Advertiser Newspapers Pty Ltd v B, RD - [2008] SASC 362

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ADVERTISER NEWSPAPERS PTY LTD & ANOR v B, RD & ANOR
[2008] SASC 362
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice White)
22 December 2008
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - STATUTORY POWERS
First Respondent (defendant) charged with sexual offences – extensive publicity relating to the accusations against the defendant which formed the bases of the charges – publicity did not name the defendant – upon committing defendant to trial, Magistrates Court made orders forbidding publication of identity of defendant – orders made in Magistrates Court set aside by single Judge of Supreme Court, who made orders forbidding publication of other material ([2008] SASC 246) – orders made by single Judge did not forbid publication of identity of defendant – Full Court upheld orders made by single Judge ([2008] SASC 282) – defendant subsequently sought additional order in District Court (as the trial court) forbidding publication of defendant’s identity – material before District Court included material not before Supreme Court at the time of the previous decisions, including material relating to applications made by defendant to quash or permanently stay Information – District Court Judge considered that Judge hearing the applications would be better placed to determine appropriate suppression orders – District Court Judge made orders sought by defendant in order to avoid prejudicing the ability of the Judge hearing the applications to make appropriate orders – section 69A(2)(b) of the Evidence Act 1929 (SA) requires that ‘special circumstances’ exist which give rise to a sufficiently serious threat of prejudice to the proper administration of justice before a suppression order can be made – whether District Court Judge erred in making order forbidding publication of defendant’s identity.
Held: not permissible to make order on the basis of the possibility that some presently unknown circumstance arises in the future which necessitates the making of a suppression order - not permissible to make order merely because failure to do so would deprive the Judge hearing the application to quash or permanently stay Information of the opportunity to make the same order – ‘special circumstances’ must be identified before a suppression order can be made – even taking into account matters not before the Supreme Court in the earlier appeals, no special circumstances exist justifying the making of an order forbidding the publication of the identity of the defendant – appeal allowed – order forbidding publication of identity of defendant set aside.
Evidence Act 1929 (SA) s 68, s 69A(1), s 69A(2), s 69A(3), s 69AC(2); Evidence (Suppression Orders) Amendment Act 2006 (SA); District Court (Criminal and Miscellaneous) Rules 1992 r 8, r 9; Summary Procedure Act 1921 (SA) s 113, referred to.
Channel Seven Adelaide Pty Ltd & Ors v An Accused & Anor, Advertiser Newspapers Pty Ltd v An Accused & Anor [2008] SASC 246; B, RD v Channel Seven Adelaide Pty Ltd & Ors; B, RD v Advertiser Newspapers Pty Ltd & Anor [2008] SASC 282, applied.
R v RDB [2008] SADC 142, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"special circumstances", "prejudice to the proper administration of justice"

ADVERTISER NEWSPAPERS PTY LTD & ANOR v B, RD & ANOR
[2008] SASC 362
Full Court: Doyle CJ, Bleby and White JJ

DOYLE CJ: On 25 September 2008 the Director of Public Prosecutions filed an Information in the District Court charging the first respondent (the defendant) with a number of offences.
On 30 October 2008 the District Court Judge before whom the Information came made orders under s 69A of the Evidence Act 1929 (SA) (“the Act”). The orders were made on application by the defendant. The orders were as follows:
[28]Pursuant to s 69A of the Evidence Act 1929 (SA) (“the Act”) there will be an order until further order, forbidding the publication of the following evidence as defined in s 68 of the Act:
1      Evidence of any fact which would disclose the name of the accused, his occupation and any other material tending to identify him.
2      Evidence of any facts relating to charges which have been brought against the accused or which tend to disclose the fact that the charges have been brought against him other than allegations contained in the charges themselves on which the accused is now committed for trial.
3      Evidence of any fact which might tend to disclose the fact that there are two complainants named in the charges on which the accused is now committed for trial.
4      Evidence of the fact that the accused has applied for separate trials on one or more of the charges on which the accused is now committed for trial.
5      Evidence in relation to the present application and any affidavit material filed or submissions made in support of it.
Exercising the right of appeal conferred by s 69AC(2)(c) of the Act, Advertiser Newspapers Pty Limited and Nationwide News Pty Limited appealed against the order. The appeal was against only that part of the order set out in para 1. The Director of Public Prosecutions, who was named as a respondent, supports the appellants.
The issue on appeal is whether the Judge erred in making the order in para 1.
The power to make a suppression order is conferred by s 69A(1). The exercise of the power is regulated by s 69A(2). Those two provisions provide as follows:
69A   Suppression orders
(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)     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.
The order refers to evidence as defined in s 68 of the Act. The definition is as follows:
evidence includes any statement made before a court whether or not the statement constitutes evidence for the purposes of the proceedings before the court …
In my opinion the Judge erred in making the order in para 1. In the circumstances of this case, there was no basis for a finding or conclusion that “special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice” to justify an order in terms of para 1. The appeal should be allowed. Paragraph 1 of the order should be set aside.
