Channel Nine SA Pty Ltd v Police - [2014] SASC 69

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
CHANNEL NINE SA PTY LTD & ANOR v POLICE & ANOR
[2014] SASC 69
Judgment of The Honourable Justice Blue
30 May 2014
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - POWER OF COURT
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - SUPPRESSION ORDERS
Appeal against a suppression order by a Magistrate.
On an assault charge, a Magistrate suppressed publication of the identity of the defendant and the alleged victim as well as any declaration that might be obtained from the victim and served on the defendant in future. On an application by the media for review, the Magistrate effectively affirmed the suppression order. The order was made on the ground that publication of the suppressed identities and of any declaration by the victim would cause undue hardship to the victim within the meaning of section 69A of the Evidence Act 1935 (SA).
Held by Blue J (allowing the appeal):
1.      It was appropriate for the Magistrate to suppress publication of evidence in relation to the defendant’s remarks, but the Magistrate erred in suppressing publication of any future declaration which might be made by the victim [46]-[47]).
2.      The Magistrate failed to identify the hardship which would or might be caused to the victim by publication of the identity of the victim or the defendant. The Magistrate failed to separate consideration of suppressing publication of evidence as opposed to suppressing publication of the identities of the victim and the defendant. These failure lead to consequential failures in addressing whether any hardship to V was undue and, if so, addressing the balance between undue hardship and the public interest in open justice (at [49]-[56]).
3.      The errors and failures by the Magistrate vitiated the exercise of the Magistrate’s discretion (at [57]-[59]).
4. It is doubtful whether the hardship to the victim identified by the respondents on appeal amounts to undue hardship within the meaning of section 69A. However, it is unnecessary to decide that question (at [68]).
5.      The Magistrate’s discretion to make a suppression order was only enlivened if the Magistrate was satisfied that special circumstances existed giving rise to undue hardship so as to justify the making of the order in the particular case, weighing such hardship against the public interest in open justice. On the materials before the Magistrate, this test was incapable of being satisfied in respect of the identities of the victim and the defendant (at [71]-[72]).
6.      No order suppressing publication of the identities of V or D should have been made given the order made by the Magistrate suppressing publication of evidence (at [77]-[78]).
7.      Appeal allowed. Order 1 suppressing publication of the identities of the victim and defendant revoked. Parties to be heard on a suitable order to suppress publication of evidence (at [79]).
Criminal Law Consolidation Act 1935 (SA) s 20(3); Evidence Act 1929 (SA) s 68, s 69A, referred to.
Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 351; (2004) 90 SASR 160; Channel Seven Pty Ltd and Ors v An Accused and Anor [2008] SASC 246; (2008) 103 SASR 459; Cheatle and Sturdy v Davy (1989) 51 SASR 155; G v The Queen (1984) 35 SASR 349; House v The King (1936) 55 CLR 499; Lawrence v Baskerville [1968] SASR 86; Mitchell v The Queen (1996) 184 CLR 333; Packer v Police [2007] SASC 98, discussed.
Advertiser Newspapers Ltd v V & Anor [2000] SASC 366; Fox v Percy (2003) 214 CLR 118 ; The Herald & Weekly Times Ltd v DPP and Vlassakis [2003] SASC 234; (2003) 86 SASR 70 ; The Queen v Lennon (1984) 35 SASR 349 , considered.

CHANNEL NINE SA PTY LTD & ANOR v POLICE & ANOR
[2014] SASC 69
Magistrates Appeal: Civil
BLUE J:

Appeal against a suppression order made by a Magistrate.
On 23 April 2014, a Magistrate made an order under section 69A of the Evidence Act 1929 (SA) (“the Act”) suppressing publication of any information that might disclose the identity of the defendant (“D”) or of the victim (“V”) of an alleged assault and of any declaration that might be obtained from V and disclosed to D by the Police in compliance with the Magistrates Court Rules.
On 30 April 2014, Channel Nine SA Pty Ltd and Advertiser Newspapers Pty Ltd (“the appellants”) applied to the Magistrate to revoke or vary the order. The Magistrate dismissed the application, subject to making a variation which is immaterial for present purposes.
The appellants appeal against the decision of the Magistrate not to revoke or otherwise vary the suppression order.
Background
On 26 March 2014, D was arrested and charged with assaulting V on that day. V gave a statement to a police officer on the same day, which was drawn in the form of an affidavit and sworn by V on 27 March 2014.[1] When D was arrested, he was also arrested for an unrelated offence against an unrelated victim (“V2”).
[1] The police prosecutor in the Magistrates Court referred to D's affidavit as a declaration.
On 22 April 2014, the Police filed a complaint in the Magistrates Court alleging that D assaulted V on 26 March 2014.[2]
[2] Criminal Law Consolidation Act 1935 (SA) s 20(3).
