Representatives of the family of Elijah Doughty claim a suppression order covering the man that caused his death hinders their access to justice. 

Elijah Doughty was a 14-year-old Indigenous boy who died in Kalgoorlie in August 2016 when he was run over by a man who believed Doughty had stolen his bike. The driver of the car was convicted of causing death by dangerous driving — having been found not guilty of manslaughter — and sentenced to three years.

He has served 18 months in an unnamed prison, and, though the details are opaque, he is either soon to be released on parole, or has already. The death of Doughty has brought to the surface racial tensions that have plagued Kalgoorlie. The man who killed him had his house burned down, while violently racist posters, leaflets and online activity have become increasingly common. The man’s name, and other identifying details are under a suppression or “do not publish” order. This suppression order extends to transcripts and exhibits from the trial, including the judges summing up. 

A letter to Western Australia’s Attorney-General John Quigley from law firm Levitt Robinson, argues that the surviving immediate family need access to this information to potentially commence civil action against the convict, and potentially lodge a complaint with the Australian Human Rights Commission alleging breaches of the Racial Discrimination Act. Levitt Robinson is appealing to Quigley to join their application. A spokesperson for Quigley’s office told Crikey the Attorney General would seek legal advice before making any comment on the matter.

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Jason Bosland, deputy director of the Centre for Media and Communications Law at Melbourne Law School told Crikey that it was very unusual for a suppression order to be passed that protected the identity of a defendant.

“The obvious exception being sex offenders, where naming them might identify their victims,” he said. “It’s very rare in a case where someone has died that it would be the defendant who would have their name suppressed.”

“The problem with this particular order is there doesn’t appear to be reasons for the suppression,” Bosland said. ” When judges make a suppression order, they should grant reasons — this has been confirmed by the High Court. Now they don’t do it very often — this is a problem across the country, not just Western Australia — they often suppress material but they don’t provide reasons. So they’re not fulfilling their judicial duty to provide reasons in a lot of cases.” 

Further, beyond accessing the information, the registrar of the Supreme Court has denied the Doughtys access to the order itself, even with the defendant’s name redacted.

“That’s problematic, because an order is a public document, and they must be provided on request, ” Bosland said. “Sometimes redacted — so in this case, it may redact the name of the person. But if you request an order, you should be provided it as a matter of law. The fact that it’s been denied by the registrar is fairly outrageous. 

The family — members of which were unable to travel to Perth for the man’s trial — is also being denied access to transcripts and exhibits from the trial, including the judges summing up; information that would, in the words of the letter to Quigley, allow the family:

[T]o be satisfied that the police and prosecution had made sound forensic decisions in and concerning the investigation and prosecution of the convict … and also, at the sentencing hearing, that there was a reasonable basis for the Crown’s acts and omissions and that the Crown was not actuated by prejudice or bias.

This information may form the basis of further legal action, senior partner Stewart Levitt told Crikey.

“We are not primarily interested in the convict. The primary aim of accessing those documents is to assess whether there is a potential claim of racial discrimination against the Kalgoorlie police,” He said. “I would be very surprised if people didn’t see the injustice here.” 

A spokesperson for the Supreme Court of Western Australia told Crikey public access to transcripts and exhibits must, on occasion, be modified to protect the interests of justice.

“In this case, the trial judge was satisfied that an order suppressing the identity of the accused should be made. Provision of transcripts and exhibits would be inconsistent with and effectively destructive of that order,” they said.

“The order was made to protect the safety and security of the accused whose home was deliberately destroyed by fire shortly after he was arrested and who had been, and continues to be, subjected to repeated threats of violence.” 

“What’s interesting about this case is it deals with a lot of intersecting issues that I think we need a high court ruling on — so, the use of suppression orders for a defendant, the fact that reasons haven’t be provided, which you could do easily without identifying the defendant, access to the order itself and access to evidence and documents in open court,” Bosland said.  “So there are four key issues of open justice here and the WA courts seem to be entirely at odds with what the law requires.” 

UPDATE: The copy has been updated to include comments from the Supreme Court of Western Australia.

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