Channel Seven Adelaide P/L & Ors v An Accused & Anor, Advertiser Newspapers P/L v An Accused & Anor - [2008] SASC 246

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
CHANNEL SEVEN ADELAIDE P/L & ORS v AN ACCUSED & ANOR, ADVERTISER NEWSPAPERS P/L v AN ACCUSED & ANOR
[2008] SASC 246
Judgment of The Honourable Justice Bleby
15 September 2008
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE
Appeal against suppression order – order made in committal proceedings suppressing until arraignment accused’s name and any matter that might tend to identify him – accused committed to stand trial on a number of counts of serious criminal offences of a sexual nature against two complainants – possibility of severance of trials – evidence unlikely to be cross-admissible – accused holds responsible public office – case expected to attract extensive media coverage – whether suppression order satisfied requirements of Evidence Act 1929 s 69A – consideration of common law and statutory provisions – principles of open justice and accused’s right to a fair trial – order made in substitution – suppression of evidence of facts related to charges – suppression of fact of two complainants – suppression of accused’s intention to apply for separate trials – no order for suppression of accused’s name.
Interim suppression order made on hearing of appeal - whether suppression order should be made in respect of appeal proceedings.
Evidence Act 1929 (SA) ss 68, 69A (pre 2007 amendment), 69A, 69B, 71A; Defamation Act 2005 (SA) s 27; Magistrates Court Act 1991 (SA) s 51; Supreme Court Act 1935 (SA) s 131; District Court Act 1991 (SA) s 54; Magistrates Act 1983 (SA) s 22; Evidence (Suppression Orders) Amendment Act 2006 (SA), referred to.
Director of Public Prosecutions v Boardman [1975] AC 421; Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen [1987] 61 ALJR 1; Russell v Russell (1976) 134 CLR 495; Scott v Scott [1913] AC 417; Attorney-General v Leveller Magazine Ltd [1979] AC 440; The Queen v Glennon (1992) 173 CLR 592; Advertiser Newspapers Pty Ltd v SA Health Commission [2007] SASC 158, discussed.
Advertiser Newspapers Pty Ltd v SA Health Commission [2007] SASC 158; R v Francis [2007] SASC 365; E v SE [2007] SASC 198; Re: JN Taylor Holdings Ltd (in liq) [2007] SASC 193; John Fairax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131; Reed v Ranger (1992) 59 SASR 487, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"suppression order", "prejudice to the proper administration of justice", "open justice"

CHANNEL SEVEN ADELAIDE P/L & ORS v AN ACCUSED & ANOR, ADVERTISER NEWSPAPERS P/L v AN ACCUSED & ANOR
[2008] SASC 246
Magistrates Appeal
BLEBY J.
Introduction

The first respondent (“the accused”) was charged with a number of counts of indecent assault and unlawful sexual intercourse. On 1 September 2008 he was committed for trial in the Magistrates Court of South Australia on five counts of indecent assault and two counts of unlawful sexual intercourse. Three other counts of unlawful sexual intercourse were dismissed. Of the seven counts on which he was committed for trial, four counts of indecent assault and one count of unlawful sexual intercourse relate to one complainant, and one count of indecent assault and one count of unlawful sexual intercourse relate to another complainant.
The accused was committed for trial by a judge of the District Court exercising the powers of a magistrate. Until the time of committal there was a statutory prohibition[1] on publication of any evidence given against the accused, of any report of the proceedings and of his identity. Those statutory prohibitions ceased to apply from the date of committal, although there is a continuing statutory prohibition on the publication of the identity of any alleged victim of a sexual offence.[2]
[1] Evidence Act 1929 (SA), s 71A.
[2] Evidence Act 1929 (SA), s 71A(4).
Upon the committal of the accused for trial, his counsel applied for the statutory suppressions to continue by order of the Court. However, when pressed by the Judge in oral submissions counsel for the accused indicated that he was seeking suppression of the name of the accused and of anything tending to identify him. The breadth of the suppression order was sought to be expanded, however, by a written submission delivered to the Judge after he had reserved judgment on the application. That submission sought, in addition, an order restricting publication of any fact which might tend to disclose the fact that there are two complainants making separate allegations.
