Advertiser Newspapers P/L v SA Health Commission - [2007] SASC 158

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ADVERTISER NEWSPAPERS P/L v SA HEALTH COMMISSION & ANOR
[2007] SASC 158
Judgment of The Honourable Justice Debelle
8 May 2007
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS
Suppression order – application to vary – second respondent detained in quarantine pursuant to s 32 of Public and Environmental Health Act 1987 – whether appellant can publish matters in affidavits of alleged victims – whether appellant can publish image of second respondent - appeal allowed – orders of magistrate varied.
Criminal Law Consolidation Act 1935 s 29; Evidence Act 1929 s 69A; Public and Environmental Health Act 1987 s 32, s 33, Sch 2; South Australian Health Commission Act 1976 s 17, referred to.
Advertiser Newspapers Ltd v Bunting (2001) 212 LSJS 12; Alexander v The Queen (1981) 145 CLR 395; Dietrich v The Queen (1992) 177 CLR 292; Jago v District Court (NSW) (1989) 168 CLR 23; R v Glennon (1992) 173 CLR 592; R v Parke [1903] 2 KB 432, applied.
James v Robinson (1963) 109 CLR 593, considered.

ADVERTISER NEWSPAPERS P/L v SA HEALTH COMMISSION & ANOR
[2007] SASC 158
Magistrates Appeals: Civil

DEBELLE J. This is an appeal from orders of a magistrate made in the Adelaide Magistrates Court suppressing from publication information concerning a Mr Stuart McDonald who has been detained in quarantine in Glenside Hospital.
Mr McDonald suffers from the infection known as Human Immunodeficiency Virus, commonly called HIV. HIV is a controlled notifiable disease: see Schedule 2 of the Public and Environmental Health Act 1987 (“the Public Health Act”). McDonald was first diagnosed as a sufferer from HIV in NSW in 1998.
A number of agencies provide assistance to people suffering from HIV. One is the Adelaide Diocesan Aids Centre (ADAC). McDonald was referred to ADAC in about August 2005.
In January 2007, Mr Stephen Huddleston, the care worker at ADAC responsible for McDonald, became concerned about McDonald’s behaviour and his compliance with counselling and direction in relation to safe sexual practices. Mr Huddleston reported the matter to the Department of Public Health.
The Department required McDonald to undergo a medical examination. The diagnosis of HIV was confirmed. Dr C Baggoley is the Executive Director of Public Health and Clinical Co-ordinator in the Department of Health. Pursuant to s 17 of the South Australian Health Commission Act 1976 (“the Health Commission Act”) he has been delegated a power of the South Australian Health Commission (“the Health Commission”) namely, the power to give written directions to McDonald pursuant to s 33 of the Public Health Act.
Section 33(1) of the Public Health Act provides:
33.     (1)     Where –
(a)a medical practitioner has certified that a person is suffering from a controlled notifiable disease; and
(b)the Commission is of the opinion that the person should take or refrain from certain action to prevent the risk of infection spreading to others,
the Commission may, by notice in writing, give appropriate directions to the person.
As a medical practitioner had certified that McDonald suffered from HIV, Dr Baggoley acted pursuant to s 33(1) and gave McDonald a number of directions. The directions included directions that he
1attend an examination by a psychiatrist, Dr M Fogarty on 20 March 2007;
2        place himself under the supervision of a medical practitioner;
3        refrain from advertising for sex; and
4        not engage in unprotected sexual intercourse.
Dr Fogarty examined McDonald on 20 March 2007. In a report dated 26 March, Dr Fogarty expressed the opinion that McDonald is highly unlikely to comply with the directions given by Dr Baggoley.
On the basis of Dr Fogarty’s report and other information that suggested that McDonald had engaged in unsafe sexual practices, the Health Commission resolved on 2 April 2007 to make an application for the issue of a warrant for the detention of McDonald pursuant to s 32(1) of the Public Health Act. Section 32(1) provides:
32. (1) Where –
(a)a medical practitioner has certified that a person is suffering from a controlled notifiable disease; and
(b)the Commission is of the opinion that in the interests of public health the person should be kept at a suitable place of quarantine.,
a magistrate may, on the application of the Commission, issue a warrant for the detention of the person at a suitable place of quarantine.
On 4 April, a magistrate issued a warrant for the detention of McDonald. The warrant was executed on 5 April and McDonald was detained in quarantine at Glenside Hospital.
Section 32 of the Public Health Act imposes limits upon the time for which a person may be detained in the absence of an order of a magistrate or a Supreme Court judge. Section 32(4) provides that a person may not be detained for more than 72 hours unless a magistrate extends the period of detention. A person must not be detained for more than six months unless a judge of the Supreme Court authorises it: see s 32(5) and s 32(6).
