‘Everybody hates you every single day’: Why the Silvagni case is the tip of the iceberg

When a magistrate, and later a judge, ruled that young rapist Tom Silvagni could hide his identity behind suppression orders throughout his prosecution, they were disrupting hundreds of years of legal doctrine.

English 18th-century philosopher Jeremy Bentham wrote that publicity was not just part of the legal system, it was “the very soul of justice”. Why? Because exposing the workings of courts to public discussion and questioning means people feel ownership of a socially crucial system. When it works well, they’ll feel faith in it. When it’s going badly, they can lobby for change.

Unfortunately, in the past decade or more, an aversion to this soul of justice has infected parts of Victoria’s justice system.

In the case of Silvagni – the son of an AFL great – for almost 18 months, journalists were barred from reporting his name, any personal information about him or his family that might cause him to be identified, or any details about how and why the gag order had been made.

Silvagni’s expensive lawyers used expert evidence gathered from psychiatrists to convince the magistrate and judge that, if he was named, his safety – meaning his mental health – was in danger. They said he was so disturbed by the prospect of his name being made public that he was a suicide risk.

Silvagni is just one of a growing number of high-profile people using this loophole to hide from the embarrassment of the criminal charges against them. Silvagni’s identity leaked out on social media, then, in December, a judge finally let the rest of us in on the secret.

The outrage that followed suggested most Australians don’t see open justice as some esoteric principle. They see it as a way ordinary people can check the system is not bent out of shape by money, fame and secrecy.

If only Victoria’s courts felt the same way. The raw figures available don’t capture every order and don’t account for each state’s throughput of cases – but they show Victoria makes more suppression orders than all other states, territories and federal courts combined.

Not all of them are as egregious as Silvagni’s, and some are absolutely necessary. But the mental health exemption – for those who can afford lawyers and psychiatrists to argue it – is just one way in which a cloak of mystery has increasingly fallen over public discussion in this state.

A new report commissioned by the Melbourne Press Club shows how far the public’s right to know has slipped. Associate Professor Johan Lidberg and Alicia McMillan from Monash University found that, in Victoria, journalists can effectively never interview prisoners despite rules saying they can. Ministers often fail to answer probing questions with anything other than silence, or boilerplate. Public servants, including police, are out of bounds to journalists, even for background briefings.

The freedom of information system is so broken that a parliamentary committee found in 2024 that the government should “push” information out, rather than retaining the current system which is more like pulling teeth. The spin-addicted Victorian government has, predictably, still not responded.

“The overarching conclusion of this study is that the limitations to conducting public interest news journalism in Victoria are now so severe that the crucial role of news reporting holding powerful institutions and individuals to account is under significant strain,” Lidberg and McMillan wrote.

Working journalists from across the media told the researchers that the courts were particularly frustrating. Magistrates and judges were frequently breaching the law – the Open Courts Act – by issuing suppression orders without following the rules.

Some defence lawyers have issued instruction manuals for their colleagues on how to use the mental health loophole enjoyed by Silvagni to keep their well-heeled clients’ names under wraps.

Many judges deny documents to journalists. Reporters are not allowed to tape record proceedings – despite this being permitted in other states – so they are stuck taking hard copy notes in real time. Then they get complaints about inaccuracies.

Reporters at the coalface talk of a “hostile attitude” towards them in the courts – as if they are an annoyance rather than the eyes and ears of the public. “Journalists are no longer viewed as part of the open justice system in Victoria,” Lidberg and McMillan wrote.

One of those interviewed, The Age’s court reporter Erin Pearson, said: “I watch young journo after young journo come in and out of court reporting, just burning out and leaving … Everybody just hates you every single day and it is just getting worse and worse.”

Solutions to all this will take time and goodwill on both sides. Lidberg and McMillan suggest regular “round tables” of judges and journalists.

But when the researchers sought out court chiefs for their input, nobody was available. The director of public prosecutions insisted the number of suppression orders issued in Victoria was not “inappropriate or excessive”.

Nothing to see here.

The Melbourne Press Club wants to engage with the courts and prompt a broader discussion about respect for the media’s crucial role, beginning with a public discussion on Tuesday March 3, featuring The Age’s editor, Patrick Elligett, former Supreme Court judge Betty King and Herald Sun editor Sam Weir.

When, thanks to Pearson and other reporters, we were obsessing over the trials of people like mushroom killer Erin Patterson, we all felt part of the process. We could see the system in full flight, working out the issues involved. We could apply the pub test; argue about the case.

This is how it should be. It’s good for both the system and our faith in it.

Unfortunately in Victoria today, none of this is guaranteed because there’s far too much we’re just not allowed to know.

Michael Bachelard is a senior writer at The Age, and president of the Melbourne Press Club.

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