On 23 April 2014, the complaint came on for mention. It was adjourned to a subsequent date for a pre-trial conference. The police prosecutor applied for a suppression order under section 69A of the Act in relation to the identities of the parties and the allegations in the matter. D made no substantive submissions on the application for a suppression order.
The Magistrate made a suppression order in the following terms:
1.suppressing any information that might disclose the identity of the defendant [D] or of the victim, [V] or of [V2].
2.in particular the publication of any statement or declaration that might be obtained from [V] or [V2] that is disclosed to [D] by SAPOL in the course of its compliance with the requirements of the Magistrate Court Rules.
3.exempt from the order any communication or disclosure made by [D] to a legal practitioner … or … for the purpose of securing financial support to assist in the engagement of a legal practitioner.[3]
[3] Order 3 was ex abundant cautela because a suppression order under sections 68 and 69A only applies to publication to the public and not to private communications. No point was taken in relation to this and Order 3 can be ignored for the purposes of the appeal.
On 30 April 2014, the appellants applied to the Magistrate to revoke, or alternatively vary, the suppression order.[4] It was common ground at the hearing that the suppression order should be varied to delete any reference to V2. Otherwise, the application was opposed by the Police and by V (“the respondents”). D did not appear on that occasion.
[4] Evidence Act 1929 (SA) s 69A(6) and (7).
The Magistrate varied the order by removing the references in paragraphs 1 and 2 of the order to V2, but declined to revoke or otherwise vary the suppression order.
The material before the Magistrate and on appeal
On appeal, an affidavit by the police prosecutor filed in this Court deposing to what occurred at the hearings before the Magistrate on 23 and 30 April 2014 was tendered and received without opposition. An affidavit by V filed in this Court deposing to the events on 26 March 2014 and to verbal exchanges with D on two prior occasions was tendered and received without opposition.
The only material before me as to what occurred at the hearing before the Magistrate on 23 April 2014 is the affidavit of the police prosecutor and what may be inferred from the Magistrate’s ex tempore reasons given on the revocation/variation application on 30 April 2014. Based on that material, the police prosecutor made the following submissions to the Magistrate in support of the application.
1.The prosecutor informed the Magistrate that V’s declaration stated that, when V was assaulted by D, D also made gratuitous negative remarks (“the gratuitous remarks”).[5]
2.The prosecutor alleged that D had a history of making the same gratuitous remarks and told the Magistrate that details had been provided by V to the police in his declaration.
3.The prosecutor alleged that D had a history of drug abuse and mental health issues.
4.The prosecutor alleged that the police had been told by D that he intended to use the open court forum to voice the same gratuitous remarks.
5.The prosecutor submitted that a suppression order should be ordered to uphold public confidence in the Court system and process by preventing D using the Court to make further gratuitous remarks.
6.The prosecutor submitted that a suppression order should be granted to prevent unnecessary hardship to V because any gratuitous remarks made by D would have a negative impact upon V.
[5] I infer this from the Magistrate’s reasons, although it is not stated explicitly in the prosecutor’s affidavit.
I infer from the prosecutor’s affidavit and the content of V’s affidavit sworn on 27 March 2014 compared to the Magistrate’s subsequent reasons given on 30 April 2014 that the prosecutor did not hand up the affidavit to the Magistrate but made reference to it and summarised its content.[6] I infer that the prosecutor informed the Magistrate that V’s declaration stated that D had made the same gratuitous remarks on at least two prior occasions before 26 March 2014 and on those prior occasions the remarks were made in the presence of several members of the public. There is no suggestion by the prosecutor in his affidavit that he told the Magistrate that the remarks made by D on 26 March 2014 were made in the presence of any member of the public.
[6] The affidavit was contained in the Magistrates Court file received by this Court on appeal. However, the Magistrate’s reasons suggest that the affidavit was not given to him on the 23 April 2014 hearing.
It should be observed that section 69A(7) permits a court to dispense with the taking of evidence and accept a relevant fact as proved if there appears to be no serious dispute as to it. It appears that the Magistrate proceeded under that provision and treated the statements by the prosecutor as proved for the purpose of the application for the suppression order.
D neither supported nor opposed the application for a suppression order. However, D handed to the Magistrate a bundle of handwritten documentation incorporating cut outs posted on to the pages. The Magistrate did not retain that material and there is no evidence before me as to what it contained.
The reasons of the Magistrate
The Magistrate gave ex tempore reasons for his decision on 30 April 2014.
The Magistrate referred to the information provided by the police prosecutor on 23 April 2014 that D had made gratuitous remarks about V over a significant period and to the material handed up by D on that occasion which repeated the same gratuitous remarks. The Magistrate accepted the submissions of the prosecutor that D had manipulated an opportunity to repeat the gratuitous remarks in an open court hearing environment and said that the material handed up by D confirmed V’s concern in this respect. He also referred to the prosecutor’s submissions that D had a history of diagnosed mental illness.
