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;

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: [2008] SASC 362
Decision Date: 22 December 2008

CaseChat Overview and Summary

In the case of Advertiser Newspapers Pty Ltd v B, RD, the parties involved were the Advertiser Newspapers Pty Ltd, the defendant who was charged with sexual offences, and the State of South Australia. The dispute centered on the suppression of the defendant's identity and other related evidence in the media, despite the absence of explicit statutory provisions mandating such suppression. The case was heard by the South Australian Supreme Court, with the appeal being heard by a full bench. The key legal issues were whether the court could make a suppression order based on hypothetical future circumstances and if the court could make an order to avoid depriving another judge of the opportunity to make the same order.

The court held that it was not permissible to make a suppression order on the mere possibility of some unknown future circumstance necessitating such an order, nor could an order be made simply because failure to do so would deprive another judge of the opportunity to make the same order. The court emphasized that 'special circumstances' must be identified before a suppression order could be made. The court found that even considering new material not previously before the Supreme Court, no special circumstances existed justifying the suppression of the defendant's identity. The appeal was allowed, and the order forbidding the publication of the defendant's identity was set aside. The court highlighted the public interest in the public being informed of the fact that a person holding a significant public office has been charged with an offence, balancing this with the need to avoid any perception of preferential treatment.

The court further clarified that the approach suggested in earlier judgments, which might be open to a magistrate when committing a defendant for trial, was inappropriate in this context. The District Court Judge had misunderstood the references to the "court of trial" and the "trial court" as applying to the trial judge, rather than the committing magistrate. The court emphasized that its earlier remarks were directed to the form of order that might appropriately be made by a magistrate in similar circumstances and not to the position of a member of the trial court. The District Court Judge had also treated the application as one for an interim suppression order, which was inappropriate. The appeal was ultimately allowed, and the suppression order concerning the defendant's identity was set aside, with the court directing that the parties be heard on the question of costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

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.