Victorian rulings suppress open justice

THE rate of issue of suppression orders in the Victorian Magistrates Court has almost doubled in the first four months of this financial year despite a push from within the magistracy for greater commitment to open justice.

THE rate of issue of suppression orders in the Victorian Magistrates Court has almost doubled in the first four months of this financial year despite a push from within the magistracy for greater commitment to open justice.

Latest figures derived from the Magistrates Court's case management system, Courtlink, and provided to The Australian show that 84 suppression orders were issued across the state's magistrates courts since July 1, compared with 100 for last financial year.

The trend towards greater numbers of suppression orders comes despite the winding up of most of the gangland trials, which were widely blamed for the fact that 76 per cent of the nation's suppression orders issued since 2004 were issued in Victoria.

Though those who track Victoria's suppression order statistics believe that good record-keeping on the part of the state's courts has led to Victorian courts being overrepresented in the national suppression order data, questions are being asked about whether suppression has become a "matter of procedure" during court hearings in defiance of the open-justice principle.

"It's suppression heaven here," said Victorian Criminal Bar Association chairman Stephen Shirrefs SC. "A situation has developed where it seems as though the applications for suppression orders are being made without proper consideration.

"It is out of control."

Mr Shirrefs said that the granting of suppression orders had become "a matter of procedure", particularly in the state's lower courts.

He said that rather than have to spend time hearing arguments and weighing up whether suppression orders are issued, if the orders are unopposed by the other side, they are rubber-stamped by judges or magistrates as "a matter of convenience".

"What tends to happen is the police ask for overkill; they ask for everything they can get," Mr Shirrefs said. "The defence counsel sitting at the bar table probably don't care because the less that is published about their client, the better.

"As a consequence the judge or magistrate tends to make the order because it's unopposed. But the fact that an application is unopposed does not mean it should be made. There is an overarching presumption and that is that justice should be open. The focus has not really been on that general presumption."

A recent report by former chair of the NSW Independent Commission Against Corruption, Irene Moss, identified a steady erosion of the principle of open justice in the nation's courts. The report took particular aim at Victoria, which issued 697 suppression orders between May 2004 and September 2007, compared with 107 for the same period in NSW, 75 in South Australia, 23 in Victoria and six in Queensland.

Victoria's newly appointed Director of Public Prosecutions, Jeremy Rapke QC, has flagged a reduction in the number of suppression orders being applied for by prosecutors in the wake of the gangland cases. "Certainly if I have anything to do with it, we should apply for these orders only in rare cases where the administration of justice would be adversely affected or where somebody's safety is at risk," Mr Rapke told The Australian.

Mr Rapke said he sensed that the focus on open justice in the state's courts had intensified following the wave of blanket suppression orders slapped on the reporting of gangland murder and police corruption trials in the Victorian Supreme Court during the past two years.

Victorian Deputy Chief Magistrate Jelena Popovic said there were several reasons why the number of suppression orders issued since July in the magistrates courts had not fallen, as had been expected with the conclusion of gangland cases.

"From a cursory examination of the suppression orders made in this financial year, it appears the factors include the possible tainting of identification evidence, proceedings relating to cases already on foot and safety concerns," Ms Popovic said.

There is also a widely held view in Victorian criminal law circles that the criminal code of silence was cracked by the Purana taskforce of the Victoria police. That taskforce successfully prosecuted murderer Carl Williams on the basis of the evidence of his previously close associates becoming informers.

Supporting that theory, Magistrates Court figures also show a trend towards more suppression orders being made to protect police informers, Ms Popovic said. "In some of these instances, investigations are on-going and any publication would interfere in effective investigation," she said.

Despite the trend, Ms Popovic said there was a renewed emphasis on open justice within the court in the wake of the gangland cases, which had resulted in greater education among magistrates on the competing issues surrounding suppression and open justice.

"We are getting very cautious about issuing suppression orders without (a) proper basis, possibly as a knee-jerk reaction to the fact that we were issuing so many suppression orders (during the gangland period)," Ms Popovic said. "We don't give them out like confetti."

The Victorian Magistrates Court Act prescribes that suppression orders must only be issued when it is necessary to do so in order not to compromise national security, the administration of justice, or the physical safety of any person. There is an additional criteria that allows for those giving evidence in sex-assault cases to be shielded from scrutiny.

But Ms Popovic said some barristers still continued to request suppression orders beyond the scope of the legislation. "You would be surprised how many times we get asked to issue a suppression order because it would be embarrassing to a defendant," Ms Popovic said. "That is not a criterion under the law."

However, the deputy chief magistrate said suppression-order applications that would have good prospects of being successfully challenged were sometimes granted by magistrates because there was nobody arguing against them.

"Sometimes we get applications to make suppression orders and there is no argument from the other side," Ms Popovic said. "So we end up making all sorts of orders, because we are only hearing one side of the argument. Whereas, if there had been more argument about it we might not make a suppression order."

The problem with such an approach is that it places the onus for arguing against suppression orders on media organisations, whose representatives are often not present when the orders are made, according to Elizabeth Beal, editorial legal counsel for the Herald and Weekly Times, publishers of the Herald Sun.

Ms Beal said media companies often had no opportunity to challenge the making of a suppression order and were sometimes forced unnecessarily to spend money in challenging them. "A suppression order may be made when we have not got a journalist present at that particular moment," Ms Beal said. "Because we are not able to have a reporter present in all cases at all times, we have to decide which matters to spend the money sending legal representatives to challenge or overturn the making of a suppression order.

"Herald and Weekly Times regularly opposes the issuing of suppression orders, and that decision is made on the broader principle of open justice."