Australian judges impose almost 800 secrecy orders in 2017, Adelaide courts alone handed down 21 in just 21 days

COURTS around Australia have imposed almost 800 secrecy gags so far this year — and Adelaide’s judges have restricted your right to know 21 times in 21 days.

• Senior judges says suppression orders ineffective against social media
• Suppression orders surge by almost 50 per cent in 12 months

COURTS around Australia have imposed almost 800 secrecy gags so far this year — and Adelaide’s judges have restricted your right to know 21 times in 21 days.

An Advertiser study of the nation’s suppression order registers has found that, between January and November, judges and magistrates blocked publication of cases 727 times.

SA’s courts account for 154 of those publication bans — 21 of which were imposed in the 21 sitting days between October 16 and November 13.

The study comes as the Full Court of the SA Supreme Court prepares to hear a landmark case that will determine whether suppressions have any value in the age of social media.

Professor Joseph Fernandez, from Curtin University’s Department of Journalism, said judges were “dishing out” suppressions in a panic over their inability to control information.

He said censoring journalists would leave the public seeking information from unreliable, biased sources online — where rumour and speculation ran “rampant and rabid”. “This study speaks to a sense of panic, within the judiciary, over the loss of its sense of controlling the flow of information — it’s so futile,” he said.

“The emergence of the internet, social media and self-publishing in the 21st century have rendered suppression orders a mockery of control.

“Cutting journalists out of the discussion gives rise to rumour, oxygen to inaccuracy and opens the public up to more serious misinformation than legitimate reporting ever could.”

Suppression orders have been the single most controversial aspect of SA’s justice system for the past 20 years — at their height, in excess of 220 were imposed annually.

Legislative change, in 2007, was supposed to arrest their use by emphasising the public’s right to know, but their numbers have accelerated again since 2014.

Since 2010, the identity of criminals such as murderer Jason Alexander Downie and paedophile Bernard Finnigan have been published on social media, despite suppressions.

Members of the public were not prosecuted for doing so — had they been journalists, they would have been fined or even jailed.

In August, the District Court refused an accused man’s bid to suppress details about his case that were already widely available online.

It ruled suppressions had been “undermined” and “blunted” by technology, because matters could be read about “irrespective” of restrictions placed on journalists.

The defendant has challenged the decision in the Full Court, keeping his identity suppressed until it makes its decision.

The Advertiser study shows SA is the third most-frequent user of publication bans, behind NSW with 159 and Victoria with 375 — 33 of which were imposed in just 21 days.

Social researcher Mark McCrindle said judges were leaning on “a commonly used tool that is becoming less effective” because “the world is changing”.

“There’s parallels to Uber being banned at first, because it didn’t comply with taxi regulations, or Airbnb running afoul of zoning and hotel rules,” he said.

“The speed of uptake of these technologies, and their global reach, meant legislation had to adjust to reality — that is now the challenge for judges in terms of suppressions.

“There comes a point where we have to accept we can’t take 20th century principles, apply them to a 21st century society and think they will work as they did.”

He said court orders that expired at state borders could not stop online publication, and held no sway over bloggers and writers who did not abide by codes of journalistic ethics. “That has meant the power, the legal reign, of suppression orders has markedly diminished,” he said.

Mr McCrindle said curbing the media’s ability to fairly and accurately report court cases created a vacuum that would be filled by agenda-driven online writers.

“Licensed, official and well-regarded publishing brands do have a level of trust that stands above someone’s blog or social media post,” he said.

“There is acknowledgment, by Australians, those brands produce legitimate content through trusted processes — and that journalists stand by their work.” Professor Hernandez agreed.

“It’s very important that the administration of justice should be seen as fair and recognise the presumption of innocence, and no one wants to challenge those fundamental ideals,” he said.

“The courts themselves have acknowledged the importance of openness, transparency and accountability if the justice system is to be respected by the people.

“Suppressions are something that should be applied with great care — from the statistics, they’re being dished out quite freely at a rapid, exponential rate.

“This mean the public won’t be able to form intelligent judgments about court matters and are instead being exposed to the rampant and rabid spread of bad information.”

CASE ONE: THE KAPUNDA TRIPLE MURDER

Andrew, Rose and Chantelle Rowe were murdered in their Kapunda home, in November 2010, by Jason Alexander Downie.

Jason Downie

Within hours of his arrest, Downie’s identity was splashed across Facebook by those mourning the beloved family, and could be found on Wikipedia and Google searches.

