Advertiser Newspapers Pty Ltd v SA Police - [2006] SASC 36

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
ADVERTISER NEWSPAPERS PTY LTD v SA POLICE & ANOR
Judgment of The Honourable Justice Besanko
8 February 2006
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES
Appeal against two orders made under Evidence Act 1929, s 69A – first, order suppressing publication of submissions made in proceedings under Domestic Violence Act 1994, s 4 – secondly, order refusing to revoke suppression order – public interest in publication of information related to court proceedings – consequential right of news media to publish such information – grounds for making suppression order – held, suppression order necessary to prevent undue hardship to witness to proceedings and her children – however, unclear whether terms of suppression order went further than warranted – appellant given opportunity to make further submissions in relation to terms of suppression order.
Evidence Act 1929 ss 69A, 69B; Domestic Violence Act 1994 s 4; Supreme Court Rules 1987 rr 97.17, 97.18, referred to.
Herald & Weekly Times Ltd v Director of Public Prosecutions (2003) 86 SASR 70; R v Lennon (1985) 38 SASR 356; G v The Queen (1984) 35 SASR 349; Channel Seven Adelaide Pty Ltd v Draper (2004) 90 SASR 160; Cheatle & Sturdy v Davy (1989) 51 SASR 155; State of South Australia v Carter (1991) 161 LSJS 325, considered.

ADVERTISER NEWSPAPERS PTY LTD v SA POLICE & ANOR
[2006] SASC 36
Magistrates Appeal

BESANKO J: This is an appeal against two orders made under s 69A of the Evidence Act 1929 (“the Evidence Act”). The first order was a suppression order made on 14 November 2005 and the second order was an order made on 21 November 2005 refusing to revoke the suppression order. The appeal is brought pursuant to s 69A(8) of the Evidence Act 1929.
The appellant is The Advertiser Newspapers Pty Ltd (“The Advertiser”). The proceedings in which the order was made were proceedings in the Magistrates Court between South Australia Police (“the Police”) and Mr Mark John Stevens. The Police and Mr Stevens were named as respondents to the appeal. The Police appeared on the hearing of the appeal and opposed the orders sought by The Advertiser. Mr Stevens indicated to the Court that he did not contest the appeal and he did not appear on the hearing of the appeal.
The proceedings in the Magistrates Court
The proceedings were proceedings for a domestic violence restraining order and they were brought by the Police against Mr Stevens under s 4 of the Domestic Violence Act 1994 (“the Domestic Violence Act”). The complaint which commenced the proceedings was dated 14 November 2005 and the protected person named in the complaint was Mr Stevens’ wife, Lisa Marie Stevens. The order was sought for the benefit of Ms Stevens and her three young children, who are also the children of Mr Stevens. An affidavit of Ms Stevens was filed with the complaint and, speaking broadly, it outlines various incidents which accompanied the breakdown of the marital relationship and which were said to support the making of a domestic violence restraining order. A number of the incidents outlined in the affidavits occurred in the family home.
The complaint came on for hearing before Mr G Gumpl SM on 14 November 2005. The magistrate made a domestic violence restraining order until further order and he made an order that a summons issue to Mr Stevens, returnable on 17 November 2005 at 11.30 am. The magistrate also made the suppression order which is challenged on appeal. It is in the following terms:
Blanket suppression of all submissions made in court, save and except for any material released by the victim’s solicitor, until further order.
The magistrate did not deliver detailed reasons for making the order. In fact, the only record of his reasons is in the suppression order report, which states:
In the interest of administration of justice/victim and family.
There is no transcript of the hearing before the magistrate on 14 November 2005. An affidavit of the police prosecutor, Simone Louise Griffin, who appeared for the Police on 14 November 2005, was tendered on the appeal. It seems that Ms Stevens and her lawyer were present in court on 14 November 2005 and that Ms Stevens’ affidavit was tendered. Ms Stevens, who was in the body of the court during the hearing, was, at one point, questioned by the magistrate. Ms Griffin cannot remember the specific questions asked, or answers given. Ms Griffin states that she then became aware that there was a representative of the media in court. She states in her affidavit:
5.… Due to the nature of the information being disclosed by the applicant and the fact that restraining orders pursuant to the Domestic Violence Act1994 are ordinarily heard in a closed court, I requested the court be closed and any information already disclosed be suppressed. The media representative objected.
6.I am unable to recall the identity of the media representative, and I cannot recall the basis of her objections.
