Everybody Knows, Part 9: What, Pray Tell, Justifies a Suppression Order?

 by Mary W Maxwell, LLB

Dear Readers, the Russell Pridgeon case is moving fast. He was arrested in October 2018 and for two years it moved too slow but as of February 2021 he was committed for trial. The trial will begin on June 5, 2023 at the Brisbane District Court.  I am very hopeful that the charges will be dropped before then. Already 5 of the 7 charges have been withdrawn. The two remaining have to do with conspiracy.

This is not to say that success is guaranteed. Dr Pridgeon thinks he may end up doing the Jailhouse Rock — for many years. So he needs your support, please.  In the article at hand, I discuss yet one more illegal trick of the authorities, this time concerning a suppression order. It is described in Pridgeon’s book, Everybody Knows.

The 8 parts of this series, so far, were about:

1. Medical Ethics
2. Barristers’ rules
3. (This one crossed over into Dee’s No-ethics series)
4. The mystery of Jimmy Saville
5. How easy it is to complain to APHRA
6. Most folk have moral standards
7. A magistrate stepped out of line
8. The NSW Medical Council cheated

Suppression Orders

Three statutes in NSW are relevant:

the Court Suppression and Non-publication Orders Act 2010 (“the Suppression Act”)

the Criminal Procedure Act 1986 and

the Children (Criminal Proceedings) Act 1987.

I [MM] am drawing the following material from the Criminal Trial Court Bench Book, as published at judcom.nsw.gov.au. You may like to read it. If not, please skip down to “RUSSELL PRIDGEON’S CASE AT THE NCAT.”

Closed court, suppression and non-publication orders

[1-349] Introduction

The onus is on the parties to make an application for appropriate orders at the hearing. Such orders may include an application for a pseudonym order or the suppression of certain evidence, such as evidence related to assistance given during the proceedings… see Sentencing Bench Book at [12-202] Procedure (in Power to reduce penalties for assistance to authorities).

When a prohibition is to remain in force (as it often does) advise everyone, including the entire jury panel, of the legal position.

See the Supreme Court of NSW, “Identity theft prevention and anonymisation policy” for guidance as to the publication of personal or private information in court judgments.

See also … “Removal of judgments from the internet”.

Common law and suppression and non-publication orders

The Suppression Act does not limit or otherwise affect any inherent jurisdiction a court has to regulate its proceedings or deal with contempt of court: s 4.

The implied powers of a court are directed to preserving its ability to perform its functions in the administration of justice: BUSB v R (2011) 80 NSWLR 170 per Spigelman CJ at [28].

[1-350] The principle of open justice

The principle of open justice is a fundamental aspect of the system of justice in Australia and the conduct of proceedings in public is an essential quality of an Australian court of justice. There is no inherent power of the court to exclude the public: John Fairfax Publications Pty Ltd v District Court of NSW (2004) 6. However, in appropriate cases courts have jurisdiction to modify and adapt the content of general rules of open justice and procedural fairness and to make non-publication orders for particular kinds of cases: HT v The Queen [2019] HCA 40 at [44], [46].

Section 6 of the Suppression Act requires a court deciding whether to make a suppression or non-publication order, to take into account that “a primary objective of the administration of justice is to safeguard the public interest in open justice”…. Section 6 also reflects the legislative intention that orders under the Act should only be made in exceptional circumstances….

In some cases, where reporting of particular proceedings is misleading, emotive and encourages vigilante behaviour, the message disseminated may be “antithetical to institutionalised justice” and a non-publication order may not compromise the public interest in open justice….

Although the parties may reach agreement as to appropriate redactions, the court must determine for itself whether the proposed redactions should be the subject of a suppression order, having regard to, in particular, the emphasis in s 6 on the need to safeguard the public interest in open justice:

The redacted judgment must remain intelligible, particularly as to the matters of principle justifying the decision to suppress the particular information….

