B, RD v Channel Seven Adelaide Pty Ltd - [2008] SASC 282

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
B, RD v CHANNEL SEVEN ADELAIDE PTY LTD & ORS; B, RD v ADVERTISER NEWSPAPERS PTY LTD & ANOR
[2008] SASC 282
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Layton)
24 October 2008
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
Appellant charged with sexual offences - extensive publicity relating to the accusations against the appellant which formed the bases of the charges - publicity did not name the appellant - appeals against decision of single Judge on appeal allowing appeals against order made by Magistrate suppressing identity of appellant - single Judge found that "special circumstances" existed which gave rise to a sufficiently serious threat of prejudice to the proper administration of justice to justify the making of a suppression order under s 69A(2)(b) of the Evidence Act 1929 (SA) - single Judge nevertheless allowed the appeals and made suppression orders narrower in scope than that made at first instance - orders of single Judge did not prohibit the publication of the name of or material tending to identify the appellant - whether orders of the single Judge went far enough to address the "special cicumstances" identified by the single Judge giving rise to the possibility of prejudice to a fair trial of the appellant - circumstances in which suppression orders may be made under s 69A(2) of the Evidence Act 1929 (SA).
Held: Risk that jurors will link the appellant to the published allegations and suggestions exists even if the Court made the orders sought - orders sought would not eliminate the threat of prejudice to the proper administration of justice given existing risk of recognition - single Judge correctly made orders of no greater reach than the orders necessary in the circumstances - appeals dismissed.
Evidence Act 1929 (SA) s 68, s 69A, s 69A(2), s 69AC(2), s 69B(2), s 71A; Magistrates Act 1983 (SA) s 22, referred to.
Channel Seven Adelaide Pty Ltd & Ors v An Accused & Anor, Advertiser Newspapers Pty Ltd v An Accused & Anor [2008] SASC 246; The Queen v Glennon (1992) 173 CLR 592; Russell v Russell (1976) 134 CLR 495; Dietrich v The Queen (1992) 177 CLR 292; John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465, discussed.
Attorney-General v Leveller Magazine Ltd [1979] AC 440; Tarasenko v Boylan (1992) 58 SASR 587, considered.

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

B, RD v CHANNEL SEVEN ADELAIDE PTY LTD & ORS; B, RD v ADVERTISER NEWSPAPERS PTY LTD & ANOR
[2008] SASC 282
Full Court: Doyle CJ, White and Layton JJ

DOYLE CJ: Since April 2007 s 69A(2) of the Evidence Act 1929 (SA) (“the Act”) has provided:
(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.
A Judge of this Court heard two appeals against a suppression order made in the Magistrates Court after B (“the defendant”) was committed for trial in the District Court at the conclusion of the preliminary examination of charges in the Magistrates Court. The appeals were instituted by certain corporations involved in, variously, the publication of newspapers and the management of television channels. The defendant was a respondent to the appeals. The Judge allowed the appeals and made suppression orders narrower in scope than the order subject to the appeals. In particular, the orders allowed the publication of the defendant’s name.
The defendant has appealed to the Full Court. He does not seek orders setting aside the suppression orders made by the Judge. He seeks further orders prohibiting the publication of his name and any material that might identify him. The corporations already referred to, and the Director of Public Prosecutions, are respondents to the appeals.
The same two issues arise in both appeals. First, the proper interpretation of s 69A(2) of the Act. The meaning of this provision has not previously been considered by the Full Court. Second, whether the Judge erred in interpreting s 69A(2), or in applying it to the facts of this case.
The Act requires that the appeals “… be heard and determined as expeditiously as possible”: s 69B(2). The initial suppression order was made on 4 September 2008. The single Judge heard the appeals on 5 September 2008 and 8 September 2008, and gave his decision on 15 September 2008. The appeals to the Full Court were heard on 23 September 2008.