On 4 September 2008, after considering the oral submissions earlier made to him, the Judge made an order suppressing, until his arraignment in the District Court, the accused’s name and any matter that might tend to identify him. The ground of the order was expressed by the Judge to be for the prevention of prejudice to the proper administration of justice. The Judge published reasons in elaboration of that ground.
Upon handing down his decision the Judge referred to the later application by the accused to extend the suppression order. As counsel present representing the opponents of the application were not aware of the extended application and were not prepared to argue it, the Judge declined to extend the order in the manner requested.
A number of media organisations have appealed against the order of the Judge in accordance with the provisions of s 69B of the Evidence Act 1929 (SA).
The grounds of appeal
The grounds of appeal allege in each case, in general terms, a failure of the Judge to apply or to apply properly the requirements of s 69A of the Evidence Act. They also complain that the Judge received and had regard to the supplementary written submission of the accused in which the expanded suppression order was sought, which submission had been delivered to the Judge without the knowledge or agreement of the appellants and without the appellants having had an opportunity to make submissions in respect of that supplementary submission.
This latter ground can be conveniently disposed of forthwith. Apparently, due to an oversight, a copy of the written submission was not served on the media organisations who had been heard on the original application. It included a submission seeking to expand the suppression order, but no prejudice was suffered by the appellants in that regard because the Judge declined to make the order sought.
However, the written submission contained a summary, in written form, of the oral argument that had previously been put to the Judge. It does not appear to have covered any additional ground. Nevertheless, if it was to be read by the Judge, as it was, procedural fairness demanded that it should also be delivered to the opponents of the application and an opportunity given to them to reply if they wished. That was not done.
However, in the long run, the appellants have suffered no disadvantage. As far as I can see the written submission did not traverse any ground which had not been covered by the accused’s oral submissions. More significantly, the powers of this Court on appeal are extremely wide. Section 69B(3) of the Evidence Act provides:
69B—Appeals
(3)     Upon an appeal under this Division, the appellate court—
(a)     may confirm, vary or revoke the order or decision subject to the appeal; and
(b)     may make any order or decision under this Division that could have been made in the first instance; and
(c)     make orders for costs and orders dealing with any other incidental or ancillary matters.
This appeal is tantamount to a hearing de novo and has been argued as such. All parties have now had an opportunity to put whatever submissions they wish as to whether any suppression order should be made at all and, if so, the terms of that order.
Basis of the accused’s application
The accused is the holder of a responsible public office. He has been committed for trial on a number of counts of serious criminal offences of a sexual nature. Significantly, there are two separate complainants included in the charges. He submits that it is unlikely that the evidence in respect of one complainant will be admissible on the hearing of charges involving the other complainant. Through his counsel the accused has indicated his intention to exercise his right to apply for separate trials. The experienced judge who heard the committal proceedings, and who is fully aware of the nature of the factual allegations against the accused, made a finding that none of the evidence relevant to the prosecution of counts relating to one complainant would be likely to be admissible in the prosecution of counts relating to the other. He continued:
For one jury to hear all the evidence on all counts might well create a risk of irremediable prejudice to the defendant and I am thus satisfied the defendant here would have a prima facie case for obtaining a severance order, were it to be sought.
That is a finding which was not challenged before me and, in the absence of a complete review of all the evidence by me, is one which, for present purposes, I must accept.
The reasons for separate trials
The reasons for directing separate trials in cases of this nature is not difficult to understand. In Director of Public Prosecutions v Boardman[3] the accused was charged with a number of homosexual offences in respect of a number of boys. The trial Judge ruled that the evidence was cross-admissible on each charge. That view was ultimately accepted by a majority of the House of Lords. However, it was also accepted by majority of their Lordships that if the evidence was not cross-admissible, there should have been no joinder. Lord Cross of Chelsea said:
[I]f it is decided that the evidence is inadmissible and the accused is being charged in the same indictment with offences against the other men the charges relating to the different persons ought to be tried separately. If they are tried together the judge will, of course, have to tell the jury that in considering whether the accused is guilty of the offence alleged against him by A they must put out of mind the fact—which they know—that B and C are making similar allegations against him. But, as the Court of Criminal Appeal said in Rex v. Sims [1946] K.B. 531, 536, it is asking too much of any jury to tell them to perform mental gymnastics of this sort. If the charges are tried together it is inevitable that the jurors will be influenced, consciously or unconsciously, by the fact that the accused is being charged not with a single offence against one person but with three separate offences against three persons.[4]
Lord Wilberforce[5] and Lord Hailsham of St Marylebone[6] expressed a similar view.