On 5 April 2007, the magistrate extended the detention until 17 April. On the same day the magistrate made an order pursuant to s 69A of the Evidence Act 1929 suppressing from publication any reference to a person referred to in an affidavit of Mr Huddleston other than McDonald. The magistrate’s reasons for the order were to protect an alleged victim from potential hardship.
The matter resumed before the same magistrate on 16 April. The magistrate extended the period of detention until 16 May. On the application of counsel for the Health Commission, the magistrate made orders suppressing the following from publication.
1the image of Mr McDonald;
2the names and content of the affidavits tendered at the hearing on 16 April of six alleged victims; and
3the material in the affidavit of one of the victims referring to the use and sale of drugs.
The magistrate adjourned the proceedings until 11 May 2007.
Advertiser Newspapers Limited (“the appellant”) opposed the making of the suppression orders in the Adelaide Magistrates Court. It has appealed to this court seeking orders revoking the orders made by the magistrate and substituting for them an order suppressing from publication the name and any material which might identify the six alleged victims.
On 16 April, the police began enquiries into allegations that McDonald had intentionally and recklessly engaged in unsafe sexual intercourse. The investigations are being made with a view to charging McDonald with the offence of endangering the life of another contrary to s 29 of the Criminal Law Consolidation Act 1935. It is alleged that eleven persons have been infected by the same genotype of HIV as that from which McDonald suffers. That does not necessarily mean that they contracted the virus from McDonald. They could have been infected by other persons. Police are in the process of identifying and contacting alleged victims. Police have obtained statements from four of the alleged victims but have yet to obtain statements from the other seven. Some of the victims reside in other States and the current whereabouts of other victims remains unknown. The police do not know whether their investigations will identify further victims.
The investigations by police have disclosed that one potential issue will be whether the alleged victims will be able to identify McDonald. The police, therefore, seek to conduct an identification parade for the purpose of determining whether the victims are able to identify McDonald. On 3 May 2007, a letter was sent electronically to the office of McDonald’s solicitor asking if McDonald will be willing to participate in an identification parade. As yet, the letter has not been answered.
After that letter from the police had been admitted into evidence, Mr McAvaney, who appeared for the appellant, announced that the appellant did not at this stage seek to appeal against that part of the magistrate’s order that suppressed from publication the image of McDonald. That is a very appropriate response. There might be questions concerning the accuracy of any identification made by the victims.
Where the identity of an accused is in question, the court is careful to ensure that no miscarriage of justice occurs as a result of wrongful identification. If there is a question of identification, the court will consider whether the evidence should be excluded on the ground that it was unfairly obtained or that its prejudicial effect outweighs its probative value. If the evidence is admitted, the court will consider whether the jury should be warned as to the dangers of identification evidence and, if so, what the content of the warning should be in the particular circumstances of the case.
The reasons why evidence of identification is treated with some caution is that there have been instances of wrongful identification resulting in gross miscarriages of justice. Empirical evidence has demonstrated that mistaken identification even by persons of good eyesight, who are neither very young or very old, whose memory is not made defective by lapse of time, and who are not suffering from shock at the moment of observation: Cross on Evidence, 7^th Australian Edition at [1345]. Identification evidence is “inherently fragile”: Alexander v The Queen (1981) 145 CLR 395 at 426.
The accuracy of identification of any stranger, seen once only, is likely to be affected by the fallibility of human perception and memory: Alexander v The Queen at 409 per Stephen J. Factors which affect the capacity of a witness accurately to identify an alleged offender include the fact that the witness may have had only a fleeting glimpse of the offender’s face or may have seen it in conditions of poor visibility. There are problems of defective memory. Problems might exist because witnesses are prone to error in recognising those of another race or age or class or dress. The difficulties with identification are conveniently collected in Cross on Evidence at [1342] and [1355].
As is noted in Cross at [1355] identification evidence is inherently capable of being influenced by suggestion. Plainly, the publication of photographs of an alleged offender has a real potential to assist an individual to recognise that person. The proper administration of justice requires that identification of an alleged offender is not tainted by any suggestion of that person’s identity by publication of a photograph or other image of that person. This is a case where there are two competing public interests, the principle of open justice on the one hand and the principle of proper administration of justice on the other. In the particular circumstances of this case the fair and untainted identification of an alleged offender and later the free trial of that person plainly outweighs any principle of open justice. It is a case where the proper administration of the interests of the proper administration of justice must prevail.
The appellant seeks to publish material contained in the affidavits of the six alleged victims tendered in the Magistrates Court. Two factors assist the resolution of this aspect of the appeal. The first is that, for the reasons already given, nothing should be published which might identify McDonald. The second is that the appellant does not seek to appeal against so much of the order as suppresses from publication the names of the six alleged victims or any material which might identify them. The most appropriate means by which to determine this aspect of the appeal is to make an order that identifies the paragraphs which should remain suppressed so as to give effect to those two factors. That is a relatively straightforward process.
