An Accused v Adelaide Magistrates Court

[2014] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

AN ACCUSED v ADELAIDE MAGISTRATES COURT

[2014] SASC 18

Reasons for Decision of The Honourable Justice Nicholson

20 February 2014

EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS

EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - STATUTORY POWERS

EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - OTHER MATTERS

Appeal from a Magistrate's refusal to expand the ambit of a suppression order previously made in the Magistrate's Court.

HELD:  Appeal allowed; terms of the suppression order expanded.

Evidence Act 1929 s34O, s34P, s34Q, s34R, s34S, s34T, s69A, s69AC, s69B, referred to.
Packer v Police (2007) 247 LSJS 410; [2007] SASC 98; Director of Public Prosecutions v C, KL and Ors [2008] SASC 275; B, RD v Channel Seven Adelaide Pty Ltd & Ors and B, RD v Advertiser Newspapers Pty Ltd & Anor (2008) 103 SASR 478; sub nom Channel Seven Adelaide Pty Ltd & Ors v An Accused & Anor and Advertiser Newspapers Pty Ltd v An Accused & Anor (2009) 103 SASR 459; Channel Seven Adelaide Pty Ltd v Draper (2004) 90 SASR 160; Channel 7 Adelaide Pty Ltd and Ors v An Accused & Anor, Advertisers Newspapers Pty Ltd v An Accused & Anor [2008] SASC 246; House v R (1936) 55 CLR 499; An Accused v R (1995) 182 CLR 461; R v Von Einem (1991) 55 SASR 199, considered.

AN ACCUSED v ADELAIDE MAGISTRATES COURT
[2014] SASC 18

Magistrates Appeal:  Criminal

NICHOLSON J.        

Introduction

1. The accused in this matter has recently been charged with the offence of murder, which murder is said to have occurred some decades ago.  The disappearance and apparent murder of the alleged child victim has been the subject of an ongoing police investigation over that period.  It is a matter of some notoriety that, over the years, has received considerable exposure in the media.  The accused is also a person of some notoriety, as a result of his prior criminal record and he, also, has received considerable exposure in the media over the years. 

2. For these reasons, when the matter first came before the Magistrates Court on 19 November 2013 an order was made under s69A of the Evidence Act 1929, on the Crown’s application, suppressing “as to the publication as to the defendant’s reference to any prior criminal offending”.  On 4 February 2014 when the matter next came before the Magistrates Court the accused made an oral application to vary the terms of this suppression order.  The accused sought an order suppressing from publication:

   (i)the name and image of the accused;

   (ii)any material which may tend to identify the accused;

   (iii)all references to the accused’s prior criminal convictions; and

   (iv)all reference to the accused having had prior contact with the criminal justice system.

   The Magistrate refused the application to vary but granted an interim suppression order in comparable terms but to be in force for only 72 hours so that the accused might pursue an appeal to this Court. 

3. The appeal came before me on 6 February 2014 at which time I listed the matter for argument on Friday 7 February 2014 at 2.15pm.  Because the argument would take place after the 72 hour period allowed for by the Magistrate was to expire, I made a further suppression order in the same terms as that made by the Magistrate but this time qualified as “until further order”. 

4. It may be that the provisions of s69A(3) relating to the making of interim suppression orders do not apply in the case of an appeal brought, as is this one, pursuant to s69B of the Evidence Act.[1]  However, I am satisfied that a single judge has the power to make such an order pursuant to the inherent power available to judges of this Court to regulate the court’s processes and to prevent prejudice to the proper administration of justice.  In this case, I was satisfied that the additional time afforded the accused to properly prepare his argument on the appeal was warranted and that, having allowed that additional time, the appeal would have been rendered futile in the absence of making a further interim suppression order.  I am satisfied that it was justified in order to protect the integrity of the processes of the court and to prevent prejudice to the proper administration of justice with respect to the hearing of the appeal.[2]

   [1]    See Packer v Police (2007) 247 LSJS 410; [2007] SASC 98.

