The pointless exercise of suppression orders
Last month, a 50-year-old man was arrested in Sydney and charged with the sexual assault of a three-year-old girl, who he had allegedly lured into a stairwell at a chalet in Perisher.
The case came before the Local Court, where the solicitor for the accused applied for a suppression order over the identity of the client. The police prosecutor did not object.
The accused was not previously known to the child or her family, so this was not a case where knowledge of the alleged perpetrator could lead to discovery of the identity of the child.
Without further discussion, the magistrate granted the suppression order, saying: “Given the allegations are involving such a young child, I’m not opposed. It’s the sort of mud that would stick.”
This was done under one of the five grounds specified in NSW’s Court Suppression and Non-publication Orders Act. It ignored the concerns of investigating police officers, who were keen to publicise the allegation against this individual to see if more victims or witnesses would come forward. In fact, the police media people issued a statement appealing to the public for help.
This instance comes from the case work of Larina Mullins, a senior in-house lawyer for News Corp. She also noted the dismissive characterisation of the allegation of child sexual assault as mere “mudslinging”.
Mullins is at the front line of the war against suppression orders where the media seek the right to report information that judges have ruled should be hidden from the public. In this case she went to court to fight the magistrate’s suppression order yet, as is the case with media lawyers contesting these orders, she had one, and possibly both, hands tied behind her back.
There was no transcript available and it would take six weeks to get one. Anyway, access to a transcript is usually refused by the registry if there is a suppression order noted on the file.
There is no way of knowing the reasons for the order, other than that it was given under a section of the act where it is deemed “necessary to avoid causing undue distress or embarrassment” to a party or witness in a criminal case involving a sexual offence.
In her submission, Mullins outlined the law as she saw it. The primary objective of the administration of justice is to safeguard the public interest in open justice; the order must be “necessary”, not merely convenient, reasonable or sensible; “distress or embarrassment” required more than concern about an accused’s reputation; and an applicant has to show that their distress is sufficiently serious.
Suddenly, the accused’s counsel changed tack. No longer was there reliance on “distress or embarrassment” – the order was now said to be necessary under another provision of the legislation, to “protect the safety of any person”.
It was argued the accused had school-age children and their mother was concerned to protect them.
Clearly, there were contentious issues at stake – open justice up against the protection of the children of someone accused of a frightful crime. However, there is authority that has held that even though publicity may bring “disadvantage” to defendants and their children, that is not a sufficient ground for setting aside the open justice principle.
The magistrate revoked the suppression order. The accused’s name is David Carl Ewen. Three newspapers ran his name and image on page three and within 24 hours the details were on TV bulletins, online news websites, social media posts and YouTube. The media might claim a noble ulterior purpose – hoping that further complainants and witnesses might come forward.
In truth, news organisations depend on court reporting for much of their daily fodder. The tension is clear – courts want to protect their traditional notion of unprejudiced jury trials, while the media champion a public interest in open justice.
Mullins is part of an in-house legal team, and making appearances and submissions on behalf of the newspapers she represents is part and parcel of her daily job.
Not all in-house media lawyers have the time or resources to challenge suppression orders, however. On many occasions they have to instruct solicitors and brief counsel, with costs of up to $10,000 in the process.
As Mullins says, “That’s a lot of money for a name and a photo.”
There are about 1000 suppression orders made around the country each year. In the first six months of this year, 500 suppression and take-down orders have been made by courts, half of them from Victoria and the other half mostly from New South Wales and South Australia. It is simply impossible for media organisations to contest all those orders, even if they wanted to.
Earlier this year, Mullins instructed a barrister to apply to revoke an interim order suppressing the identity of the so-called “North Shore rapist”. Graham Kay had pleaded guilty to raping eight women between 1995 and 1996. He did 18 years of a 20-year sentence and had been subject to parole supervision. The Supreme Court was asked to extend his supervision order for a further three years under legislation dealing with high-risk offenders.
The court granted an interim suppression and pseudonym order pending publication of the reasons in the parole supervision application.