The magistrate also made an order suppressing from publication material in an affidavit alleging drug offences. The appellant has appealed against that order. The material which is the subject of the order comprises unsubstantiated allegations of a highly prejudicial nature. The allegations have not been tested in any way. They are irrelevant to any charge of endangering life which might be made. It cannot be known at this stage whether the allegations are mischievous or whether they have any substance. It is possible very effectually to poison the fountain of justice before it begins to flow: R v Parke [1903] 2 KB 432 at 438 per Wills J. The publication of the allegations has a real capacity to prejudice the fair trial of McDonald particularly should he be charged with endangering life. The position might change if charges are brought in respect of the allegations concerning drugs.
In reaching this conclusion I have had regard to the remarks of Martin J in Advertiser Newspapers Ltd v Bunting (2001) 212 LSJS 12. I also have regard to the fact that courts place reliance on the integrity and sense of jurors and assume that jurors will act in light of the evidence adduced in the trial and in conformity with the instructions and warnings given to them by the trial judge: R v Glennon (1992) 173 CLR 592 at 602 and 614. I have had regard to the fact that McDonald has not been changed and the likelihood that at least a year might elapse before he is tried. The latter has a capacity to diminish the effect of undue publicity. Those propositions must be weighed against the fact that the court has the ability in this case to prevent the risk of an unfair trial. The prejudice to the fair trial of McDonald is the more likely given the extensive publicity which has been associated with the fact that he has been detained in quarantine and the events leading to it.
I note also the amendments to s 69A of the Evidence Act and in particular the terms of the new s 69A(2) which now provides:
(2)If a court is considering whether to make a suppression order (other than an interim suppression order), the court –
(a) must recognise that a primary objective in the administration of justice is to safeguard the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings; and
(b) may only make a suppression order if satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify the making of the order in the particular case.
At the same time, s 69A(1) permits the court to make a suppression order if satisfied that it is necessary to prevent prejudice to the proper administration of justice.
The right of an accused person to a fair trial is fundamental to the proper administration of justice. It is a fundamental element of the criminal justice system: Dietrich v The Queen (1992) 177 CLR 292 at 299 per Mason CJ and McHugh J; Jago v District Court (NSW) (1989) 168 CLR 23 at 29 per Mason CJ, at 56-57 per Deane J, at 75 per Gaudron J. It is a corollary of that principle that an accused person is entitled to be protected from publicity which will prejudice a fair trial. Those principles were expressed in these terms by Deane, Gaudron and McHugh JJ in R v Glennon at 623.
The central prescript of our criminal law that no person shall be convicted of a crime otherwise than after a fair trial according to law dictates that an accused is entitled to be protected from an unacceptable and significant risk that the effect of prejudicial pre-trial publicity will preclude a fair trial.
That principle applies where there is sustained publicity which could affect the fairness of a trial. There is nothing in s 69A which qualifies these propositions. Indeed, it would be surprising, if not also a matter for concern, if it did so. This is an instance where the public interest in the provision of a fair trial to an accused person prevails over the public interest in open justice. In this case there has been quite extensive publicity of McDonald’s circumstances. There is a real risk of prejudice to a fair trial. Publication of the unsubstantiated allegations is such a serious threat to the fair trial of McDonald that an order should be made suppressing that publication. In this case, the principles of open justice concern only the question whether there should be publication of a small part of one of a number of affidavits tendered in court proceedings. The material in the affidavit is of such slight relevance to the disposition of the proceedings in the Magistrates Court that the suppression of that which is prejudicial to a fair trial will not diminish the important principles of open justice. The appellant has, therefore, failed to demonstrate why I should interfere with this part of the orders made by the magistrate.
Mr McAvaney submitted that, as no charges had been made, the suppression of this material would give McDonald a benefit not available to other members of the public. He relied on James v Robinson (1963) 109 CLR 593. In that decision the High Court held that the publication of the matter likely to affect a criminal trial is not punishable as a contempt if at the time of the publication there are no proceedings commenced in any court. The terms of s 69A enable an order to be made to prevent a sufficiently serious threat to the administration of justice. The expression “the administration of justice” is wide enough to include matters which occur before a person is charged or before proceedings are commenced in a court. The powers of the court under s 69A enables it to deal with matters which lie outside the law of contempt. The powers are wide enough to include suppression of publicity which will prejudice a fair trial.
It is necessary also to make orders to protect the confidentiality of affidavits which contain details of the alleged victims. If such orders were not made, the effect of the suppression order would be defeated. For that reason, orders will be made in addition to those made by the magistrate.
For these reasons, there will be an order allowing the appeal for the purpose of varying the terms of the suppression orders made by the magistrate on 16 April.