Advertiser News Weekend Publishing Company Pty Ltd v X - [2006] SASC 363

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ADVERTISER NEWS WEEKEND PUBLISHING COMPANY PTY LTD v X & ANOR
[2006] SASC 363
Judgment of The Honourable Justice Debelle
24 November 2006
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS
Suppression order – application to vary - respondent accused charged with offence against s 30(1) and s 30(6) of the Australian Crime Commission Act 2002 – respondent accused failed to comply with summons issued under Australian Crime Commission Act – whether appellant can publish the fact that an unnamed person has been charged with a breach of s 30 of the Act – whether the appellant can publish the fact that an application was made to vary the order but that the magistrate dismissed the application – appeal allowed and suppression order varied.
Australian Crime Commission Act 2002 (Cth) s 4, s 7B, s 25A(9), s 25A(14), s 28, s 29A, s 29B, s 30(1), s 30(6), s 30(7); Evidence Act 1929 (SA) s 69A; Proceeds of Crime Act 2002 (Cth), referred to.
R v Glennon (1992) 173 CLR 592; R v Carbone (1989) 50 SASR 495; R v Plunkett (1997) 69 SASR, considered.

ADVERTISER NEWS WEEKEND PUBLISHING COMPANY PTY LTD v X & ANOR
[2006] SASC 363
Magistrates Appeal: Criminal

DEBELLE J. This is an appeal from suppression orders made by a magistrate on 10 and 17 November 2006.
The respondent accused is charged on information with an offence against s 30(1) and s 30(6) of the Australian Crime Commission Act 2002 (Cth). It is alleged against him that on 5 April 2005 at Adelaide, after having been served with a summons to appear as a witness at an examination before an examiner, he failed to attend as required by the summons.
The matter was listed for hearing in the Adelaide Magistrates Court on 10 November 2006. The magistrate made a number of orders. On the application of the accused, the magistrate made a suppression order which is expressed in these terms in the Certificate of Record:
His Honour suppresses the publication of the name, address and anything else that would identify the defendant as well as the nature of the charge of which the defendant is charged.
The appellant was not present at the hearing on 10 November. On 17 November, the appellant applied to a magistrate for an order to vary the order made on 10 November to permit publication of the nature of the charge. The magistrate dismissed the application and made an order suppressing publication of any details of the proceedings on 17 November.
The appellant has appealed from both the orders of 10 November 2006 and 17 November 2006. It seeks an order that the order made on 10 November be varied by deleting the words: “as well as the nature of the charge of which the defendant is charged”. It also seeks an order revoking the order made on 17 November. Counsel for the accused opposed any order setting aside or varying either suppression order. Counsel for the complainant neither supported nor opposed the appellant’s application.
At the conclusion of the hearing of the appeal, I made the following orders:
1.That the order made in the Adelaide Magistrates Court on 10 November 2006 in the proceeding AMC-06-17480 which reads “His Honour suppresses the publication of the name, address and anything else that would identify the defendant as well as the nature of the charge of (sic) which the defendant is charged” be varied by deleting the words “as well as the nature of the charge of which the defendant is charged”.
2.That the order made in the Adelaide Magistrates Court on 17 November 2006 in the proceeding AMC-06-17480 be varied so as to permit publication of the fact that an application was made in the Adelaide Magistrates Court by the appellant to vary the order made on 10 November 2006 and that the application was dismissed.
I said that I would publish reasons for the orders. These are the reasons.
The Australian Crime Commission Act established the Australian Crime Commission. It invests the Commission with power, among other things, to undertake intelligence operations and to investigate matters relating to federally relevant criminal offences: s 7B of the Act. Reference to the definitions in s 4 of the Act of “federally relevant criminal activity”, “relevant criminal activity”, and “serious and organised crime” might be summarised by stating that the Commission is authorised to investigate serious and organised crime that may have been, may be being, or may in the future be committed against a law of the Commonwealth or of a Territory or of a State and involves two or more offenders, substantial planning and organisation with the use of sophisticated methods and techniques, and is a serious offence within the meaning of the Proceeds of Crime Act 2002 (Cth). A serious offence as defined in the Proceeds of Crime Act includes tax evasion, money laundering, currency violations, illegal drug dealings, harbouring of criminals, armament dealings, and cybercrime.