When the defendant was committed for trial in the District Court, the Magistrates Court made an order forbidding the publication of the name of the defendant and of any matter that might tend to identify him until the time of his arraignment in the District Court. That order was the subject of an appeal to a single Judge of this Court. The order made by the Magistrates Court was set aside and a more limited order was substituted: Channel Seven Adelaide Pty Limited & Ors v An Accused & Anor; Advertiser Newspapers Pty Limited v An Accused & Anor [2008] SASC 246. That decision was the subject of an appeal to the Full Court. The appeal was dismissed: B, RD v Channel Seven Adelaide Pty Ltd & Ors; B, RD v Advertiser Newspapers Pty Ltd & Anor [2008] SASC 282. Those appeals are part of the background to the present appeal.
Before dealing with the substance of the appeal, it is necessary to outline the history of the proceedings involving the defendant.
Earlier proceedings
The defendant was committed for trial in the District Court on 1 September 2008. I have set out above the effect of the suppression order made by the Magistrates Court on 4 September 2008: see above at [7].
The proprietors of several television stations and the proprietor of a newspaper appealed against that order. This was the first occasion on which s 69A(2) as it now stands had been the subject of any detailed consideration by this Court. Section 69A(2) was amended by the Evidence (Suppression Orders) Amendment Act 2006 (SA) which came into operation on 1 April 2007. The effect of the amendment was to require a court to recognise the “primary objective” now referred to in subpara (a) of subs (2), and to limit the power of the Court to make an order to cases in which there are “special circumstances” which give rise to “a sufficiently serious threat of prejudice to the proper administration of justice”. There can be no doubt that by these amendments Parliament intended to restrict the circumstances in which a court would make a suppression order: B, RD v Channel Seven; B, RD v Advertiser Newspapers at [18] Doyle CJ.
The Judge before whom the appeal came (Bleby J) allowed the appeal. He set aside the order made, and substituted a more discriminating suppression order. The order was as follows:
An order suppressing from publication the following evidence as defined in s 68 of the Evidence Act 1929:
(a)Evidence of any facts relating to charges which have been brought against the accused or which might tend to disclose the fact that charges have been brought against the accused, other than the allegations contained in the charges themselves on which the accused is now committed for trial;
(b)Evidence of any fact which might tend to disclose the fact that there are two complainants named in the charges on which the accused is now committed for trial; and
(c)Evidence of the intention of the accused to apply for a separate trial of any one or more of the charges on which the accused is now committed for trial.
Bleby J took the view that the order made by the Magistrates Court failed to give proper effect to the requirement of s 69A(2) that a suppression order should be moulded so as to minimise the threat of prejudice to the proper administration of justice while still giving effect to the principle of open justice: [2008] SASC 246 at [48]. As is apparent, the order does not prohibit the publication of the name of the defendant or of material tending to identify him.
The defendant appealed against that order.
On appeal, neither the defendant nor the media parties nor the Director of Public Prosecutions made any criticism of the orders made by Bleby J. The appeal was argued on the basis that those orders were properly made in the circumstances of the case. The only issue on the appeal was whether, as the defendant argued, the Judge erred in failing to forbid the publication of the name of the defendant and of any other material tending to identify him.
On 24 October 2008 the Full Court dismissed the appeal. I emphasise that Bleby J and the Full Court were dealing with the order that should be made by the Magistrates Court upon committing the defendant for trial. In my reasons I said at [55]-[56]:
[55]It is appropriate to emphasise that this Court is concerned only with the orders that should have been made at the conclusion of the preliminary examination of the charges in the Magistrates Court.
[56]A judge of the District Court will have to consider what order under s 69A of the Act should be made, if any, in the course of the proceedings before that Court. As I have indicated, when the matter comes to trial the trial judge will also have to consider whether any order should be made under s 69A, and what should be done, if anything, to deal with the risk of prejudice to a fair trial attributable to the publications upon which Ms Powell relies in this Court.
By dismissing the appeal the Full Court rejected the defendant’s argument that an order should have been made forbidding the publication of his name and of any material that might identify him.
Both Bleby J and the Full Court considered in some detail the meaning and application to the facts of subs (1) and subs (2) of s 69A. The argument on the present appeal proceeded on the basis of the law as stated in those judgments. It would lengthen these reasons unduly to set out in full the reasoning of Bleby J and of the Full Court. I will set out a portion of the reasons of Bleby J, and a portion of my reasons in the Full Court, because these encapsulate the approach taken. Bleby J said:
[31]If the objective of doing justice by way of providing a fair trial is to give way to another primary objective of open justice, the very concept of open justice ceases to exist. It is no longer justice which is open but injustice. If a trial, by virtue of the unrestricted publicity of some fact, becomes unfair, there is a miscarriage of justice or an injustice. The objective of open and reportable justice can no longer be achieved. That can hardly have been the intention of Parliament. It follows that s 69A(2)(a), standing alone, must still be construed as giving paramountcy to the objective of securing that justice is done by ensuring that the particular trial remains a fair trial and not a miscarriage of justice.
