property to his wife in 1996 but had neglected to register the transfer.
While there was psychiatric evidence explaining DEJ’s condition, Justice Meagher redacted it from his published reasons.
The 20-year suppression order is to “take account of DEJ’s age”.
The struck-off barrister also happens to be the son of a former judicial officer.
The third recent example of the genre involves a blitz of alphabetical disguises, namely a law firm called ZZZ Pty Ltd, trading as ZZ, where the principal was Mr XX – not to be confused with our previous Mr XX.
This XX from ZZ is believed to have received $292,500 from a client who thought the money was going into a trust account – except that this firm didn’t have a trust account.
There was another puzzling element to the case, where a lawyer had been nominated as the principal of the law practice, but she did not provide the services of a solicitor.
Rather XX, who was the principal of another firm, arranged for her to sign documents in exchange for a salary in return for which she would be the personal assistant to XX’s wife.
In 2018, Justice Lucy McCallum in the NSW Supreme Court said that the client’s money appears to have been “misappropriated by Mr [XX]”.
Whiz forward to May 5 this year and an amendment to McCallum’s 2019 judgement has been posted by the court: “The names of the legal practice and legal practitioner associated with this decision have been anonymised.”
A fortnight ago there were newspaper reports that the safety of a solicitor charged with four counts of recklessly dealing with the proceeds of crime required his identity to be suppressed, along with the name of his law firm.
This relates to allegations that bank accounts associated with the solicitor received money from elderly victims as part of a crypto-currency trading scam run by a syndicate from Eastern Europe and Israel.
One report claimed the Law Society of NSW knew about this for two years, but the solicitor still had his shingle out during that time.
Lawyers for the accused unsuccessfully applied for the court to be closed and the reasons for this application suppressed. Instead, the magistrate dished out a suppression order.
Move on, nothing to see here.
These recent instances highlight how the level playing field of justice gets tilted for special occasions and special people.
Mr XX, DEJ, Mr XX from ZZ and the crypto-currency lawyer would likely feel alarm seeing their names publicly associated with their misdeeds and crimes.
Yet there used to be an idea that embarrassment to individuals caught in the cruel machinery of the law was not a basis for protecting their identities. Indeed, public admonition was part of the punishment.
One more instance of entitlement should not escape attention. The NSW Court of Appeal last month put its blue pencil through a decision about a case involving the apprehended bias of a judge in a criminal trial.
All we have are the following catchwords and a note that says: “The text of this decision has been restricted.”
“COURTS AND JUDGES – bias – apprehended bias – judge declined to recuse himself from presiding at criminal trial of applicant – judge’s partner of 29 years a Crown prosecutor who gave advice to police as to laying of charges against applicant – that Crown prosecutor not involved in subsequent pre-trial steps – whether judge disqualified by interest or association – application of Ebner test – fair-minded lay observer might reasonably apprehend that judge might not bring an impartial mind to his conduct of forthcoming trial of applicant.”
Another case of open justice hard at work.
This article was first published in the print edition of The Saturday Paper on May 29, 2021 as "Mr XX marks the spot".
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