   [2]    See generally, Director of Public Prosecutions v C, KL and Ors [2008] SASC 275 at [6] (Bleby J).

5. Two affidavits were read at the hearing of the appeal, one by Elizabeth Eleanor Mansfield sworn 5 February 2014, junior counsel for the accused, who presented submissions before the Magistrate and one by Vanessa Jane Burrows sworn 6 February 2014, a legal practitioner employed by the Director of Public Prosecutions, who had conduct of the matter on the Director’s behalf before the Magistrate.  Before both the Magistrate and this Court the Director indicated that it took no position on the accused’s application to vary the suppression order other than to abide the order of the Court. 

6. During the hearing of the appeal on 7 February, submissions were made by senior counsel for the accused and by senior counsel for the Director.  Various representatives of the media present indicated that they might wish to make a submission.[3]  However, as the argument developed, it became apparent that in order to ensure that the appeal process was not rendered futile, I would need to make another “interim” suppression order.  On the oral application of the accused, I made an order suppressing, until further order, any publication of:

   (i)the name of or anything tending to identify [the alleged victim] in connection with the proceedings; and

   (ii)these proceedings dealing with suppression matters.

   It also became apparent during the argument that an even more comprehensive suppression order, embracing the whole of the proceedings, might be necessary if the accused’s concerns were to be met.  In these circumstances, I agreed with the submission by counsel for the Director that the matter should be further adjourned (to Tuesday 11 February) in order to give media representatives the opportunity to make submissions with respect to the accused’s now varied position. 

   [3]    The media organisations present included Advertiser Newspapers Pty Ltd (Tessa Ackerman), ABC News (James Hancock) and Channel 9 (Caroline Morano).

   The legislative framework

7. Section 69A of the Evidence Act provides, insofar as is relevant, 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.

   (3)-(13) …

8. In order for a court to make a suppression order, it must first be satisfied that a suppression order, in the terms proposed, should be made “to prevent prejudice to the proper administration of justice”.[4] If so satisfied, the court “may” make the order. The use of the term “may” imports a discretion. In order to make a suppression order it is essential, but not necessarily sufficient, to find that it should be made to prevent prejudice to the proper administration of justice. The discretion conferred by s69A(1)(a) is governed also by the requirements of s69A(2).

   [4] Section 69A(1)(a); the alternative bases set out in s69A(1)(b) are not invoked in the circumstances of this case.

9. Section 69A(2) is in mandatory terms. That sub-section requires the court to 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.  It also provides that a suppression order may only be made where the court is 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 a particular case.”

10. In B, RD v Channel Seven Adelaide Pty Ltd & Ors and B, RD v Advertiser Newspapers Pty Ltd & Anor[5] Doyle CJ provided a helpful exposition of the effect of and proper application of s69A. His Honour commenced his consideration[6] with a discussion of the common law principle of open justice, forming part of the administration of justice in this country.   His Honour made the following observation.[7]

    Statutory provisions for the making of suppression orders qualify this common law principle.  Courts are often criticised for making suppression orders.  If the order is wrongly made, the criticism is justified.  But it needs to be understood that when courts make suppression orders, they do so because Parliament has, by statute, conferred the power to do so.  When the statutory criteria for the making of an order exist, and subject to any discretionary or like considerations, the court should make the order.  To decline to do so would be erroneous, because Parliament has enacted that when appropriate circumstances exist, the order is to be made.

    [5] (2008) 103 SASR 478 (Doyle CJ with whom Layton J agreed, White J) on appeal from sub nom Channel Seven Adelaide Pty Ltd & Ors v An Accused & Anor and Advertiser Newspapers Pty Ltd v An Accused & Anor (2009) 103 SASR 459 (Bleby J).

    [6]    At [15]ff.

    [7] At [17].