[32]The most that can therefore be said of subsection (2)(a) is that it reflects a parliamentary intention that courts should regard the principle of open justice and the consequential right of the news media to publish information related to court proceedings as a significant and important consideration which must be brought to bear on a decision under subsection (1). However, it cannot, by definition, override the objective of securing, in a particular case, that justice is done and that a trial is conducted fairly. Otherwise, the Court is required to condone open injustice.
…
[35]Paragraph (b) does not refer to any threat of prejudice to the proper administration of justice as being sufficient to justify an order. It must be a “sufficiently serious threat of prejudice …” to justify the order in that particular case. It is only “special circumstances” that will give rise to such a sufficiently serious threat.
[36]The paragraph does not deny the operation of the overriding common law objective of ensuring that justice is done in a particular case. It attempts to qualify the circumstances of its implementation. There must be a serious threat of a miscarriage of justice, not just a mere possibility. The Court must be able to identify special circumstances, or circumstances out of the ordinary, that will give rise to such a serious threat. There must be some special feature of the case which affords a reason to believe that there exists a serious threat of a miscarriage if an order is not made.
In my reasons I summarised the effect of subs (1) and subs (2) of s 69A as follows:
[23]The proper administration of justice requires that there be a fair trial. By s 69A(1), a basis for the making of a suppression order is that, but for the order, the publication of the relevant material would result in a trial that is not fair. But that is subject to the operation of s 69A(2).
[24]When one comes to consider the meaning of s 69A(2), one must bear in mind that this provision operates in the context of a system for the administration of justice that has at its centre the determination of guilt or innocence by a fair trial. In saying that, I do not overlook the fact that there are other relevant principles of public interest that come into play. Open justice is one of them. Appropriate recognition of the rights and interests of victims is another.
[25]The effect of s 69A(2) is to require a court, when considering whether to make a suppression order, to recognise Parliament’s declaration that “the public interest in open justice” is a primary objective in the administration of justice. It is for that reason that Parliament goes on to declare in s 69A(2)(b) that an order may only be made in the stated circumstances. But the publication of material that will prejudice a fair trial will, for the purposes of s 69A(2)(b), amount to a prejudice to the proper administration of justice. Accordingly, if the publication of the material sought to be suppressed constitutes a sufficiently serious threat of prejudice to the conduct of a fair trial, the basis for the making of an order in respect of that material exists.
[26]It does not follow that an order must or will be made. The Court must have regard to the requirement imposed on it by s 69A(2)(a), and must satisfy itself that the threat of prejudice to a fair trial is sufficiently serious to justify the making of an order that will limit “the consequential right of the news media to publish information relating to court proceedings”. The Court must be mindful of the fact that that right is derived from what the Court must treat as “a primary objective in the administration of justice”.
White J agreed with my reasons, adding some observations of his own: at [78]. Layton J agreed with my reasons: at [79].
When the Full Court published its reasons on 24 October 2008, the Information in the District Court was due to come before the District Court for a directions hearing on 6 November 2008.
The Information had first come before the District Court on 29 September 2008, on which day the defendant was to present himself for arraignment. On 26 September 2008 his solicitors had filed two applications in the District Court. The first was an application pursuant to r 8 of the District Court (Criminal and Miscellaneous) Rules 1992 (“the Criminal Rules”). By this application the defendant applied for orders, among other things, that the Information be quashed or alternatively permanently stayed as an abuse of the process of the Court. The second application was made under r 9 of the Criminal Rules. By this application the defendant sought an order for separate trials on certain counts. The applications were supported by an affidavit sworn by the defendant’s solicitor on 26 September 2008. Exhibited to this affidavit was a copy of the outline of submissions filed in the Magistrates Court on a number of the matters raised by the two applications. The purpose of the affidavit appears to be to give the reader some indication of the issues that would be argued.
On 29 September 2008 the defendant was not arraigned. The effect of the Criminal Rules was considered to be that the application under r 8, for an order quashing the Information or staying it, was to be determined before the defendant had pleaded to the charges.
The District Court Judge before whom the matter came on 29 September was informed about the then pending appeal to the Full Court. He made an order suppressing from publication the name of the defendant and his office and anything that tended to identify the defendant. The order was to expire at 5.00 pm on the day of the decision of the Full Court.
In light of that it was appropriate for the Full Court to make an order that would hold the situation until a Judge of the District Court could decide whether suppression orders should be made in that Court, and if so, in what terms. Accordingly, the Full Court made an order forbidding the publication of the name of the defendant, and any other material tending to identify him, until 5.00 pm on Monday 27 October 2008.

