Advertiser Newspapers Ltd v Bunting & Ors

ADVERTISER NEWSPAPERS LTD & ORS v BUNTING & ORS
SA TELECASTERS LIMITED & ORS v BUNTING & ORS
[2000] SASC 458

Magistrate’s Appeal

1................ MARTIN J....... The respondents Bunting, Haydon and Wagner are jointly charged with ten counts of murder. The respondent Vlassakis is charged with five of those counts of murder. The offences are alleged to have occurred between about December 1995 and May 1999. The bodies of eight of the deceased were found in six plastic barrels located in the vault of a former bank building at Snowtown. Subsequently, two more bodies were located. They were buried in the backyard of a house at 203 Waterloo Corner Road, Salisbury North. Bunting, Wagner and Haydon were charged on 21 May 1999. Vlassakis was charged on 2 June 1999.

The preliminary hearing in respect of all charges commenced before a Magistrate on 11 December 2000. His Honour had before him approximately 1400 statements and over 4000 exhibits. Between them, the accused have indicated that they will be seeking to cross-examine approximately 220 witnesses.
On 11 December 2000, senior counsel for the Director of Public Prosecutions opened the case for the prosecution with an oral opening that occupies approximately 26½ pages of transcript. In that opening, counsel provided an overview of the essential facts that the prosecution seek to prove and outlined a number of categories of evidence which will be led in support of the prosecution case. Three pathologists who, between them, conducted the post mortem examinations on the ten bodies, have given oral evidence which supplemented written reports provided in connection with the examinations.
The discoveries of the bodies and subsequent events have been the subject of substantial public interest and intense media scrutiny. On 13 December 2000, the Magistrate suppressed from publication the entire prosecution opening and all of the oral evidence of the pathologists, with the exception that publication was permitted of the fact that the pathologists had carried out post mortem examinations on the bodies of the deceased. His Honour delivered reasons for his decision and ordered that those reasons be suppressed from publication. Two separate appeals have been lodged against the orders of suppression by various media organisations.
The power of the Magistrate to make the orders is found in s 69A of the Evidence Act 1929 (“the Act”). The relevant parts of s 69A are as follows:
“Suppression orders
69A. (1) Where a court is satisfied that a suppression order should be made -
(a)     to prevent prejudice to the proper administration of justice; or
(b)    to prevent undue hardship -
(i)     to an alleged victim of crime; or
(ii)... to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or
(iii)   to a child,
the court may, subject to this section, make such an order.
(2)    Where the question of making a suppression order (other than an interim suppression order) is under consideration by a court -
(a).... the public interest in publication of information related to court proceedings, and the consequential right of the news media to publish such information, must be recognised as considerations of substantial weight; and
(b)the court may only make the order if satisfied that the prejudice to the proper administration of justice, or the undue hardship, that would occur if the order were not made should be accorded greater weight than the considerations referred to above.”
The matters that can be suppressed pursuant to s 69A are defined in s 68 of the Act:
“suppression order” means an order -
(a).... forbidding the publication of specified evidence or of any account or report of specified evidence; or
(b)forbidding the publication of the name of -
......... (i) a party or witness; or
(ii)... a person alluded to in the course of proceedings before the court,
and of any other material tending to identify any such person.”
Section 69A(8) provides a right of appeal against a suppression order and s 69B directs that the appeal be heard by a single judge of this Court. On the appeal, this Court may confirm, vary or revoke the order and may make any order or decision that could have been made in the first instance.
Section 69A requires that the Magistrate and this Court recognise that the public interest in the publication of information related to court proceedings, and the consequential right of the news media to publish such information, are considerations of substantial weight. While the Court is empowered to make a suppression order where it is satisfied that such an order should be made to prevent prejudice to the proper administration of justice, the legislation directs that the Court may only make a suppression order if satisfied that the prejudice that would occur if the order is not made “should be accorded greater weight” than the considerations of the public interest in publication and the consequential right of the news media to publish (“the considerations favouring publication”).