The Magistrate’s reasoning on the application was contained in the following paragraph:
I have carefully considered the submissions. I have considered the relevant authorities relating to these matters. I maintain the view that notwithstanding the fact that this will not be a jury trial – ie it will be a trial before a Magistrate who as an experienced legal practitioner can exclude from consideration irrelevant material – a prima facie case of undue hardship to [V] exists if [V’s] name, the name of the defendant, and any allegations [V] makes as to the conduct of the defendant should be published at this time.
The contentions on appeal
The appellants concede that it is appropriate that the publication of any evidence concerning the gratuitous remarks be forbidden pursuant to section 69A of the Act because it would cause undue hardship to V.
The arguments on appeal therefore focused upon the suppression of publication of the names and identities of D and V as opposed to suppression of publication of evidence concerning the gratuitous remarks.
The appellants contend nevertheless that Order 2 made by the Magistrate was beyond power because it was not addressed to specified evidence but rather to any future declarations that might be served by the Police on D, which would not constitute evidence at that point and whose content is at large.
The appellants contend that the Magistrate’s reasons do not identify what hardship the Magistrate found that V would suffer if V’s name or D’s name were published. They contend in turn that, without identifying the hardship, the Magistrate could not determine that it would be undue hardship and, in any event, there was no basis on the material before the Magistrate for a conclusion to be reached that any hardship would be undue within the meaning of section 69A. They contend that the question was not whether there was a prima facie case of undue hardship but whether the Magistrate was affirmatively satisfied that there was undue hardship.
The appellants contend that the Magistrate did not advert to the public interest in publication of court matters, nor to the necessary balancing exercise between undue hardship to an alleged victim on the one hand and the public interest on the other hand.
The appellants contend that, on the material before the Magistrate, it was not open to the Magistrate to come to a conclusion that any undue hardship to V outweighed the public interest in open justice.
The respondents accept that, but for the making by D of the gratuitous remarks, there would not be a sufficient basis for making a suppression order.
The respondents emphasise that a decision whether to make a suppression order involves the exercise of a discretion. On appeal, a discretion is not to be disturbed unless it is apparent that the decision is unreasonable or plainly unjust, or that the Magistrate acted upon a wrong principle, mistook the facts, failed to take into account a material consideration or took into account an immaterial consideration.[7] They contend that it has not been demonstrated that the Magistrate’s discretion miscarried in any of these respects.
[7] House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
The respondents articulate on appeal a specific prejudice which they contend V will suffer if either V’s name or D’s name is published. They refer to V’s affidavit in which V stated that D had made the same gratuitous remarks on at least two prior occasions in public places. They observe that the gratuitous remarks are irrelevant to the issue whether an assault was committed. They contend that, if D’s name or V’s name is published in connection with an alleged assault by D upon V, those persons who heard the gratuitous remarks on those two occasions might be prompted to pass them on to others. They contend that this constitutes undue hardship within the meaning of section 69A. The hardship will be suffered if the name of either V or D or both is published: they do not distinguish between suppression of publication of V’s name, suppression of publication of D’s name or suppression of publication of both names.
The respondents address the criticisms made by the appellants of the Magistrate’s reasons. They point out that the reasons were given ex tempore and it is not to be expected that they would comprehensively address all matters in the same manner as reserved reasons for judgment. They contend that it was implicit that the Magistrate had identified the hardship which V would suffer, then identified the public interest in open justice and weighed them in the balance as required by section 69A.
The respondents also contend that the suppression order made by the Magistrate was required to prevent prejudice to the proper administration of justice because otherwise victims of crime would be reluctant to report offences for fear of subsequent publicity.
Statutory provisions
Section 69A of the Act provides:
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.
Section 68 of the Act contains the following relevant definitions:
In this part—
“evidence” includes any statement made before a court whether or not the statement constitutes evidence for the purposes of the proceedings before the court;
…
“publish” means publish by newspaper, radio or television, or on the internet, or by other similar means of communication to the public;
“suppression order” means an order—
(a)     forbidding the publication of specified evidence or of any account or report of specified evidence; or
(b)     forbidding the publication of the name of—
(i)    a party or witness; or
(ii)     a person alluded to in the course of proceedings before the court,
and of any other material tending to identify any such person.
The combined effect of section 69A(1) and the definition of “suppression order” in section 68 is that a court is empowered to make an order forbidding the publication of specified evidence or the name and any material tending to identify an alleged victim, witness or person alluded to in proceedings before the Court.
The Court is only empowered to make the order if satisfied of two pre-requisites:
1.it should be made to prevent prejudice to the proper administration of justice or to prevent undue hardship to a victim, potential witness or child; and
2.special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify making the order in the particular case.[8]
[8] Advertiser Newspapers Ltd v V & Anor [2000] SASC 366 at [2] per Doyle CJ; Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 351; (2004) 90 SASR 160 at [51], [65]-[67] per Gray J (Nyland J agreeing).