The solicitors for the defendant promptly filed an application in the District Court for suppression orders. The orders that they sought included orders in the same terms as those made by Bleby J and upheld by the Full Court. As well they sought an order forbidding the publication of the name of the defendant, his occupation, and any other material tending to identify him. They also sought orders suppressing evidence in relation to their application, and any affidavit material filed by them.
That is how the matter came before the District Court Judge on 27 October, resulting in the Judge making the orders now under appeal on 30 October 2008: R v RDB [2008] SADC 142.
The application to the District Court Judge
It is desirable to clarify what was before the District Court Judge on 27 October 2008.
The Information charging the defendant had been filed. As is the usual practice, the Magistrates Court had forwarded to the District Court a copy of the order for committal, a copy of the documentary material filed in the Magistrates Court in connection with the preliminary examination of the charges, and a transcript of such oral evidence as was taken at the preliminary examination. That same material was forwarded to the Director of Public Prosecutions as required by s 113 of the Summary Procedure Act 1921 (SA). As I have already mentioned, before the District Court Judge there was also the application under r 8, the application under r 9, and the affidavit filed by the defendant’s solicitor. A further affidavit, sworn by the defendant’s solicitor on 27 October 2008, had also been filed. This affidavit supported the application for a suppression order and set out some of the material upon which the defendant would rely in seeking that order. The Judge also had a transcript of the earlier hearing before a different District Court Judge on 29 September 2008.
What I have set out is the only material before the Judge that could answer the description of “evidence” for the purposes of s 68 of the Act.
In the Judge’s reasons the Judge outlined the history of the matter, and referred to the earlier decision of the Full Court. The Judge correctly identified the fact that the Full Court had dealt with the question of what orders were appropriate to be made by the Magistrates Court. The Judge summarised the position as follows: [2008] SADC 142 at [21]-[23]:
[21]The Full Court approved of the approach of Bleby J and his interpretation of s 69A of the Act. It is significant that both Bleby J and the Full Court concluded that a suppression order in some form was appropriate. In the matter before me it was also conceded that there are special circumstances giving rise to a sufficiently serious threat of prejudice to the proper administration of justice in this case that justify the making of a suppression order. I too consider that there exist the requisite special circumstances.
[22]The area of contention is the extent of that suppression order. Specifically the issues before me is whether, notwithstanding the views expressed by the Supreme Court, I ought, at least during the interim period pending the appointment of the trial Judge, suppress evidence of any fact which would disclose the name of the accused, his occupation and any other material tending to identify him.
[23]The accused seeks that the orders be made until the Rule 8 and Rule 9 applications have been heard and determined by the trial Judge.
The issue to be decided by the Judge was whether any, and if so what suppression orders should be made in the District Court. The Judge was primarily concerned with the material then before that Court, which material I have outlined above: at [26]. If and when other material is put before the District Court, the need for suppression orders relating to that material can be considered as may be appropriate. Another relevant background matter was that the effect of the Full Court order (I refer here to the order disposing of the appeal, and not to the holding order) was that there would be no order by the Magistrates Court forbidding the publication of the name of the defendant in relation to “the allegations contained in the charges themselves”, and no order forbidding the publication of the defendant’s public office.
The Judge said that but for one matter, the Judge would have made a suppression order in the same terms as the order made by Bleby J in the Supreme Court. As the Judge said, although the Judge had to consider what order should be made in the trial court, the Full Court had considered what was an appropriate order on the basis of material almost identical to that before the Judge, and had decided that the orders made by Bleby J were all that was required, and that an order forbidding the publication of the defendant’s name and occupation was not warranted by s 69A(2). The reasoning of the Full Court, and the fact that its decision permitted the publication of the defendant’s name and occupation, would suggest that an order by the Judge forbidding the publication of those matters was not supported by s 69A(2).
The Judge said that if the only application before the Judge had been an application for separate trials, the Judge would have followed the course taken by Bleby J: [2008] SADC 142 at [25]. But the Judge then said:
[26]There is, however, one significant matter that was not before the Supreme Court nor contemplated by it. That is the application, pursuant to Rule 8, to quash or to permanently stay the proceedings as an abuse of process. There is further affidavit evidence to be filed on or behalf of the accused in respect of this application and it is also possible that the DPP will file other material.
[27]This application, together with the application for separate trials, will be heard by the trial Judge who, having all of the material will be in a better position to assess the need for further suppression orders if any. Given that the Rule 8 and Rule 9 applications will likely be listed within the near future, the degree of interference with the principles of open justice will be minimised. In order to avoid prejudice to the trial Judge’s ability to hear and determine the applications, I will therefore adopt the approach set out in the dicta of White J quoted above in order to preserve the status quo and will order suppression in terms of the application as follows ...
The Judge then made the orders set out in [2] above, the first of those orders being the subject of the appeal.
Consideration of the appeal
As I have already remarked, the issue to be decided by the Judge was not precisely the same issue as had been considered by Bleby J and by the Full Court. However, the issues were similar.