The Magistrate commenced his consideration of the applications for suppression by making the following observation:
“It is clear on the authorities that there should be a suppression order in respect of any evidence where there is a possibility that it may be ruled inadmissible at trial. In the interests of establishing and maintaining conditions of a fair trial for the defendants, such evidence should not be published until the trial judge has ruled on its admissibility. The authority for that proposition is the judgment of Duggan J in R v Von Einem 55 SASR 199.” (my emphasis)
The Magistrate then quoted a passage from the judgment of Duggan J in Von Einem which included the following (p 215-216):
“In my view the principle upon which Mitchell J acted in Miller v Samuels is equally applicable to the present case. When there is a genuine challenge to evidence such as confessional material or evidence of a prejudicial nature it is undesirable that the content of the evidence be revealed to jurors or potential jurors prior to a decision being made to admit it into evidence. It is this reasoning, based on considerations of fairness, which constitutes the main justification for the practice of hearing argument on such matters in the absence of the jury. It is undesirable for every such argument to take place at the preliminary examination as well as at trial and this accounts for the practice, referred to by Mr Martin, of the Crown not opposing applications for suppression of evidence given at the preliminary examination when there is to be a challenge to that evidence at trial. In these circumstances the suppression order is clearly justified in order to prevent prejudice to the proper administration of justice. Although a court is required to take into account “the public interest in publication of information related to court proceedings, and the consequential right of the news media to publish such information” (s 69a(2)(a)); to recognise that these considerations are of substantial weight (ibid); and to refrain from making an order unless the prejudice to the proper administration of justice is of greater weight than that public interest, it should be borne in mind that the order may be reviewed by the superior court after a ruling has been made on admissibility by that court. The justification for suppressing the evidence would no longer exist if it were admitted. On the other hand in the event of a ruling excluding the evidence the suppression order should remain. In neither case would the public interest suffer.”
After referring to further remarks of Duggan J, the Magistrate observed that much of the Crown evidence foreshadowed in the opening will be the subject of a genuine challenge to its admissibility if there is a committal for trial. His Honour mentioned a number of areas of the evidence in which challenges had been identified and in which the possibility exists that publication of certain evidence might taint other evidence to be given. Having referred to the “balancing exercise” required by s 69A, his Honour expressed his finding in respect of the opening in the following terms:
“I am satisfied that the scales tip firmly in favour of making a suppression order in respect of those topics covered by the submissions of counsel for the defendants. I am satisfied that there would be prejudice to the proper administration of justice were it otherwise. Such prejudice lies in the fact that publicity might prejudice potential jurors and taint the evidence of witnesses. It is my view that a suppression order is required to ensure that the defendants receive a fair trial.”
The Magistrate then addressed the question as to whether he should suppress the balance of the prosecution opening that was not said to be the subject of a challenge. He again referred to the balancing exercise and concluded:
“If an opening address is to be published, it should be published in a form which makes sense. This would not. It would give a completely distorted picture of the Crown case, which, in turn, would cause prejudice to the proper administration of justice.
In making this decision I bear in mind the public interest in publication of an opening address in a preliminary hearing is considerably less than would be the case in the opening address to a jury at trial. In the latter case the material would have been cleansed by the appropriate pre-trial procedures.
I, therefore, order that there be an order suppressing from publication all material in the Crown’s opening address. I do so to prevent prejudice to the proper administration of justice, in that publication could prejudice potential jurors and witnesses.”
As to the oral evidence of the three pathologists, his Honour observed that there could be no challenge to the admissibility of that evidence. That broad statement may not be entirely correct. After referring again to the balancing exercise, his Honour identified the issues of concern to him and concluded that publication could cause potential jurors to be prejudiced and it could taint the evidence of witnesses.
The appellants submitted that the Magistrate misdirected himself as to the relevant legal principles. Particular criticism was directed to his Honour’s remarks cited earlier in these reasons that there should be a suppression order where there is a possibility that the evidence may be ruled inadmissible at trial. Viewed in isolation, that passage is not an accurate statement of the legal test required by s 69A of the Act. I doubt that his Honour intended that passage to represent a definitive statement of the legal principles. In a shorthand manner his Honour was referring to the effect of the decision in Von Einem and, in later remarks, his Honour correctly directed himself to the “balancing exercise” required by s 69A. His Honour also concluded that publicity might prejudice potential jurors and taint the evidence of witnesses. However, I acknowledge the force of the appellants’ submissions that his Honour does not appear to have engaged in the exercise of assessing the nature and extent of the possible prejudice to the proper administration of justice.