Background
On 1 September 2008 the defendant was committed for trial before the District Court on four counts of indecent assault and one count of unlawful sexual intercourse in relation to one complainant, and on one count of indecent assault and one count of unlawful sexual intercourse in relation to another complainant. Certain other charges were dismissed.
Section 71A of the Act prohibited publication of the evidence in the Magistrates Court against the defendant, and prohibited publication of a report of the proceedings and any statement or representation that might identify the defendant. That statutory prohibition ceased to have effect when the order committing him for trial was made: s 71A(5).
Although that statutory prohibition no longer operates, s 71A(4) of the Act continues to prohibit the publication of a statement or representation that might reveal the identity of the complainants.
On 4 September 2008 an order was made in the Magistrates Court forbidding the publication of the name of the defendant and any matter that might tend to identify him. The reasons for the making of that order are sufficiently indicated by the following passages from the reasons of the Judge (exercising the powers of a Magistrate) who made the order: Police v RDB (No 9) (Unreported, Magistrates Court of South Australia, 4 September 2008).
11    The defendant relied upon these matters in support of his application:
(1)     that there are two separate complainants in the counts committed;
(2)     that it is not part of the prosecution case that the offending involving either complainant is in any way connected with the other, nor does it assert that the offending against both constituted a series of connected events, nor is there any evidence of either complainant that is cross-admissible in the prosecution of the other;
(3)     that in consequence, the defendant wishes to bring an application in the trial court for severance of the counts relating to each complainant as soon as such an application can be made. Further, it was submitted that there is a real prospect of such an application being successful;
(4)     in the event of severance being granted, the defendant will pursue, and it is likely that the trial court will then make, orders suppressing until completion of the ultimate trial anything tending to identify the defendant. It was not argued that such an order would inevitably be made, but it was contended that it is most commonly made in such circumstances to prevent prejudice to the proper administration of justice by ensuring that a subsequent jury or juries are not aware of prior proceedings.
(5)     Finally, said Mr Abbott, his client had instructed that he wished to appeal my findings on matters of law and/or otherwise to seek judicial review of the order for committal and that failure to order continuing suppression would irremediably prejudice his client’s rights, should such an appeal or review be successful.
12The DPP formally opposed any such order, contending that nothing took the matter out of the ordinary circumstance where the defendant’s name would be published: that the court frequently hears historical sex matters where there are multiple complainants and severance may or may not be granted.
…
37Even so, I am here satisfied that there is a realistic possibility that publication now of the identity of the defendant will give rise to a serious threat of prejudice to the proper administration of justice by creating a risk that the defendant will not receive fair trials. That risk arises from my conclusion that the defendant has a prima facie case for obtaining severance orders and suppression of his identity at relevant trials and that that prospect will be irreparably damaged by present publication of his name.
38I am further satisfied that that threat is sufficiently serious to justify suppression of his name and anything tending to identify him. In saying that I am mindful of the provisions of subsection (2)(a) of s.69A.
39I therefore order that there be suppressed from publication until the time of his arraignment in the District Court, the name of the defendant and any matter that might tend to identify him.
It should be noted that the order is so expressed that it would expire upon the defendant’s arraignment before the District Court.
Exercising the entitlement conferred by s 69AC(2) of the Act, the newspaper publisher and the operators of the television channels appealed against the suppression order. Each of the appellants sought an order setting aside the order, without any further order being made. That would have left them at liberty to publish the defendant’s name and such details of the proceedings by way of preliminary examination of the charges as they saw fit.
The appeals were heard by a Judge of this Court. He allowed the appeals. However, he made somewhat narrower suppression orders: Channel Seven Adelaide Pty Ltd & Ors v An Accused & Anor, Advertiser Newspapers Pty Ltd v An Accused & Anor [2008] SASC 246. The order made in each appeal was in the following terms:
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.
It is to be noted that these orders do not prohibit the publication of the defendant’s name or occupation.
