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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] SASC 282
Decision Date: 24 October 2008

CaseChat Overview and Summary

The appellant in the case B, RD v Channel Seven Adelaide Pty Ltd was charged with multiple counts of sexual offences, which had already been the subject of extensive publicity prior to the formal charges being laid. Despite the publicity not naming the appellant directly, the risk of prejudice to a fair trial due to public recognition was significant. The case involved appeals against a decision made by a single judge, who allowed appeals against an order made by a magistrate suppressing the identity of the appellant. The single judge found that "special circumstances" existed that created a sufficiently serious threat of prejudice to the proper administration of justice, justifying a suppression order under s 69A(2)(b) of the Evidence Act 1929 (SA). However, the single judge modified the suppression order to be narrower in scope, not prohibiting the publication of the appellant's name or any material that might identify him. The key legal issues before the court were whether the orders made by the single judge sufficiently addressed the "special circumstances" identified, and the appropriate circumstances under which suppression orders can be made under s 69A(2) of the Evidence Act 1929 (SA).

The court reasoned that even if the orders sought were made, there remained a risk that jurors would link the appellant to the published allegations and suggestions. Such a risk would not be entirely eliminated, thereby not fully addressing the threat of prejudice to the proper administration of justice. The court held that the single judge correctly made orders of no greater reach than necessary in the circumstances, as the existing risk of recognition would not be entirely mitigated by the orders sought. Consequently, the appeals were dismissed, affirming the single judge's decision. The court emphasized that the objective of ensuring a fair trial must take precedence over the principle of open justice, particularly in cases where there is a serious threat of prejudice due to "special circumstances."

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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