[1-352] Court Suppression and Non-publication Orders Act 2010

The Suppression Act.  The power in s 7 is broad and may, depending on the particular circumstances, extend to a judicial officer in one court (for example, the District Court) making non-publication orders with the capacity to affect proceedings in another.

A “non-publication order” and a “suppression order” are defined in s 3. A “party” is broadly defined in s 3. Those persons entitled to be heard on an application are set out in s 9(2)(d) and include news media organisations.

While at common law there were conflicting views as to whether a court could make non-publication orders which were binding on third parties (see Hogan v Hinch (2011) 243 CLR 506 at [23]), a concern to resolve that issue underlies the enactment of s 7:

[1-354] Grounds for and content of suppression or non-publication orders

Section 8(1) of the Suppression Act sets out the grounds upon which an order can be made and each is prefaced in terms of whether the order is “necessary”. That term should not be given a narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim. What is necessary depends on the particular grounds relied upon in s 8 and the factual circumstances giving rise to the order: Mere belief that an order is necessary is insufficient…. Nor is it enough that it appears to the Court that the proposed order is convenient, reasonable or sensible. Whether necessity has been established depends on the nature of the orders sought and the circumstances in which they are sought….

The expression “administration of justice” in s 8(1)(a) extends to the protection of confidential police methods as well as the investigation and detection of crime: R v Elmir [2018] NSWSC 308 at [19]–[20], [23].

In R v Elmir, Davies J made suppression orders with respect to protected images, the methods used to obtain those images and a messaging application used during a police investigation of foreign incursion offences, on the basis those orders were necessary to prevent prejudice to the administration of justice (s 8(1)(a)), the interests of the Commonwealth in relation to national security…. It encouraged victims of crime, such as sex workers, who may otherwise be humiliated by reason of their occupation, to report crimes….In such a case, where all other facts could be read by the public, anonymising the complainant’s name encroached on the principle of open justice to a very limited degree….

Another relevant consideration is whether “the order is necessary to protect the safety of any person”: s 8(1)(c). “Safety” includes psychological safety, including aggravation of a pre-existing mental condition as well as the risk of physical harm, by suicide or other self-harm as a result of the worsening of a psychiatric condition…. Mere embarrassment, discomfort, reputational damage or even financial loss are not sufficient….

In Lacey (a pseudonym) v Attorney General for New South Wales, The offender, an Aboriginal teenage girl, sought an order prohibiting men from viewing video footage of her being strip-searched. The court found a magistrate may have the power to make such an order….

Content of the order

An order must specify … the grounds on which it was made: s 8(2).

When information on the internet is involved, relevant internet service providers must be identified and given the opportunity to remove relevant material before an order is sought. This could be done by the Director of Public Prosecutions. I

Review and appeals

Orders made under the Act are subject to review and appeal….

[1-356] Other statutory provisions empowering non-publication or suppression

See also Non-publication and suppression orders at [62-000]ff of the Local Court Bench Book, in particular [62-040], [62-060] and [62-080] for comprehensive lists of provisions for automatic non-publication or suppression orders and of those requiring a court order.

[1-358] Closed courts

In proceedings for a “prescribed sexual offence”

Where proceedings are in respect of a prescribed sexual offence, as defined in s 3 Criminal Procedure Act 1986, … certain proceedings, or parts of proceedings, for a prescribed sexual offence [are to] be held in camera.  Media access to such proceedings is governed by s 291C of the Act. The court may make arrangements for media representatives to view or hear evidence or a record of it, in circumstances where the media is not entitled to be present in the courtroom….

Children in criminal proceedings

The court may exclude from proceedings involving children anyone not directly interested in the proceedings: s 10 Children (Criminal Proceedings) Act 1987. Any family victim is entitled to remain: s 10(1)(c). Media representatives may remain unless the court otherwise directs…. Section 15A of the Act prohibits the publication or broadcasting of the names of children involved as offenders, witnesses, or brothers and sisters of victims in criminal proceedings.