The defendant appealed to the Full Court against these orders. The single Judge gave him permission to appeal against the decision in both appeals. The defendant seeks an order in both matters that prohibits the publication of any material tending to identify him. There is no appeal or cross-appeal against the suppression orders made by the Judge. In short, the defendant sought additional orders. The respondents did not challenge the orders that the Judge had made, but opposed the making of the additional orders.
The Judge made wider suppression orders to preserve the situation pending the hearing of the appeals heard by him, and pending the hearing of the appeals to this Court. On the hearing of the appeals this Court made orders prohibiting the publication of any evidence in the proceedings, which, by virtue of the definition of “evidence” in s 68 of the Act, includes any statements made before the Court in the course of argument. This Court also prohibited the publication of the defendant’s name and any material tending to identify him. These orders operate until the Court gives judgment on the appeals. The Court took that course because the submissions to the Court canvassed factual matters relied upon by the defendant in support of his appeals.
Section 69A
It is a principle of the administration of justice in Australia that ordinarily, justice is administered in courts that are open to the public, and that public reporting of those proceedings and public comment on them is permissible. In Russell v Russell (1976) 134 CLR 495 at 520 Gibbs J said:
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted “publicly and in open view” (Scott v Scott [1913] AC 417, at p 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hall-mark of judicial as distinct from administrative procedure” (McPherson v McPherson [1936] AC 177, at p 200). …
The same point was made by Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 449-450. This common law principle is subject to a qualification. The position was summarised by McHugh JA in John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 at 476‑477:
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. …
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.
Section 69A(2) of the Act replaces an earlier provision. It is clear from the change that Parliament made and from the second reading speech of the Attorney-General that the newly enacted subsection (2) is intended to make the criteria for making a suppression order stricter, and to make it more difficult for an applicant to make out the basis for the making of an order: see Hansard, House of Assembly, Wednesday 30 August 2006, pp 785-786.
When considering the meaning of s 69A, 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.
In Dietrich v The Queen (1992) 177 CLR 292 Mason CJ and McHugh J said at 299:
The right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system. …
Footnote omitted
To the same effect see Brennan J at 324-325, Deane J at 326, Toohey J at 353 and Gaudron J at 362.
There is no need at present to analyse what the concept of a fair trial encompasses. But it is necessary to emphasise that the requirement that there be a fair trial is a fundamental principle of our system of law. If the trial is not fair in the required sense there will have been a miscarriage of justice and the verdict cannot stand. The very purpose of the trial process is to determine, by means of a fair trial, whether an accused person is guilty or not guilty of the charge before the Court.
Section 69A(1) of the Act provides:
(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.
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.
The Judge’s decision

The Judge summarised the factual basis upon which he decided the appeals. He said at [40]:
[40]I have already referred to the basis of the accused’s application for a suppression order. He is the holder of a responsible public office. Having been committed for trial on a number of counts of serious criminal offences of a sexual nature, the Court can take judicial notice of the fact that, without a suppression order, his identity and the circumstances of his alleged offending are likely to receive widespread and intense media publicity. It is his very identity and the office which he holds which gives rise to that likelihood. That likelihood is confirmed by the numerous instances tendered before me on this appeal of the prominent publication in newspapers and on the internet of articles relating to allegations of claims of sexual abuse perpetrated by a “prominent … identity” associated with a particular profession which could only relate to the accused. This publicity extends back to May 2006, well before any charges against the accused were laid. They include references to allegations which have since been withdrawn and reports, without identifying the accused, of certain aspects of the committal proceedings in the Magistrates Court.
He referred to the fact that a trial judge will direct a jury to disregard prejudicial and irrelevant information acquired outside the courtroom. He noted that the courts expect that jurors will follow such directions, and that experience has shown that they will. The administration of justice in the criminal courts proceeds on the basis that jurors will observe judicial directions.