7.His Honour then made an Order suppressing the publication of submissions made during the application and ordered a closed court.
8.His Honour then proceeded to grant an interim restraining order with a return date of 17 November 2005.
Mr Stevens was served with the order and summons on 16 November 2005 and the summons came on before Mr G Harris SM on 17 November 2005. A lawyer appeared for Mr Stevens. The Advertiser was also represented by a lawyer. The lawyer for Mr Stevens said that the contents of the affidavit of Ms Stevens were disputed and that there were proceedings in the Family Court of Australia which were listed for hearing on 13 December 2005. The summons was listed for a pre-trial conference on 19 January 2006. The lawyer for The Advertiser applied for a revocation of the suppression order made on 14 November 2005. Mr Stevens opposed a revocation of the order. The application by The Advertiser was listed for hearing on 21 November 2005.
On 21 November 2005, Mr Harris heard submissions on the application to revoke the suppression order. I was told on the hearing of the appeal that Mr Gumpl did not consider it appropriate that he hear the application because of some connection between him and the solicitors acting for The Advertiser. The Police and Mr Stevens opposed the application. The Police prosecutor who appeared on that occasion, Natalie Margaret Stevenson, has sworn an affidavit in which she summarises the submissions she made on that occasion:
5.… Although I cannot now recall what I said word for word, I made submissions in relation to the following facts;
(a)     That a suppression order would avoid undue embarrassment and emotional hardship for both Mrs Stevens and her children.
(b)     That there are three children, aged 5, 3 and 14 months. The eldest attends school and is old enough to understand, and is upset by, the situation.
(c)     That both parents of Mrs Stevens are involved in the application and would also be protected from unnecessary media scrutiny.
Mr Harris refused to revoke the order and he delivered reasons for his decision. Mr Harris considered that it was not appropriate for him to review Mr Gumpl’s order, save that he needed to be satisfied that there was a possible ground for the decision. He said:
I am being asked to revoke a restraining order that was made only a few days ago. There has been a relatively brief passage of time since then. There is no suggestion that there has been any significant change in relevant circumstances during the interim. I accept that, if it appeared that there was no possible ground upon which the suppression could be made, then it may be appropriate for me to revoke the order.
…
It is difficult to deal with Mr McAvaney’s submission when I was not privy to what happened before Mr Gumpl, but, on the limited information available to me, it appears that, at the very least, there was a basis upon which a suppression order could lawfully have been made, and that was to prevent undue hardship to Mrs Stevens in her capacity as a witness, or a potential witness, in these proceedings. She is not a party to these proceedings.
Mr Harris found that there was no significant change in relevant circumstances between 14 and 21 November 2005 and he declined to revoke the suppression order.
The Advertiser submits that Mr Gumpl should not have made the suppression order on 14 November 2005. It was not suggested by The Advertiser that there had been a material change of circumstances between 14 November 2005 and 21 November 2005. Mr Harris’s refusal to revoke the suppression order on 21 November 2005 is challenged, but on the basis that he should have held that it should not have been made in the first place. It follows that the focus of The Advertiser’s challenge on appeal was on the making of the suppression order on 14 November 2005.
Issues on the appeal
Section 69A of the Evidence Act relevantly provides:
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)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 recognised 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.
…
(4)A suppression order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.
…
(6)A suppression order may be varied or revoked by the court by which it was made, on the application of any of the persons entitled to make submissions by virtue of subsection (5)(a).
(7)On an application for the making, variation or revocation of a suppression order—
(a)a matter of fact is sufficiently proved if proved on the balance of probabilities;
(b)if there appears to be no serious dispute as to a particular matter of fact, the court (having regard to the desirability of dealing expeditiously with the application) may—
(i)     dispense with the taking of evidence on that matter; and
(ii)    accept the relevant fact as proved.
…
(8)An appeal lies against—
(a)    a suppression order or a decision by a court not to make a suppression order;
(b)    the variation or revocation of a suppression order or a decision by a court not to vary or revoke a suppression order.
…
(10)Where a court makes a suppression order (other than an interim suppression order), the court must—
(a)     immediately forward to the Registrar a copy of the order; and
(b)     within 30 days forward to the Attorney-General a report setting out—
(i)     the terms of the order; and
(ii)the name of any person whose name is suppressed from publication; and
(iii)a transcript or other record of any evidence suppressed from publication; and
(iv)     full particulars of the reasons for which the order was made.