11. After making the point that when considering the meaning of s69A “it is necessary to bear in mind that an accused person is entitled to a fair trial or at least a trial as fair as the Court can secure, having regard to the powers available to the Court”,[8] the former Chief Justice expatiated on the meaning of s69A(2), albeit “in the abstract”, at some length. In so doing, his Honour quoted from observations of the Judge appealed from. It is convenient to set out the whole of the former Chief Justice’s remarks, including the observations of the Judge appealed from given that the Chief Justice expressed his agreement with them. With respect, I agree with and adopt as applicable, the approach described by both the former Chief Justice and the Judge appealed from, as now set out.[9]

    [8] At [19].

    [9]    At [23]-[28].

    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).

    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.

    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.

    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”.

    I do not think that much more can usefully be said in the abstract about the meaning of s 69A(2).

    I agree with the observations of the single Judge, which appear to me to be consistent with what I have said, although expressed a little differently.  The Judge 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.

    A little later the Judge added, referring again to subsection (2):

    [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.

12. According to s69AC(1)(b) an appeal lies against, inter alia, a decision by a court not to vary a suppression order.  Where the appeal is from a decision of the Magistrates Court it lies to a single judge of this Court.[10] The powers of an appeal court are set out in s69B(3).

    (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.

    An appeal of this nature has been treated as tantamount to a hearing de novo.[11]  However, in Channel Seven Adelaide Pty Ltd v Draper,[12] in the context of an appeal from a suppression order made pursuant to s69A as it then stood, Gray J (with whom Nyland J agreed) observed:

    In considering this appeal the well-settled principles of interfering with a discretionary order have application. The issue is not whether an appeal court would make a different order. If the order made was open on the evidence, and no error of law or fact is identified, and the order is not wholly unreasonable, the appeal court should not interfere.

    [10] Section 69AC(2)(a), (b) and s69B(1).

    [11]   Channel 7 Adelaide Pty Ltd and Ors v An Accused & Anor, Advertisers Newspapers Pty Ltd v An Accused & Anor [2008] SASC 246 at [11].

    [12] (2004) 90 SASR 160 at [31], see also Packer v Police [2007] SASC 98 at [5].

13. In the present case it would appear that the Magistrate provided no reasons for his refusal to vary, other than along the lines that “the horse may have bolted” and, by implication based on the submission of the media representative at the hearing, that it was not necessary to prevent prejudice to the proper administration of justice.[13]

    [13]   Burrows affidavit at [10]-[13].

14. For this reason, I indicated during the hearing that I proposed to approach the matter de novo. All parties have been afforded an opportunity to put material and submissions before the Court bearing on the question of whether the suppression order as initially made in the Magistrates Court should be varied at all and, if so, the terms of any variation.  In any event, as the ensuing discussion demonstrates, I am not satisfied that the Magistrate gave consideration to all of the matters relevant to the exercise of the discretion in this matter.[14]  For this reason, and whether or not the appeal is one de novo, I propose to allow the appeal, set aside the Magistrate’s determination and exercise the discretion afresh.

    [14]   House v R (1936) 55 CLR 499.

    The accused’s concern

15. The primary concern of the accused is that there is a significant body of material published on the internet going back many years which purports to link the accused with the crime for which he has now been charged.  It is apparent from some of that material that the accused has been a major suspect, insofar as the police have been concerned, for quite some time during the investigation.  There has also been a flurry of material published on the internet following the accused’s arrest late last year canvassing similar matters. 

16. In a substantial number of internet entries the accused is referred to by name and his prior criminal record and its nature is described.  In a number of entries, the material links the accused’s prior criminal record with the present proceedings by identifying not only the nature of the previous convictions but also recording or implying purported similarities between that prior proved offending and the present alleged offending.  In particular, it is said that the victims were very young children each time.  The offending previously committed concerned apparent abduction, false imprisonment, rape and indecent assault of a minor and murder of another minor.  This prior offending and that now alleged is of the type that strikes fear, revulsion and anger in right thinking members of the community. 