However, he added at [45]:
[45]A trial will not miscarry merely because there has been media publicity of a prior conviction of the accused. On the other hand, widespread media publication of allegations not the subject of the particular trial, depending on their timing and intensity, can have a subtle and insidious effect. Jurors are human. They come to a trial with … wide-ranging preconceptions and attitudes to others in the community. That is one of the great benefits of the jury system. No one person’s preconceptions and attitudes will necessarily carry the day. But those preconceptions and attitudes can be, and in many cases, no doubt are influenced and shaped in varying degrees by what those jurors have heard and seen in the media, particularly if coverage of a particular matter is intense. … Where allegations are made without the safeguards of a trial and are widely publicised for what they are – allegations of fact – attitudes and preconceptions are inevitably influenced. Whatever directions may be given, it is difficult to erase the preconceptions. It is then that the right to publish comes into tension with the right of the accused to be tried before a jury whose preconceptions and attitudes to others have not been unduly influenced by wide-spread publicity of and media discussion about certain aspects of the case at a time when the accused is not required to and is in no position to answer those allegations.
The Judge found that special circumstances existed that gave rise to a sufficiently serious threat of prejudice to the proper administration of justice to justify the making of a suppression order. He said at [48]:
[48]Those special circumstances are the identity of the accused himself and his public position, the likelihood, because of that, of extensive and intense publicity about the committal proceedings, the present likelihood that there will be more than one trial of the several charges and, as a consequence of the extent of the likely publicity, a likelihood of contamination of the minds and attitudes of potential jurors who are called to serve at the trial or trials of the accused. …
The Judge added that his concern was with the evidence before the Magistrates Court, and with the identity of a party to proceedings in that court. It would be for the District Court to consider what orders, if any, should be made in that Court.
The Judge’s findings of fact and the conclusions set out above are not challenged on appeal. There is no challenge to his finding that there were special circumstances that justified the making of a suppression order. The argument on appeal proceeded on that basis.
I agree with the Judge’s findings, and I adopt them. I agree with his approach to the interpretation of s 69A, and with his approach to the case before him.
The Judge made the following order in each appeal:
[53]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.
The Judge explained the effect and basis for the making of this order as follows at [54]:
[54]Such an order would not prohibit publication of the name of the accused or of the identity of the office which he holds. It would prevent publication of any facts and allegations surrounding the charges other than the allegations set out in the charges themselves. That, however, would not permit publication of the identity of any alleged victim whose identity is protected by s 71A(4) of the Evidence Act. It would effectively prevent any potential juror in the first trial from becoming aware that there are or have been serious allegations against the accused which are not the subject of the trial on which they are sitting. The only way that that could be inferred is by a juror becoming aware that there are fewer charges the subject of the trial than were the subject of committal. However, if that became an issue, the jury would no doubt be told that there are many reasons why a particular charge on which an accused is committed for trial may not be proceeded with at a trial, and that they should not entertain any speculation as to why that is so.
Submissions on appeal
Ms Powell QC, counsel for the defendant, does not criticise the approach of the Judge to the interpretation of s 69A of the Act, nor does she criticise his approach to the facts. She accepts the findings on the basis of which the Judge concluded that he should make suppression orders.
Her primary submission is that the orders did not go far enough to prevent the prejudice that the Judge had identified to a fair trial of the defendant. She submits that orders forbidding the publication of the defendant’s name and of any material tending to identify him are required by the circumstances of the case.
Ms Powell pointed to some material background matters. There has been extensive publicity in the print media and electronic media about a prominent identity. The Judge made that finding. Ms Powell pointed to aspects of that publicity that do not relate to evidence before the Magistrates Court. Most of it relates to matters that were not and had not been the subject of charges, although some of it related to charges that the defendant no longer faces. The nature of the material is sufficiently illustrated by exhibits to the affidavit of Mr Agresta, tendered on the hearing of the appeals by the Judge. For reasons that should be obvious, I will not summarise the material.
The publication of this material was not affected by s 71A of the Act, because the subject matter of the material was not evidence given before the Magistrates Court. Rather, it was a report of allegations made by various persons and in various ways.
