Open justice in Victoria

Over the past few years concerns have been expressed about the state of open justice in Victoria, particularly in relation to the number of suppression orders issued by the Victorian courts. What follows is an account of my own first-hand experience of open justice – or lack thereof – in the Victorian judicial system.

In early 2011 I was asked by the Judicial College of Victoria to give a talk to Victorian judges and magistrates on recent cases involving open justice and suppression orders. During the course of my preparation I came across an article by lawyer Peter Bartlett published in The Australian (November 19, 2010) which referred to a recent Victorian Court of Appeal decision which dealt with suppression orders in the context of historical online news media articles. It struck me as odd, however, that Bartlett was unable to mention the name of the case.

Eager to get my hands on a copy of the written reasons for the decision, I searched all of the usual electronic legal databases. This was to no avail. I then contacted the Communications Office at the Supreme Court of Victoria. I was informed that access to the written reasons was restricted. I queried the basis upon which this was the case and was informed that a suppression order or orders existed in relation to the defendant’s name. Publication of the judgment – which contained reference to the defendant in the name of the case and in the body of the reasons – meant that it could not be published.

I pleaded my case further on the basis that I was giving a talk to judges on a point of law central to the case. It was eventually agreed that I could be provided with a copy but this was followed by a warning from the trial judge that I was not to distribute it any further.

The defendant in the case was Antonios Mokbel. Shortly after I obtained a copy of the decision, Mokbel pleaded guilty and all suppression orders which related to Mokbel were lifted. The decision was immediately available on the Austlii website (the free electronic repository of Australian law).

However, for well over a year – and in clear violation of the principle of open justice – the Court of Appeal’s decision was kept secret.

It is often said that open justice is a hallmark of the exercise of judicial power; secrecy is the antithesis. Open justice guards against arbitrary decision-making, and ensures that justice is administered fairly and in accordance with the rule of law. In turn, it promotes public confidence in the administration of justice and the court system and serves to educate the public on the state of the law and on appropriate standards of conduct. It is also of central importance to the common law system, based as it is on precedent and the principle of stare decisis.

A corollary of the principle of open justice is that any written reasons issued by a court must be made publicly available. This was confirmed in a well-known 1984 case where the now retired New South Wales Chief Justice Street held that ‘it is difficult to conceive any case where it is impossible to provide some statement by way of a public account of the proceedings and the reasons.’ The solution, of course, is simply to redact any sensitive material or, where appropriate, refer to a party or a witness by a pseudonym.

Upon receiving a copy of the written reasons of the Court of Appeal in the Mokbel case, it took me no more than thirty minutes to produce a version which removed all material that could lead to the identification of Mokbel as the defendant in question. Moreover, the identity of Mokbel added nothing to the Court of Appeal’s reasoning in the case and therefore could have been dispensed with. It is certainly difficult to see how a redacted version could have had an adverse impact on the fair trial of Mokbel.

What is most disturbing, however, is that the Court of Appeal’s decision was particularly novel as a matter of law. It was the first time, as far as my research has uncovered, where a court anywhere in the common law world had ruled upon the particular legal point at issue. But for fifteen months the decision was withheld from lawyers responsible for advising their clients as well as from judges charged with the task of applying the law according to precedent.

Perhaps the failure to redact in this case was a resource issue, or maybe an oversight. What I do know is that thirty minutes is not a high price to pay for open justice.