[3] [1975] AC 421.
[4] Ibid 459.
[5] Ibid 442.
[6] Ibid 447.
In Sutton v The Queen[7] the High Court expressed a similar view in a case emanating from this State involving multiple complainants of rape. Gibbs CJ said:
Before us it was accepted by counsel for the prosecution that where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. That was the view taken by the majority of the House of Lords in Director of Public Prosecutions v. Boardman and it is a view consonant with justice, for, as Lord Cross of Chelsea said in Director of Public Prosections v. Boardman, to let in inadmissible evidence by trying the charges together would be to pay no more than lip service to the rule which excludes evidence of similar facts.[8] [Footnotes omitted].
In the same case Brennan J (as he then was) said:
When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury’s mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.[9]
[7] (1984) 152 CLR 528.
[8] Ibid 531.
[9] Ibid 541-542.
In De Jesus v The Queen[10] a majority of the High Court held that an appeal against conviction should be allowed because the evidence on one count was inadmissible on the other count and that the two counts should not have been joined in the one indictment. Gibbs CJ, having referred to the remarks of Brennan J in Sutton v The Queen quoted above said:
This is a general statement, not limited to sexual cases, and so viewed I respectfully agree with it. Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard. For that reason, I adhere to the view which I expressed in Sutton v The Queen.[11]
[10] [1987] 61 ALJR 1; (1986) 68 ALR 1.
[11] Ibid ALJR 3; ALR 4-5.
Brennan J also said:
I have already stated my view in Sutton as to the way in which the exercise of that discretion should be approached (see 541-543) and it is unnecessary to repeat it. Suffice to say that when the admission of the evidence admissible on the charges joined in an indictment carries the risk of impermissible prejudice to the accused if the charges are tried together, separate trials should be ordered. There is no requirement that some further "special feature of the case" appear before separate trials are ordered. I agree with the Chief Justice that sexual cases are likely to arouse prejudice and that a direction to the jury is unlikely to give sufficient protection to an accused. Though I would not place sexual cases in a special category for the purpose of applying the general statement I made in Sutton, it would be an extremely rare case in which the difference in the view expressed by the Chief Justice and my view would result in a different exercise of discretion.[12]
[12] Ibid ALJR 7; ALR 12. See also Dawson J at ALJR 10; ALR 16.
The accused argues that for similar reasons there is, if not a likelihood, then at least a distinct possibility of two separate trials in this case. If there is no suppression order and there is widespread publicity about the case, the jury in the first trial will be aware that there are other allegations of a similar type against the accused which are the subject of other charges against him, and the jury in the second trial will know that he has either been convicted or acquitted of similar charges in the first trial, and may even know the substance of some of the evidence led against the accused in the first trial. While such media publicity may not have the immediate impact of evidence of other such allegations given in the same trial, it is nevertheless said that, in those circumstances, neither trial would be a fair trial. It is argued that therein lies the prejudice to the administration of justice because the accused is unlikely to be afforded fair trials.
It that argument is correct, the necessary degree of protection will depend, to a significant extent, on any suppression order which may be made by the District Court. However, without the protection of a similar type of order in relation to the committal proceedings, there remains the prospect of prejudice through continued reporting of the committal proceedings.
Ms Powell QC, counsel for the accused, conceded that if the application for separate trials was unsuccessful there would be no further justification for any suppression order, as there could be no contamination of the jury through its members being aware of other charges and allegations made against the accused.
Although it was not the subject of particular comment in these proceedings, a similar situation could arise if details of the allegations made against the accused in the committal proceedings were linked to him by publication of his identity before the trial regardless of whether there are two trials. The danger might then lie in the publication of a report of evidence which might be inadmissible on the trial or which might not even be led at the trial. In this case the committal extended over a considerable period of time. Some allegations were withdrawn; some charges were dismissed. A report of those proceedings might well affect a jury’s consideration of the evidence led at the trial. It will be necessary to return to a consideration of this aspect.
Section 69A of the Evidence Act 1929
Section 69A of the Evidence Act relevantly provides:
69A—Suppression orders
(1)     Where a court is satisfied that a suppression order should be made—
(a)     to prevent prejudice to the proper administration of justice; or
(b)     to prevent undue hardship—
(i)     to an alleged victim of crime; or
(ii)to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or
(iii)to a child,
the court may, subject to this section, make such an order.
