I’m a retired Supreme Court judge. Tom Silvagni should not have been prosecuted in secret

In April 2008, I jokingly referred to myself as the “Queen of Suppression Orders” when explaining to a jury why I had banned a show that had been about to air on the Seven network.

I was the Supreme Court judge in charge of the gangland murder trials involving Carl Williams and had issued some noteworthy suppression orders.

The TV segment was set to show Judy Moran arguing with Carl Williams’ mother over whose son was the better criminal.

When I commenced dealing with Williams he faced at least seven trials, predominantly for murder and conspiracy to murder, which involved seven different murders and was anticipated to take many years to be heard. Despite those upcoming trials, Williams, the charges he faced and his family were daily media fodder.

One reason for the orders was that I presumed that the first application that Williams would make would be an application for a permanent stay of all the trials on the basis of that publicity.

It would have been impossible to find an impartial jury if they had read about his conviction for one execution-style murder immediately before his trial for another execution-style murder.

A successful application would have meant that he would not have been prosecuted at all. I must have been prescient as that was indeed the first application.

Because of the suppression order and due to the lapse of a few months with no publicity or reference to Williams, I was able to refuse the application.

The purpose of these orders was not to help Williams – it was to help the community have these trials dealt with as expeditiously, cost effectively and as fairly as possible, thereby ensuring that justice could be served.

There were constant complaints from the media about the suppression orders interfering with the public’s right to know. I, however, had to balance that with the community’s right to have these cases heard and an end to the gangland war infotainment that they had become.

I refer to this because of a report released on Tuesday, prepared by researchers at the school of Media, Film and Journalism at Monash University, at the request of the Melbourne Press Club.

In summary, the report says the courts have completely failed to safeguard the principle of open justice and that the limitations to conducting public interest news journalism in Victoria are now so severe that the crucial role of holding powerful institutions and individuals to account is under significant strain.

The report refers heavily to suppression orders in the Victorian courts, and is based upon interviews with 12 journalists.

To support its contention that Victorian courts are less transparent than other states, it reports figures showing that, in 2023, Victorian courts issued 521 suppression orders, South Australia 308, Western Australia 2 and NSW 133.

It is most unfortunate that the authors of this independent report did not refer to a 2020 report called Debunking the Myth: why Victoria is not the suppression order capital of Australia by Melbourne University academic Jason Bosland. That report clarifies the problem of using raw statistics when only Victoria and South Australia routinely provide media organisations with a notice about every suppression order issued by every court in the state. The statistics relied upon reflect reporting, not actuality.

Far from being the “suppression order capital” Victoria has, relative to population, one of the lowest per capita number of suppression orders for individual cases, according to Bosland’s research.

In a population of over 7 million people, and in excess of 350,000 cases in the combined jurisdictions, only 0.151 per cent of all cases are suppressed.

Could we do better? Of course we could.

I share community concern about the increasing use of mental health fragility and how its interconnection to well-known identities and families is being used to justify the granting of suppression orders, preventing the naming of people accused of crimes. It is disturbing that those who can afford the services of private psychiatrists and private mental health facilities are being afforded the privilege of not being named as being charged. When judges have reports that state there is a real and significant risk that the person charged will commit suicide if they are named, and that report goes unchallenged, untested, then it makes it almost impossible for the judge to refuse that application.

These psychiatrists should face cross-examination over their claims their clients are in a worse mental state than the average defendant facing serious charges.

This was recently highlighted in the case of Tom Silvagni.

I doubt that many people’s mental health is in good condition after being charged with serious crimes. But very few have the resources to obtain excellent psychiatric assistance and sometimes quite compelling expert reports as to why there should be a suppression order to prevent the adverse and overwhelming publicity that comes with their own fame or notoriety. It appears to smack of a privilege.

I believe that it would be better either that no one is named until convicted, or everyone is named.

There should be one rule for all, and that rule should be that everyone has the right to a fair trial.

The Honourable Betty King, KC, is a retired Victorian Supreme Court judge.

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