1. Much of the internet material is of a nature that poses a serious risk of promoting a line of reasoning to the effect that, because the accused has been convicted in the past for the type of serious offending with which he has again been charged, he has a general propensity to commit crimes of the type now alleged and probably did commit the newly charged offence. 

2. The Crown has not yet determined whether it will seek to adduce evidence of the accused’s prior criminal record in any trial of the current charge should it take place.  The Crown has not yet indicated the basis upon which it might seek to adduce and rely upon such evidence.  However, for the present, it should be assumed in favour of the accused, that such evidence ultimately may be found inadmissible and not come before any jury.  Accordingly, the accused argues that he stands to be gravely prejudiced should the internet material, published to this point, come to the attention of any prospective juror between now and the commencement of the trial.  In the event that, or to the extent that, a person who ultimately comes to serve on a jury were to have had prior access to this material, a fair trial would be seriously imperilled.  As such, it is submitted, the making of a suppression order designed to remove or, at least, substantially limit the opportunity for or possibility of such persons obtaining access to this material is necessary in order to prevent prejudice to the proper administration of justice.

   The submissions

3. The accused recognises that nothing can be done about the prejudicial material already published and that any power to control (at least in a practical sense) the publication of material outside South Australia, may be significantly circumscribed.  However, there is still a capacity to eliminate or, at least, substantially limit the scope for potential jurors in this state to have their interest in the present criminal proceedings aroused in such a way as to provoke internet searching which would lead them to this already published material.

4. The prejudicial material already published on the internet is no longer immediately apparent to the members of the public.  It would need to be (usually) actively looked for.  However, as the affidavit evidence demonstrates, the very simple task of entering the accused’s or the alleged victim’s name into an internet search engine such as “Google” will return a significant number of highly prejudicial entries together with other suggested search terms which will lead the enquirer to more sites containing similar information.  In short, if there were to be no ongoing publication in South Australia of these proceedings, potential South Australian jurors are unlikely to have cause to search the internet for information concerning this accused or the alleged victim.

5. At least three important matters, essentially of a factual nature, arise for consideration in this case when it comes to applying the statutory test.  These considerations are to be weighed against the background of an existing suppression order which, subject to any further application that might be made, is to remain in force in any event.  That order should have the effect of preventing further publication of material that would refer to or expose the accused’s prior criminal record or any connection he may have had with the criminal justice system.  In this respect, the existing suppression order made in the Adelaide Magistrates Court on 19 November 2013 might be seen as inelegantly worded and I would propose, in any event, to re-state the terms of that order.  However, what I have just indicated is the gist of it.

6. Plainly, the existing order as made in the Magistrates Court does not fully address the accused’s concern.  Whilst no more prejudicial material should be published in South Australia in the future, it does nothing to prevent the interest of members of the public to search further from being aroused.

7. A first consideration or question to be asked is what is it about this accused that distinguishes him in a material way from any other accused facing charges and who has a prior criminal record or history of discreditable conduct, information about which might be obtained through internet searching by any inquisitive prospective juror?  At one level, the amount to this question might be “nothing”.  However, this issue can only be one of judgment and degree, to be considered in the context of the circumstances as a whole.  The nature and quantity of the previously published material, as can be discerned from the exhibits to the affidavits, and its capacity to invoke pre-judgment, prejudice and an improper form of reasoning, is, in my view, very significant.  The accused’s case presents a quite extreme example of the problem of pre-trial publicity.

8. A second consideration is whether or not, as the Magistrate pithily put it, “the horse has bolted”.  In other words, is it the case that, in the circumstances as they now stand, the making of a suppression order in the form now sought would lack sufficient utility.  I have already discussed this issue to some extent.  It is true that prejudicial material has already been published.  The question is whether there is utility in limiting further access to that material.

9. A third consideration is the amount of weight that should be given, in the circumstances of this case, to the expectation that any jury empanelled to hear this matter will be properly and, one would expect, strongly, instructed to ignore extraneous material that may have come to their attention prior to trial or indeed during the trial and to decide the matter only on the evidence they hear in court.  There is an expectation, upon which our system of jury trial depends, that juries will take heed of and will observe such directions. 