[Other sections on terrorism and witness protection]

Commonwealth provisions

The Crimes Act 1914 (Cth) and Criminal Code (Cth) contain provisions enabling a court to exclude all or some members of the public from the courtroom [such as] when certain witnesses, including child witnesses, vulnerable adult complainants or special witnesses (defined in s 15YAB) are giving evidence in particular proceedings. Publishing information identifying such witnesses is an offence….

Section 93.2 of the Code, in Pt 5.2 titled “Espionage and related offences”, The contravention of an order is an offence: s 93.2(3).

[1-359] Self-executing prohibition of publication provisions

A number of statutory provisions prohibit the publication of information in particular circumstances.

Note: Where a statutory protection automatically applies, it is important that court reporters endorse the transcript to this effect and do not attribute it to the court having made an “order”.

See the following: Children (Criminal Proceedings) Act 1987, s 15A prohibits the publication or broadcast of the names of children involved as offenders, witnesses, or brothers and sisters of child victims in criminal proceedings (see below)…. Crimes Act 1900, s 578A prohibits the publication of matters identifying a complainant in proceedings in respect of a prescribed sexual offence.

Crimes (Domestic and Personal Violence) Act 2007, s 45(1) prohibits the publication of names or identifying information concerning children in AVO proceedings.

Publication of children’s names in criminal proceedings

Children (Criminal Proceedings) Act 1987, s 15A prohibits the publication or broadcast of the names of children involved as offenders, witnesses, or brothers and sisters of child victims in criminal proceedings. Where there has been breach of an order under s 15A(1), proceedings should be commenced under s 15A(7) instead of seeking a non-publication order under s 7 of the Suppression Act….

Sections 15B–15F provide exceptions to the prohibition on publication or broadcast in certain circumstances including where …. (b) a person who is 16 years or above at the time of publication or broadcasting has consented…

In determining whether an order for publication should be made, the court must consider the circumstances of the particular case and the public interest. In assessing the “public interest”, a broad concept, the court looks at the circumstances of the case: R v Thomas Sam (No 1) [2009] NSWSC 542 at [13]–[14]. In R v Thomas Sam (No 1), which involved manslaughter by criminal negligence occasioned by the child’s parents failing to obtain appropriate medical treatment, Johnson J was satisfied the public interest in open justice meant the child’s name should be published.

Commonwealth provisions

Section 15YR(1) Crimes Act 1914 provides for an offence of publishing a matter which identifies a child witness or child complainant in a child proceeding or a vulnerable adult complainant in a vulnerable adult proceeding. Each proceeding is defined in ss 15Y, 15YA and 15YAA.

A person commits an offence if: (a) the person publishes any matter; and (b) the person does not have the leave of the court to publish the matter; ….  Penalty: imprisonment for 12 months, or 60 penalty units, or both.

Checklist for suppression orders

Relevant legislation: Court Suppression and Non-publication Orders Act 2010

Note: certain other legislation contain mandatory provisions that may obviate the need to make suppression or non-publication orders in particular proceedings … (eg children and complainants in prescribed sexual assault proceedings) or witnesses.

(1) Power to make a suppression or non-publication order (the order) arises under s 7 of the Act. (2)  The order may be made by the court on its own initiative or upon application by a party to the proceedings or any other person the court considers has a sufficient interest in the making of the order: s 9. The persons entitled to appear and be heard on an application are listed in s 9(2).

(4)  In determining whether to make the order the court must: (a)  take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 6; see further [1-350] The principle of open justice.

