Channel Seven Adelaide Pty Ltd v Draper
[2004] SASC 351
•12 November 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CHANNEL SEVEN ADELAIDE PTY LTD v DRAPER
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Besanko)
12 November 2004
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION - CRIMINAL
DEFAMATION - INJUNCTIONS - JURISDICTION AND GENERALLY
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS
Appeal against suppression order made by Acting Chief Judge of the District Court - suppression order made to prevent the appellant from broadcasting program referring to the respondent, then a Member of Parliament, and her then friend A - at time of order A had been subject to proceedings pursuant to the Criminal Law (Forensic Procedures) Act 1988 (SA) - proceedings disclosed that A was a suspect in the investigation of a murder - appellant submitted that the Acting Chief Judge did not have discretion to make the suppression order at common law or pursuant to the Evidence Act - submitted that even if jurisdiction existed, the interests of public to be fully informed about A outweighed any private interest - submitted that no undue hardship suffered by A and wide publicity on the issue had occurred prior to the suppression order being made - consideration of Criminal Law (Forensic Procedures) Act - inherent jurisdiction of the court to make orders to protect the fair administration of justice - jurisidiction under Evidence Act - section 131 of the Supreme Court Act - whether termination of employment constitutes undue hardship - held Acting Chief Judge had inherent jurisdiction to make suppression orders to protect A's right to a fair trial - Acting Chief Judge acted within jurisdiction pursuant to the Evidence Act - undue hardship suffered by A - suppression orders made within discretion - appeal dismissed.
Criminal Law (Forensic Procedures) Act 1988 (SA) s 47, s 48; Evidence Act 1929 (SA) s 68, s 69, s 69A, s 70, referred to.
Channel Seven Adelaide Pty Ltd v Draper [3004] SASC 144; Barton v The Queen (1980) 147 CLR 75; Jago v The District Court of New South Wales (1989) 168 CLR 23; Dietrich v The Queen (1992) 177 CLR 292; Davies and Cody (1937) 57 CLR 170; Alexander ( 1980) 145 CLR 392; Domican (1992) 173 CLR 555; Festa (2001) 208 CLR 593; Von Einem (1991) 55 SASR 199; Re F (1989) 51 SASR 141; G v The Queen ( 1984) 35 SASR 349; R v Lennon (1985) 38 SASR 356; State of South Australia v Carter & Myers (1991) 161 LSJS 352 ; House v The King (1936) 55 CLR 325; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; John Fairfax & Sons Ltd v Palmer [1987] 8 NSWLR 297; Ex parte Auld; Re Consolidated Press Ltd (1936) SR (NSW) 596; Ex parte Auld; Re Consolidated Press Ltd (1936) SR (NSWLR) 596; Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Undue hardship", "Fair trial"
CHANNEL SEVEN ADELAIDE PTY LTD v DRAPER
[2004] SASC 351Full Court: Nyland, Gray and Besanko JJ
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Gray J.
GRAY J:
The Issue
This appeal seeks the setting aside of a discretionary suppression order. Important issues are raised concerning the resolution of the conflict between the privacy of the individual and the freedom of the press.
Background Facts
On Friday 4 July 1997 a person referred to in these reasons as C died as the result of gunshot wounds. Her body was located by her husband that day.
Another person, referred to in these reasons as A, was an acquaintance of C. Within a week of C’s death A contacted the police and enquired whether there was anything that he could do to help with their enquiries. A meeting took place shortly thereafter. In the course of that meeting A provided information to the police about C. He was not asked any questions about his movements on 4 July 1997.
Approximately six weeks later A was interviewed by the police. He provided further information. A recalled that he was not cautioned. He did not believe that he was a suspect. He was not asked questions about his movements on 4 July 1997.
A was next interviewed by the police in October 2002. On this occasion he was asked questions about his precise movements on 4 July 1997. At the end of the interview he was informed by the police that he was a person of interest. The police searched A’s premises as well as other premises. The searches took place in the presence of A. Nothing was seized.