(2)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.
Subsection (2) was amended to its present form by the Evidence (Suppression Orders) Amendment Act 2006 (SA) which came into operation on 1 April 2007. The section in its present form has been considered in two applications for suppression orders based on the prevention of undue hardship.[13] It has been the subject of passing reference in an application to prosecute a civil action anonymously in relation to the filing of documents in court,[14] and it was also mentioned in passing in connection with an application that a hearing be in closed court.[15] As far as I am aware, subsection (2) has not been the subject of detailed judicial consideration by this Court in an application that a suppression order be made to prevent prejudice to the proper administration of justice.
[13] Advertiser Newspapers Pty Ltd v SA Health Commission & Anor [2007] SASC 158, [22]-[23]; R v Francis [2007] SASC 364, [23]-[33].
[14] E v SE [2007] SASC 198, [9].
[15] Re: J N Taylor Holdings Ltd (in liq) [2007] SASC 193, [24].
Open justice and the common law
Before considering the effect of s 69A(2) of the Evidence Act, it is necessary to make some reference to the right at common law to publish a report of proceedings in open court.
The general principle was stated by Gibbs J (as he then was) in Russell v Russell:[16]
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[17]). 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[18]).[19]
[16] (1976) 134 CLR 495, 520.
[17] [1913] AC 417, 441.
[18] [1936] AC 177, 200.
[19] Ibid 520. See also John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131, 140, Kirby P. Kirby P was in dissent in the result but not as to the general principle.

This common law rule is given statutory recognition by s 27(1) of the Defamation Act 2005 (SA) which provides that it is a defence to the publication of defamatory matter if the matter was or was contained in “a fair report of any proceedings of public concern”. The phrase “proceedings of public concern” is defined in subsection (4) as meaning, among other things, “any proceedings in public of a court or arbitral tribunal of any country”. It also receives statutory recognition from provisions like those of s 51 of the Magistrates Court Act 1991 (SA) which entitles “any member of the public” to inspect or obtain a copy of –
·      any process relating to proceedings and forming part of the Court’s records;
·      a transcript of evidence taken by the Court in any proceedings;
·      any documentary material admitted into evidence in any proceedings;
·      a transcript of reasons for judgment (including remarks made by the Court on passing sentence); and
·      a judgment or order given or made by the Court.
There are certain qualifications and limited restrictions. Similar, but not identical, provisions apply to the records of the Supreme Court[20] and the District Court.[21]
[20] Supreme Court Act 1935 (SA) s 131.
[21] District Court Act 1991 (SA) s 54.
To that general principle there are some well recognised exceptions. However, there is what the House of Lords has described as a “more fundamental principle”, and that is to secure that justice is done in a particular case. In Scott v Scott[22] Viscount Haldane LC said:
While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. … As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.[23]
[22] [1913] AC 417.
[23] Ibid 437-438. See also 445-446, Earl Loreburn; 450, Lord Atkinson; 482-483, Lord Shaw of Dunfermline.
A similar view was expressed in Attorney-General v Leveller Magazine Ltd[24] by Lord Diplock:
… If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.
However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice.[25]
Section 69A(2)(a) Evidence Act 1929
[24] [1979] AC 440.
[25] Ibid 450.
Before its amendment in 2007, s 69A(2)(a) of the Evidence Act provided:
69A—Suppression orders
(2)Where the question of making a suppression order (other than an interim suppression order) is under consideration by a court—
(a) the public interest in publication of information related to court proceedings, and the consequential right of the news media to publish such information, must be recognised as considerations of substantial weight; and
…
That paragraph clearly allowed the common law principles to which I have referred to to operate. It was a reminder to courts that the public interest in publication of information related to court proceedings was required to be given substantial weight. The present subsection (2)(a) appears to elevate the objective of open justice and the consequence of the news media to publish information in respect of court proceedings to “a primary objective”. It is not the primary objective. However, taken literally, as a primary objective, it would seem that this objective is to be treated as being on the same level as the other primary objective of the justice system, namely to secure that justice is done in a particular case. Does that mean then that a court must somehow choose between those two primary objectives? If so, how is it to make the choice? The question only has to be asked to find the answer. 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.
