Advertiser Newspapers Ltd v Bunting & Ors - [2000] SASC 458

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] SASC 458
Decision Date: 21 December 2000

CaseChat Overview and Summary

In Advertiser Newspapers Ltd v Bunting & Ors, the respondents Bunting, Haydon, and Wagner were jointly charged with ten counts of murder, with Vlassakis charged with five of those counts. The preliminary hearing, which commenced on 11 December 2000, involved substantial media interest and scrutiny. The Magistrate suppressed from publication the entire prosecution opening and the oral evidence of the pathologists, except for the fact that the pathologists had conducted post-mortem examinations. Two media organisations appealed against these suppression orders, arguing that the Magistrate had misapplied the legal principles outlined in s 69A of the Evidence Act 1929. Martin J of the South Australian Supreme Court reviewed the Magistrate's decisions, focusing on the balancing exercise required between the public interest in publication and the need to prevent prejudice to the proper administration of justice. Martin J concluded that the Magistrate's decision to suppress the oral evidence of the pathologists was appropriate due to the speculative and inadmissible nature of the evidence, but disagreed with the suppression of the balance of the Crown opening, finding that it would not prejudice the proper administration of justice. The court allowed the appeals concerning the suppression of the Crown opening, setting aside the Magistrate's order and substituting an edited version for release to the parties. The appeals against the suppression of the pathologists' oral evidence were dismissed.

Orders