… (5)

Upon making the order the court must specify: (a) the ground on which it was made: s 8(2); (d) the place to which it applies, which may be anywhere in the Commonwealth…

RUSSELL PRIDGEON’S CASE at the NCAT

Russell had appealed his loss of medical license to the NCAT — New South Wales Civil Administrative Tribunal.  Ms Alexandra Rose, barrister for the Medical Council, applied for an unjustified suppression order, and she won.  Dr Pridgeon claims that “Ms Alexandra Rose, applied for a suppression order to prevent the public from becoming aware of the facts of this travesty.”  He SAYS:

“I [Pridgeon] was deeply disturbed by the Medical Council of New South Wales’ attitude of tolerance and acceptance of Child Sexual Abuse, and their vigorous prosecution of me for my actions in trying to protect the children. I had placed before the MCNSW the most detailed and authoritative evidence of the children’s abuse. They had not rejected or contested this evidence yet, at no time had the council expressed concern about the children abuse, or tried to address it.”

THUS PRIDGEON wrote the following letter [I, MM, added the bolding] TO OBJECT TO THE SUPPRESSION ORDER:

It was unclear on 1 March 2021 whether the Medical Council lawyer, Ms Rose, was signalling her intention to make application for (sec 91) Non-publication orders — prohibiting or restricting information being published; or (sec 92) Suppression orders, prohibiting or restricting the disclosure of information.

There are situations where non-publication or suppression orders can benefit victims and where those orders may be appropriate. But my case was not one of them.

What is the intent of such orders? The intent of suppression/non-publication orders is the public interest. It is not to save embarrassment or for the convenience of the person under question.

My first submission is that such orders will not add to this Tribunal’s ability to perform its functions. It will be against public interest.

It appears motivated for the convenience and reputation of the institutions who have failed to protect these children, and the men who abused the children. It will hide the crimes against these children from public scrutiny. It is not going to help the children.

What is the relevant principle for the exercise of this discretionary power?

There is no inherent power to exclude the public from knowing what is going on in this case. The principle to guide this discretionary decision is that open justice is fundamental to justice. …

I refer to my Evidence Bundle, section 1 about public interest in how institutions handle cases where institutions have failed to address child sexual abuse. Noting the Prime Minister’s [Morrison’s] October 2018 apology to victims, parents and whistle-blowers, it highly relevant to the public interest issue to see how I, as a whistle-blower, will be dealt with.

I submit that public interest is weighted to seeing how the Tribunal and Council address this case. This aligns with s.6 Suppression Act requiring the Tribunal to ensure the “primary objective of the administration of justice is to safeguard the public interest in open justice.”

What will a suppression or non-publication order do?

I was deeply angered but not surprised that Ms Rose advised she was going to ask that the Tribunal, using s 8(1)(c) of the Act, considers whether “the order is necessary to protect the safety of any person.”

In light of the children’s current circumstances of which the Tribunal members and Council are now aware, it is disingenuous to speak of protecting them when their names were widely published by the father via media when it suited him. [They] have been in the custody of their father, the man who they have repeatedly identified as their abuser.

They are not safe, they will not be safe until they are away from him. It should be obvious to the Tribunal that the only way the authorities will act to protect these children, is if they are forced to do so by public pressure.

The better question is, what is really proposed to be suppressed here and cui bono? Who benefits by suppressing the details of this case as it exposes the children’s abuse? I continue to be astounded that Australians who work within Australian institutions continue to behave as if they are absolved of all moral and legal responsibility simply by the fact that they are performing their assigned tasks.

Hannah Arendt wrote about this extensively after she was as- signed to cover the Trial of prominent Nazi Adolph Eichmann. Her book Eichmann in Jerusalem was notable for its subtitle: A report on the Banality of Evil.

Eichmann claimed he bore no responsibility for the genocide that he had overseen, because he was simply “doing his job”. Eichmann is quoted as saying “He did his duty.” “He not only obeyed orders, he obeyed the law.” “He was unable to change anything”.

Upon seeing members of “respectable society” endorsing mass murder, Eichmann felt that his moral responsibility was relaxed, as if he were Pontius Pilate.

