Inside the fight for open justice to be able to name convicted rapist Tom Silvagni
The fight to name Tom Silvagni is over, but without limits on suppression orders, open justice stays unequal and wealthy accused offenders will keep securing gag orders as rumours spread online.
Many people on social media will have known for a while that Tom Silvagni is the high-profile man convicted of raping a young woman.
His name has been mentioned in the comments of Facebook posts, Reddit threads and TikTok videos dozens – if not hundreds – of times, linking him to the stories about the rapist from a ‘high-profile’ family who could not be named.
Some people on social media have questioned why the mainstream media would protect a rapist.
What they don’t know is that the Herald Sun and other media outlets have fought at great expense for Victorians’ right to know by opposing the extraordinary suppressions ordered by our courts.
The Silvagnis have employed some of the state’s top lawyers to try to keep their son’s name secret on mental health grounds, claiming among other things that he feared his rape charges would cause “reputational harm” to his family.
They claimed he should not be named, even after he was found guilty of rape.
Finally, after a marathon legal battle, the ‘ban’ on publishing any information that might reveal Silvagni’s identity – which stood for 545 days – has been lifted.
Now we can tell you that despite the Open Courts Act suggesting that anyone charged with an offence should be identified, his family has spent hundreds of thousands of dollars to convince our courts that a special case should be made for him.
And despite the fact the mainstream media has likely spent hundreds of thousands of dollars across three court jurisdictions arguing that this rape case, like most others, should be open, the courts ruled up until now that he should not be identified.
The youngest son of Carlton champion Stephen Silvagni and TV personality Jo was charged with rape on June 14 last year.
On the same day, hours after he was bailed by police, the first interim suppression order was made in the Melbourne Magistrates’ Court, dictating that his identity must be protected.
After top silk David Hallowes SC won him the gag order, Silvagni walked out of the courtroom with an extraordinary cloak.
More than a week later, the Herald Sun revealed that his profile had been scrubbed from the website of his employer.
The story referred to Silvagni as an “AFL industry identity” from a “well-known AFL family” whose employer works closely with male and female players.
Neither his name, nor the name of his employer, was referenced.
But on June 26, the Herald Sun was hauled before Magistrate Brett Sonnet over the story.
The Herald Sun was not found to have committed any breach of the suppression order – because it had not.
But still, Mr Sonnet ordered this masthead to pay Silvagni’s costs of the hearing, which they claimed to be more than $30,000 because they included the legal costs for not only Silvagni’s barrister, but a separate barrister for Silvagni’s mother.
Mr Sonnet then slapped a stricter gag order over the case.
“There be no publication whatsoever directly or indirectly of any information concerning the proceeding,” it read.
After another hearing, he issued a further suppression order on July 15 to replace it.
Months went by before Silvagni faced a committal hearing on February 4 where details of the rape were aired for the first time and he was ordered to stand trial.
The suppression order was set to lift three months later on May 4.
But by April, Mr Hallowes was pushing for another suppression order to “protect the safety” of his client during the trial.
He did not want the suppression order to lapse without a new one ready to go.
Mr Hallowes submitted reports from Silvagni’s psychiatrist Jacqueline Rakov.
The court heard Silvagni feared the charges would cause “reputational harm” to his family by dragging their storied name “through the mud very publicly”.
Judge Peter Rozen questioned whether a lack of media reporting would instead lead to the circulation of “inaccurate, uninformed views” to the detriment of Silvagni’s mental health.
(And he was right. Since Friday, wild speculation has swirled, leading some people to believe the convicted rapist was Silvagni’s older brother, Ben.)
But Mr Hallowes said information about the case spreading by word of mouth was different from the story appearing on the “front page of the Herald Sun”.
Leading media lawyer Justin Quill from top tier law firm Thomson Geer said it was “absolutely unsurprising” that Silvagni would be suffering a high level of “mental distress” given he had been charged with a serious crime.
But he argued that the risks to his mental health were not at an “unacceptable” level.
Mr Quill also argued that a suppression order could fuel a perception that “powerful litigants” enjoy “indulgences” from the court, such as gag orders.
In a brave move, Judge Peter Rozen sided with the media and the prosecution, who also opposed the suppression order, ruling that the rapist had not met the legal threshold.
“I’ve determined that the applicant has not satisfied the onus of demonstrating that the order he seeks is necessary to protect his safety, so as to warrant the significant departure from the principle of open justice,” he said on May 2.
“I have concluded that the applicant faces a range of feelings of guilt, anxiety and distress as an unavoidable and expected response to the charges he is facing.
“He is a young man with no criminal history.
“He is a member of a family with a high profile in the community.
“The allegations against him are very serious.
“If convicted he can expect to serve a significant period in custody.
“He is deeply troubled about how all of this will impact on his brothers and their parents.”
Judge Rozen said Silvagni was “very likely” to struggle with his mental health whether or not a suppression order was made.
“Mr Silvagni is fortunate that he is a member of a loving family that is committed to maximising his wellbeing,” he said.
But Mr Hallowes immediately applied for a “judicial review”, calling for a Supreme Court judge to examine the ruling.
So, to preserve the status quo, another interim suppression order was made.
To fight the good fight, the media outlets hired barrister Emrys Nekvapil SC, who went head-to-head with not one, but two barristers hired by the Silvagnis.
Mr Nekvapil argued that Judge Rozen’s ruling should stand due to his careful consideration.
But in a blow to open justice, Justice Michelle Quigley disagreed, ruling on August 15 that Judge Rozen was “in error” in four different ways.
Yet another suppression order was made until a different County Court judge could rule on a fresh suppression order application.
The Herald Sun was preparing to launch an appeal of Justice Quigley’s decision in a bid to reinstate Judge Rozen’s ruling.
But when Silvagni’s legal team produced more psychiatric reports, the call was made to drop the appeal.
It paved the way for the final suppression order to be made by Judge Andrew Palmer on November 21, only days before the trial was set to start.
On its face, the order permitted the media to cover the trial, as long as Silvagni and his family were not identified.
But journalists were left scrambling on the first day of the trial when trial judge Gregory Lyon issued a stern warning.
“I want to make this absolutely clear. Read my lips and listen to this message. There is to be no reporting of this case. Full stop,” he told the court.
The media fired off an email to the court seeking clarification and the next day, the Herald Sun and other media outlets made the call to click publish.
The fight to name Silvagni is now over.
But unless the law is changed to limit these types of suppression orders, there will continue to be no equality in open justice, with another accused rapist or domestic violence perpetrator with deep pockets winning another gag order next week, next month, next year.
Meanwhile, the gossip, innuendo and scores of blatant breaches on social media will continue to go unpunished.