The appellants also submitted that the Magistrate erred by giving inappropriate weight to the possibility of prejudice to the proper administration of justice. I am not prepared to draw that conclusion from his Honour’s remarks. It is not surprising that his Honour referred on more than one occasion to the issue of prejudice to the proper administration of justice because the jurisdiction to grant the suppression order was only enlivened if his Honour was satisfied that a suppression order should be made to prevent such prejudice.
The principle of open justice is fundamental to the workings of our courts. At times, that aspect of the public interest comes into conflict with another aspect of the public interest, namely, that aspect of the proper administration of justice which recognises the fundamental right of every accused person to a fair trial. This conflict was touched upon in the context of contempt of court proceedings in Hinch v The Attorney-General for the State of Victoria (1987) 164 CLR 15. In recognising the conflict, Mason CJ referred to the reporting of committal proceedings as an example of a public interest in the reporting of public affairs which may prevail notwithstanding that the publication may cause prejudice to an accused person at trial by prejudicing the minds of potential jurors (p 24). Section 69A contemplates the possibility that the public interest in the administration of justice may give way to other more weighty public interests which favour the fair and accurate reporting of court proceedings. Section 69A requires the court to engage in a balancing exercise between these competing public interests. It is not uncommon for the courts to be required to engage in such an exercise.
The concept of the “proper administration of justice” in s 69A is a wide one. I will not attempt to define it. However, that concept obviously includes the right of every accused to a fair trial. Section 69A does not detract in any way from that fundamental right. As Doyle CJ observed in Advertiser Newspapers v V [2000] SASC 366, the publication of material “which would impede a fair trial” is an obvious example of prejudice to the administration of justice.
Not surprisingly, there was a tendency in some of the submissions to concentrate upon whether a fair trial would be possible if material was published that was later ruled inadmissible at trial. In my opinion, however, the concept of the “proper administration of justice” encompasses wider considerations. It is prejudicial to the proper administration of justice to create a risk of jeopardising a fair trial. The proper administration of justice is concerned with ensuring, as far as is possible, that an accused receives a fair trial. To create a risk that the fundamental right to a fair trial will not be achieved is to prejudice the proper administration of justice.
As mentioned, s 69A requires that the court engage in a balancing exercise between the prejudice to the proper administration of justice and the considerations favouring publication. This process necessarily involves the court in a consideration of the nature and extent of the prejudice to the proper administration of justice that might occur if an order for suppression was not made. For example, in the context of a risk to the fairness of a trial by publication of material that might be held inadmissible, the nature of that material will provide a guide to the court as to whether there is a realistic possibility of a risk being created. It will also assist the court in determining the degree of risk that might be occasioned to the fairness of the trial. In this process, it will be appropriate for the court to have regard to the measures available to a trial court to remove or ameliorate any prejudice that has been caused by publication. However, particularly at the stage of a preliminary hearing, once the court is satisfied that there is a realistic possibility of creating the relevant risk, in my opinion a court should not hesitate to use the power of suppression. In these circumstances, it will be an exceptional case in which the risk can confidently be assessed as minimal and a view reached that the prejudice to the proper administration of justice should not be accorded greater weight than the considerations favouring publication.
In the matter under consideration, it is important to bear in mind the nature of the proceedings before the Magistrate. The purpose of the preliminary hearing is not to determine the guilt or innocence of the respondents. The Magistrate is required to determine only whether the evidence is capable in law of supporting a conviction. In approaching this task, the Magistrate has a very limited role with respect to questions of the admissibility of evidence. Unless the evidence is plainly inadmissible, the Magistrate is required to admit the evidence and to reserve any dispute as to admissibility for determination by the trial court (s 107(1)(b) of the Summary Procedure Act 1921). The Magistrate is required to assume that the evidence, considered at its strongest from the point of view of the case for the prosecution, is accurate and that all inferences most favourable to the prosecution which are reasonably open will be drawn. In this process, the Magistrate primarily relies upon statements and other relevant material tendered by the prosecution. Witnesses are not usually cross-examined, but the Magistrate may give leave to cross-examine. If leave is given to cross-examine, it is usually restricted to cross-examination upon specific topics.