The powers of a court on appeal are set out in s 69B(3), which provides as follows:
(3)     Upon an appeal under this Division, the appellate court—
(a)     may confirm, vary or revoke the order or decision subject to the appeal; and
(b)     may make any order or decision under this Division that could have been made in the first instance; and
(c)     may make orders for costs and orders dealing with any other incidental or ancillary matters.
It seems that partway through the hearing on 14 November 2005, Mr Gumpl SM made an order closing the court, presumably exercising the power in s 69A of the Evidence Act. That decision is not in issue on the appeal. What is in issue on the appeal are the submissions made in open court on 14 November 2005. The question whether they were properly suppressed is to be determined by reference to the provisions of s 69A.
A court making a suppression order should deliver brief reasons. A sentence or two will suffice: Herald & Weekly Times Ltd v Director of Public Prosecutions (2003) 86 SASR 70 at 97-98 [227]-[240] per Lander J, at 107 [308] per Bleby J, at 112 [339]-[341] per Besanko J. A form of reasons is envisaged by s 69A(10) of the Evidence Act and reasons are necessary to facilitate proper appellate review. In some cases, the reasons for making a suppression order are obvious from the nature of the matter. For example, suppression of material which would otherwise prejudice a fair trial of a criminal charge. In other cases, remarks made by the judicial officer in the course of argument, although not reasons, may make clear what led him to make the order: R v Lennon (1985) 38 SASR 356 per King CJ at 360-361.
The difficulties created by the absence of reasons in this case are compounded by the fact that there is no record of the submissions made on the application for the suppression order. A further difficulty is that there is no record of the submissions which are the subject of the suppression order. Counsel for The Advertiser said that the representative of the media in court had taken notes of at least some of the submissions made and that an affidavit of the reporter could be filed.
In my opinion, it is a fair inference that a part, probably a substantial part, of the “submissions” made on 14 November 2005 which are the subject of the suppression order related to the incidents described in the affidavit of Ms Stevens, or to her state of mind as a result of those incidents. The appellant did not argue strongly against the conclusion.
It seems that the magistrate made the suppression order on the two grounds referred to in s 69A(1), namely, the proper administration of justice and undue hardship.
I start with prejudice to the proper administration of justice.
In the absence of reasons, it is not possible to know precisely what the magistrate had in mind when he relied on this ground. It is unclear whether he was concerned about the effect publication of the submissions would have on the progress of the particular complaint before him. If that was his concern, it would need to have been based on evidence that the summons would not, or may not, proceed if publication of the submissions took place. The difficulty with this ground is that it is not known what evidence to this effect, if any, was before the magistrate. It is unclear whether, in the alternative, the magistrate’s concern was that he considered publication of the submissions might deter others from coming forward and pursuing a complaint under the Domestic Violence Act. It is also unclear whether the magistrate considered a suppression order should be made in relation to all applications under the Domestic Violence Act in the same way as, it would seem on the evidence before me in this case, most matters under that Act are heard in a closed court. In the absence of reasons, I would not be prepared to uphold the magistrate’s decision on the ground that it was necessary to prevent prejudice to the proper administration of justice. For reasons which will become apparent, it is not necessary for me to decide whether considering the question afresh, I would uphold the order on this ground.
I turn now to consider the other ground relied on by the magistrate referred to as “interest of …. victim and family”, which must be taken to be a reference to s 69A(1)(b).
There is no dispute that Ms Stevens falls within s 69A(1)(b)(ii), because she is a witness or potential witness in proceedings under the Domestic Violence Act and she is not a party to those proceedings. Clearly, her children fall within s 69A(1)(b)(iii).
I have no difficulty in inferring that publication of the details of the incidents referred in to in Ms Stevens’ affidavit has the real potential to cause significant embarrassment and humiliation to Ms Stevens. It also has the real potential to cause the eldest child, who attends school or pre-school, to be teased and perhaps shunned.
Under subsections (1) and (2) of s 69A(1), there is but one question, and that is whether a suppression order should be made. In determining that question, the court must recognise, as a consideration of substantial weight, the public interest in the publication of information related to court proceedings, and the consequential right of the news media to publish such information. The public interest in the publication of information related to court proceedings is assumed and is not the subject of assessment by the court, save perhaps in a case where it is suggested it should be accorded something more than “substantial weight”. Subsection (2) calls for a weighing process. Where the basis of the application for a suppression order is undue hardship, the court must be satisfied that there will be hardship if publication takes place, that it will be undue, and that it should be accorded greater weight than the public interest in the publication of information related to court proceedings, and the consequential right of the news media to publish such information.