The Judge proceeded on the basis that the meaning and application of subs (1) and subs (2) of s 69A were to be found in the reasons of Bleby J and of the Full Court. On this appeal the parties took the same approach.
The Judge properly took into account whether any order that the Judge might make (or decline to make) would prejudice the trial Judge’s ability to determine fairly the r 8 application and the r 9 application. No doubt the Judge also had in mind the ability of the trial Judge to conduct the trial fairly, although no specific reference was made to that.
However, in doing so the Judge could not take the approach that the Judge would make the suppression order, or the particular order that was in contention before the Judge, simply because there was a risk that if the Judge did not do so that might, in some unidentified way or in unidentified circumstances, prejudice the ability of the trial Judge to deal with the applications and to conduct a fair trial. What I mean is that the Judge could not make a suppression order, or an order in a particular form, for no other reason than that the failure to do so would mean that the trial Judge would be deprived of the opportunity to make the same order. To make an order on that basis would be to make an order simply because the applicant had foreshadowed that such an order would be sought from the trial Judge and might conceivably be made. The order that the Judge made on 30 October 2008 had to be supportable having regard to the provisions of s 69A(2) in particular. I will return to this point.
As I have already noted at [30]-[31], but for the r 8 application the Judge would have made the same orders that were made by Bleby J and that were upheld by the Full Court. It was because of the r 8 application only that the Judge made the order in para 1 of the Judge’s orders. The Judge remarked that the Judge was adopting an approach suggested by White J in his reasons in the Full Court.
White J agreed with my reasons, but added some comments directed to the position of a magistrate who commits an accused for trial. He made the point that the court of trial will usually be the court best placed to determine the extent of any suppression order necessary to prevent prejudice to the proper administration of justice: [2008] SASC 282 at [71]. He went on to say:
[73]These matters suggest to me that a magistrate who, at the time of the committal, has addressed appropriately the open justice principle and who is satisfied of the requisite conditions for the making of a suppression order, may often properly conclude that an appropriate form of order is a complete suppression of publication of relevant material, with that order to operate at least until the defendant’s arraignment (or a short time after it). In this way a magistrate may avoid impinging upon the ability of the trial court to frame an order which is no wider than necessary in the circumstances of the particular case.
[74]For these reasons, I consider that there would have been much to be said for the proposition that an appropriate form of order by the Magistrates Court in the present case would have been a complete suppression, operating at least until the appellant’s arraignment, of the appellant’s name, of anything which tended to identify him, and of the details of the charges upon which he was committed for trial. However, both the District Court Judge (exercising the powers of a magistrate) and the Judge on appeal made limited (albeit different) suppression orders only. In consequence, this Court has not been required to determine the appropriateness of a complete suppression order operating at least until the time of the appellant’s arraignment, or until shortly after that arraignment.
It was this part of the reasons of White J to which the Judge referred and on which she relied.
Neither Layton J nor I joined in those observations by White J.
I agree with the Judge that orders in terms of paras 2-5 were appropriate orders in the circumstances of the case. There was no dispute about this on appeal.
As I have already remarked, the circumstances in which the decision as to the appropriate suppression orders to be made by the Magistrates Court was made were similar to the circumstances in which the Judge had to make a decision. The reasoning of Bleby J that caused him to make the orders that he made on appeal from the Magistrates Court, and the reasoning of the Full Court, all support the conclusion by the Judge in relation to the orders set out in paras 2-5 of the Judge’s orders. I refer, without repeating them, to the reasons of Bleby J in particular at [40]-[55] and to my reasons in the Full Court at [46]-[54].
Again, as I have already noted, the circumstances in which the Judge considered the application for suppression orders were not precisely the same as those in which the application made to the Magistrates Court was to be decided. When the Judge came to decide on the applications in the District Court, the Information had been filed. Some submissions had been made to a Judge on 26 September as to the course to be followed in the proceedings. But none of that additional material alters the circumstances in a relevant respect. Of course, the Judge had to bear in mind that, in due course, the r 9 application would be the subject of submissions before the trial Judge, and that an order for separate trials was likely. But that also was a matter anticipated and considered by Bleby J and by the Full Court. In short, to this extent I agree with the approach of the Judge.
But I respectfully disagree with the Judge’s conclusion that the making of the r 8 application, and the prospective hearing of that application, was a circumstance that supported the making of the additional order that the Judge made in para 1 of the Judge’s orders.
If the orders made by the Judge in paras 2-5 were the only orders made, the name of the defendant, the office that he occupied and the fact that the charges had been brought against the defendant could be communicated to the public.
When the r 8 application came to be heard, the Judge hearing the application would be in a position to decide whether, and to what extent, suppression orders should be made in relation to the factual material relied on in support of the r 8 application, and in relation to the submissions made to the Court. The circumstance that the public would be aware of the name of the defendant and the charges that he faced would not fetter the Judge in deciding what suppression orders should be made, and would not undermine any suppression orders that the Judge might see fit to make in relation to that material. I am unable to identify any circumstance in which the Judge would be fettered, or in which orders that the Judge might make would be undermined. None were identified in submissions on appeal. This is an important point to bear in mind.
