A judge has dismissed an application to overturn a suppression order preventing the identity of a high-profile married man at the centre of an alleged extortion threat from being revealed.
Media organisations, including the ABC, applied to the Supreme Court for a judicial review of the non-publication order originally made in the Cairns Magistrates Court in late May.
Justice James Henry today dismissed the media’s application, four weeks after the judicial review was heard in Cairns.
A man accused of a domestic violence extortion charge is alleged to have threatened his former partner by saying he would reveal details about an affair between her and the married man.
Andrew O’Brien KC represented the media outlets. (ABC Far North: Christopher Testa)
At last month’s judicial review hearing, lawyers for the media argued the suppression order went “beyond the limits of what was necessary” to protect the complainant of the extortion allegation.
They made their case based on the grounds of jurisdictional error, procedural fairness and overreach.
Barrister Jonathan Horton KC, for the Queensland Police Service, argued there was evidence before the magistrate showing the woman would have been distressed if the identity of the man, referred to in court as “MM”, was revealed.
Jonathan Horton KC argued there was evidence before the magistrate showing the woman would have been distressed if the identity of the man was revealed. (ABC Far North: Christopher Testa)
Media argument ‘flawed’, judge finds
In his reasons, Justice Henry said extortion and blackmail cases may fall in the “exceptional category of cases where non-publication orders are needed to secure the proper administration of justice”.
The media and lawyers for the accused man had argued MM was neither a witness nor an alleged victim in the case.
“The flaw in that argument is the assumption that a complainant’s fear of publicity, on which the success of the crime turns, would solely be fear of publicity identifying the complainant,” Justice Henry found in his 15-page judgment.
“In some cases, and this is one of them, the complainant’s fear may also be of publicity identifying other persons.”
Justice Henry said, if the man were to be publicly identified, the complainant “would carry the burden of knowing she had been [the accused’s] source of the information and may be perceived by others to have been the source”.
“Secondly, she would carry the additional burden of causal responsibility, knowing she could have avoided the occasioning and pain to those others by complying with [the man accused of extortion’s] demand,” he found.
Defence barrister Brydie Bilic outside the Cairns Courthouse. (ABC Far North: Christopher Testa)
‘Uncertainties’ in suppression order
Justice Henry said none of his reasons involved “an adjudication of the truth of what is alleged”.
He also found acting magistrate Gelma Meoli correctly followed the common law rationale for the need for a non-publication order extending to MM. so potential future complainants would not be deterred from coming forward.
Justice Henry found there was “no substance” to an argument acting magistrate Meoli had pre-judged the case.
That argument was based on the discovery of typed notes, including prospective reasons and orders, which the court heard Magistrate Meoli had likely prepared before hearing oral submissions in court about what should be suppressed.
Justice Henry found there were four potential uncertainties about the reach of the presiding magistrate’s order. (ABC News: Conor Byrne)
However, Justice Henry found there were four potential uncertainties about the reach of the presiding magistrate’s order, which includes “details of the threat to cause detriment”.
In his reasons, he said none of the uncertainties were argued before him as grounds for review.
“In any event, the parties can just as easily return before the Magistrates Court to seek new or amended orders if they are concerned by the potential uncertainties I have identified,” Justice Henry said.
The court will hear submissions on the costs of the case on September 7.