On 24 January 2004 police attended at A’s home, conducted an interview, searched the premises and took a DNA sample from A. During the course of the interview the police informed A that they suspected him of the murder of C.
A’s solicitor attended at A’s home and was present during the interview, the search and the forensic procedure. At this time A was informed that his telephone conversations had been intercepted. He was asked questions about extracts from those conversations.
Following legal advice, A agreed to provide a DNA sample. However, he declined to provide a sample of his finger or palm prints. He had received legal advice that the procedure could only be undertaken following a court order and that the police would be obliged to provide evidence of the basis for their suspicions. A further search was then undertaken of A’s home and an overcoat seized. During the course of the search, A provided work forms relating to duties performed on 4 July 1997.
On 26 February 2004 A was served at his place of employment, with an application under the Criminal Law (Forensic Procedures) Act 1998 (SA) seeking an order authorising the taking of his finger and hand prints. The application was listed for hearing on 2 March 2004 at 2.15pm in the Adelaide Magistrates Court. The affidavit of support by an investigating police officer provided the following information:
I am the investigating officer of an incident which, I suspect on reasonable grounds that [A] has committed the criminal offence of murder, Section 11 of the Criminal Law Consolidation Act 1935.
I further suspect on reasonable grounds that a forensic procedure, namely the taking of finger and hand prints from [A] in this matter, may produce evidence of value to the investigation of the suspected offence. The grounds for my suspicion are based upon the information set out in paragraphs 4 to 13 of this Affidavit.
[A] is suspected of the murder of [C] which occurred on 4 July 1997 at Collinswood, South Australia.
…
As to the criteria established by Section 26 of the Criminal Law (Forensic Procedures) Act 1998, I say as follows;
(1)
(a) [A] is reasonably suspected of the murder of [C] as outlined in paragraphs 4 to 13 of this Affidavit.
(b) A number of unidentified finger prints have been located on an object inside the crime scene at …. [A] has told police he has not been to the crime scene.
(c) It is believed that the finger and hand prints from [A] could produce material of value to the investigation of the suspected offence in that it may prove the extent of his involvement in this serious offence by confirming his presence at the crime scene.
On 28 February 2004 A’s attention was drawn to the front page of the Advertiser newspaper and to an ‘exclusive article’ headed “[C] Murder Suspect”. The article made reference to the application that had been served but was yet to be heard for an order that A provide his finger and hand prints. A was not named in the article.
On 2 March 2004 A’s solicitor attended the Magistrates Court for the purposes of the application. Media interests were in attendance and later filmed A nearby. An order was made obliging A to submit to forensic procedures. Those procedures were undertaken on 2 March 2004.
On 3 March 2004 A was advised by the police that neither his DNA nor finger prints matched any crime scene sample. On the same day the police arranged a press conference advising representatives of the media of these results. On the same day under the heading “Welcome to Homicide” the Advertiser newspaper published an article about the Magistrates Court application and the order made. The article reported that a major crime operations inspector was unsympathetic to a lawyer’s claims of harassment saying:
we make no apologies for the manner and method in which we investigate murder … welcome to homicide.
On 4 March 2004 the Advertiser published a further article under the heading “[C] Murder: Suspect’s Print Do Not Match”. The article contained a photograph of the earlier publication containing the article “Welcome to Homicide”. In the course of the article the major crime section superintendent was reported as having said:
… that the man [who cannot be identified] is a suspect and will remain a suspect until the case is solved.
Television reports at or about this time depicted footage taken of A attending at the Adelaide Magistrates Court apparently at the time of the forensic procedure application. At this time A’s face was obscured by pixilation.
On 15 May 2004 A became aware of a broadcast on the previous day, 14 May 2004, by Channel Seven Adelaide Pty Ltd of a promotion for their forthcoming Today Tonight program. The promotion published the following words and associated pictures:
South Australia’s Federal MP – (whilst depicting a picture of the plaintiff) – her boyfriend (while broadcasting a picture of A) and the business trip – disgusted that taxpayers funds have been used (while depicting a person with an obscured face) the paper trail and whistle blower and he’s a suspect in a murder case (whilst broadcasting a picture of [C]).