10. A suppression order in the form of that now sought will never, of course, be a total panacea.  Ultimately, the members of the jury will become aware of the name of the accused and of the alleged victim.  At that time they will be enjoined, and trusted, not to make their own enquiries but that, of course, could never be guaranteed.  The accused’s right to challenge three prospective jurors without cause is unlikely to offer any protection.  However, steps might be taken at the empanelment stage in an effort to identify and perhaps exclude prospective jurors who had acquired information as to the background of the accused.  The process of enquiry would need to be cautiously undertaken as the process itself might risk tainting a prospective juror (if questioned individually) or the whole panel (if questioned as a group).  Furthermore, if a panel member did reveal prior knowledge it would not necessarily follow that they would seek to be excused on the basis that they were not confident about bringing an impartial mind to bear or that they could be successfully challenged for cause.

11. Counsel for the accused submitted that special circumstances, as required by s69A(2)(b), existed to give rise to a sufficiently serious threat of prejudice to the proper administration of justice by virtue of the nature of the accused’s prior offending when considered in conjunction with the current charge, the potential for the internet publications to seriously prejudice “if not obliterate and destroy” the accused’s right to a fair trial and the (assumed for the present) fact that the accused’s previous criminal record will not be admissible before a jury should any trial take place.

12. Counsel took the Court to a number of authorities which discussed the inadmissibility (generally) of evidence of bad character where it has a tendency to prove no more than that a person has a general disposition or propensity to commit crime or crime of a particular kind.[15]  Without in any sense purporting to decide questions of admissibility that might arise in this case,[16] I accept that should the accused’s prior criminal record be before a jury it would require, to use McHugh J’s term, a “super human effort” by the jury to regard the accused as other than a person of extremely depraved character.[17] 

    [15]   For example, An Accused v R (1995) 182 CLR 461 at 512ff (McHugh J).

    [16]   Whether or not the evidence of the accused’s prior criminal record would be admissible in a trial of the present charge will be governed by the application of the discreditable conduct provisions in Division 3 of Part 3 of the Evidence Act 1929, ss34O-34T.

    [17]   Cf; An Accused v R (1995) 182 CLR 461 at 513 (McHugh J).

13. Counsel submitted that it was likely that applications would be brought pursuant to Rule 20 of the Magistrates Court Rules at the committal stage.  If these applications were to be allowed various witnesses might be called to give oral evidence at the committal stage.  There is no doubt that the committal proceedings would, in the ordinary course, attract further publicity including further publication of the accused’s name and the alleged victim’s name and, a fortiori, if witnesses were to be called and examined.  I accept that at each public step of the further preparation of this matter for trial and quite likely on other occasions, there would, in the ordinary course, be further publication of the accused’s name and the circumstances of the alleged offending.  This ongoing publicity will, quite likely, lead to further internet searching by a significant number of interested members of the public.

14. Counsel referred the Court to dicta of Duggan J in a case concerning an unsuccessful application for a stay of a criminal proceeding based on pre-trial publicity.[18]  His Honour made the following observations,[19] albeit in a context where the test for the making of a suppression order under s69A of the Evidence Act, as it then stood, was not as strict or difficult to satisfy as it is today. 

