Psychiatrists cast doubt on court secrecy orders that protect accused

There is no way to reliably predict the risk to the mental health of accused people from media reporting of their cases, senior psychiatrists say, as community disquiet about “psychological safety”-based secrecy orders grows.

The psychiatrists say mental health clinicians cannot forecast potential behaviour, including self-harm or suicide, and that the reports relied upon by judges when considering suppression applications are inexact at best.

Specialists including Melbourne University Professor Steve Ellen say it is virtually impossible to discern between the impact of the general stress of appearing in court as an accused and the stress of publication as part of Australia’s open justice system.

“Predicting suicide is incredibly hard, it is an extremely rare event [per capita] and the list of risk factors is long; the ability to quantify the risk of suppression over disclosure, versus all the other risks, is minimal,” Ellen said. “It is not even close to an exact science.”

Ellen, the former head of general hospital and emergency psychiatry at The Alfred hospital, said that while psychiatrists may reasonably conclude a person is vulnerable, “it is far harder to say that naming them, rather than the prosecution itself, is the decisive additional factor”.

“We are relying on a very uncertain art to inform the courts, and this uncertain art is being used to undermine one of the key principles of justice.”

The comments come as the identities of alleged perpetrators in several prominent rape or sexual assault cases have successfully argued for suppression of their identities for significant periods.

Tom Silvagni, son of football great Stephen Silvagni, had rape proceedings suppressed for 18 months before he was was found guilty of two counts in late 2025 – after which the gag order was lifted.

The name of Ralph Carr, a celebrity agent found guilty of rape on July 28, was suppressed for more than three years to protect his pyschological safety. He was found to have raped a 27-year-old woman who wanted to work for him and the suppression order was lifted on Monday.

The identity of a Melbourne doctor accused of filming women and children naked in showers at the Harold Holt Swim Centre in Glen Iris was suppressed for three months after he argued that publication would harm the mental health of his child.

Ellen said “at least two-thirds of defendants would have some mental health issues caused by the court experience”, but this did not mean they should win a suppression order.

He first raised his concerns in a Substack post in March, when Monash University research revealed that 521 court suppression orders had been granted in Victoria in 2023.

A senior psychiatrist, who cannot be named because of the office he holds, also questioned psychiatry’s ability to reliably predict any added impact for defendants from being named, or any behavioural flow-ons.

“Most of medical science is not an exact science, and psychiatry is the least exact science when it comes to [predicting outcomes],” he said.

“Almost 100 per cent of well settled people with no mental health issues when they commit a crime could go to court and say, ‘this is stressful, and my information should be suppressed’,” he said.

This was not a basis for suppression, he said, “because everybody gets stressed going to court. Even when I go to court as an expert witness, I get stressed.”

The expert said suppressing names of sex offenders puts community members at potential risk.

Melbourne University Law School Associate Professor Jason Bosland said it is difficult to challenge psychological opinions in court because of the nature of the expertise.

“It is very difficult for anyone to challenge the evidence of a psychologist or a psychiatrist,” he said. “You can cross-examine them but to challenge their expert opinion and really convince the judge the psychiatrist is wrong is a really difficult thing to do.

“The scales aren’t evenly balanced in terms of the way these cases play out from an evidence perspective,” he said. He agreed with Ellen that such experts were effectively providing evidence “beyond the scope of the discipline”.

“Projecting into the future as to how a person will react is … not really the purpose of psychiatry,” Bosland said. The fact “the same person is doing [the psychiatric reports] again and again” should raise alarm bells, he added.

Bosland and the two psychiatrists said the appearance of special treatment was created by mental health-based suppression orders being sought and granted to well-connected clients with the means to pay for them and specialised legal counsel.

Bosland said it erodes the public’s faith in the justice system when a convicted rapist cannot be named, “and it creates a perception that certain people are receiving favourable treatment; that is really corrosive, and I think the courts should be concerned about that”.

Last December, The Age revealed a document circulating among barristers describing how to keep high-profile clients out of the spotlight, including what to ask psychiatrists to include in reports.

Criminologist and Australian Research Council Future Fellow Professor Marie Segrave said there was a privileging of the defendant’s psychological safety over that of the victim-survivor in cases where the perpetrator’s identity was protected.

She said doing so, sometimes even after conviction,“raises a lot of concerns around how the justice system is operating and also creates significant concern around justice for victim-survivors.”

“This idea that people are protected who have harmed them, and been found guilty of harming them, is likely also producing significant harm, and we need to investigate this further,” Segrave said.

Swinburne University law lecturer and chief executive of the Rape and Sexual Assault Research and Advocacy group, Dr Rachael Burgin, pointed out that accused rapists could ask for their names to be suppressed and then also, through defence lawyers, subpoena victims’ counselling notes.

She said the privacy imbalance amounts to “systems abuse” of victims.

“In the context where victim-survivors’ counselling records are essentially public property in sex offence matters, we’re doing a lot to protect the perpetrators’ mental health, but not a lot to protect the mental health of the victim-survivor,” she said. “This isn’t justice.”

Barrister Greg Barns, SC, spokesperson for the Australian Lawyers Alliance, said suppression orders more broadly were often necessary to secure a fair trial, and while there was a view that some gag orders were handed out like confetti, the reality is most cases are not subject to secrecy orders.

“The reality also is that suppression orders are inevitable in a society where the media is now so all-pervasive, including highly unregulated social media,” Barns said.

“It’s become unfashionable to support an accused, but they have a right to fair trial.

“Like a lot of things in our legal system, it’s a question of balance.

“Whilst some people may have a concern that it seems that high-profile defendants appear to get suppression orders when others might not, the reality is that if you are high profile the chances of you being subjected to some form of harassment [are] heightened.”

Barns said the media plays a crucial role in the criminal justice system, but with that role comes responsibility.

But Kate Wright, chair of Sexual Assault Services Victoria, said it was already rare to get sexual assault cases to court, and a strong deterrent was the spotlight in trials on victims’ behaviour – with little concern for their mental health.

Adding protection of the alleged perpetrator’s identity, based on the risk to mental health of being tried, was “incredibly off-putting for anyone considering reporting sexual assault.”

“Survivors’ mental health concerns are not given the same credence or consideration, that’s what we’re seeing,” she said.

“It is really reinforcing the messages to the community around shame and blame of victim-survivors, and that we are prioritising the perpetrator above the victim-survivor. They are the last consideration when they should be the first.”

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