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Open justice or fair trial? Australia’s gagging of the Pell case

FILE PHOTO: Cardinal George Pell

Sydney, Australia | AFP | Cardinal George Pell’s trial and conviction of child sex abuse in Australia was one of the biggest scandals to hit the Catholic Church, but the public was not allowed to know about it for months.

A blanket gag order stopped reporters from even mentioning the trial’s existence in what experts called an example of the tussle between open justice and the right to a fair trial in the digital age.

The court order — first imposed in mid-2018 after the Vatican finance chief was called to face two trials in Melbourne — was meant to guard against jury bias in the second case as the first was heard.

But with a single judge in effect seeking to prevent worldwide reporting of court proceedings, some observers said it represented excessive use of suppression orders.

It also raised questions about whether the borderless online world renders such measures outdated — and ultimately futile — in restricting the spread of information.

“There’s this kind of mentality that ‘if in doubt, we suppress’,” said Jason Bosland, a media law expert from the University of Melbourne, of the use of suppression orders in Australia.

“They are applied far too readily, they’re granted far too readily. But it’s not only the number, it’s also the scope of orders — they are very broad.”

Melbourne is in the state of Victoria, dubbed the “suppression order capital of Australia” due to the sheer number of restrictions issued, although South Australia state also issues them frequently.

– Witness protection –

The use of gag orders is also controversial in other countries.

In 2011, Britain’s privacy laws were thrown into chaos after the names of celebrities thought to have obtained so-called super-injunctions to hide scandals were circulated on Twitter.

That year a judicial report said gagging orders should only be granted where strictly necessary and that media who may be silenced by such bans should also be informed beforehand.

In Australia open justice is a crucial aspect of the court system, with suppression orders originally meant to be used only in exceptional cases such as those involving sexual assault or national security.

An unprecedented gangland war in Melbourne in the late 1990s changed that.

In a complex web of high-profile trials, courts turned to gag orders to protect witnesses and defendants — and became accustomed to using them in other cases.

“It caused a real cultural shift… if you were representing someone who had been charged with a serious offence, one of the things that would run through your mind is, ‘Oh, I’ll apply for a suppression order’,” Bosland said.

Meanwhile, growth in internet use meant the judiciary was struggling to control the flow of information from cases, making it harder for defendants to get a fair trial.

Fearful that jurors, who are not sequestered, could be unfairly influenced, judges, prosecutors and defence lawyers used suppression orders to shut down public reporting.

“You can’t stop everything… what I think the courts are trying to do is demonstrate to jurors that it’s really important that they only listen to or act on evidence that’s before them in court,” La Trobe University researcher and former veteran court reporter Peter Gregory told AFP.

A major 2017 review of Victoria’s suppression orders found that while the number issued was small compared to the caseload, of the 1,594 orders made between 2014 and 2016, more than one-fifth were blanket bans and 12 percent did not even specify on what grounds they were made.

– Right to know –

Only after Cardinal Pell’s guilty verdict in December did a small number of international media organisations publish news of the case.

Local media resorted to cryptic articles hinting that a big case had concluded but that they were blocked from telling readers about it.

Reporting on the trial’s existence was in itself a breach of Chief Justice Peter Kidd’s order, and as he berated the media, some pulled stories offline while others went quiet again, fuelling further speculation on social media.

Prosecutors wrote to up to dozens of publishers including News Corp Australia and the Australian Broadcasting Corporation, accusing them of breaching the order, Guardian Australia reported Tuesday.

Bosland said the case should spark a re-think of the process and is calling for a publicly funded “open justice advocate” to argue against gag orders and in support of open courts.

Following the 2017 review, the Victoria state government is also starting to implement some of its recommendations and last week introduced a bill requiring courts to detail the reasons for, duration and scope of gag orders.

“Suppression and closed court orders must be exceptions to the principle of open justice and should only be made when absolutely necessary,” Victorian Attorney-General Jill Hennessy said.

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