In performing the balancing exercise in considering the second pre-requisite, the Court is required 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 about court proceedings.[9]
[9] Channel Seven Adelaide Pty Ltd v Draper (2004) 90 SASR 160 at [66]-[67] per Gray J (Nyland J agreeing).

Section 69A is concerned only with publication to the public by mass media (newspaper, radio, television, internet or similar). It is not concerned with, and does not empower a court to forbid, a private communication of the identity of a person involved in court proceedings or of evidence given in court proceedings.
Insofar as section 69A empowers a court to forbid the publication of specified evidence, the term evidence is “defined” very broadly to include any statement made before a court. It is not confined to formal or even informal evidence and can encompass submissions or other statements by or on behalf of the parties made before a court.[10]
[10] Ibid at [103] per Besanko J.
The approach on appeal
In Lawrence v Baskerville,[11] the Full Court considered section 102 of the Motor Vehicles Act 1959 (SA) which prescribed a minimum fine and disqualification for driving an uninsured motor vehicle but then provided that “if the court for special reasons thinks fit to do so, it may impose a [lesser] fine and order [lesser] disqualification.” The Full Court held that the question whether “special reasons” existed was a question of law and/or fact and the existence of special reasons was a condition precedent to the exercise of the discretion conferred by reason of the use of the word “may”.[12]
[11] (1968) SASR 86.
[12] Ibid at 87-88 per Bray CJ and 93 per Chamberlain J (contrast Travers J at 95-96 who considered that, if there were "special reasons", the Court was then required to consider the appropriate penalty without regard to the minima).
In Mitchell v The Queen,[13] the High Court considered section 40D(2a) of the Offenders Community Corrections Act 1963 (WA) which provided that “the court may, if it considers that the making of an order under this subsection is appropriate, order that the person is not to be eligible for parole”. The High Court held that the word “may” did not connote that a discretion was conferred whether to make an order if it was appropriate to make an order. The High Court said:
[T]he issue before the Court of Criminal Appeal was not whether the sentencing Judge had erred in the exercise of a discretion, but rather whether he had fallen into appealable error in reaching the decision that he did not consider it appropriate to make an order under s 40D(2a). That, in turn, involved the issue whether there had been appealable error in the construction and application to the facts of the term “appropriate”. The task of the Full Court was not to determine whether Owen J had so erred in the exercise of a discretion as to attract the principles laid down in the well known passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King.[14]
[13] (1996) 184 CLR 333.
[14] (1996) 184 CLR 333 at 346 per Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
If the position under section 69A of the Act were at large, it may well be that the question whether “undue hardship” will be suffered absent a suppression order would be regarded as a question of mixed law and fact not involving a discretionary judgment. It might also be considered arguable that the first or even the second pre-requisite involves a judgment of the type identified by the High Court in Mitchell v The Queen or even that, if the two pre-requisites are met, there is no residual discretion not to make an order (although the terms of the order would remain subject to discretion). However, it has been held by the Full Court that, in determining whether to make a suppression order under section 69A, the Judge or Magistrate at first instance exercises a discretion in the sense identified in House v The King,[15] such that the question is not whether the appeal court would, in all the circumstances, have exercised a discretion to make the suppression order but whether the exercise of the discretion is vitiated by error of the type identified in House v The King.[16]
[15] (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
[16] As will be seen, I would have reached the same conclusion if I had adopted the approach taken in Lawrence v Baskerville or Mitchell v The Queen.
I consider that it has been established by the Full Court that whether either pre-requisite is satisfied overall involves a discretionary judgment and that there is a residual discretion whether to make an order if the two pre-requisites in section 69A(1) and (2) are satisfied.[17] In relation to the two pre-requisites, the Full Court has held that two questions arise on appeal:
1.on the material before the court at first instance, could the facts and circumstances reasonably be regarded as satisfying each pre-requisite in sections 69A(1) and (2)?[18]
2.did the court at first instance act on a wrong principle, mistake the facts, take into account an immaterial consideration or fail to take into account a material consideration?[19]
Even so, it might be arguable that the question whether hardship would exist or be undue is a question of law and/or fact and not a discretionary judgment. However, on appeal it was common ground between all parties that all aspects of a decision on an application for a suppression order are discretionary. I therefore proceed on that basis.
[17] G v The Queen (1984) 35 SASR 349 at 351 and 354 per King CJ (Walters and Mohr JJ agreeing); The Queen v Lennon (1984) 38 SASR 356 at 359 per King CJ (Cox and Olsson JJ agreeing); Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 351; (2004) 90 SASR 160 at [51], [70] per Gray J (Nyland J agreeing) and [113] per Besanko J.
