Advertiser Newspapers Ltd v S and Director of Public Prosecutions (Cwlth) No. Scgrg-99-652 Judgment No. S261

[1999] SASC 261

ADVERTISER NEWSPAPERS LIMITED v S AND DIRECTOR OF PUBLIC PROSECUTIONS (CWLTH)

[1999] SASC 261

Magistrates Appeals

1 WICKS J This is an appeal in respect of an interim suppression order made by a magistrate under s69a of the Evidence Act 1929.
2 S is a Malaysian born Australian citizen. 
3 The Director of Public Prosecutions (Cwlth) laid an information against S containing two alternative counts as follows:
"On about the 28th day of August 1995 at Kuala Lumpur, Malaysia, in connection with the proposed entry of a non-citizen into Australia, did furnish for official purposes of the Commonwealth, a document containing a statement or information that was false or misleading in a material particular; contrary to Section 234(1)(c) of the Migration Act 1958.

Particulars
The defendant lodged with the Australian High Commission in Kuala Lumpur, Malaysia an ‘Application For Registration Of Australian Citizenship by Descent’ in which she falsely stated that she was the mother of R, born on 23 July 1995 in Kuala Lumpur, Malaysia, when in fact she was not the mother of the child.

or, in the alternative:

On about the 28th day of August 1995 at Kuala Lumpur, Malaysia, imposed upon the Commonwealth by an untrue representation, made in any manner whatsoever, with a view to obtain any other benefit or advantage; contrary to Section 29B of the Crimes Act 1914.

Particulars
The defendant lodged with the Australian High Commission in Kuala Lumpur, Malaysia, an ‘Application For Registration Of Australian Citizenship By Descent’ in which she falsely stated that she was the mother of R, born on 23 July 1995 in Kuala Lumpur, Malaysia, with a view to obtaining Australian Citizenship for the said child, when in fact she was not the mother of the child."

4 The case against S was that she sought to register R as her daughter by falsely stating that she was R’s mother.  It is alleged that R was born on 23 July 1995 in Kuala Lumpur, Malaysia.  At the time, S was married to an Australian citizen.
5 The information laid against S came before a stipendiary magistrate on 20 May 1999.  Either before or during the hearing on that date the learned magistrate, at the request of counsel for S, made an interim order suppressing the names of and anything tending to identify S and R (the "interim suppression order").
6 On 20 May 1999, the hearing of the charges proceeded to the close of the Crown case and this was followed by a "No Case to Answer" submission on the part of defence counsel.
7 Counsel for S made application for the suppression order on the basis that there would be undue hardship caused to R were her name, or that of her mother, or photograph, published in the media.  The application was made having regard to the fact that the child R now attends kindergarten or some other child care or play-school facility.  Counsel for S said:
"We face the parentage of [R] being called into question, when the child is four, in circumstances where that cloud over her parentage could well become known to her because she would easily be identified as the daughter of [S], in the circles in which [R] moves ..."

8 Section 69a of the Evidence Act 1929 deals with the subject of suppression orders. Subsections (1) and (2) of the section set out the principles to be applied as follows:
"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-

1. 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, 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 recognized 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."

9 Subsection (3) deals with the topic of interim suppression orders and is in the following terms:
"(3)  Where an application is made to a court for a suppression order, the court may, without inquiring into the merits of the application, make such an order (an ‘interim suppression order’) to have effect, subject to revocation by the court, until the application is determined; but if such an order is made the court must determine the application as a matter of urgency and, wherever practicable, within 72 hours after making the interim suppression order."

10 It will be observed from the definitions contained in s68 of the Act an interim suppression order is merely a species of suppression order, being one made under s69a(3) of the Act. Section 68 defines "suppression order" to mean an order -
"(a)    forbidding the publication of specified evidence or of an account or report of specified evidence; or

(b)     forbidding the publication of the name of -

(i)     a party or witness;

or

1. a person alluded to in the course of proceedings before the court,

and of any other material tending to identify any such person."