The Judge was rightly concerned to avoid prejudicing the ability of the trial Judge to hear and determine the r 8 application, and the ability of the trial Judge to accord to the defendant a fair trial. But the District Court Judge was empowered to make a suppression order under s 69A(1) only if the Judge was “satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice … to justify the making of the order in the particular case”. The Judge properly had regard to the fact that the r 8 application was yet to be heard and decided, and that the commencement of the trial was someway off. But that in itself was not a reason that would support the making of the particular order that the Judge made. It was necessary for the Judge to identify circumstances which, bearing in mind the r 8 application yet to be made, and the trial yet to commence, gave rise to a sufficiently serious threat of the kind required.
This the Judge does not appear to have done. The Judge appears to have taken the approach that for no other reason than that the r 8 application was yet to be heard, and that the trial was yet to commence, the order in para 1 should be made.
I acknowledge that the Judge did not know, and this Court does not know in any detail the material and arguments to be advanced in support of the r 8 application. But it remained necessary, if the order in contention were to be made, for the Judge to identify circumstances which, having regard to the prospective r 8 application and trial, gave rise to a sufficiently serious threat of prejudice to the administration of justice to warrant the order in question.
With all respect to the Judge, I cannot identify any circumstance arising out of, or in connection with, the r 8 application that would call for the order made in para 1, bearing in mind that the orders made in paras 2-5 were to be made. Ms Powell QC, counsel for the defendant, did not identify any.
Ms Powell made two particular submissions on this aspect of the matter to which I wish to refer.
The first submission is that there was a risk that, in some manner that at present was not foreseen or foreseeable, the hearing of the r 8 application might give rise to circumstances such that the prior publication of the defendant’s name would give rise to a threat of prejudice to a fair trial. She submits that that possibility cannot be excluded. I accept that submission. But s 69A(2) does not permit an order to be made merely because there is a theoretical possibility of a threat to the fair hearing of an application or to a fair trial, if a suppression order is not made. When asked to make a suppression order, a Court is entitled to take into account what is probable, and what is possible, in the future course of the matter in question. But at the end of the day, before the Court makes an order it must be satisfied in terms of the requirements identified in s 69A(2)(b). An order cannot be made on the basis that although no circumstances giving rise to a sufficiently serious threat of prejudice can be identified, the bare possibility of some such circumstance arising cannot be excluded. To make an order on that basis would be to turn s 69A(2) on its head, and to make an order because the possibility of the relevant circumstances arising had not been excluded.
The second submission by Ms Powell is that the r 8 application was to be heard in February 2009, and that this Court should hold or preserve the situation until then, leaving it to the District Court Judge who heard the r 8 application to determine what order should be made. This was coupled with the submission that there always remained the possibility of a sufficiently serious threat of prejudice arising in the course of the r 8 application in some manner that could not presently be identified. Additionally, she submitted that the trial Judge, or the Judge hearing the application, would be better placed to determine the extent of any suppression order necessary.
But this is, in effect, a submission that the Judge was entitled to make an order, although a basis for making the order had not been demonstrated, because within a relatively short period of time the trial Judge dealing with the r 8 application would or might be in a better position to decide whether or not publication of the defendant’s name should be prohibited.
Section 69A(2) does not permit this submission to be accepted. I repeat, because of its relevance, that this is a case in which the Judge properly adopted as the Judge’s starting point making carefully tailored orders that would permit little more than the defendant’s name and the charges to be communicated to the public. However , this was also a case in which no basis to apprehend a threat to the fair hearing of the r 8 application or of the trial had been identified. In that context, to make a suppression order simply because another Judge will later consider the same issue, is likely to have additional material and might be better placed to make a decision, is to ignore the requirement of s 69A(2)(b) for the making of an order.
While the Judge said that she made the order now under consideration “to avoid prejudice to the trial Judge’s ability to hear and determine the applications” (the r 8 application and the r 9 application), in substance the Judge’s decision was to make the order in question on the basis of a theoretical possibility that the failure to do so might result in a circumstance arising at a later stage of a kind that fell within s 69A(2)(b).
For the reasons that I have explained, that is not permissible having regard to the provisions of s 69A(2).
I do not consider that the observations by White J, to which the Judge referred, support the approach that the Judge took. The remarks were of a general nature. To the extent that they distinguish between the position of a Magistrate and the position of a judge in the District Court (the court of trial) the comments cannot be applied to a judge of the court of trial. They were directed to what might be done by a committing magistrate. Moreover, the present case is one in which no circumstance has been identified which is likely to or might give rise to a sufficiently serious threat of prejudice to the proper administration of justice if the defendant’s name can be communicated to the public. That being so, this is not a case of the kind under consideration by White J.