[18] G v The Queen (1984) 35 SASR 349 at 351 per King CJ (Walters and Mohr JJ agreeing); The Queen v Lennon (1984) 38 SASR 356 at 359 per King CJ (Cox and Olsson JJ agreeing); Channel Seven Adelaide Pty Ltd v Draper (2004) 90 SASR 160 at [51] per Gray J (Nyland J agreeing).
[19] G v The Queen (1984) 35 SASR 349 at 354 per King CJ (Walters and Mohr JJ agreeing); The Queen v Lennon (1984) 38 SASR 356 at 359 per King CJ (Cox and Olsson JJ agreeing); Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 351; (2004) 90 SASR 160 at [70] per Gray (Nyland J agreeing) and [113] per Besanko J.
It is necessary for a court making a suppression order to give adequate reasons for making the order. This includes how it is that the order will prevent undue hardship being suffered. It also includes why it is that the undue hardship that would occur should be accorded greater weight than considerations of the public interest in open justice.[20]
[20] The Herald & Weekly Times Ltd v DPP and Vlassakis [2003] SASC 234; (2003) 86 SASR 70 at [229]-[233] per Lander J (Bleby J relevantly agreeing). See also Besanko J at [339]-[341].
Was there error by the Magistrate?
The appellants put several contentions why the Magistrate erred and the exercise of his discretion was consequentially vitiated. I consider each contention separately before making an overall assessment whether error has been demonstrated and the exercise of the discretion was vitiated.
Order 2
As observed above, by paragraph 2 of his order, the Magistrate forbad publication of any declaration that might in future be obtained from V and disclosed to D in compliance with the prosecution’s obligations.
The appellants contend that this order demonstrates a misapprehension by the Magistrate of his powers under section 69A because such an order is beyond power.
Under the first limb of the definition of “suppression order”, a court is empowered to forbid publication of specified evidence (or an account or report thereof). Evidence is defined broadly to include but is not limited to any statement made before a court. The court does not need to wait until after the evidence is adduced before forbidding its publication. A court has power to forbid the publication of evidence to be adduced in future provided that the evidence is sufficiently identified that the Court can assess whether the two pre-requisites are met and provided that the order forbids evidence as defined. A court is not empowered to impose a blanket ban on whatever evidence might be adduced regardless of content. Nor is it empowered to forbid publication of material other than evidence within the meaning of section 68.
Order 2 is expressed to refer to prospective future evidence which might or might not come into existence, might or might not comprise evidence as defined by section 68 (such as a statement made before a court) and might have any content or be on any topic. Order 2 was either beyond power or an unsupportable exercise of discretion.
The appellants do not rely upon this contention alone in seeking to overturn the Magistrate’s orders because they accept that it was appropriate for the Magistrate to forbid publication of any statements made before the Court concerning D’s gratuitous remarks and Order 2 could be varied to achieve that result. The appellants rely upon this contention in conjunction with other contentions, to be addressed below, that the Magistrate’s discretion miscarried.
Identification of hardship
The appellants contend that the Magistrate failed to identify the hardship to V which he was satisfied would occur if a suppression order were not made. The appellants contend that, absent identifying the hardship, it is not apparent how the Magistrate could have characterised it as undue or weighed it against the objective of open justice.
On the appeal, the respondents articulate the potential hardship to V as being that publication of the names of V and D (albeit without reference to the gratuitous remarks) might prompt those persons who heard D make the gratuitous remarks on the two prior occasions to mention them to others. In the Magistrate’s reasons, the Magistrate does not identify this as the relevant hardship. It is not suggested in the prosecutor’s affidavit that he identified this in his submissions as the relevant hardship. The Magistrate’s reasons are consistent with a more general approach. The fact that the Magistrate by Order 1 suppressed publication of identity and Order 2 is expressed to be “in particular” suggests that the Magistrate approached the question of hardship at a higher level of generality.
If the Magistrate had identified the hardship in the manner now articulated by the respondents on appeal, it may be expected that he would have proceeded to consider the likelihood and extent of any dissemination of the gratuitous remarks by the persons who heard them on the prior occasions and proceed to consider whether the hardship amounted to undue hardship within the meaning of section 69A. It may also be expected that he would have proceeded to weigh that hardship against the public interest. In the circumstances, it was essential for the Magistrate to identify the hardship which the Magistrate was satisfied would be caused to V by publication of the name of V and/or D.
Suppression of publication of identity or evidence
The appellants make an allied contention that the Magistrate did not separate consideration of the question whether there should be a suppression of publication of evidence under the first limb of the definition of suppression order in section 68 from the question whether there should be a suppression of publication of the identity of V or D under the second limb.
