Court suppression orders surge in SA by almost 50 per cent in 12 months

COURT suppression orders in South Australia have surged, increasing by almost 50 per cent in 12 months and leaping to their highest number in six years.

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COURT suppression orders in South Australia have surged, increasing by almost 50 per cent in 12 months and leaping to their highest number in six years.

Judges and magistrates issued 206 publication bans in the 2014-15 financial year, up from 140 in 2013-14, according to figures obtained by The Advertiser.

The dramatic rise has prompted concern the courts are “arbitrarily” gagging public discussion of crime and justice issues.

It has been revealed as a court on Monday reconsiders a gag on the identity of the alleged Salt Creek backpacker sex predator, who is charged with kidnapping, rape and attempted murder.

As perceptions grow that SA suppressions are more common and more strict than in other states, critics have questioned whether such orders have any value.

They warn the orders, which expire at state borders, fail to stop information and speculation spreading rapidly and widely on social media.

Dr Joseph Fenandez of Curtin University in WA said that, from his “outsider’s perspective”, the State Government must review the 206 orders issued last year.

“There is an urgent need to seek explanations for these rollercoaster fluctuations,” he said.

“It seems to me there is a certain degree of arbitrariness, by individual members of the judiciary, in terms of what is open justice and what is not.

“Are these statistics a reflection of whim and fancy? Until these orders are forensically examined, it’s difficult to know.”

His call was supported by Opposition Deputy Leader Vickie Chapman.

“These orders have got to be investigated and the reasons identified for having this oppressively large number of cases subject to suppression,” she said.

“SA has become the laughing stock of the country, and there is still no justification given as to why we are one of the leaders in the nation in terms of suppression orders.”

Victims’ Rights Commissioner Michael O’Connell said the increase was “curious”.

“The courts have to strike a difficult balance between open justice and protecting privacy,” he said.

Horse-mounted police search near Salt Creek in the Coorong National Park for evidence of an alleged sexual and physical assault of two backpackers. Photo: Calum Robertson

“There is a constant tension between an individual’s right to privacy and the public’s right to know about the processes of their judicial system.”

At 3pm today, the Adelaide Magistrates Court will review an interim suppression on the identity of a southern suburbs man, in his 50s, charged over this month’s Salt Creek incident.

Prosecutors are seeking to have the order, which bans publication of even pixelated images of the accused, made permanent.

They want that order placed on top of the automatic suppression of his identity, required by statute, because he has been charged with a sexual offence.

Both the order sought and the automatic order are governed by the Evidence Act (1929), which bans publications that prejudice the proper administration of justice.

They also prohibit reporting of anything tendered in court that may cause undue hardship to a child or an alleged victim of crime.

The statistics record suppressions imposed since 2007, when the Act was amended to reduce the number of orders issued by the courts.

Order numbers declined steadily from 2011 until 2014, reaching a low of 140, before rising to 206 in 2015.

The largest increase was in the Magistrates Court, with orders almost doubling from 66 to 115 in 2014-15.

Suppressions in the District and Supreme Courts remained relatively stable, rising from 45 to 57 and 27 to 28 respectively.

Just 29 suppressions were lifted under the compulsory annual review of existing orders.

Professor Fernandez, head of the university’s Department of Journalism, said the statistics showed the amendments had not succeeded.

“There are always matters that should be suppressed in order to protect victims and police investigations, that is right and proper,” he said.

“Outside of that, the default position should be that the public has the right to know, and the media to publish, unless prosecutors or defence counsel can prove otherwise.

“Parliament must give the courts direction, in the form of legislation, where the fulcrum should be placed on secrecy.”

Australia’s Right To Know Coalition — a body of 12 media organisations including the ABC, Fairfax and NewsCorp Australia, publisher of The Advertiser — agreed.

“The increasing number of suppression orders issued in SA is alarming and requires immediate attention,” a spokeswoman said.

“This is not just an issue for the media, this is an issue for all South Australians and their right to know what’s going on in their state.”

Mr O’Connell agreed orders protecting the rights of victims were beyond reproach.

“It is crucial to protect victims from undue hardship and further victimisation,” he said.

“Victims are less likely to report crimes or co-operate with police and prosecutors if, by doing so, they may be embarrassed or receive unwanted media attention.”

Mr Chapman said the State Government should take the lead and examine the issue.

“We have to have reliance on the courts to act responsibly,” she said.

“Where there is substantial change, it needs to be monitored and reviewed over a substantial period of time.”

A spokeswoman for the state’s Chief Magistrate, Judge Mary-Louise Hribal, said there was no single reason for the rise in suppressions “as each matter is different”.

“Given that almost all criminal matters begin in the magistrates court, it is likely that there will be more suppression orders made by the Magistrates Court when compared with the higher courts,” she said.

“Suppression orders are made for various reasons, including those that are required by statue, because of ongoing police investigation or to protect the integrity of the case.

“In most cases the order can be reviewed by the Supreme Court if a party or the media are dissatisfied.

“As each matter is different, there is no single reason to account for an increase or decrease in suppression order numbers.

“There is no obvious effect on the number of suppression orders due to the expanded jurisdiction of the Magistrates Court”.

Law Society president David Caruso said suppressions were not a “cultural” element of the state’s legal system.

“I’m anecdotally aware that SA seems to have more suppression orders than other states,” he said.

Attorney-General John Rau said suppression orders “are always a matter for the court”.

Suppression orders in SA by year

2015 — 206

2014 — 140

2013 — 155

2012 — 161

2011 — 178

2010 — 173

2009 — 207

2008 — 195

2007 — 216