Ms Powell submits that if the defendant is able to be named, members of the public will make the link between the defendant and the “prominent identity” the subject of these reports. There is a real risk, she submits, that persons who will be summoned for jury service at the defendant’s trial will in this way have become aware of the allegations and suggestions found in the material in question. Their minds will be contaminated by what is, I agree, adverse and prejudicial material relating to the defendant.
Ms Powell submits that the publication of the defendant’s name, and the link that members of the public will make between the defendant and the “prominent identity” the subject of the various allegations and suggestions, gives rise to a serious threat of prejudice to the defendant’s fair trial because it is likely that one or more of the persons called to serve as jurors will be aware of prejudicial allegations against the defendant. She submits that the threat to a fair trial is sufficiently serious to justify the making of orders prohibiting the publication of the defendant’s name and any material tending to identify him.
As I understand the submissions on appeal, the factual premise for her submission is not challenged. There is no dispute that allegations and suggestions of the kind outlined by me appeared in the print and electronic media during 2006 and 2007. Most of the material relied on was published before June 2007, but some was published in 2008, and some material published in the past on the internet remains available today. Nor is there any dispute that if the defendant is named, some members of the public are likely to make the link between the defendant and the “prominent identity”.
The submission by Mr Harris QC, counsel for Advertiser Newspapers Pty Ltd, is that the publication in the past of prejudicial material about the defendant is not of itself enough to support the making of the suppression orders sought. He emphasises the fact that s 69A(2)(b) requires that there be a threat of prejudice to the administration of justice that is “serious”, and “sufficiently serious” to support the making of a suppression order. His submission is that, to the extent that there may be a threat to a fair trial if the defendant’s name is published, that threat is not sufficiently serious to justify the making of the orders sought, having regard to the importance of the right of the news media to publish information naming the defendant. His submissions are supported by Mr Campbell, counsel for the operators of the television channels.
Mr Petraccaro, counsel for the Director of Public Prosecutions, acknowledged that it was likely that there would be separate trials in respect of the charges relating to each of the two complainants. Mr Petraccaro submits that the Judge did not err when he concluded that the likelihood of potential jurors making a link between the defendant and the earlier allegations did not warrant or justify the making of the suppression orders sought by Ms Powell.
I should add that in the course of his submissions, Mr Harris submitted that the effect of s 69A(2) is that a court should not make a suppression order unless, without the order, there would be such serious unfairness in the trial of the accused as to warrant a stay of the proceedings against the accused on the ground that to pursue them would be an abuse of process. I do not accept that submission. A stay for an abuse of process is an exceptional remedy which involves a discretionary judgment in which the Court must balance the public interest in a trial proceeding against the public interest in a fair trial. If a court can only make a suppression order on the basis of a threat of prejudice to the proper administration of justice if publication of the material to be suppressed would give rise to such a prejudice as to warrant a stay of the proceedings, the court considering the application for a suppression order would be put in a very awkward situation. It would have to try to predict the outcome of an application for a stay of the proceedings to be made at some time in the future, and in circumstances that could not always be predicted. Quite apart from that, there is no reason to think that Parliament intended the test suggested by Mr Harris. There is nothing in the words of s 69A(2) to support that approach.
The Judge appears to have rejected the submission now advanced by Ms Powell because the material in question was published in 2006 and 2007, a trial of the charges was unlikely to occur before mid-2009, and most of the material in question would have faded from the public mind by the time of the trial: [2008] SASC 246 at [57]-[60]. The Judge acknowledged that material published on the internet might still be accessible.
I accept the factual basis of Ms Powell’s submission. If the defendant’s name is published, some members of the public, including persons who will be called as jurors, might have made the link between the material relating to the “prominent identity” and the defendant, and might have that link and the material in question in their minds when called to serve as jurors.