Significantly, the media do not have a right of access to the statements and other relevant material tendered before the Magistrate and relied upon by the prosecution. It is only with the permission of the court that the media may inspect documentary material filed in connection with a preliminary hearing or a transcript of any oral evidence taken at a preliminary hearing (s 51(2)(d) and (e) of the Magistrates Court Act 1991.) In a practical sense, therefore, the principle of open justice has been modified by the specific legislative provisions that apply to preliminary hearings.
The fact that suppression is sought in the context of a preliminary hearing is also relevant for another reason. As Duggan J observed in Von Einem, at a preliminary hearing the Court should bear in mind that a suppression order may be reviewed by the trial court when a ruling on admissibility has been made. If the evidence is admitted, the justification for suppression will usually disappear. If the evidence is excluded, the suppression order should remain. Both aspects of the public interest are thereby protected.
In considering the possible effect of publication of challenged material, it is also important to bear in mind that modern systems of communication have resulted in members of our community reading, seeing and hearing of tragic and gruesome events from around the world with unfortunate regularity. The capacity of jurors to put aside what they have read and heard and to reach decisions solely on the basis of evidence before them should not be underestimated. In this context, I respectfully agree with the observations of the Full Court of the Federal Court in Duff v R (1979) 28 ALR 663 at 677:
“The possible effect on jurors of such articles must be assessed in the light of the times in which we live. We live in an age when television, motion pictures, radio and newspapers inform us of acts of violence and other notorious happenings within minutes of their occurrence in remote or proximate places. Some of the accounts are accurate and fair, others are not. It is wrong to assume that jurors do not have or will not exercise a critical judgment of what they see, read and hear in the media. That is not to ignore the power of the press, nor to deny that a press report may have “as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case”, and thus be contemptuous (John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370). When an adverse press report appears, a trial judge may sometimes have to take steps to eliminate or diminish the possibility of unfairness to an accused person. The discharge of a jury may be necessary in particular circumstances, but that would be exceptional. There is no criterion save that of doing justice to the best of the court’s ability in all the circumstances.”
Speaking very generally, the respondents have sought suppression of the Crown opening where it contained reference to evidence, the admissibility of which will or may be challenged at trial should there be a committal for trial. The Magistrate accepted that a genuine issue as to admissibility exists. In addition, it was argued that publication of certain forensic evidence might influence witnesses who are yet to give evidence if those witnesses became aware of specific forensic evidence that supports or contradicts their evidence.

Where a genuine challenge to the admissibility of evidence has been identified, in most instances the appellants do not oppose suppression of that evidence or reference to that evidence at this stage of the proceedings. In some areas, the appellants suggest that the statements of counsel for the respondents fall short of identifying a challenge to admissibility and that, in the absence of a firm indication as to the existence of a challenge, an order is not justified. On my reading of the transcript, it may be that the Magistrate was somewhat generous in his interpretation of statements by counsel for the respondents when he described all matters as the subject of a genuine challenge. However, it is understandable that his Honour should prefer to err on the side of caution at this early stage of the proceedings. In a matter as large and as complex as these proceedings, counsel for an accused cannot hope to be in a position at this early stage to identify with certainty all areas of the evidence in which challenges to admissibility will or are likely to be mounted. In my opinion, particularly where the evidence is of a prejudicial nature or might, if publicised, influence the evidence of other witnesses, the Magistrate is justified in taking a cautious approach. As the preliminary hearing proceeds, the issues will be clarified with a greater degree of certainty thereby enabling a sensible review of suppression orders in respect of the opening and specific categories of evidence.
I have considered the transcript of submissions before the Magistrate and the further submissions of counsel for the respondents in this Court. I have made my own independent assessment of the categories of evidence in which a challenge to admissibility is a realistic possibility and of the prospect of publication influencing the evidence of other witnesses. I have been assisted in this task by a written summary prepared by the appellants which analyses the topics of evidence and whether a genuine challenge to admissibility has been foreshadowed. Close analysis of these matters demonstrates that, in a number of respects, the appellants do not dispute that suppression is appropriate at this stage. In not opposing suppression with respect to a number of the categories, the appellants properly reserved the right to re-agitate the issues as the evidence unfolds during the preliminary hearing.
The Magistrate identified a number of discrete categories of evidence which he considered should be suppressed. Understandably, he did not descend into the details involved in some of those categories. Although it is not specified, it appears likely that his Honour included in the material that he considered should be suppressed reference by the prosecutor to the causes of death.