The Judge was not in a position comparable to the position of the committing Magistrate postulated by White J in his comments. It was therefore not appropriate for the Judge to make the suppression order in question, drawing on reasoning that would be applicable to the position of a committing magistrate.
There is one further point to be made. Bleby J, upheld by the Full Court, had already decided that the proper exercise of the power conferred by s 69A on the Magistrates Court did not call for an order prohibiting the publication of the defendant’s name. That aspect of the history of the matter made it all the more appropriate for the Judge to be satisfied that there was an additional circumstance of the kind referred to in s 69A(2)(b) before making the very order that had previously been refused.
For those reasons, I consider that the Judge erred. The reasons that the Judge gave for making the order in para 1 of the orders cannot be supported having regard to the provisions of s 69A.
Considering the matter afresh, I am satisfied that the order made in para 1 cannot be supported. I rely on the reasoning of Bleby J, and on my reasons in the Full Court, without repeating them. Having regard to the orders made in paras 2‑5 of the Judge’s orders, there was nothing in connection with the r 8 application or the prospective trial that called for the making of the order in para 1.
Mr Harris QC, counsel for the appellants, submits that the Judge erred in that the Judge failed to apply the provisions of s 69A to the circumstances of the case, and made the order for no other reason than that the trial Judge would later hear the r 8 and r 9 applications, and might be minded to make an order in terms of the order now under contention. Mr Harris submits that the Judge failed to apply the statutory criteria for the making of the order, making the order for no other reason than to preserve the possibility of it being made later. In the end, that submission is probably another way of making the point that I have already made. To that extent, I agree with it.
What I have said does not exclude the possibility of a court making what are sometimes for convenience called “holding orders” under s 69A. The concept of a holding order needs to be distinguished from an interim suppression order under s 69A(3), which is an order that can be made pending the determination of an application for a suppression order. Ordinarily, an interim suppression order should not have a life exceeding 72 hours.
When the Full Court delivered its reasons on 24 October 2008, the circumstance that the suppression order made in the District Court on 29 September was due to expire at 5.00 pm on 24 October 2008 meant that the Full Court thought it appropriate to hold or preserve the situation until a Judge of the District Court could decide what suppression orders should be made in that Court. The holding order that the Full Court made was to expire at 5.00 pm on 27 October 2008: see above at [22]. That order was made in circumstances in which the Full Court was not aware of just what had transpired in the District Court to that stage. The only suppression order made by the District Court was about to expire. There was an evident risk that if the Full Court did not make a holding order operating for a few days, the proper administration of justice might be prejudiced because of circumstances unknown to the Full Court. The circumstances of that order were far removed from the present case.
There is one final point that I wish to make. The defendant holds a significant public office. There is a definite public interest in the public being informed of the fact that the holder of a public office has been charged with an offence, if that occurs: see, for example, [2008] SASC 246 at [47] Bleby J. The fact that a person charged with an offence holds a significant public office does not mean that that person’s right to a fair trial is to be diminished. But there is a real public interest in avoiding any perception that the holder of a significant public office can obtain preferential treatment, and in the public being informed that the holder of a significant public office has been charged with an offence. That is a matter properly to be taken into account in the present matter.
Conclusion
I would allow the appeal. I would set aside para 1 of the order made by the District Court on 30 October 2008. I would hear the parties on the question of costs.
BLEBY J: I agree with the orders proposed by the Chief Justice and with his reasons. I have nothing to add to those reasons.
WHITE J: I agree that this appeal should be allowed and that paragraph one of the order made by the District Court Judge on 30 October 2008 should be set aside.
I agree with the reasons of the Chief Justice. In particular, I agree that it was inappropriate for the Judge to apply the approach which I suggested in RDB v Channel Seven Adelaide Pty Ltd and Ors[1] may be open to a magistrate in a case like the present. I emphasise that in saying that, I do not wish to be understood as indicating that I consider that it would also be inappropriate for a committing magistrate to apply such an approach; only that it was inappropriate for the Judge to have applied that approach on 30 October 2008.
[1] [2008] SASC 282 at [71] – [75].
I add the following. I sought to emphasise in paragraphs [71] to [74] of my reasons in RDB v Channel Seven that my remarks were directed to the form of an order which may appropriately be made by a magistrate when committing a defendant for trial who is faced with considerations similar to those which arose in this case. My remarks were not directed to the position of a member of the trial court. The positions of a committing magistrate in such circumstances, on the one hand, and of a judge of the trial court to which a defendant is committed for trial, on the other, are materially different. Further, the District Court Judge appears to have understood my references to the “court of trial” and to the “trial court”[2] as a reference to the trial judge. That was not my intention, evidenced, amongst other things, by my suggestion that a magistrate may order the complete suppression to operate until the defendant’s arraignment or shortly thereafter.[3] I also respectfully agree with the submission of the appellants and of the Director that the Judge has inappropriately treated the application as an application for an interim suppression order.