I agree that the allegations are prejudicial to the defendant. If the defendant’s name is published, the trial judge will have to consider how to ensure that the fairness of the trial in the District Court is not undermined as a result of this material. It is likely that the judge will have to take care to exclude from the jury panel any jurors who are aware of the information and the link, or at least who consider that they might be affected by the information. It will also be necessary for firm directions to be given to the jury once they have been empanelled, reminding them of the need to exclude any such material from their consideration. As Mason CJ and Toohey J said in The Queen v Glennon (1992) 173 CLR 592 at 603:
The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J observed in Hinch v Attorney-General (Vict) (1987) 164 CLR 15, at p 74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them. …
On the same point Brennan J said at 615:
Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial.
Although Deane J, Gaudron J and McHugh J were in dissent in the result, their approach accorded with the approach of the majority. They said at 623:
The central prescript of our criminal law that no person shall be convicted of a crime otherwise than after a fair trial according to law dictates that an accused is entitled to be protected from an unacceptable and significant risk that the effect of prejudicial pre-trial publicity will preclude a fair trial. Ordinarily, that risk will be obviated by appropriate and thorough directions and, if the circumstances also require it, a temporary stay for the minimum period adjudged necessary for the pre-trial publicity to abate. The balancing of the legitimate interests of the accused and the prosecution will, in almost every case, mean that if the proceedings are to be stayed at all, they should only be stayed temporarily and for the minimum period necessary. …
Even though the matters relied upon by Ms Powell will have to be considered by the Judge before whom the defendant is arraigned and by the trial judge, that does not mean that this Court, in these proceedings, can avoid its obligation to consider the submission now made to it. The issue for this Court, sitting on appeals arising from an order made in the Magistrates Court, is whether it should prohibit the publication of the name of the defendant committed for trial, and of any material tending to identify him.
I am not persuaded that the threat of prejudice to a fair trial that Ms Powell identifies is a “sufficiently serious threat of prejudice to the proper administration of justice” to warrant the making of the orders that she seeks.
The threat resulting from members of the public identifying the defendant with the “prominent identity” already exists. The allegations and suggestions have been published. There has been frequent reference in the media to the “prominent identity”. Even if the Court were to make the orders that Ms Powell seeks, there remains a risk that a juror or jurors will link the defendant to the allegations and suggestions about a “prominent identity”. Even if the orders that Ms Powell seeks are made, the trial judge may well think it prudent to canvass with the jury panel the possibility of them being aware of this material, and may find it necessary to exclude jurors from the panel because of that. The judge is likely to find it necessary to warn the empanelled jurors to exclude any such material from their minds.
I accept that if the defendant can be named, the risk of a juror making the link between the defendant and the material in question is greater than if the defendant is not named. But in my opinion the risk of prejudice to a fair trial as a result of the defendant being named is not great or particularly significant. The risk is already there, and will remain there even if the Court makes the orders that Ms Powell seeks.
In those particular circumstances, I am not satisfied that a failure to prohibit the publication of the defendant’s name or material tending to identify him will give rise to a sufficiently serious threat of prejudice to a fair trial to justify the making of the orders sought.
The material upon which Ms Powell relies to support her submission constitutes a potential source of prejudice to a fair trial. That risk exists already. The fact that most of the material was published before about June 2007 limits the risk of prejudice. It is a risk that should be able to be dealt with by the trial judge, although that of course will be a matter for the trial judge.
I am satisfied that the Judge was correct in his approach to the meaning of s 69A, that the Judge correctly assessed the factual situation before him, and that he did not err in concluding that the circumstances justified orders of no greater reach than the orders that he made.
Other matters
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.
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.
Now that the defendant has been committed for trial, journalists and those who publish material through the print and electronic media must recognise that the repetition of material of the kind under consideration in this case could prejudice the fair trial of the charges against the defendant. The repetition of this material in the time leading up to the trial of the charges in the District Court will increase the risk of prejudice to a fair trial.
The publication of material that has that consequence will put the publisher at risk of prosecution for contempt of court. As well, it will put at risk the public’s interest in having the charges heard and determined by the District Court. At the end of the day, if a fair trial cannot be provided, then the trial cannot proceed.