In my opinion, although it is arguable that the Magistrate may have taken an unduly narrow view of the issues he was required to consider, the appellants have not demonstrated that the Magistrate was wrong in concluding that various categories of evidence should be suppressed. As a consequence of my own independent assessment, with the exception of reference to the possible causes of death, I agree with his Honour. In respect of the possible causes of death, and on the assumption that his Honour determined that reference to those causes should be excluded, in my opinion suppression cannot be justified. There is no suggestion that the evidence mentioned in the opening might be the subject of a challenge to its admissibility. The opening amounts to no more than a bare statement of the prosecution case as to the possible causes of death. It is important to place this information in the public arena. Knowledge of the possible causes of death will assist in allaying speculation. I reject the submission that publication might lead to prejudice should separate trials occur. In my opinion, there can be no prejudice to the proper administration of justice by the publication of this part of the prosecution opening.
The appellants take issue with his Honour’s decision to suppress parts of the opening that amounted to expressions of opinions or hypotheses put forward by the Crown. The respondents contended that those sections should be suppressed from publication because the hypotheses may not be proved or will be the subject of challenge. It appears that his Honour accepted the respondents’ contention. Taken to its logical conclusion, the approach urged by the respondents would result in suppression whenever a prosecutor in opening referred to conclusions that the Crown say should be drawn from the evidence. Generally speaking, in my opinion suppression is not justified on this ground. In expressing that view, I am not excluding the possibility that a consideration of the evidence might demonstrate that a Crown hypothesis was unlikely to be made out. In such circumstances, suppression might be justified. However, in the matter under consideration, in my opinion it would not be appropriate to suppress publication of any of the Crown opening solely on that basis. Potential jurors are perfectly capable of understanding that these statements are prosecution allegations only and that they may or may not be proved in due course.
Counsel for the respondents argued that some of the hypotheses should be suppressed because they are based, at least in part, upon evidence that may be ruled inadmissible. In the particular circumstances of this case, I agree. This is an exceptional case in many respects and I consider that erring on the side of caution is appropriate.
The other general basis upon which suppression was sought concerned details related to the conditions of the bodies of the deceased. These details are additional to the causes of death and appear in both the prosecution opening and the evidence of the pathologists. On one view, the bare statements of fact are matters which should be published because they have been laid before the Magistrate as part of the prosecution case. However, in the context of this particular matter which has and will involve an exceptional amount of publicity, and which necessarily carries with it a natural revulsion when confronted with the known prosecution allegations, particular care is required to ensure that publication of other details of the prosecution case will not put at risk the right of the accused to a fair trial.
The issue is finely balanced. I am satisfied that the release of the details would be likely to give rise to damaging speculation. I appreciate that, in itself, the possibility of speculation by readers will not usually amount to such prejudice as will justify a suppression order. However, the likelihood of speculation is to be coupled with the risk that publication of the material might influence the evidence of witnesses who have yet to be called (cf R v Von Einem(No.2) (1991) 52 A Crim R 402). In the context of this quite exceptional case, and bearing in mind that the Court is concerned with the very early stage of a lengthy and complicated preliminary hearing, on balance I have decided that the cumulative effect of these matters requires that these details be suppressed.
I have also reached the view that the oral evidence of the pathologists contains a substantial amount of evidence that should be suppressed. The evidence was given against the background of written reports to which the appellants do not have access. The cross-examination was conducted on the understanding that the evidence was subject to a suppression order. As a consequence, various possibilities were pursued and the pathologists were asked to express speculative opinions in respect of the various possibilities. Much of the evidence is not intended for admission at trial as all parties recognise that the evidence would be inadmissible. Some of the evidence is highly prejudicial and would lead to unfair speculation. To allow publication of only the oral evidence would create a distorted picture. I also accept the submissions of the appellants that publication of some of the evidence could influence the evidence of other witnesses.
I have given anxious consideration to whether it is appropriate to excise portions of the oral evidence thereby allowing publication of the balance. As indicated later in these reasons, I consider that such a course is appropriate with respect to the prosecution opening. However, on balance, I have decided that it is inappropriate to undertake such an exercise with respect to the oral evidence of the pathologists. The evidence is littered with passages which I have determined should be suppressed. Again erring on the side of caution, I have reached the view that all of the oral evidence of the pathologists should be suppressed. In arriving at that decision, I have borne in mind that the balance of the opening will not be suppressed and it contains reference to the possible causes of death.