    When there is a genuine challenge to evidence such as confessional material or evidence of a prejudicial nature it is undesirable that the content of the evidence be revealed to jurors or potential jurors prior to a decision being made to admit it into evidence.  It is this reasoning, based on considerations of fairness, which constitutes the main justification for the practice of hearing argument on such matters in the absence of the jury.  It is undesirable for every such argument to take place at the preliminary examination [committal] as well as at trial and this accounts for the practice… of the Crown not opposing applications for suppression of evidence given at the preliminary examination when there is to be a challenge to that evidence at trial.  In these circumstances, the suppression order is clearly justified in order to prevent prejudice for the proper administration of justice.  Although a Court is required to take into account, “the public interest in publication of information related to court proceedings and the consequential right of the news media to public such information”… to recognise that these considerations are of substantial weight… and to refrain from making an order unless the prejudice to the proper administration of justice is of greater weight than the public interest, it should be borne in mind that the order may be reviewed by the superior court after a ruling has been made on admissibility by that court.  The justification for suppressing the evidence would no longer exist if it were admitted.  On the other hand in the event of a ruling excluding the evidence the suppression order should remain.  In neither case would the public interest suffer.  In my view the evidence given concerning the applicant’s alleged practice of… should have been suppressed from publication at that stage of the proceedings.  There could be no doubt about the genuineness of the application and it was eventually made before me.  The application to exclude the similar fact evidence gave rise to extensive legal argument and [its] admissibility… was at all times dependant in large measure upon the view that the trial judge would take as to the balance between the weight of the evidence and its obvious prejudicial effect.  In the result both items of evidence received extensive publicity and contributed to the potential prejudice which the accused might suffer at his trial.  I am quite satisfied that the learned Magistrate erred in relying upon the safeguards which could be taken at trial as a reason for not suppressing the evidence.  It is quite undesirable to rely upon the cure when appropriate preventative measures are available.  (Emphasis in the original.)

    [18]   R v Von Einem (1991) 55 SASR 199.

    [19]   At 215-216.

15. Counsel submitted, in reliance on the authorities to which the Court’s attention was directed and as a matter of general principle, given the circumstances of this case, that prevention of a problem was far preferable to any attempt to resolve (“cure”) the problem should it eventuate. In this case, this is particularly so because of the extremely prejudicial nature of the material in question, such that a Court could not be at all confident that a jury member or members who were in possession of the information would be able to exercise the “super human” effort to put it aside and ignore it if directed to do so. I am satisfied that within the particular constraints imposed on a court by the terms of s69A of the Evidence Act, this submission that prevention is better than cure, on the facts of this case, deserves to be given substantial weight. 

16. One will never be able to know with certainty which, if any, of the members of a jury ultimately empanelled to hear this matter are in possession of the impugned information.  This is another reason why prevention is to be seen as preferable to cure.  Furthermore, one can only work on the assumption that, if publicity were to continue throughout the preparation period to the date of trial, there would be a real likelihood of a potential juror becoming aware of the impugned information.  Whereas, if there were to be no further publicity and bearing in mind that any trial of this matter is unlikely to take place for at least another 12 months, there must be good prospects that a jury empanelled will not have acquired the impugned information. 

17. Counsel for the Director, consistently with the indication given that the Director would abide the order of the Court, provided submissions of a general nature in order, insofar as possible, to assist the Court.  These submissions were directed, in the main, at the question of the lack of utility of a limited form of suppression order.  A very real concern is that to the extent that information about the ongoing preparation of this matter for trial were to be published, even in restricted and perhaps coy terms that omitted reference to the name of the accused and omitted reference to the name of the alleged victim, such might excite even greater interest in members of the public to track down what this matter was about. 

18. Counsel for the Director agreed with the submission of counsel for the accused to the effect that if it were possible to prevent further publication of material which would lead to a linking of this accused with prejudicial material previously published on the internet then this would likely reduce the pool of people who may “Google” or in other ways try to look for and gain access to the prejudicial material.  However, counsel submitted that this could only go so far given the extensive availability of the prejudicial material on various websites, including social networking sites, chatrooms, vigilante sites and anti-paedophile sites.  The information linking this accused with the present alleged victim and earlier victims will remain and be available to anyone who makes the effort to find it.

19. There is merit to this argument.  There is little doubt that people with a particular interest will search for and, with a little ingenuity, will be able to find this information.  However, the point of the present exercise is to prevent publication of further material that will excite interest.  It is the excitation of interest in otherwise uninterested members of the public (who may ultimately come within the jury pool) that would lead these people to search and find the prejudicial material.  Without further publicity, one can be confident that a vast majority of people in South Australia will not spend their time looking for this particular material.