When the judgement extending the supervision order was published in March, The Daily Telegraph applied for the non-publication order to be lifted. Kay opposed that, submitting that he had real concerns for his safety. “I am scared that I will be threatened, harassed or attacked.”
There were also a number of online posts that were “offensive, threatening and violently disposed to the defendant”.
The Telegraph successfully argued Kay had failed to establish that his safety was at risk and in any event it would be futile to continue with the no-publication order because there already was so much information published about him, including three judgements of the NSW Supreme Court, that went into details about his crimes and could readily be found online.
Justice Ian Harrison revoked the interim orders, saying: “Nothing in these reasons should be taken or understood as encouraging or endorsing, as an acceptable practice, the publication of distasteful, hateful or gratuitous comments in print or electronic media by anonymous contributors.”
As promptly as possible, the Telegraph published a picture of Kay under the banner: “How we unmasked North Shore monster” and the headline “Nowhere to hide for vile rapist”.
There is a tension between lawyers championing the cause of a free press and what the free press does once it gets its hands on the information.
Last year, the NSW Court of Criminal Appeal made some important in-principle rulings about take-down orders affecting news media websites. Even though these judgements contained important rulings on the relevant law, they were themselves subject to non-publication orders because of trials that were under way.
In the Qaumi case, a murder trial involving gang warfare between the Blacktown and Bankstown branches of Brothers for Life, the trial judge ordered the media to remove articles from their news websites.
The order was directed at stories that connected the accused with other offences not the subject of the current trial, the criminal history of the accused and their propensity to violence, and comments from police.
Nationwide News and the ABC appealed the orders and the appeal was heard by the three most senior judges in the state: the chief justice, the president of the court of appeal, and the chief judge at common law.
They overturned the take-down orders on the grounds that they were “futile”. The online material was plentiful, had been posted for some time, some of it had been published on overseas websites, and to order local websites to remove the relevant articles could be seen as “merely scratching the surface”.
The Court of Criminal Appeal made its decision on the media application in May last year, but the judgement was not available until February this year, when the Qaumi trial had concluded.
Another decision by the Court of Criminal Appeal, in the case AW v R, had also been held back from the date it was decided last year.
AW was on bail for the sexual assault, along with up to seven other men, of an incapacitated 16-year-old girl. One of the men recorded the offence on a GoPro camera. This was widely reported in Australia and overseas, including on Facebook, the Daily Mail and the BBC. AW applied for an order that the top 10 Google results that appeared when searching for his name should be purged from the internet. Nationwide News, the ABC and AAP opposed that application and the media’s arguments found success with the appeal judges.
Again, the court reasoned that because there was so much out there, much outside the long arm of Australia’s law, a take-down order was not necessary to prevent prejudice to the proper administration of justice.
Further, one of the judges observed that if the first 10 Google search results were to be removed, wouldn’t the next 10 just move up to take their place?
Other recent appeal decisions have emphasised the judiciary’s great faith in the robustness of jurors – that they will be true to their oaths, won’t do their own research and won’t take into account material outside the evidence they have heard in court. This is a nice change from the days when jurors were regarded as delicate flowers.
The latest reasons from appeal judges show that courts should be coming to grips with the insatiable march of online and social media. Still, the reasoning is slow to trickle further down the judicial food chain.
Invariably, suppression is still the knee-jerk reaction of trial judges and magistrates. In Victoria, under that state’s Orwellian Open Courts Act, one media lawyer counted receiving eight notices of orders from the court in one day.
The orders are frequently made without a proper legal basis, more in the mode of ticking a legislative box and without any attempt at judicial reasoning. The cautionary tale is that another corner of democracy is being chipped away as courts increasingly close themselves off from the public they serve.
Ultimately, it’s a pointless exercise. Technology and the free flow of information will not be stopped in the name of preserving jury trials that cling to a centuries-old mode.
This article was first published in the print edition of The Saturday Paper on Sep 30, 2017 as "Stressed to suppress". Subscribe here.