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.
69A(2)(b) of the Evidence Act 1929
Prior to its amendment in 2007, s 69A(2)(b) provided:
69A—Suppression orders
(2)Where the question of making a suppression order (other than an interim suppression order) is under consideration by a court—
…
(b) the court may only make the order if satisfied that the prejudice to the proper administration of justice, or the undue hardship, that would occur if the order were not made should be accorded greater weight than the considerations referred to above.
Once again, that provision reflected the application of the common law. The present provision goes further. It requires that the Court may now only make a suppression order if it is satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice to justify the making of the order in the particular case.
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.
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.
It would not be helpful to attempt an exhaustive list of special circumstances that might justify the making of a suppression order. Special circumstances will sometimes arise where the identity of the perpetrator of a crime is in dispute. The publication of a photographic or other image of the accused in association with the allegations is likely to influence, by a well-recognised process of subconscious substitution, the evidence of witnesses called to prove the identity of the accused. However, it does not follow, in those circumstances, that the name of the accused must necessarily be suppressed. It may call for a selective suppression order.
I indicated that subsection (2)(b) attempts to qualify the circumstances of implementation of the operation of the overriding common law objective of ensuring that justice is done in a particular case. The parliamentary objective can be given effect not only by not making a suppression order in certain cases where it is not justified in accordance with paragraph (b) but by courts making orders only to the extent necessary to achieve the overriding objective. In this context, it is appropriate to refer to the definition of “suppression order” contained in s 68 of the Evidence Act:
"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 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.
The application of s 69A(2) to the circumstances of this case
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.
If no suppression order is made, the media publicity is likely to include the fact that the charges relate to two separate complainants. It could well include details of allegations made in the course of the accused’s committal proceedings. It could well include the fact that the accused will be applying for separate trials.
I will not repeat the detail of how it is said that such media publicity will give rise to unfairness in the accused’s trials. It turns on the likely exposure to potential jurors in those trials of allegations, whether now withdrawn or current, of serious criminal offending by the accused other than the allegations relating to the charges before that particular jury.
In assessing the likely effect of such publicity, a judge must give sufficient weight to what the High Court has said is the capacity of jurors to assess critically the evidence before them at the trial, reinforced by appropriate directions from the trial judge. TheQueen v Glennon[26] was a case where inappropriate media publicity had been given to a conviction of the accused in 1978 of a sexual offence against a girl and of his cross-examination in other proceedings in 1985 about an allegation of alleged homosexual rape. The publication was such that the commentator was convicted of contempt of court in respect of the relevant radio broadcasts. Those proceedings, the commentator’s unsuccessful appeals and his period of imprisonment also received extensive media coverage. Two months later the accused, the subject of the previous media coverage, was charged with 17 sexual offences against young people. A permanent stay of the proceedings was refused. The accused was convicted of five of the charges and acquitted of the rest. The Court Criminal Appeal of the Supreme Court of Victoria allowed an appeal on the ground that the verdicts were unsafe and unsatisfactory because of a substantial risk that some members of the jury had become aware of the previous conviction as a result of the pre-trial publicity. The High Court, by a majority, allowed an appeal by the Crown against the order of acquittal. In the course of their joint judgment Mason CJ and Toohey J said:
[T]he suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent's prior conviction was again a matter of mere conjecture or speculation. The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. 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[27], 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. In Murphy v. The Queen[28], we stated:
"But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in Reg. v. Hubbert:[29] 'In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select twelve jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.'"
To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge.[30]
[26] (1992) 173 CLR 592.
[27] (1987) 164 CLR 74.
[28] (1989) 167 CLR 94, 99; [1989] HCA 28, [11]. See also Reg. v Von Einem (1990) 55 SASR 199, 211.
[29] (1975) 29 CCC (2d) 279, 291.
[30] (1992) 173 CLR 603.