[2] Ibid at [71] - [73].
[3] Ibid at [74].
The appellants were critical of the Judge’s application of the approach which I suggested in RDB v Channel Seven. As I understood their submissions, their critique went further and was to the effect that it would also be inappropriate for a magistrate to adopt such an approach. Counsel mentioned four matters in particular as part of this critique. First, that the suggested approach which may be taken by a committing magistrate was the view of one Judge only and not of the Full Court. Secondly, that the open justice principle applies just as much at the time of committal as it does at the time of trial. There seemed to be an implication that the approach which I had suggested did not give effect to that principle. Thirdly, that it is inappropriate for the question of suppression to be left to be determined by the trial judge, and, fourthly, that Parliament itself had not adopted the policy that a complete suppression order should be made at the committal stage.
The appropriateness of a magistrate making a complete suppression order in the circumstances which I suggested in RDB v Channel Seven did not arise directly for consideration on the present appeal. The matters raised by the appellants were not addressed by either of the other parties. That indicates that a detailed consideration of the matters raised by the appellants is neither required nor appropriate.
However, I do consider it appropriate to make the following observations. The appellants’ submissions appeared to me to overlook that my remarks in RDB v Channel Seven were directed to the appropriate form of a suppression order which a committing magistrate may consider, in circumstances like the present, should be made. Of course, such a magistrate should only consider the form of a suppression order if the magistrate is satisfied that the strict criteria specified in s 69A(1) and (2) of the Evidence Act 1929 (SA) for the making of a suppression order are satisfied. It is those criteria which are “the relevant matters to be addressed on every occasion when a court considers making a suppression order: whether it be at the time of committing a defendant for trial, at the time of the defendant’s arraignment, before, during or after a trial, or at the time of an appeal.”[4] Hence, in RDB v Channel Seven I referred to the appropriate form of order which may be made by a committing magistrate who “has addressed appropriately the open justice principle and who is satisfied of the requisite conditions for the making of a suppression order”.[5]
[4] Ibid at [68].
[5] Ibid at [73].
As to the third matter, the appellants appear also to have equated the expression “trial court” in my reasons with that of “trial judge”. I repeat that that was not my intention. The trial court may have to consider the question of suppression as soon as there is material before that Court which may be characterised as evidence (in the sense defined) in s 68 of the Evidence Act, or as soon as a question of prejudice to the proper administration of justice arising from the publication of the identity of a person arises. Those circumstances may often arise before any trial judge has been appointed.
Finally, I do not regard my suggested approach as failing to give effect to the clear legislative intention which is evidenced in s 69A. Although it was not entirely clear, there may have been an implicit assumption in the appellants’ submissions that the approach suggested in RDB v Channel Seven involved the making of a complete suppression order whenever a defendant is committed for trial, or, at least, whenever a defendant is committed for trial and some form of suppression order is thought to be appropriate. Plainly enough, such an approach would be contrary to the legislative intention. My remarks were directed to circumstances such as existed in this case. At every hearing concerning the issue of suppression in this case, it seems to have been recognised that, despite the strict criteria now contained in s 69A(1) and (2), some suppression order was appropriate. The difficult question has concerned the extent of the suppression required and the form of the order to be made. That is, the issue has been whether that should be a suppression of the name of the defendant, or of details of the charges which he faces, or some combination of both. The District Court Judge (sitting as a magistrate) who committed the defendant for trial considered that a suppression of his identity, but not of the details of the charges which he faced, operating until the time of his arraignment, was appropriate. On appeal, a single Judge of this Court (Bleby J) and, on further appeal, the Full Court, took in effect, the converse view. That was that a suppression of certain details of the charges faced by the defendant, but not of his identity, was appropriate.
A decision by a magistrate as to the appropriate form of a suppression order (when the magistrate is satisfied that the making of such an order is required) in a case like the present can be difficult enough. As I endeavoured to indicate in RDB v Channel Seven, that difficulty may be enhanced by the magistrate not knowing some of the relevant matters bearing upon the decision and having to proceed, in some circumstances, on the basis of surmise. It will be the trial court which will often be better placed to address those matters. It is not necessary presently to develop that proposition. But it does not follow that because there may be some instances in which a committing magistrate may (consistently with the legislative intention) consider it appropriate to make a complete suppression order operating to the time of arraignment, or shortly thereafter, that complete suppression orders should uniformly be made at the time of committals, whenever a magistrate considers that some form of suppression order is appropriate. I would not wish my suggestion that a magistrate in such circumstances may make a complete suppression order operating to the time of arraignment, or shortly thereafter, to be understood as support for the proposition that complete suppression orders should uniformly be made, or should be made in all circumstances whenever a magistrate considers that some form of suppression order is appropriate.
As I indicated at the outset of these reasons, I agree with the orders proposed by the Chief Justice.