Sections 24A to 36 of the Act provide for examinations, the conduct of examinations and for matters ancillary to the conduct of examinations. Section 28 of the Act invests an examiner with power to summons a person to appear for examination and to produce documents. Section 30(1) and (6) of the Act make it an offence for persons served with a summons under s 28 to fail to attend the examination.
Section 25A(9) provides that an examiner may give directions to prevent the publication of or disclosure of evidence or information given at an examination and s 25A(14) makes it an offence to breach such a direction. In addition, s 29A and Section 29B contain provisions prohibiting disclosure of information about the issue of a summons. Section 29A relevantly provides:
29A Disclosure of summons or notice etc. may be prohibited
(1)The examiner issuing a summons under section 28 or a notice under section 29 must, or may, as provided in subsection (2), include in it a notation to the effect that disclosure of information about the summons or notice, or any official matter connected with it, is prohibited except in the circumstances, if any, specified in the notation.
(2)A notation must not be included in the summons or notice except as follows:
(a)     the examiner must include the notation if satisfied that failure to do so would reasonably be expected to prejudice:
(i)the safety or reputation of a person; or
(ii)the fair trial of a person who has been or may be charged with an offence; or
(iii)the effectiveness of an operation or investigation;
(b)     the examiner may include the notation if satisfied that failure to do might prejudice:
(i)the safety or reputation of a person or
(ii)the fair trial of a person who has been or may be charged with an offence ; or
(iii)the effectiveness of an operation or investigation;
(c)     the examiner may include the notation if satisfied that failure to do so might otherwise be contrary to the public interest.
(3)If notification is included in the summons or notice, it must be accompanied by a written statement setting out the rights and obligations conferred or imposed by section 29B on the person who was served with, or otherwise given, the summons or notice.
(There are other provisions in s 29A by which a notation may be cancelled. They are not relevant to the issues in this appeal.) The summons served upon the respondent contained a notation to the effect that disclosure of information about the summons is prohibited.
Section 29B makes it an offence for a person served with a summons to disclose the existence of the summons or the existence of any information about any official matter connected with the summons. For present purposes only s 29B(1) and (2) are relevant. They provide:
29B   Offences of disclosure
(1)A person who is served with, or otherwise given, a summons or notice containing a notation made under section 29A must not disclose:
(a)     the existence of the summons or notice or any information about it; or
(b)     the existence of, or any information about, any official matter connected with the summons or notice.
Penalty: 20 penalty units or imprisonment for one year.
(2)Subsection (1) does not prevent the person from making a disclosure:
(a)     in accordance with the circumstances, if any, specified in the notation; or
(b)     to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or
(c)     to a legal aid officer for the purpose of obtaining assistance under section 27 relating to the summons, notice or matter; or
(d)     if the person is a body corporate – to an officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or
(e)     if the person is a legal practitioner – for the purpose of obtaining the agreement of another person under subsection 30(3) to the legal practitioner answering a question or producing a document at an examination before an examiner.
There are no provisions in the Act nor is there any provision in any other Commonwealth legislation which prevent disclosure of the fact that a person has been charged with an offence under s 30.
When making the suppression orders the magistrate relied on s 29A and s 29B. He said:
The Australian Crimes Commission is an organisation where proceedings are confidential. The Act has numerous provisions throughout preventing publication of proceedings, for example, sections 29A and 29B. Section 29A, for example, provides that a person is served with a summons may not disclose even the existence of the summons. The person whose name is prohibited from publication was summonsed to appear at the Commission. That very fact is prohibited from publication. He apparently did not obey his summons, was arrested and charged with that. That charge is before the court. The Advertiser News Weekend Publishing Pty Ltd now seeks to vary the order by allowing it to publish the fact that the defendant, without naming him, is charged with disobeying a summons directed to him by the Australian Crimes Commission.
In my view there is no public interest in allowing anyone to publish the fact that an unknown person is charged with disobeying such a summons. It is the clear view of the Commonwealth Parliament that proceedings before the Commission remain secret and the application to vary the order is refused.