In Channel Seven Pty Ltd and Ors v An Accused and Anor,[21] Bleby J addressed the need to distinguish between these two different types of order. A suppression order had been made under the second limb of the definition forbidding publication of the name of the accused and any matter tending to identify him. Bleby J held that the proper order would have been to forbid publication of the evidence under the first limb rather than identity under the second limb. While the case involved prejudice to the proper administration of justice rather than undue hardship, the observations by Bleby J concerning suppression of publication of evidence compared to suppression of publication of identity are apposite. Bleby J said:
The definition contains two distinct parts. Paragraph (a) relates to the publication of specified evidence. “Evidence” is also defined in s 68 as meaning “any statement made before a court whether or not the statement constitutes evidence for the purposes of the proceedings before the court”. It would include the submissions of counsel as well as the statement of a witness. Paragraph (b) of the definition relates to the publication of the name or identity of any person mentioned in the paragraph. The definition therefore provides substantial scope for crafting selective orders designed to suppress from publication only so much as is necessary in the identified special circumstances as would otherwise give rise to the sufficiently serious threat of prejudice to the proper administration of justice.
…
I am satisfied that in this case special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice to justify the making of a suppression order … However, in my view, the judge failed to give proper effect to the mandate of s 69A(2) that a suppression order should be moulded in such a way as to minimise the threat of prejudice to the proper administration of justice while still giving effect to the principles of open justice which s 69A demands.
The suppression order under consideration relates to the suppression from publication of evidence or the identity of a party in proceedings conducted in the Magistrates Court.
…
[T]he evil of the likely media coverage is not the fact that a person holding public office has been committed for trial on certain offences.
The suppression order to be made must be sufficient to prevent an unfair trial by suppressing, but only to the extent necessary, publication of certain aspects of the proceedings in the Magistrates Court.
I consider that too little attention was given by the Judge to the provisions of para (a) of the definition of “suppression order” in s 68 of the Evidence Act and to the comprehensive definition of “evidence” imported into that paragraph of the definition. What was required was an order that does not link the factual allegations being made with the name of the accused.[22]
[21] [2008] SASC 246; (2008) 103 SASR 459.
[22] Ibid at [39] and [48]-[52].
In the present case, the Magistrate failed to consider whether an order only suppressing publication of specified evidence (evidence relating to the gratuitous remarks) would be sufficient to ameliorate any undue hardship to V or whether it was necessary in addition to suppress the identity of V and D. In the circumstances, it was essential for the Magistrate to address this question.
Undue hardship and the weighing process
The appellants contend that the Magistrate did not identify why any hardship which V might suffer should be characterised as undue and further that, on the material before the Magistrate, any such hardship was incapable of being characterised as undue within the meaning of section 69A.
The appellants contend that the Magistrate did not identify the countervailing public interest in open justice identified in subsection 69A(2) and did not ostensibly engage in a weighing process comparing hardship to V against the public interest. The appellants further contend that, on the material before the Magistrate, the second pre-requisite for the making of a suppression order that the (undue) hardship outweigh the public interest in open justice was incapable of being satisfied.
These contentions might have less weight if the Magistrate had identified the hardship which he was satisfied would be suffered by V if a suppression order were not made and had considered separately whether evidence or identity or both should be suppressed. However, the Magistrate’s failure to address those matters necessarily has a consequential effect on these downstream issues.
Conclusion on error
The Magistrate did not articulate and answer the questions which arose and needed to be answered before a suppression order could be made. On the basis that the judgments the Magistrate was called upon to make are discretionary, the exercise of the discretion was vitiated by the matters identified above.
Even if the judgments were regarded as one of law and fact and error was required to be determined in accordance with Fox v Percy,[23] the failure to give reasons identifying the hardship, why publication of identity as opposed to evidence should be suppressed, why the hardship was undue or why it was not outweighed by the public interest amounted to an error of law.
[23] [2003] HCA 22; (2003) 214 CLR 118.
Given my conclusion, I am called upon to determine afresh whether a suppression order should be made and in what terms.
Suppression order and terms
It is common ground that it is appropriate that an order be made forbidding publication of evidence relating to the gratuitous remarks. The concession by the appellants is rightly made. It is clear that reference to the gratuitous remarks (if the names of V and D are published) would cause undue hardship to V outweighing the public interest in open justice. However, the terms of Order 2 made by the Magistrate should be varied in any event and I will hear the parties concerning the form of the varied order.
I turn to the substantive question whether the names of V and D and any material tending to identify them ought also to be suppressed from publication.
Undue hardship
The first pre-requisite is that an order suppressing publication of the names and identities should be made to prevent undue hardship to V as an alleged victim of crime or a potential witness in criminal proceedings.
The appellants accept that publication of the names of V and D might give rise to a risk that persons who heard D make the gratuitous remarks on the two prior occasions might pass that on to others and that this is capable of being characterised as “hardship” within the meaning of section 69A. However, the appellants contend that it is incapable of being characterised as “undue” hardship.
