For the past few months, New Matilda and Marque Lawyers have been quietly reviewing the daily flood of suppression orders issued from various legal jurisdictions around the country. We’re ‘on a list’, you might say, which alerts us every time a court issues a suppression order on a trial. It makes for illuminating (and frequently frustrating) reading. Marque’s Hannah Marshall and Michael Bradley weigh in on an increasing and unfortunate trend in Australia’s justice system.
What is more important – open justice, or the accused’s right to a fair trial? Justice being seen to be done, or justice being done? In some cases, we can’t have both. Increasingly, when a big criminal trial of clear public interest is afoot, this tension is being strained way past what we’d call breaking point.
Suppression orders (court orders preventing the media from reporting on a case) are just one way to protect a fair trial. There are a bunch of reasons why suppressing information in a court case might be a better idea than having open justice. Witness protection, national security and avoiding unnecessary distress to victims are a few examples.
But what about when the trial is controversial, the crime is horrible, or the accused is well known? This will always attract the media. Pretty often though it seems, ‘news coverage’ is being dressed up as a risk so substantial that open justice must be overridden. In these cases, broad suppression is being granted on the basis that it is ‘necessary’ to give the accused their best shot at getting a fair trial.
The rules governing suppression orders say that there is a presumption in favour of non-suppression, that the first consideration must be open justice. They also say that the order has to be ‘necessary’. That should mean that suppression isn’t ordered unless there is no viable alternative.
The traditional alternative to suppression is instructions to the jury – i.e. the judge telling them not to read about the case.
In the Anita Cobby murder trial, the first jury was discharged after news reports described one of the accused as an unemployed prison escapee. Then, more news outlets reported that the jury was discharged because of a report describing one of the men as a prison escapee. After that the accused sought a 6-month adjournment, basically until some of the heat died down and he’d have a better chance of a fair trial. This was denied. The reasoning was that the trial would always attract a lot of media attention, whenever it was held, and that any risk to the fair trial could be dealt with by instructions to the jury.
Another means by which the law protects fair trials is contempt laws. It is a contempt of court for a news outlet to report facts, background or prior convictions in relation to an ongoing case that isn’t in evidence before the court. Last year Yahoo7 was fined $300k for contempt when a journalist published facts from a victim’s Facebook page that weren’t in evidence in a murder trial in Melbourne. The trial was aborted as a result.
Neither of these alternatives has the same negative impact on open justice as a suppression order. That makes them preferable.
But it seems that courts don’t trust juries to follow instructions, and don’t trust the media to report only what is before the court. That’s the basis on which so many suppression orders are, seemingly, justified. The courts see the news media’s desire to report on notorious or sensational cases as making a fair trial virtually impossible.
Presumably it’s the internet which has so spooked the criminal courts that they are now so freely handing out suppression orders. The practical reality is that the impossibility of shutting down online news-sharing (real or fake) actually makes it all the more important that legitimate reportage of the facts has a fair go at competing with the rubbish which will be out there and available to potential jurors whether or not a judge tries to suppress it. The correct response to the challenges presented by the ubiquity of information is not to try to shut it down. That never works.
Still, this is what the courts are doing – trying to control the flow. The result is that, increasingly, big or controversial criminal trials are being held in a vacuum. Gangland cases, terror plots, drug-fuelled infanticide – these are all the kinds of trials for which there are current suppression orders in place preventing the media from reporting what’s going on.
And the problem isn’t just suppression. It’s the breadth of suppression and, worse, the suppression of suppression.
There is no doubt that in some cases a level of suppression is appropriate. But it should always be of the narrowest possible scope. Suppress the name of the witness. Suppress the police’s surveillance tactics. Don’t suppress the whole case. Don’t suppress the suppression – that’s called a super injunction.
There is a current suppression order in a Victorian murder trial that the accused not be referred to as a ‘femme fatale’. There is a suppression order in the trial of the alleged Family Court Bomber Leonard Warwick which, as best can be ascertained from the terms, seeks to protect the credibility of a prosecution witness. If that’s right, that’s a bold use of the suppression rules to say the least. Some of the other suppression orders, of which we’re aware but cannot even talk about, are simply ridiculous. And scary, if you care about the principle of a free press.
You can’t know for which cases there are super injunctions; that is, the media cannot even report that it can’t report. That’s the most insidious kind of suppression. It is unfathomable why, even if a case deserves broad suppression, the public can’t know about it. This displays a manifest distrust of not only the press and the jurors, but of the public.
The blind silence which descends, in the place of open justice, decays the public’s confidence in the justice system altogether. You don’t have to be much of a student of legal history to appreciate the bad things which tend to happen in the shadows of suppression.
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