Those involved in the print and electronic media exercise an important right when they publish reports of the proceedings against the defendant in the District Court. It is a right that Parliament has declared to be a primary objective in the administration of justice. Through the media the public can be informed about the proceedings before the Court.
It is in the public interest that these proceedings, in which a public official stands trial, are open to public scrutiny.
But it is even more important that the trial of the charges be a fair one. Those involved in the print and electronic media must understand that their right to publish a report of the proceedings and to comment on the proceedings cannot be allowed to deny the public right to have the defendant tried in a trial that is fair.
Conclusion
I would dismiss the appeal in each action.
WHITE J: The circumstances of these appeals are set out in the reasons of the Chief Justice.
I agree with the reasons of the Chief Justice about the effect of s 69A of the Evidence Act 1929 (SA) since the amendment which came into operation on 1 April 2007. In particular, I agree that the effect of the amendment is to confine the circumstances in which it is appropriate for a court to make a suppression order.
I also agree that prejudice to the proper administration of justice for the purpose of s 69A(1) and (2) will exist if there is a significant risk that a fair trial may not be held. Such a risk may arise from a variety of circumstances. Those circumstances are not limited to those which would warrant a stay of proceedings against an accused person on the grounds that their continuance would constitute an abuse of process.
Section 69A(1) vests courts with a discretionary power to make suppression orders, and stipulates the circumstances in which such orders are permissible. Section 69A(2) circumscribes the power vested by s 69A(1). As I understand s 69A, since the amendment which came into effect on 1 April 2007 a court may exercise the power vested by s 69A(1) to make a suppression order on the grounds of prejudice to the proper administration of justice only when:
(i)having considered, as a fundamental matter affecting the exercise of the discretion, the importance of justice being administered openly and the “consequential” right of the media to publish information relating to court proceedings,
(ii)it is satisfied that the publication of specified evidence (as defined in s 68 of the Evidence Act) or of the name of a person (or of material tending to identify such a person) would,
(a)     by reason of special circumstances existing in the particular case,
(b)    involve a threat of prejudice to the proper administration of justice,
(c)    which is sufficiently serious to justify the making of the order.
As I understand s 69A(2), the public interest in open justice and the consequential right of the media to publish information relating to court proceedings (I will call this “the open justice principle”) are matters to which a court must have regard both when it considers whether a suppression order should be made and, if satisfied that it should be, the form of the appropriate order.
As indicated earlier, prejudice to the proper administration of justice may take a variety of forms. Whatever form it takes, it will only be relevant for the purposes of s 69A if it arises from special circumstances existing in the individual case.
The matters (i) and (ii) identified above are matters which a court must consider, and about which it must be satisfied, before making a suppression order. They 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. Conversely, the stage which the proceedings have reached may also be relevant to the court’s assessment of the matters enumerated in (ii) above.
A court which has addressed the open justice principle, and which is satisfied about the matters enumerated in (ii), still has to exercise the discretion granted by s 69A(1) and decide whether or not to make a suppression order. In most cases, once satisfied about those matters, a court is likely to consider it appropriate to make the order. But that should not obscure the fact that there is a discretion which must be exercised. The factors listed in (i) and (ii) above may not be the only matters which are relevant to the exercise of that discretion. The likely efficacy of a suppression order, the stage which the proceedings have reached, and the prospect of other witnesses being prompted to come forward may all be relevant matters.
These appeals arise from a suppression order made at the time of the appellant’s committal. As it happened, it was an order made by a District Court Judge, but the Judge at the time was exercising the jurisdiction, powers and functions of a magistrate.[1] The District Court Judge was satisfied that special circumstances existed involving a sufficiently serious threat of prejudice to the proper administration of justice to warrant the making of a suppression order. The Judge on appeal reached the same conclusion. That conclusion was not challenged on the appeals to this Court.
[1] Magistrates Act1983 (SA) s 22; Tarasenko v Boylan (1992) 58 SASR 587 at 590.
