Media organisations have successfully fought to overturn a non-publication order on the name of a Sydney Criminal Lawyer charged with sexual assault.
Criminal defence lawyer Steven Mercael was charged by Police with sexually assaulting a female in December 2019.
The 27-year-old had appealed to the New South Wales Supreme Court to prevent the publication of his name.
However, Justice Richard Cavanagh dismissed the appeal, allowing the western Sydney lawyer's name to be published.
Police Lay Aggravated Sexual Assault Charges
Police allege that in the early hours of 20 December 2019, Steven Mercael was with the female.
The facts sheet set out that the pair consumed vodka and snorted cocaine before Mr Mercael began touching her inappropriately.
The woman told police she did not think she could leave.
It is alleged that the 27-year-old then forced her to engage in a sex act and called her names. The more she tried to resist, the more violent Mercael became.
The young woman said that she told the Accused, "please stop, let me go", but he replied, "just enjoy it".
The incident was said to have continued with Mr Mercael grabbing the woman by the throat and repeatedly slapping her across the face. It was further alleged that he kicked her legs which forced her to her knees.
The woman contacted a friend immediately after the incident and went to police.
It was in June 2020 that the criminal lawyer was formally arrested and charged with aggravated sexual assault inflicting actual bodily harm.
"A scurrilous accusation"
Media were on hand outside Court to hear from Mr Mercael's lawyer, who labelled the allegation as "scurrilous".
He also indicated that the charge will be defended, although he has not yet entered a plea of 'not guilty'.
Initial suppression order granted
The case was first mentioned at Parramatta Local Court 29 July 2020. On that date, the criminal defence lawyer was granted a temporary non-publication order on his name.
In September 2020, his barrister argued the suppression should be continued for 20 years. Appearing before Magistrate Tim Keady, his legal team placed reliance on the presumption of innocence.
The reasons put forward for the non-publication order included that Mr Mercael must face court every day to defend his clients, as well as the potential distress and embarrassment for the Accused and his loved ones if the charge was publicised.
Legal representatives for media organisations submitted that anyone appearing before a court should be open to scrutiny, whether they are a solicitor, a barrister or a judge.
It was conceded by Mercael that if the order was granted, it could be 'revisited' if he was ultimately convicted.
Given the nature of the charge - being sexual assault charges - Magistrate Keady had to be satisfied that the reasons put forward amounted to 'exceptional circumstances'.
His Honour was not persuaded and declined to continue the order.
The Magistrate noted that Mr Mercael intended to tell clients about the sexual assault charge, with the implication being that clients are, "entitled to know about the criminal proceedings so they can make an informed choice of legal representative".
"Viewed from that perspective, the public interest in knowing about these criminal proceedings takes on such increased significance that it outweighs any private concerns of Mr Mercael," Mr Keady said.
Appeal to Supreme Court
Following the Local Court decision, Mr Mercael appealed to the NSW Supreme Court. There, he did not seek a 20-year suppression order.
Rather, his sexual assault lawyers sought a period of time determined by the court.
The complainant in the case wrote a letter to the court to oppose the suppression order, however it was not tendered because it would have allowed Mercael's legal team to cross-examine her.
However, Justice Richard Cavanagh dismissed the appeal, allowing the western Sydney lawyer's identity to be revealed.
A further Supreme Court hearing is listed on Wednesday, 23 December 2020 to clarify the contents of a published judgment on the matter.
Steven Mercael's matter is next listed at the Downing Centre Local Court on 4 February 2021.
Still practising despite charges?
A search of Steven Mercael on the Law Society's 'find a lawyer' web page still lists him as being a supervised employee.
Pursuant to Section 49(1) of the Legal Profession Uniform Law (NSW), junior lawyers are required to engage in supervised legal practice only, until they have completed the period of supervised legal practice required.
Generally, this is a period of 24 months full-time employment.
NSW Law Society records show that Mr Mercael was only admitted as a practicing solicitor on 7th December 2018 and remains under a supervised practising certificate.
According to the NSW Law Society, the requirement for junior lawyers to be supervised is designed to ensure that, "clients do not receive legal services sub-standard to that which they would receive if the principal him or herself had carriage of the matter."
To this point, earlier this year the Northern Star reported that Steven Mercael mistakenly told a client not to attend Court.
Rule 37 of the Australian Solicitors' Conduct Rules 2015 sets out that, "[a] solicitor with designated responsibility for a matter must exercise reasonable supervision over solicitors and all other employees engaged in the provision of the legal services for that matter."
What is a Non-Publication Order?
Section 3 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) defines a non-publication order as an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).
How Do You Get a Non-Publication Order?
Under Section 9(1) of the Act, the Court has the power to make a suppression or non-publication order on its own initiative or if a party to the case or another person with sufficient interest in the making of the order applies. News media organisations are specifically included as entities with a sufficient interest.
Section 6 of the Suppression Act requires the court to take into account that "a primary objective of the administration of justice is to safeguard the public interest in open justice," and that the public interest in open justice is served by reporting court proceedings and their outcomes fairly and accurately.
In order to grant a non-publication order, Section 8 of the Suppression Act requires an applicant must satisfy the Court that that order is necessary to either:
- prevent prejudice to the proper administration of justice,
- prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,
- protect the safety of any person,
- avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature,
- it is in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.
However, if publication would cause undue distress or embarrassment to the defendant in criminal proceedings involving a sexual offence, the applicant must show exceptional circumstances.
It is unclear what the rationale is behind having a different test for a defendant. An accused person who has not yet been found guilty of an offence is entitled to the presumption of innocence.
Plainly, creating a significantly higher threshold for the interests of the defendant does not align with this.
If the charges against Mr Mercael are dismissed, the damage to his name and reputation could not be undone. This is particularly the case for a criminal defence lawyer, although any person facing a sexual assault charge will suffer significant reputation damage.
When assessing whether a non-publication order is necessary, the Court must look at the particular grounds relied upon and the factual circumstances giving rise to the order (Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 at ).
To establish that an order is necessary, it is not enough that it appears to the Court that the proposed order is convenient, reasonable or sensible.
An order may be made even though it has limited utility or may be ineffective (AB (A Pseudonym) v R (No 3) at -).
What Orders Can be Made?
The onus is on the parties to make an application for specific orders at the hearing. Parties can request the Court impose a pseudonym order or the suppression of certain evidence.
This is commonly associated with cases where a person has given assistance to Police and had fears for their safety (Darren Brown (a pseudonym) v R (No 2)  NSWCCA 69 at -).
Seeking a non-publication order?
The publishing of any criminal charge can do significant damage to a person's reputation. Obtaining a suppression order or a non-publication order will save you embarrassment as well as protect your good standing in the community.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.