The appellant contended that the magistrate erred in his reliance on the named provisions in the Australian Crime Commission Act and in holding that there was no public interest in the publication of the fact that an unknown person had been charged with failing to comply with a summons for examination.
It is common ground that the only relevant power to make a suppression order in the particular circumstances of this case is that provided by s 69A(1)(a) of the Evidence Act 1929, that is to say, if the court is satisfied that the order should be made to prevent prejudice to the proper administration of justice. The expression “prejudice to the proper administration of justice” is a wide one. It comprehends every aspect of the administration of justice. It plainly includes the right of every accused to a fair trial. However, for the reasons which follow, the magistrate erred in not varying the order in the terms sought by the appellant.
The magistrate’s reliance on s 25A, s 29A and s 29B of the Australian Crime Commission Act was misplaced. Although those provisions proscribe disclosure of the fact of the issue of the summons and of the proceedings before an examiner, there is no provision which prohibits disclosure of the fact that a person has been charged with a breach of s 30 of the Act. Had the Commonwealth Parliament intended to prevent disclosure of that fact, it clearly could have included a provision to that effect. Furthermore, there is no provision in the Act which requires that the hearing of proceedings in which a person is charged with a breach of s 30 of the Act should not be held in open court. In addition, there is no other Commonwealth legislation prohibiting disclosure. An application of the principle expressio unius est exclusio alterius reinforces the conclusion that Parliament did not intend that there should be no publication of the fact that a person had been charged with a breach of s 30. Indeed, given that such proceedings will be heard in open court and might be the subject of a jury trial, it would be extremely difficult to prevent disclosure of that fact. In addition to those considerations, there is a public interest in disclosure of such proceedings in that publication might act as a deterrent to those minded not to comply with the summons issued under s 28. There is, therefore, nothing express or implied in the Australian Crime Commission Act which justified the magistrate’s order.
The magistrate also erred in concluding that there is no public interest in allowing publication of the fact that an unknown person is charged with disobeying a summons issued under the Australian Crime Commission Act. The question whether persons are complying with a summons for examination issued by the Australian Crime Commission and, if not, are answerable for any failure to do so are matters which directly concern the proper investigation of serious crime and the capacity of prosecuting authorities successfully to prosecute those who engage in serious crime. The public has a proper and legitimate interest in knowing whether those who fail to comply with a summons to attend for examination are answerable for their conduct. In addition, publication might have the deterrent effect already mentioned. The fact that a report does not name an alleged offender might make the report less newsworthy but, at the same time, it informs the public that those who do not comply with a summons are being prosecuted. There is, therefore, a public interest in the publication of such information.
I turn to the question whether publication of the fact of the prosecution would prejudice the proper administration of justice. The proper administration of justice plainly includes the right to a fair trial. While this offence might be tried in a court of summary jurisdiction, the accused is able to elect to be tried by a jury on this charge: s 30(7) of the Australian Crime Commission Act. I do not think that the publication of the fact that an unnamed person has been charged with a breach of s 30 has any realistic potential to affect adversely the fair trial of the accused. The very anonymity of the report is sufficient to prevent any prejudice. Whatever slight risk of prejudice might exist must be weighed against the fact that the courts place reliance on the integrity and sense of jurors and assume that they will consider their verdict in light of evidence presented before them and in conformity with the instructions and warnings given to them by the trial judge: R v Glennon (1992) 173 CLR 592 at 603 and at 614; R v Carbone (1989) 50 SASR 495 at 502 and R v Plunkett (1997) 69 SASR 452 at 454-455.
After weighing the factors prescribed by s 69A of the Evidence Act, I am satisfied that there is no proper ground on which to prevent publication of the fact that an unnamed person has been charged with a breach of s 30 of the Act.
For these reasons the appeal was allowed and an order made varying the order of the magistrate made on 10 November 2006 by deleting the words “as well as the nature of the charge of which the defendant is charged”.
For like reasons, there is no reason why the order of the magistrate suppressing publication of the details of the hearing on 17 November should stand in its entirety. That order should be varied to permit publication of the fact that an application was made to vary the order but that the magistrate dismissed the application.