The appellants also took issue with the decision of the Magistrate to suppress the balance of the opening where the evidence was not challenged or where, considered in isolation, there was no reason advanced for suppressing the content of the opening. As mentioned, his Honour concluded that publication of the balance of the opening could prejudice potential jurors and witnesses. In arriving at that view, his Honour expressed the opinion that publication of the balance would give a distorted picture of the Crown case which, in turn, would cause prejudice to the proper administration of justice.
Although the appellants suggested in argument that his Honour posed the wrong test by referring to the distorted picture that would be provided of the opening if publication of the balance was permitted to occur, in my opinion his Honour did not pose the wrong test. He concluded that, by reason of the distortion, prejudice would be caused to the proper administration of justice. However, as indicated earlier in these reasons, his Honour may not have given adequate consideration to the nature and extent of the possible prejudice.
There can be no doubt that publication of the balance of the opening would give an incomplete picture of the Crown case. However, counsel for the Crown made it plain in opening that she was providing only an overview of the evidence and that she was not making any attempt to canvass all the categories of the evidence or to descend into detail. In addition, if publication of the balance of the opening was permitted, a fair and accurate report would require clarification to the extent of informing readers and listeners that a complete report of the opening cannot be given because substantial parts of it have been suppressed.
I respectfully disagree with the Magistrate as to whether publication of the balance of the opening would give such a distorted picture of the Crown case that it could create prejudice to the proper administration of justice. It is not unreasonable to observe that counsel for the respondents experienced difficulty in demonstrating that such prejudice might occur from publication of the balance of the opening. Concern was expressed that something unforeseen may emerge from the material yet to be provided by the prosecution or from a closer examination of the material already presented. Concern was also expressed that the publication might result in undue prominence being given to those aspects of the Crown case which remain in the balance of the opening. In my opinion, however, those concerns fall short of establishing that publication might prejudice the proper administration of justice.
Counsel for the Crown suggested that the public expect a reasonable degree of proportionality between the material published and the actual content of the prosecutor’s opening. If a lack of proportionality amounts to prejudice to the proper administration of justice, which I doubt, the prejudice can be dispelled by informing the public that a substantial amount of the opening has been suppressed from publication.
On more than one occasion I have mentioned that the matter under consideration is exceptional. The exceptional nature of the events that are the subject of the preliminary hearing excites media and public attention and gives rise to concerns centred on the public interest in open justice. However, it also heightens the risk of prejudice to the proper administration of justice. Jurors are resilient and sensible. They are able to assess critically what they read and hear. But the pervasive nature of the intensive publicity in this matter, particularly with respect to material that excites media and public attention, must never be underestimated. The court must be alive to these difficulties. The principles governing the application of s 69A remain constant, but their application must be governed by the particular circumstances under consideration.
I have previously referred to the difficulty of the task that faced the Magistrate. In many respects, I have agreed with the conclusions reached by his Honour. I also appreciate that his Honour is likely to be faced with constant interruptions to the course of evidence caused by applications and submissions concerning suppression of evidence. Those interruptions are probably unavoidable. If an accused perceives the need for suppression and an application is made, the media are entitled to be heard and the Magistrate is required to give effect to the meaning and spirit of s 69A. However, excessive delay caused by such interruptions is obviously undesirable in this protracted hearing. If the predictions of constant interruptions come to fruition, on future applications the Magistrate would be well justified in taking a somewhat robust approach by truncating the interruptions. His Honour would be entitled to insist upon concise submissions and to give only the briefest of reasons. Given the lengthy submissions that have already taken place before his Honour, and assuming that his Honour will be aware of these reasons, unless the circumstances of a particular application require otherwise it will not be unreasonable to assume that his Honour has taken into account the relevant considerations and engaged in the proper balancing exercise required by s 69A.
In summary:
1...... The principle of open justice is a fundamental principle which is enshrined in s 69A of the Evidence Act.
2.Section 69A also recognises the fundamental principle that every accused is entitled to a fair trial. This principle is encompassed by the concept of the “proper administration of justice”.