When a magistrate is satisfied, at the time of committing a defendant for trial in either the Supreme or District Courts, that the requisite matters exist and warrant the making of a suppression order, there are some particular matters which will, in addition to the open justice principle, usually be relevant in determining an appropriate form of order. These derive from the circumstance that the court of trial will usually be the court which is best placed to determine the extent of the suppression necessary to prevent prejudice to the proper administration of justice in the circumstances of the particular case. It is the court before which the defendant will be arraigned. It will know whether the defendant is to be arraigned on all the counts on which he has been committed for trial, and whether the defendant is to face additional counts on an information laid ex officio. It will determine whether or not there should be separate trials of some or all of the charges which the defendant faces. It will be most familiar with the length of the trial list in its court and the time when the trial may be expected to take place. It will know if arrangements can be made for a priority listing or if advantage can be taken of a gap which has opened up in the trial list. It is the court which will be required to give appropriate directions to a jury and, if appropriate, to question the jury panel before a jury is empanelled.
Often, a magistrate will not be well placed at the time of the committal to assess these matters. Evidence about some of the matters will be able to be placed before the magistrate but others may have to be the subject of surmise. It would be unfortunate if a decision in the Magistrates Court about the form of the suppression order should prejudice the ability of the trial court, if satisfied that a suppression order is required, to frame an order which is appropriate in the circumstances of the case. Even if the trial court’s ability is not prejudiced in this way, the Magistrates Court order may have consequences for the kinds of orders which may be made by it. The circumstances of the present case provide an example. In the event that separate trials are ordered in this case, publication of the appellant’s name at this stage may make it inevitable that a complete (or substantially complete) suppression of matters relating to the first trial (including the verdict) will be required in order to avoid prejudice of the requisite kind in the second trial. In this way, an order of the Magistrates Court may impact on the orders to be made by the trial court.
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.
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.
I have said “at least until the appellant’s arraignment” because it is not clear whether s 69A contemplates one court being able to order the suppression of evidence given in another court (when it is necessary to prevent prejudice to the proper administration of justice in the former court). On one view, it is possible to construe s 69A (together with the relevant definitions in s 68) as permitting a trial court to order the suppression of evidence (as defined) given during committal proceedings in the Magistrates Court concerning the same defendant. Such a construction of s 69A was not the subject of any submissions on appeal, and it is not appropriate to express any concluded view about it.
If the construction is open, it may have some advantages. It would remove the necessity for the Magistrates Court to surmise about what may be done when the matter reaches the Supreme or District Courts. It would make it more appropriate for the Magistrates Court at the time of committal, provided of course that it is satisfied of the matters required for the making of a suppression order, to exercise the discretion to make a “holding” order, i.e., an order to operate until such time as the trial court can consider what, if any, suppression is appropriate. It would also mean that once the matter had been addressed by the trial court, all interested parties would know that it is the suppression order (if any) made by that court which governs the issue of suppression in relation to a particular defendant. This should be advantageous as it would save persons having to consider the orders made by more than one court, the interrelationship of those orders and the extent to which they may or may not overlap.
I would prefer not to express any conclusion about the matters which a trial judge may choose to canvass with the jury panel in the circumstances of this case. The trial judge may consider that there are some on the jury panel who will not have seen or heard the previously published material suggesting a link between the appellant and the “prominent identity” who has been the subject of various allegations and suggestions. The judge may consider that there may be others who were once aware of the link but have since forgotten it. Alternatively again, the judge may consider that most on the panel will be aware of the previously published material. These are matters which will have to be assessed by the trial judge after hearing submissions from counsel. I am however inclined to agree with the submission of Ms Powell QC, for the appellant, that it may be difficult for a trial judge to frame an appropriately specific direction to, or a question of, the jury panel which does not have the effect of alerting it to the link, or of reminding the panel of its existence.
Subject to these additional reasons and qualifications, I agree with the reasons of the Chief Justice and the orders which he proposes for the disposition of each appeal.
LAYTON J: I agree that the appeal in each action should be dismissed for the reasons given by the Chief Justice.