In the same case Brennan J said:
The law does what it can to protect the integrity of the criminal trial. In the forefront is the law relating to criminal contempt. If the protection given by that law should fail, the trial judge is given powers to adjourn the trial until the influence of prejudicial publicity subsides and is required to direct the jury that their verdict must be based on the evidence given before them on the trial and that, in reaching their verdict, they must disregard knowledge otherwise acquired and any revulsion against or sympathy for the accused. The trial judge may conduct the trial in whatever manner is appropriate (within the ordinary procedural constraints) to counter the effect of pre-trial publicity prejudicial to an accused. However, these protective mechanisms cannot guarantee perfect impartiality, as Mason C.J. and Toohey J. recognized in Murphy v. The Queen:[31]
"It may be said that there can be no guarantee that directions given by a trial judge in an effort to counter the effect upon a jury of media publicity will be successful. That is true just as it is true that there can be no guarantee that a juror may not have been influenced by other matters of which he or she has heard before the trial."
Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts[32] is that the reliance is not misplaced. …
If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. 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.[33]
[31] (1989) 167 CLR 101.
[32] Reg. v Vaitos (1981) 4 A Crim R 238; Reg. v Gallagher (1987) 29 A Crim R 33, 41
[33] (1992) 173 CLR 614-615.
In this context substantial weight must be given to those observations. 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 a 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. A judge can and always will, in such cases, direct the jury that, whatever they have heard and seen in the media, they must put out of their minds and decide the case solely on the evidence before them. But where there are conflicting factual accounts placed before the jury, it is those preconceptions and attitudes that will help them, as a group, ultimately to decide where the truth lies, or whether they entertain a reasonable doubt about what they have heard in evidence. It is at that stage of the process that media influences may play their part. 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.

A relevant matter in this case is the public standing of the accused – his very identity – and the likely wide-spread publication, because of that, of allegations of fact which have not been and cannot, at this stage, be properly tested or answered. It is the likely wide-spread publication of those facts which stands to influence, perhaps quite subtly, the preconceptions and attitudes of some jurors in a way which would not happen without that publicity, and which will have effect notwithstanding a strong direction by the trial Judge to have regard only to the evidence led in the trial.
The potential prejudice to the administration of justice on that account is not the fact that a particular person, the holder of a responsible public office, is charged with certain offences. That fact in itself is something which the public is entitled to know. That fact in itself is unlikely to prejudice the administration of justice or to affect in any way the subsequent trial of the accused. If there is prejudice, it comes from the wide-spread reporting of the factual allegations against the accused which may have been led during the committal or other proceedings without the protections afforded by proper trial procedures, and the reporting of allegations of criminal behaviour which are not the subject of charges then being heard by the jury.
For these reasons, like the Judge who made the order, 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. 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. 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. The purpose of the suppression is to prevent prejudice to the administration of justice upon the accused’s trial in the District Court, but only so far as that will be prejudiced by publication of reports of the Magistrates Court proceedings. Subject to one consideration to be mentioned, I am not concerned about and, in this context, cannot make an order in respect of proceedings in the District Court. It will be for the District Court to consider whether prevention of publication of any evidence or of the identity of the accused in any proceedings in that Court will be necessary in order to prevent prejudice to the administration of justice in the conduct of one or more of the trials in which the accused may be a party.
A suppression order of the name and identity of the accused at this stage is likely to neutralise the adverse effect of publication of any factual allegations because, in the public mind, the allegations cannot be linked with the accused for so long as the suppression order continues. However, the evil of the likely media coverage is not the fact that a person holding public office has been committed for trial on certain offences. Indeed, there is a public interest in demonstrating that holders of high public office are not immune from the system of justice to which other members of the community are subject, and that they are not, by virtue of their office, to enjoy immunity from identification not enjoyed by others. The evil lies in the ability to link the factual allegations with that person in a manner which is likely to contaminate potential jurors.
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. Besides achieving that objective, it must also be of such a nature as not to undermine any suppression order that the District Court might be persuaded to make in respect of proceedings in that Court.
I consider that too little attention was given by the Judge to the provisions of paragraph (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.
I consider that an appropriate order in the circumstances would be 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.
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.
However, such an order would not, by itself, prevent a jury in a second trial from becoming aware that the accused had been tried and either convicted or acquitted of serious criminal charges in the first trial. Depending on the circumstances prevailing at the time, if they were considered to be special circumstances giving rise to a sufficiently serious threat to the proper administration of justice in respect of a second trial, it would be for the District Court to make an appropriate suppression order in respect of the first trial. That will be for the District Court to decide. It does not follow that a suppression order will necessarily be made merely because there will be a second trial.[34]
[34] Reed v Ranger (1992) 59 SASR 487, 488, Duggan J.