Jurisprudentially, what is ‘law’? It is a command by a sovereign, backed by a sanction. There is written law and unspoken law, such as the (often uncodified) law which evildoers sustain to enable their deeds: Eichmann, Hitler, and paedophiles in power have a ‘law’ that no-one ‘dobs’ and the names of the guilty are protected.

It is appalling to reflect on how many people and organisations know about the abuse of [names redacted], and how they not only did not act to protect them, they acted to conceal their abuse and thus protected the abusers and enabled their ongoing abuse that continues to the present day. This alone explains the extraordinary vigour and tenacity of the Operation Noetic prosecution.

The list of organisations and eminent people who have been made aware of the plight of these children is now too long to write out. Ministers of the Crown, AGs, their senior bureaucrats, senior policemen, Judges, magistrates, Court officials,

All ranks within the AFP, the CDPP prosecutors involved in Operation Noetic, the HCCC and the NSWMC, and now, is Ms Rose asking the members of this Tribunal to become complicit in concealing evidence of the indictable offences that are being openly discussed in this Tribunal? … I am aware [in March, 2021] that the girls are doing very badly.

With respect to Ms Rose’s proposed suppression orders, it is completely absurd, to pretend to be concerned about the privacy of these children, when the Medical Council knows as well as I do, that these children have disclosed sexual abuse by their father on numerous occasions and yet they are in his custody as I speak. Is it possible do you think, that these children aren’t coming to harm?

National media has already published and linked the identities of the children, the mothers, fathers and also the child protectors like me.

Everybody knows.

Recently, when media was stirring about Craig McLachlan case, his QC Mr Littlemore said in open court words to the effect that “suppression orders don’t work” and Judge McCallum agreed and referred to the example of George Pell’s conviction (which overseas media had announced).

As the media has already made extensive efforts to name and shame child protectors especially me – and name them in relation to [names redacted], it is pointless to order suppression because, as in Pell’s case, the media horse has bolted. It is wholly analogous in this case, factually and legally.

The suppression of the orders would protect the perpetrators, not the victims.

This suppression order is pointless and raises concerns about bad faith.

The narrative of the children’s abuse has been carefully concealed. Using Family Law Act’s s.121 gagging provision, sub- judice rule, misuse of court procedures to prevent me from ex- posing the truth in open court, the authorities proffered fake concerns about the girls’ privacy while really concealing the abusers’ crimes and their own. …

However, the truth always comes out eventually, as it has with present crop of rapes in parliament. The trial of the co-defendants of Operation Noetic has been delayed repeatedly, as the people driving this prosecution realise that by trying us in open court, they have provided us with a perfect forum to expose the abuse, and the crimes of those who have concealed them. The evidence which has previously been suppressed in Family Court will be revealed in open court.

This crime will be exposed.

What is needed is for one organisation, the first, to act even in the most indirect way, to help these children. Please do not suppress the children’s names.

Your Honour said yesterday, that the test of public interest was whether the public knew the facts of my actions and yet still would support me: I say that the public does know exactly what I did and why I did it.

A cursory reading of the section 1 of my evidence brief will show this. If the members go onto the website Change.org, they will be able to read a letter from myself, explaining everything that I did and why I did it. I am being supported by ordinary people who are in full possession of the facts. I oppose the suppression and non-publication application.”

 — END OF DR PRIDGEON’S LETTER.

He adds, for us:

Without further discussion or explanation, the Tribunal members, His Honour Judge Le Poer Trench, Dr J. Aitken, Dr E. Summers and S. Lovrovich as a General Member, ordered name suppression of all the names involved: the children and the abusers, but not my name…. The Publication Restriction said:

“pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), and until further order, there be no publication of evidence given before the Tribunal or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, including the names of any persons referred to other than the Appellant.”

I [Pridgeon] submit that this cannot be said to be “to protect the children.”

I [MM] comment: Isn’t it nice that one doesn’t have to take everything lying down?