When Downie faced court for the first time, prosecutors had his identity be suppressed until his alleged alibi had been checked out by police.

Some social media users deleted Downie’s name from their posts, but many did not.

No one was prosecuted for breaching the order, which remained in place for three months, and Downie would later be jailed for a minimum 35-year period.

CASE TWO: BERNARD FINNIGAN

In April 2011, state MP Bernard Finnigan was arrested over his use of child exploitation material.

Bernard Finnigan

The statutory ban on naming alleged child sex offenders gagged the media, but did not carry over into the online world.

Finnigan’s page on Wikipedia — a website that can be edited by anyone — was quickly updated with the allegations and details of his impending court appearance.

Meanwhile the media could only refer to Finnigan as “a state MP”, and TV stations had to place large black squares over footage of him.

In September 2012, Finnigan was ordered to face trial and the suppressions were lifted.

However, Finnigan challenged the order — and, in a moment of legal nonsense, his already-published name was automatically re-suppressed despite widespread publication.

While social media users discussed the case openly, a hastily-convened court hearing ruled Finnigan’s identity to be “in the public interest” and cancelled the re-suppression.

Finnigan received a suspended 15-month jail term.

CASE THREE: FACEBOOK DETECTIVES

In 2012, an Adelaide man was convicted of assault based on the testimony of eyewitnesses.

The following year, Supreme Court Justice David Peek not only overturned that conviction but also dismissed the charges and ordered the man go free.

He ruled the evidence in the case was tainted beyond use because the eyewitnesses had identified the man as the attacker by looking at his Facebook page.

“So-called ‘Facebook identifications’ have none of the safeguards which accompany a properly executed formal identification procedure conducted by the police,” Justice Peek said.

“In the age of Facebook, the spectre of what is little more than speculation very quickly solidifying into (proof) is something that must be very closely guarded against.

“Facebook has spawned a new generation of (amateur) private investigators (and) very great problems in relation to the potential contamination of evidence necessary for a conviction.”

CASE FOUR: THE SALT CREEK BACKPACKER KIDNAPPINGS

SA’s lamentable “suppression state” reputation was bolstered in February 2016 when Roman Heinze faced court for the first time.

Roman Heinze

Heinze was accused — and would later be convicted of — taking two young women from Brazil and Germany to Salt Creek, sexually assaulting one and bashing the other.

The graphic incident caught the public’s attention — something Adelaide’s prosecutors did their best to smother.

In an unprecedented application, they called for, and received, a total publication ban on descriptions of Heinze and his possessions, including blurred or pixelated photos.

The draconian bans remained in place for more than a year, stopping the media but in no way inhibiting discussion of Heinze — and sharing of his photos — across Facebook and Twitter.

The suppressions were finally lifted in May 2017, shortly before Heinze was jailed for 22 years.

Warning ‘keeps jurors on track’

JOURNALISTS and media outlets risk prosecution, hefty fines and even prison terms if they breach a suppression order.

To date, no charges have been filed against social media users for doing the same — so how do judges protect their trials from social media?

Prevailing legal wisdom holds that a stern judicial warning — such as the one Supreme Court Justice David Lovell gave a jury on Monday — is enough to keep cases on track.

“You must confine yourselves to the evidence that is given in this court,” he told jurors.

“It would be wrong for you to have regard to any other information that comes to your knowledge.

“Not only would it be wrong, it would be impermissible.”

He told jurors they must not investigate cases for themselves nor use social media “to determine anything in this case”.

“There are obvious reasons for that ... the internet is hardly the place where the repository of truth lies,” he said.

“It’s full of things that are partly true, a little true and sometimes just plain innuendo and rumour.”

Both longstanding legal precedent and recent cases support the concept that warnings are enough.

In April, the NSW Court of Criminal Appeal declined to grant a suppression order that would result in articles having to be deleted from newspaper and media websites.

Citing “the received wisdom of the courts”, it ruled juries “act responsibly” and can be relied upon to “comply with the directions of a trial judge”.

In a similar case just one month later, the court again ruled a judge’s warning was sufficient to steer jurors away from the internet.

“The rarity of cases of juror misconduct among the thousands of criminal trials each year, let alone misconduct by making inquiries impermissibly out of court, justify the validity of the assumption, and the effectiveness of judicial directions bolstering it,” it ruled.

Social researcher Mark McCrindle disagreed.

“Everyone knows there are limitations to how well the human brain can set aside what has been heard, read or seen, and become totally objective,” he said.

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