Undue hardship involves something more than “ordinary” hardship. In G v The Queen,[24] King CJ (Walters and Mohr JJ agreeing) said:
The use of the adjective “undue” to qualify “hardship” in the section, indicates that something more than that ordinary degree of hardship is required. I do not think that the mere fact that a person who is well known in the community, or follows a particular calling, and is therefore likely to attract greater publicity than another, can be sufficient.[25]
[24] (1984) 35 SASR 349.
[25] Ibid at 352.
In Packer v Police,[26] Doyle CJ said:
According to the Macquarie Dictionary (4th ed, 2005) “undue” means “unwarranted, excessive or too great”.[27]
[26] [2007] SASC 98.
[27] Ibid at [22].
In H v Director of Public Prosecutions,[28] Bleby J considered whether economic hardship to a tax accountant who employed a person charged with fraudulent conversion amounted to undue hardship. The accountant was concerned that his clients, particularly those whose tax returns had been prepared by the defendant, might cease to be clients upon learning of the allegations. Bleby J considered that, in assessing whether the hardship was undue, it was important to take into account the limited class of persons who might be affected by the publicity. Bleby J said:
I am prepared to accept that publication of the accused’s name may well have some adverse effect on the appellant’s business, even if it is only through business which he derives solely by means of his association with the accused … It seems to me that the association, if it does arise, can only be in the minds of a rather limited class of the community, namely, those who know where the accused is presently employed, and that will be principally the clients of accused or his firm, and being those who have, in the past, also had their tax returns prepared by or in the name of the appellant. Otherwise, person are unlikely, it seems to me, to identify the accused with the appellant …
Given the apparent limited extent of the association which is likely to occur in the public mind and the limited reasons why there might be a loss of client, I find it difficult to describe any hardship that the accused suffers as undue.[29]
[28] (Unreported, Supreme Court of South Australia, Bleby J, 11 March 1998).
[29] Ibid at 4-5.

In Cheatle and Sturdy v Davy,[30] the mother of hotel proprietors was charged with sales tax fraud. The mother acted as guarantor for her sons’ debts. The hotel proprietors were potential witnesses in the criminal proceedings. A Magistrate refused an application by the sons for an order suppressing publication of the name of their mother. Bollen J dismissed the sons’ appeal against that refusal. He referred to a contention that the sons would suffer hardship because creditors of the sons would not think the mother a satisfactory guarantor upon discovering that their mother had been charged with offences of dishonesty. He characterised that hardship as speculative. Bollen J said:
I am not persuaded that there would be undue hardship as opposed to ordinary hardship to the potential witnesses here. I recognise that one cannot go to a creditor and ask him to swear an affidavit or depose to what he might do on hearing of the charge against Mrs Sturdy. That would be unrealistic. But still, it seems to me that the suggestions put forward are speculative. Mr Martin says one could perhaps often call assertions about effect on business speculative because they look into the future but here I think that it is much more akin to guesswork than to considering the future.[31]
[30] (1989) 51 SASR 155.
[31] Ibid at 157.
In the present case, the hardship to V identified on appeal if V’s name or D’s name is published is that persons who heard D utter the gratuitous remarks on prior occasions will pass them on to others. It is speculative whether this will occur. There is no evidence of the number of persons within earshot of the gratuitous remarks or, of those, how many heard them. I infer that the combined number of persons within earshot were in the tens rather than single digits or hundreds of persons. If there is publicity that D has been charged with assaulting V, not all such persons would become aware of the publicity. It may be expected that, if those who heard the remarks were minded to pass them on, they would already have done so, and it is unlikely that they would now be prompted belatedly to do so by reason of learning that D has been charged with assaulting V. It is speculative whether this would occur. If it did occur, it would only involve a very small proportion of the community at large. In these circumstances, it may be doubted whether the hardship to V could be characterised as “undue” but it is unnecessary to reach a final conclusion on this question.
Prejudice to the administration of justice
The respondents contend on appeal that the suppression order made by the Magistrate could be justified by the first limb of subsection 69A(1), namely to prevent prejudice to the proper administration of justice. The respondents contend that, if a suppression order were not made, victims of other crimes might not report them to the police for fear of publicity.
In his reasons declining to revoke or vary the suppression order, the Magistrate relied upon undue hardship to V and not upon prejudice to the proper administration of justice. In effect, the respondents contend that the Magistrate’s decision should be upheld for reasons which differ from those given by the Magistrate.
For the reasons given above, whether V will suffer hardship is speculative and any hardship which might be suffered is likely to be relatively confined. The circumstances are quite unusual. In the special circumstances of this case, it is unlikely that publicity involving the names of D and V and the allegation of assault (without reference to the gratuitous remarks) would cause victims of future assaults or other crimes not to report them to the police. It cannot be said that a suppression order should be made to avoid that speculative possibility and it cannot be said that it should be made to prevent prejudice to the proper administration of justice.
