End Victorian era of court secrecy

Victoria was the only state with a statutory bill of rights until Queensland enacted one last week. Ironically, Victoria also has the most closed and secret system of “justice” in the country.

It has more suppression orders than the rest of Australia combined. This is a stain on the legal landscape.

The situation is made profoundly more untenable by the fact that the Victorian courts are the ones that have most stridently developed the jurisprudence that logically negates reasons that could support suppressing court proceedings.

The strongest reason a court can have for suppressing legal proceedings is that it would prevent an accused from having a fair trial due to negative media publicity, which would potentially cause jurors to prejudge the matter.

This was the reason the Cardinal Pell trial was shrouded in secrecy. However, the argument that secret court hearings are necessary to ensure a fair trial is incontestably flawed, for reasons firmly set out by the Victorian Supreme Court and the High Court.

A fact check shows there has been one case in Australia’s history where a permanent stay has been ordered due to adverse pre-trial publication. That’s right: one. And that was more than 80 years ago, in the High Court case of Tuckiar. A lot of notorious people have been prosecuted in the past 80 years or so. None has succeed in using pre-trial publicity as a basis for avoiding a trial.

And the reality is that unless the High Court of Australia does a gold medal backflip on the preconditions for a fair trial, no accused in the future will avoid their day in court because of negative media exposure.

The High Court in 2010 in Dupas held that mass negative media coverage did not prevent a defendant from being tried because any adverse preconceptions of jurors could be negated by judicial directions telling them to evaluate the case on the basis of the evidence.

This view has been debunked by psychological research into human decision making. The empirical data establishes that biases can’t be eliminated by fine words — even from behind a bench. The only pragmatic reason underpinning the decision in Dupas is recognition that the social imperative to bring suspects to trial is so powerful that no amount of adverse publicity will ever lead to a permanent stay in Australia.

The fact prejudicial publicity will never again lead to a permanent stay is demonstrated by the judgment of the Victorian Supreme Court in Mokbel in 2009. This is the strongest case of juror impartiality brought in an Australian court.

Expert evidence, in the form of an independently commissioned survey, showed most Victorians believed he was a drug dealer. There were countless books, articles and internet posts depicting Tony Mokbel as a drug boss, with many referring to his prior convictions. Mokbel at that time was arguably the most high-profile accused in Australian history — Ned Kelly aside. The stay submission was summarily rejected on the basis that jurors would be told to ignore any bias against the accused.

Moreover, suppression orders are largely futile in the era of social media and access to reportage from around the world. The Pell conviction was reported in overseas newspapers within hours of the guilty verdict being handed down.

A suppression order in such circumstances is pointless, and a classic example of why many lay people are rightly bemused by the remoteness and artificiality of the court system.

And there is no jurisdiction more in need of an injection of confidence into its legal system than Victoria.

The royal commission into the dealings of Lawyer X (now known to be Nicola Gobbo) and the IBAC inquiry into the falsification of evidence by police in relation to the Silk and Miller murders has battered the integrity of the Victorian criminal justice system.

This is not a time for more secrecy in our courts.

An indispensable component of the rule of law is open justice. This principle has remained unchallenged for hundreds of years. It is staggering how little regard Victorian courts have to this principle.

Like most Victorians I am still waiting to learn of any persuasive counter arguments to this principle.

A necessary element of open justice is intellectual and jurisprudential candour about the contours of a fair trial. The reality is that this is not an inviolable principle.

The best that our system of law offers is the fairest trial possible consistent with the foundations of our adversarial, jury-based legal system.

All humans have biases, actual and subconscious, and we are all prone to prejudge matters. Accused who have received saturation levels of negative media publicity will always find it more difficult to be acquitted.

The empirical data debunks the pretence that the negative preconceptions of jurors can be erased by a direction from a judge. Unfortunately, judges receive no training in dealing with their own subconscious bias or those of jurors — certainly directions to jurors on such matters are incapable of meaningfully displacing subconscious bias against offenders. Our system of law aspires to ensure that guilt or innocence is judged impartially but sometimes this aspiration is not possible. In these cases, the law opts for what is regarded as the less harmful option; permitting trials with an element of prejudgment, as opposed to providing immunity from prosecution for certain offenders.

A move towards judge-alone trials, as occurs in NSW, could go some way to balancing these competing tensions. But this would only enhance the integrity of the system if judges expressly acknowledged their proneness to being influenced by subconscious considerations and undertook training to dilute the impact of these factors.

Professor Mirko Bagaric is director of the Criminal Justice and Sentencing Project, Swinburne University of Technology. He acted for Tony Mokbel in his extradition proceedings. Read his opinion piece originally published in The Australian.

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