11 Under subs69a(8), an appeal lies against a suppression order. In view of the definition contained in s68, this must also include an interim suppression order of the kind we have in the present proceedings. Under subs69a(9), on the hearing of an appeal, the persons entitled to attend and be heard include a representative of a newspaper or radio or television station and also a person who had, in the opinion of the primary court, a proper interest in the question of whether a suppressions order should be made. A person who did not appear before the primary court but has in the opinion of the appellate court a proper interest in the subject matter of the appeal is also entitled to attend and be heard.
12 The appellant appealed to this Court against the decision of the learned magistrate to make the interim suppression order. The grounds of appeal were principally that the learned magistrate had no regard to the terms of subs(1), subs(2) and subs(3) of the Evidence Act. In particular, it was alleged that the suppression order was not made to prevent undue hardship in the relevant sense; nor was the order made to prevent prejudice to the proper administration of justice. It was further alleged that the learned magistrate failed to make a final determination of the order made on 20 May 1999 within 72 hours or as a matter of urgency. In the notice of appeal, the appellant complains of that part of the interim order which suppresses the name and identity of S only. No complaint is made about the suppression order so far as it relates to R. The appellant seeks to be able to publish the name and a photograph of S; it does not seek to name or publish a photograph of R.
13 As I have said, the learned Magistrate made the interim suppression order on 20 May 1999.  On 21 May 1999, the solicitors acting for the appellant in the matter wrote to the learned magistrate in the following terms:
"We act for Advertiser Newspapers Ltd.

We understand this matter is back before the court on 3 June. As a courtesy, we write to give notice that at the time we will seek to have the application for a suppression order finally determined. In this regard, we have in mind the terms of s.69a(3) of the Evidence Act."

14 Counsel for the appellant appeared before the learned magistrate on 3 June 1999 in an attempt to seek a partial revocation of the interim suppression order.  It appears that the learned magistrate refused to finally determine the application for a suppression order at that stage.  There was no suggestion that he had reserved his decision on the matter.  Since 3 June 1999, the resolution of the suppression order does not appear to have advanced any further, despite the fact that on the making of an interim order, the question of whether or not an order on the merits should be made is required to be treated as a matter of urgency.
15 The circumstances under which a suppression order may be made are set out in subs(1) and subs(2) of s69a. In the first instance, an order may be made to prevent prejudice to the proper administration of justice and secondly such an order may be made to prevent undue hardship to an alleged victim or to a witness, or potential witness in civil or criminal proceedings who is not a party to the proceedings. In the case under consideration, R is neither a victim of crime, nor a witness. The obvious victim of the crimes alleged in this case is the Commonwealth. It is difficult to see how R can be regarded as an alleged victim by any stretch of the imagination.
16 In Martin v M and Others (1991) 54 A Crim R 173, Cox J said at p179:
"However, the word ‘victim’ in s69a is not to be given a figurative or fanciful or strained interpretation. Simply to show that someone has been adversely affected in some way by the commission of a crime does not, in my judgment, make him a victim within the meaning of s69a."

17 R will shortly be four years of age.  Clearly, she cannot be a witness or potential witness in proceedings.  While S may be a witness, she is a party to the proceeding and is therefore ineligible to be considered as a person suffering undue hardship within the meaning of the section.
18 The next question is whether the making of a suppression order on the merits in these proceedings could be said to prevent prejudice to the proper administration of justice. In Re F (1989) 51 SASR 141, King CJ held at p147:
"Undue hardship to an applicant who is not a member of the classes of persons specified in s69a(1)(b) of the Evidence Act does not constitute ‘prejudice to the proper administration of justice’ within the meaning of s69a of the said Act."

19 This point was taken up by Cox J in Martin v M & Others (supra) where he said at p177:
"However, undue hardship at large is no longer a ground for suppression.  It must be undue hardship to a victim of crime or to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings.  M, at least, was not within any of those categories.  Furthermore, by reason of the dichotomy between undue hardship in par(b) and prejudice to the proper administration of justice in par(a), as explained in Re F, undue hardship to persons outside the categories specified in par(b) may not be a ground for suppression under par(a)."

20 In R v Penney (1996) 186 LSJS 253, Lander J held that children of the victim of attempted murder were not victims under s69a(1)(b). In the circumstances of this present case, I cannot see how R can be brought within any of the criteria for the making of a suppression order contained in subs69a(1). It would appear that so far as suppression orders are concerned, children are not to be regarded as being in a special category.
21 While the learned magistrate was no doubt justified in making an interim suppression order in the first place without inquiring into the merits of the application, he was not justified in allowing it to remain in force without a hearing of the matter on its merits for what is now over a month when the legislation requires such a hearing to take place as a matter of urgency and, whenever practicable, with 72 hours. 
22 The appellant merely complains of the order in relation to S; no complaint is made of the order regarding R.  However, I do not think I can set aside the order in part when it is my view that the order as a whole cannot stand.
23 I would revoke the order as a whole.  I do not think there is any basis for treating the mother differently from the child.  In each case, the interim suppression order cannot stand.
24 In my view, the learned magistrate’s action was such as to justify the intervention of this Court on appeal.
25 For these reasons I allow the appeal and set aside the interim suppression order made by the learned magistrate on 20 May 1999.