20. When argument resumed on 11 February, I heard submissions from senior counsel on behalf of Advertiser Newspaper Pty Ltd, Caroline Morano representing Channel 9 and counsel for the accused in reply.

21. Counsel for the Advertiser commenced with submissions “in the abstract” based essentially on the Full Court’s decision in B, RD dealt with above.  Submissions were then directed, essentially, at the lack of utility of any suppression order in terms wider than that originally made in the Magistrates Court on 19 November 2013 concerning publication of the accused’s prior criminal record.  These submissions focussed on the notorious difficulties, in the modern day, attendant on attempting to limit or control access to information already published on the internet, the protections already afforded by the law of contempt and the further protections that can be put in place at trial through judicious questioning of potential jurors and the giving of suitable directions to the jury to ignore any prejudicial material that may have come to their attention and to decide the case only on the admissible evidence heard in court. 

22. A submission (put also by the Crown) that limited and obscurantist publication of the proceedings might cause more harm than good, in that, it might excite interest to trawl the internet that might not have arisen following a more detailed reporting, was also developed. 

23. Counsel then made the observation that s69A operates on an assumption that the material, the subject of an application for suppression in a case such as the present, will have a tendency to cause prejudice to a fair trial and therefore to the administration of justice. However, it is not any prejudice, not even significant prejudice, that necessarily will lead to the making of a suppression order. There must be special circumstances giving rise to a “sufficiently serious” threat of such prejudice “to justify” the making of the order.

24. Counsel for the Advertiser submitted that, as was found to be the case in B, RD, the threat of prejudice in the present case ought not to be regarded as sufficiently serious, given the protections available to ensure a fair trial with an unsullied and impartial jury.  Counsel submitted that at this early stage of the proceedings some 12 months, at least, before any expected trial, it would be ineffective to use the blunt instrument of a suppression order in attempting to restrict access to the internet by all persons in South Australia who may ultimately come to be selected to serve on a jury.  Rather, the sharper more targeted approach of taking steps to ensure that an unprejudiced jury is selected at the time of trial is more likely to be successful in ameliorating any risk of prejudice to a fair trial.

    Resolution of the appeal

25. When considering whether or not to make a suppression order the Court must recognise that a primary objective in the administration of justice is to safeguard public interest in open justice and the consequential right of the news media to publish information relating to court proceedings.  Our system places a high premium on “open justice” and the valuable role played by the media in reporting on and publishing information relating to court proceedings.  This allows the court proceedings themselves and the behaviour of the participants to be open to public scrutiny.  This serves as an added protection, over and above the ordinary appeal process, and one that will assist in ensuring that legal proceedings (both civil and criminal) are brought and prosecuted in a fair and just manner and determined according to law.  The public interest in, and supported by, the open justice principle is not to be unjustifiably interfered with. 

1. However, there is also a public interest in having a justice system that ensures that persons accused of a crime receive a fair trial.  The presumption of innocence that is at the heartland of our criminal justice system is the right of all, even those with significant prior criminal records.  It is in the public interest that a wrongful conviction does not take place, that circumstances do not arise that might lead to a permanent stay of criminal proceedings and, ultimately, if this accused were to be convicted of the offence charged, that a conviction be arrived at through fair and just means. 

2. The two public interests that I have broadly identified give rise to the need for a balancing exercise in the present case.  One must be careful not to confuse the fact that many members of the public may well find this new prosecution and the reporting of it “of interest”, with “the public interest in open justice”.  Nevertheless, the weight to be given to the public interest in open justice in this case is to be tempered by the fact that this prosecution has come about as a result of an investigation over a number of decades.  There will be a relatively small number of people, comprising, in the main, members and friends of family and members of investigatory and prosecutorial authorities, that will have a very real and direct interest in the matter itself and its progress to trial.  However, this is not a matter which involves recent offending.  It is not a matter which might fuel a fear or concern within the public generally or sections of the public in the way that contemporary offending of this nature can sometimes do.  To this extent, and without meaning any disrespect, the present can be seen as a matter of historical interest to the general community rather than contemporary interest, apart from the extent to which the general community can be said to have an interest in seeing a very serious historical crime solved and resolved in a proper and lawful manner. 