The only circumstances that might justify the Magistrates Court in making a more extensive order than that which I propose is if the failure to do so would undermine or render nugatory any order that the District Court might reasonably and properly make. I do not consider that an order of the type proposed would do that. It would not prevent the District Court from making a more extensive and effective order if the circumstances warranted it in the first trial or in proceedings leading up to it. The fact that the accused’s identity is published in respect of the Magistrates Court proceedings but suppressed in relation to the first trial would not convey to the jury on the second trial anything about the case or that allegations had been made other than those then before that jury. The other qualifications in the order proposed would prevent that.
Ms Powell QC argued that there has already been substantial publication of factual allegations surrounding the accused’s alleged offending without naming the accused, and that to make an order in the terms I have suggested would not overcome the problem. I do not accept that argument.
The publications relied on go back to May 2006 and include more recent publications concerning reports of charges of sexual offences against the prominent identity which had been withdrawn. The latest publication of material of that nature was in June 2007.
Print and television publication is transitory and has a diminishing effect with the passage of time. It is unlikely now to have any effect on jurors in a trial which will probably not now occur for at least 12 months. The order I propose would prevent republication of some of that material.
Internet publication is different. It can remain indefinitely. Some publications tendered as being presently accessible on the internet relate to allegations which have been continuously published now for over two years. If those publications, either in themselves or in conjunction with other current media publications, offend the order proposed then they may have to be reviewed and removed.
The Judge also fixed a finite duration for the order, namely until the time of the accused’s arraignment in the District Court. As the Judge was sitting as a magistrate, the Judge’s order cannot relate to the reporting of proceedings in the District Court. Similarly, the District Court cannot make a suppression order in respect of proceedings in the Magistrates Court unless the District Court judge at the time is exercising the powers of a magistrate pursuant to s 22 of the Magistrates Act 1983.
It will be for the District Court to determine what suppression orders, if any, should be made in respect of the proceedings in that court. However, there is a possibility of any such order being undermined if publication is then permitted in respect of any aspect of the proceedings which have occurred in the Magistrates Court because the order in the Magistrates Court has ceased to have effect. A report of what was said or alleged in the Magistrates Court would not necessarily offend an order of the District Court, although it may do so. Accordingly, as I consider that it was inappropriate to place a finite duration on the order concerned, I will not do so in relation to any order that should now be made in substitution of the Judge’s order.
Conclusion
For these reasons there will be an order in the terms foreshadowed above but without limitation as to time.
At the outset of the hearing of this appeal I made an order suppressing from publication:
1Any evidence as defined in s 68 of the Evidence Act 1929 given in these proceedings other than the fact of the appeal; and
2The name of the first respondent in each of the appeals and of any other material tending to identify him.
That was an interim order pursuant to s 69A(3) of the Evidence Act which was not subject to the restrictions and limitations contained in subsection (2). It was made in order to ensure that there could be the fullest possible argument before me on the appeal without prejudicing or compromising the order made by the Judge pending the decision on the appeal. It is an order which must now be reviewed in light of the suppression order which I propose to substitute for that made by the Judge.
The suppression order that I propose to substitute for that of the Judge will not restrict publication of the identity of the accused. Paragraph 2 of the interim order should not continue. However, for reasons which I have given, there is good reason to continue in force a modified form of paragraph 1 of the order, but for a different reason. Its justification now is the prevention of prejudice to the administration of justice in the trial or trials of the accused.
There remains for consideration the publication of these reasons. Of necessity, they have had to discuss the nature of the allegations and reasons why a suppression order of the type proposed is necessary. It would be undesirable to suppress publication of these reasons on a matter of substantial public interest. In preparing these reasons I have been careful to avoid identifying the accused or any material which might tend to identify him. The potential prejudice to the administration of justice arises from the linking of the name of the accused with the facts and circumstances of the allegations concerning the charges.
It is appropriate that paragraph 1 of the interim order should therefore be amended to exclude from its scope publication of these reasons. However, in order to reduce the risk of linking the facts and allegations contained in these reasons with the accused I consider that a further order is desirable to the following effect:
That in any publication of the reasons for judgment now published there be suppressed from publication the identity of the first respondent and of any material tending to identify him as a respondent to this appeal.
I will hear counsel as to the precise terms of any order that I propose to make concerning the appeal proceedings and as to the costs of the appeal.