3...... Through s 69A, the South Australian legislature has recognised that, at times, these fundamental principles come into conflict. In giving guidance to a court required to resolve the conflict, the legislature has directed that the public interest in publication of information related to court proceedings and the consequential right of the news media to publish such information must be recognised as considerations of substantial weight. The legislature has directed that the court may only order suppression if satisfied that the prejudice to the proper administration of justice that would occur if the order was not made should be accorded greater weight than the considerations favouring publication.
4.The proceedings in question are of an exceptional nature which have excited and will continue to excite great public attention and intense media scrutiny. The nature of the proceedings also increases the potential for the creation of a risk of jeopardising the respondents’ fair trial should there be a committal for trial.
5...... It is important to bear in mind the context in which the prosecution opening and evidence have been given. It is the very early stage of a long and complicated preliminary hearing. As required by the provisions of the Summary Procedure Act, primarily the prosecution case is presented by the tendering of statements and other relevant material before the Magistrate. The media do not have a right of access to that material. It is only with the permission of the court that access can be obtained. In a practical sense, therefore, the principle of open justice has been modified by the specific provisions that apply to preliminary hearings.
6.The Magistrate at a preliminary hearing does not determine guilt or innocence. With a limited exception, the Magistrate must accept the evidence presented by the prosecution as accurate and admissible. Questions of admissibility are reserved for the trial court. In the context of proceedings in which approximately 1400 statements and over 4000 exhibits have been tendered, and at this early stage of the proceedings, it is appropriate for the Magistrate to err on the side of caution. As the hearing proceeds there will be opportunities to review suppression orders. If there is a committal for trial, suppression orders can be reviewed by the trial court when a ruling on admissibility has been made. If the evidence is excluded, the suppression orders should remain in force. If the evidence is admitted, the justification for suppression will usually disappear. In this way, although delayed, where publication is appropriate, it will be permitted. The principle of open justice will be satisfied as will the principle that every accused is entitled to a fair trial.
7...... Generally speaking, I agree with the Magistrate that the categories of evidence identified as the subject of challenge to admissibility should be suppressed from publication at this early stage of the proceedings. In many instances, the appellants do not oppose suppression at this time. If the evidence is publicised and subsequently ruled inadmissible, it will create a risk of jeopardising the fairness of the trial because it would place into the public arena inadmissible and prejudicial material which might have a tendency to influence potential jurors and to influence witnesses who have not yet given evidence.
8.In arriving at this view, I have not overlooked the integrity of jurors and their capacity to put aside what they have read and heard. Nor have I overlooked the capacity of trial judges to remove or ameliorate prejudice caused by events prior to and during a trial. However, this is an exceptional case and the pervasive nature of the intensive publicity that will accompany this case should not be underestimated. At this time, caution is required.
9...... I have also concluded that the oral evidence of the pathologists should be suppressed from publication. That evidence is littered with speculative and inadmissible opinions. Counsel quite properly explored various possibilities and sought such opinions. All parties acted on the basis that such opinions would not be admissible at trial. There is also the added difficulty that the questions are asked in the context of written reports which have been tendered before the Magistrate, but which are not available to the media. A misleading and potentially prejudicial impression of the evidence of the pathologists is likely to occur if publication is permitted of the limited oral evidence. Unfair and damaging speculation would almost inevitably ensue. Publication would also possess the potential to influence witnesses.
10.As to the balance of the opening, I have concluded that suppression is not justified.
For these reasons, I have concluded that the appeals should be allowed, but only to the extent of setting aside the order of the Magistrate suppressing the Crown opening from publication. Portions of the opening are to remain suppressed. I have prepared an edited version of the Crown opening in which the suppressed portions have been deleted. In four places I have inserted words not spoken during the opening in order to make sense of the remaining passages. Those insertions are identified by square brackets.
In substitution for the order of the Magistrate concerning the Crown opening, I order that the opening remarks of senior counsel for the prosecution be suppressed with the exception of those passages that appear in the edited version which will be annexed to these reasons and released to the parties.

The appeals against the order of the Magistrate suppressing the oral evidence of the pathologists are dismissed.
As to the reasons of the Magistrate, I previously allowed the appeals against suppression of those reasons in their entirety. I ordered that portions of the reasons remain suppressed, but that the balance be released for publication. I will hear counsel further in respect of that order.

[2000] SASC 458

21 December 2000