3. I take the view that the public interest in taking such steps as can be taken to ensure a fair trial does outweigh the public interest in the open justice principle in the circumstances of this case such that the media should be significantly constrained as to the scope of its contemporary ongoing reporting.  It is not as if there will not be open justice.  In time, the media should be free to fully report all that has taken place and is to take place in the future.  The principle of open justice and the consequential right of the media to publish information relating to court proceedings should not be confused with a right to immediate publication at any cost. 

4. There is still the question of utility.  If it were not possible to craft a suppression order sufficiently comprehensive to provide a real protection to the accused, that is, one that would significantly reduce the possibility that members of the South Australian public would search for and obtain access to the prejudicial material already on the internet, the balancing exercise might well tilt the other way.  However, I am satisfied that a suppression order of real utility can be crafted.

5. I am satisfied that, in this case, special circumstances do exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice to justify the making of a comprehensive order for suppression.    Those special circumstances comprise the nature of the material already published on the internet, its capacity to cause prejudice and improper modes of reasoning, the omnipresence of the internet, the power of modern search engines available to all, and the very real concern that, in the particular circumstances of this case, a juror, even properly instructed, might not be capable of ignoring any such prior obtained knowledge.  In this last respect, I am far more confident that members of a jury, properly instructed would refrain from making their own enquiries once the trial has started than I am of their capacity to ignore the information in question if it were to be obtained.  It is keeping the information from the jury pool that is the concern.  As was put by the Judge at first instance in B, RD the principle of open justice and the consequential right of the media to report, cannot, by definition, override the objective of securing, in a particular case, that justice is done and a trial conducted fairly. 

6. The order should be expressed to apply “until further order”.  However, it should be recognised that once a decision were to be made (if made) that the accused’s prior criminal record is admissible at the trial of the present charge or once the accused were to elect (if he does) for a trial by judge alone, grounds would arise which would support an application to have the suppression order set aside or varied.  However, I make no comment as to the likely prospects of success of any such application should it come about. 

7. I recognise that the earliest that the first contingency just referred to is likely to come about, if at all, is the commencement of the trial when the trial judge hears applications for the exclusion of evidence proposed to be adduced by the Crown.  However, the second contingency (election for trial by judge alone) might come about as early as the day of arraignment in this Court which would take place soon after (within weeks or so) of any committal to this Court for trial.   In this respect, another factor to be weighed in the balance is that, if unrestricted publicity of these proceedings were to continue, such may well strongly pressure the accused into electing for a trial by judge alone in circumstances where he has an unfettered right to trial by jury and where it is an important aspect of our system of justice that a right to a fair trial before a jury is to be preserved insofar as it can be. 

8. I allow the appeal and make the following orders.

   (1)The suppression orders made by me in this matter on 6 February 2014 and 7 February 2014 are discharged.

   (2)Publication of the following is suppressed until further order.

   (i)    the name or image of and anything tending to identify the accused with reference to or in relation to the criminal proceedings to which the accused is presently subject (“the proceedings”);

   (ii)    the name or image of and anything tending to identify the alleged victim with reference to or in relation to the proceedings;

   (iii)   any reference to the accused person (even where not referred to by name) in the proceedings having a prior criminal record or prior criminal convictions;

   (iv)   any reference to the accused person (even where not referred to by name) in the proceedings having had prior contact with the criminal justice system; and

   (v)     any reference to or reporting of the proceedings in the Magistrates Court and this Court for suppression orders concerning the proceedings.