In any event, it cannot be said 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 the particular case.
Weighing hardship against public interest considerations
The second pre-requisite is that special circumstances exist giving rise to undue hardship which justify a suppression order taking into account the countervailing public interest in open justice. In Channel Seven Adelaide Pty Ltd v Draper,[32] Gray J (Nyland J agreeing) said:
There is a public interest in the maintaining of public confidence in the administration of justice. This public interest is maintained by the administration of justice in open court and the publication of what occurs to the community. In this way the public is aware of the process by which and the manner in which the courts administer justice. Open courts allow public scrutiny. It is this public scrutiny which guards against arbitrary, idiosyncratic or unjust conduct on the part of courts.
However it has been recognised both at common law and by statute that there are circumstances where it is appropriate for proceedings to be heard in private and for there to be a suppression of information from the public. These circumstances arise when publicity would cause a possible injustice and hence bring the administration of justice into disrepute. However, the ordinary rule is that proceedings should be heard in public unless to do so would prejudice or put at risk justice in the particular case.
The general common law principles have been recognised in the provisions of sections 68, 69A and 70 of the Evidence Act 1929 (SA). Section 69A of the Evidence Act provides for exceptions to be made to the position that the business of a court should be conducted in the public domain. A purpose of the section is to protect the integrity of the administration of justice and to protect those persons in the court who may be vulnerable or who are exposed to hardship.[33]
[32] (2004) 90 SASR 160.
[33] Ibid at [47]-[49].
In Packer v Police,[34] Doyle CJ said:
I am not persuaded, on the facts of this case, that the undue hardship should be accorded greater weight than the public interest in the publication of information related to court proceedings. That public interest has been declared by Parliament to be a matter of substantial weight. It is not enough for me to be persuaded that undue hardship will occur if a suppression order is not made. I must further be satisfied that the undue hardship is entitled to greater weight than the public interest. That implies that there will be degrees and kinds of undue hardship and that this must be taken into account when deciding whether the undue hardship is to be given greater weight than the public interest. If this were not so there would have been no point in Parliament imposing that additional barrier to the making of a suppression order.
This consideration of the public interest involves qualitative and quantitative considerations. They are very much a matter of impression.[35]
[34] [2007] SASC 98.
[35] Ibid at [29]-[30].
In Cheatle & Sturdy v Davy,[36] Bollen J addressed the balancing exercise immediately after addressing undue hardship in the passage extracted at [67] above. Bollen J said:
But suppose that be wrong. I acknowledge Mr Martin’s very forceful argument. Then in my view the injunction given the court in s 69a(2) becomes extremely important. As I say, the court is enjoined to consider the public interest and in publication of information relating to court proceedings and the right of the news media to publish such information. I’m enjoined and do recognise those considerations as being consideration of substantial weight. In my view, their weight is so substantial as to outweigh undue hardship.[37]
[36] (1989) 51 SASR 155.
[37] Ibid at 157.
In H v Director of Public Prosecutions,[38] Bleby J addressed the balancing exercise immediately after addressing undue hardship in the passage extracted at [66] above. Bleby J said:
That is not all that needs to be considered, however. Even if I were considered to be wrong, and that the hardship could be shown to be undue hardship, then one has to consider the provisions of sub-s(2) of 69a, to which I have already referred. That requires the court to undertake certain balancing considerations under sub-s(2) that the public interest in the publication of court proceedings and the consequential right of publication must be recognised as what the Act describes as "considerations of substantial weight". The court can only make the order if it is satisfied in this case that the undue hardship that would occur if the order were not made should be accorded greater weight than the considerations referred to in para (a), namely, the public interest in the publication of information related to court proceedings …
I am not persuaded, if there is undue hardship on the part of the appellant, that it is not outweighed by the considerations which I have referred and to which I am required to have regard by sub-s(2).[39]
[38] Unreported Supreme Court of South Australia Bleby J 11 March 1998 Judgment no S6600.
[39] Ibid at 5, 6.
In the present case, the degree of hardship which might be suffered by V if V’s name or D’s name were published is speculative and would in any event be confined for the reasons given at [68] above. That hardship, if characterised as undue hardship, is outweighed by the public interest in open justice. As observed above, the arguments put by the respondents apply equally to the suppression of publication of D’s name as they do to V’s name, but in any event the public interest in open justice outweighs the speculative hardship which would be suffered if V’s name alone were suppressed.
The materials before the Magistrate were incapable of establishing that special circumstances existed giving rise to undue hardship sufficient to justify the making of an order suppressing publication of the identities of V or D. This would in any event have vitiated the exercise of the Magistrate’s discretion had I not already concluded that it was vitiated for other reasons.
Conclusion
I allow the appeal. I revoke the first order made by the Magistrate. I will hear the parties as to the appropriate form of variation to the second order made by the Magistrate.