The Full Court has considered what constitutes undue hardship on a number of occasions. In G v The Queen (1984) 35 SASR 349, King CJ said (at 352):
The use of the adjective “undue” to qualify “hardship” in the section, indicates something more than that ordinary degree of hardship is required.
In R v Lennon (supra), King CJ said (at 361):
A court should not lightly, or as a matter of course, make an order prohibiting publication of the names of witnesses. It should only be done where the court perceives a real, and not merely fanciful, advantage to the administration of justice or hardship which can properly be regarded as undue.
(See also Channel Seven Adelaide Pty Ltd v Draper (2004) 90 SASR 160; Cheatle v Davy (1989) 51 SASR 155.)
I do not think the authorities mean that the court must postulate an ordinary application under the Domestic Violence Act, ascertain the hardship publication might cause in that case, compare it with the hardship in the case before it, and then conclude that it is only the “difference” which is “undue”. In my opinion, such an approach would be artificial. In my opinion, it is necessary to identify the hardship in the case and ascertain whether, in all the circumstances of the case, it is undue, recognising that, in many cases, hardship will flow from the publication of details of proceedings in court and should outweigh the consideration referred to in s 69A(2)(a).
On appeal, The Advertiser put forward evidence of publicity given to the proceedings by The Advertiser and another newspaper, the Sunday Mail. The Advertiser submitted that Ms Stevens was, to a point, prepared to discuss the proceedings with the media. The most significant comments appeared in an article in The Advertiser on 15 November 2005 as follows:
The estranged wife of high-profile football manager Max Stevens has taken out a restraining order against her husband, and says “ongoing turbulence” is “impacting on the children”.
Lisa Stevens was granted the order in the Adelaide Magistrates Court yesterday.
The couple, who run the management company Max Stevens Management, which operates as Elite Sports Properties/SA, have been married for seven years and have three children.
Outside court yesterday, accompanied by her father, Rex Gabel, Mrs Stevens confirmed in a statement to The Advertiser that she and her husband had separated.
In the statement she says the “ongoing turbulence” in their marriage over many years “is now impacting on the children”.
After issuing the statement, she added: “Today I just need to concentrate on this (the restraining order) and get home to the kids.”
On advice from her lawyer, Julie Redman, Mrs Stevens declined to comment further.

It is not entirely clear to me what point The Advertiser makes about this publicity. Section 69A(2)(a) provides that there is a public interest in the publication of information related to the proceedings. The publicity seems to support what must be recognised by the court in any event. The publicity does not support a conclusion that the damage has already been done (State of South Australia v Carter (1991) 161 LSJS 325 at 327 per Cox J; Channel Seven Adelaide Pty Ltd v Draper (supra) at [112] and [118] per Besanko J. There is no disclosure in any of the articles of the matters in the affidavit of Ms Stevens, or of the questions posed to Ms Stevens and the answers given on 14 November 2005. For the same reasons, it cannot be said that Ms Stevens brought the hardship upon herself. Nor do I think that there is anything misleading about what Ms Stevens said. Had there been, that might have weighed in the balance in favour of not making a suppression order.
In my opinion, the magistrate made the suppression order because he considered it should be made to prevent undue hardship to Ms Stevens and her children, particularly the eldest child. The magistrate would have been aware of s 69A(2) and it is difficult to think that he did not take the matters referred to therein into account. Even if, in the absence of reasons, one cannot be certain the magistrate undertook the process required by subsections (1) and (2), sitting on appeal and determining the question afresh (s 69B(3)(b) of the Evidence Act and rr 97.17 and 97.18 of the Supreme Court Rules 1987), I would make a suppression order in relation to the matters in Ms Stevens’ affidavit and matters fairly related to them. I am satisfied that publication of that material will cause undue hardship to Ms Stevens and her eldest child, and that that consideration should be accorded greater weight than the substantial consideration, being the public interest in the publication of information related to court proceedings and the consequential right of the news media to publish such information.
The difficulty in this case is that, in the absence of reasons or a transcript of the hearing on 14 November 2005, it is unclear whether the order actually made goes further than is warranted. I will give The Advertiser the opportunity of putting forward evidence of the submissions made on 14 November 2005. If it chooses to do so, I will give the parties the opportunity, consistent with these reasons, to make further submissions in relation to the terms of the suppression order.
Conclusion
I will adjourn the appeal so that the parties may consider these reasons.