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A coalition of major media groups has taken the unusual step of directly petitioning Victoria’s attorney-general for a law change to stop high-profile defendants from shielding their names and crimes from public view.
Senior representatives from The Age, The Australian, Herald Sun, The Guardian, the ABC and Melbourne’s three commercial broadcast networks have together written to Attorney-General Sonya Kilkenny warning a proliferation of suppression orders issued on “mental health grounds” was eroding open justice in the state.
The push for reform is backed by the Victorian opposition, which is considering its own changes to the state’s Open Courts Act, which governs the use of suppression orders.
A woman whose rapist used the provision to protect his identity through his committal hearing and trial said the system felt stacked against victims.
“I couldn’t understand that the only reason for the suppression order was to protect his mental health,” said the woman, who as a victim of a sex offence cannot be identified. “I couldn’t believe that was allowed.
“If the law is changed, survivors in the future will know that the justice system is doing everything it can to support them.”
Shadow attorney-general James Newbury said it had become common for defendants facing serious charges to secure orders for mental health reasons.
“Many victims feel like their voice has been silenced when a suppression order is granted,” he said. “We need to accept that every serious matter causes an accused mental strain.”
Kilkenny earlier this week said balancing open justice with the right to a fair trial was “fundamental tenet” of the system.
“We need to make sure the balance is right, and we need to make sure also, as we have clearly demonstrated, that we listen to the voices of victim survivors.”
Melbourne Law School associate professor Jason Bosland, whose research into the use of suppression orders informed the design of the Open Court Act, said the law as written should make it extremely rare for defendants to secure orders on mental health grounds.
“It is entirely justified for defendants in criminal proceedings to get name suppression in circumstances where disclosure of their identity would cause them to commit suicide,” he said.
“The problem we have is it is very easy to make that claim. It is very, very difficult to distinguish legitimate cases and cases where they are just trying it on.”
Under the Open Courts Act, defendants can obtain a court order suppressing the publication of their identity if they can prove it is “necessary to protect the safety of any person”.
This provision is increasingly being used by sportspeople, politicians, lawyers and other high-profile figures who claim that publication of their identifies would harm their mental health or psychiatric safety.
These cases include:
Tom Silvagni, a member of one of Melbourne’s most famous footballing families, whose identity was protected for 18 months after his defence team convinced a judge his mental health would be so damaged by any publication of his name that he would be unable to properly instruct his lawyers. The order was lifted after he was convicted of two counts of rape. He is appealing the verdict.
A former Victorian councillor charged with drugging and raping a 17-year-old. The man, who is still before the courts, cannot be identified due to a suppression order granted in December after his lawyers argued reporting his name would worsen his mental health.
Melbourne lawyer Glex Thexton, who sought but failed to secure a suppression order after he was charged with sexually assaulting an underage girl outside a Melbourne kebab shop after visiting a strip club. He was convicted, fined and placed on the sex offenders register.
Kaawirn Ugle-Hagan was granted a suppression order on the grounds that publishing his name would impact the mental health of his footballing brother, AFL player Jamarra Ugle-Hagan. The order was subsequently revoked and the 19-year-old given a good behaviour bond for driving under the influence of drugs.
Media lawyers who work in the Victorian court system say the law is now being applied with unintended consequences.
“Harm to mental health wasn’t contemplated when this legislation was introduced,” said Sam White, an in-house lawyer for Nine, parent company of The Age. “I think such a complex issue needs more careful consideration from parliament.”
He said the present use of the law also raised issues of equity. Silvagni briefed a second King’s Counsel, in addition to the senior barrister leading his legal team, to make his application for a suppression order and relied on the evidence of his private consulting psychiatrist.
“To get an application like this off the ground you need detailed expert evidence,” White said. “That can cost a lot of money to prepare. Very few people can afford it.”
One of Melbourne’s most experienced media lawyers, Thomson Geer partner Justin Quill, describes mental harm as the “new battleground in the fight against suppression orders”.
A report by Monash University associate professor of journalism Johan Lidberg and senior lecturer Alicia McMillan published this week by the Melbourne Press Club found Victorian courts “frequently and routinely” breached the Act. It concluded that the number of suppression orders issued by the courts and deteriorating access to court documents was threatening open justice.
The findings were rejected by Victorian Supreme Court Chief Justice Richard Niall, who said suppression orders were issued in a “tiny fraction” of cases before the state’s courts and tribunals. He noted that media groups can seek a view of any order made.
Director of Public Prosecutions Brendan Kissane, KC, told the researchers he had seen no evidence that courts were misapplying the criteria for suppression orders.
The media groups in their letter to Kilkenny claim that suppression orders based on mental health grounds have “dramatically increased” in recent years. They propose an amendment to make explicit that “safety of any person” refers to a real and substantial, physical safety risk from another person.
This would prevent defendants from using concerns about their mental health to prevent publication of their identity.
“The enormous recent increase in these types of suppression orders together with the nature of the suppression order applications themselves make it clear the mental health ground is being used as a tactic to obtain suppression orders in circumstances where no such order should be made,” the letter states.
“Ultimately, the important open court principles are being undermined in Victoria by this recent tactic.
“While we do not dismiss the legitimate mental health concerns of some defendants, we note that the mental health impact of being charged with and/or convicted of a serious crime cannot be separated from the impact of such trials being covered in the media.”
Signatories on the letter include The Age editor Patrick Elligett, Herald Sun editor Sam Weir, The Australian editor Kelvin Healey, Nine Melbourne news director Hugh Nailon, Seven Melbourne director of news Chris Salter, Network Ten’s Nicole Strahan, The Age senior reporter Michael Bachelard, The Australian Financial Review editor-in-chief James Chessell, 3AW manager Stephen Beers, ABC news director Justin Stevens, and The Guardian deputy editor Patrick Keneally.
When first legislated, the section of the Victorian Open Courts Act setting out the criteria for suppression orders, was identical to a law enacted in NSW. The NSW law was changed in 2018 after a District Court judge made a suppression order protecting the identity of Dubbo paedophile who raped and sexually abused multiple young girls decades earlier.
Under the change, it is more difficult for defendants in NSW to secure suppression orders on mental health grounds.
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