Advertiser Newspapers & Ors v Bunting & Ors No. Scgrg-00-1260, Scgrg-00-1267

[2000] SASC 457

ADVERTISER NEWSPAPERS LIMITED AND OS v  BUNTING & ORS
SA TELECASTERS LIMITED & ORS v BUNTING & ORS
[2000] SASC 457

Magistrate’s Appeal

1................ MARTIN J......... I make a ruling now in respect to the Magistrate’s reasons. The circumstances of these appeals will be set out in reasons to be delivered later this week on the remaining grounds of appeal.  This ruling is concerned only with the appeals against the decision of the Magistrate to suppress all of his reasons for decision. Those reasons were delivered on 13 December 2000.

1. I repeat the effect of what I said to counsel this morning. The principle of open justice is a fundamental principle of importance which the South Australian legislation has recognised through the enactment of s 69A of the Evidence Act 1929. In that context, when a court makes an order suppressing from publication evidence given or statements made to the court, the public has a particular interest in why the court has taken such a step. There is a significant public interest to be served by publication of the reasons of the court.

2. In this matter, the Magistrate determined that suppression of his reasons was necessary to prevent prejudice to the proper administration of justice because, in his Honour’s view, suppression was necessary ‘to preserve the integrity of the suppression orders’ he had made. I respectfully disagree. The integrity of those orders can be preserved by suppressing particular sections of his Honour’s reasons.

3. The primary basis for suppression concerned evidence, the admissibility of which is likely to be challenged.  His Honour identified 12 discrete areas of the evidence, or inferences the prosecution seek to draw from the evidence, that were likely to be the subject of challenge. He reached the view that publication of such evidence to potential jurors at this time might prejudice those persons, should the evidence ultimately be ruled inadmissible by the trial court. His Honour was not determining that the publication would prejudice potential jurors but was, quite properly, recognising the risk that it might do so.

4. To publish the references to such evidence in his Honour’s reasons would obviously undermine the effect of the suppression order. However, that problem can readily be cured by suppressing those parts of his Honour’s reasons where he identified the evidence, or categories of evidence, or described its potential effect.  In my opinion, his Honour erred in failing to consider this alternative and in failing to assess whether publication of the balance of his reasons would prejudice the proper administration of justice.

5. As to the possibility of prejudice by publication of the balance of the reasons, counsel for the respondents were unable to identify any prejudice that would flow from such publication. Counsel expressed concern that publication would disclose the existence of challenges to the admissibility of evidence. Such challenges are, however, a common feature of court proceedings and juries frequently become aware of their existence. In my opinion, the gaining of knowledge of the existence of such challenges does not create a risk of prejudice to the proper administration of justice.

6. I should add this.  Although I have reached a view that his Honour erred in certain respects and that his order should be set aside, it is not surprising that his Honour was concerned that publication of his reasons might undermine the suppression orders that he had made.  In the context of all the issues that were facing his Honour, he was faced with a very difficult task of balancing the interests of open justice against the possibility of prejudice to the proper administration of justice. This is not an uncommon situation to be faced by courts.   However, it is particularly difficult for a Magistrate, at this stage of this type of proceeding, to arrive at a view with any certainty as to the probable effect of publication of evidence or statements made to the court.

7. Section 69A requires that the court recognise that the interests favouring publication are considerations of substantial weight. The court may only make an order for suppression if satisfied that the prejudice to the proper administration of justice should be accorded greater weight than the considerations which favour publication. As I have previously indicated, this is a difficult exercise for a court to undertake at any time, but particularly so in the context of these proceedings. More so where the exercise is required at the outset of what will obviously be very lengthy committal proceedings.

8. In each matter the appeal is allowed for the limited purpose of setting aside the order of the Magistrate suppressing from publication all of his reasons delivered 13 December 2000.

9. In substitution for that order, I order that the following passages of his Honour’s reasons be suppressed from publication until further order.

   1...... The passage commencing with the word ‘One’ at line 9 on p 217 through to and including the words ‘See p.168’ at line 15 on p 218.

   2.     The passage commencing with the words ‘I accept’ at line 35 on p 219 through to and including the word ‘innuendo’ at line 20 on p 220.

10. I repeat, my order is that those passages that I have identified are suppressed from publication until further order. I give liberty to the parties to revisit this order upon publication of the reasons for decision upon the remaining grounds of appeal, hopefully later this week.