The promotion showed images which clearly identified A, and at the same time, showed an image of [C]. The promotion identified A by reference to his image as a suspect in the murder case. The promotion related to a forthcoming Today Tonight program discussing the issue of travel expenses incurred by Patricia Draper, a federal politician, and to Ms Draper’s claim for the expenses of her “boyfriend”. A was the person who travelled with Ms Draper on the occasion in question.
Ms Draper’s solicitors made a request in writing that Channel Seven refrain from running the promotion. They sought a copy of the program in its entirety.
The Court Proceedings
On 16 May 2004 an application was made in the District Court for injunctive orders. The application was supported by an affidavit of Ms Draper and was pursued as a matter of urgency. Relevantly the affidavit provided:
-I request that the Registry of the Supreme Court of South Australia is opened as a matter of urgency and this application be made specially returnable before a Judge of this Honourable Court as there have been allegations of travel rort in 2000 that Channel 7 propose to air on their Today Tonight programme on the evening of Monday 17th May 2004 which has been promoted by Channel 7 since Friday afternoon 14th May 2004.
-I seek an urgent injunction against Channel Seven Adelaide Pty Limited A.C.N. 007 625 603.
-(I am the Federal Member of Parliament and the Federal Member for Makin in the State of South Australia. I am commonly known as Trish Draper.
…
-The defendant operates Channel Seven Adelaide a commercial television broadcaster.
-The defendant broadcasts to air each weeknight a programme known as “Today Tonight”.
-On Friday 14th May 2004 and Saturday 15th May 2004 the defendant broadcast promotions for its next Monday edition of “Today Tonight” in the following terms:
“On Today Tonight South Australia Federal MP her boyfriend and the business trip – disgusted that Taxpayer funds have been used – the paper trail and the whistle blower – he is a suspect in a murder case.”
-During the broadcast of the said words pictures were exhibited firstly of myself, secondly of [A] and lastly of [C] who was murdered on 4th July 1997.
-The promotions conveyed the imputations that:
I have improperly used parliamentary travel allowances;
I have been involved in criminal conduct which has been disclosed by a whistle blower;
I am associated with undesirable persons who have committed serious criminal offences.
Such imputations are false and seriously defamatory of me.
…
-I travelled overseas with [A]. My accommodation and airfares were prepaid. All other expenses which included taxi fares, meals and living expenses were paid by me. On my return to Australia I did not lodge a claim for reimbursement of the taxi fares, meals and living expenses as entitled to as provided in the Remuneration Tribunal Determination.
…
-I seek that an interlocutory injunction be granted to prevent the promoted broadcast until such time as I have had an opportunity to review the proposed programme in detail and take advice on its contents.
On 16 May 2004 an affidavit from the executive producer of Today Tonight was filed on behalf of Channel Seven included the following:
-The Defendant proposes broadcasting a segment on the Today Tonight program regarding tax-payer funded travel taken by Ms Draper in 2000 in her capacity as the member for Makin. On that trip, Ms Draper was accompanied by [A]. Some of the travel expenses incurred by A were also funded by the taxpayer.
-Ms Draper classified him as her “spouse” and, as a result, [A’s] travel expenses were paid.
-In the story to be broadcast by the Defendant, we wish to explore the interpretation of the term “spouse” under the Parliamentary Entitlements Act 1990. We wish to consider the factors taken into account and the perceived benefits flowing to Australian public by “spouses” accompanying members of parliament on official travel. We intend to use the trip taken by Ms Draper to examine those issues.
-The cost and procedures applicable to travel by politicians is and has for some considerable time been a matter of significant public interest.
-In the story, we intend to criticise the fact that an MP in the position of Ms Draper could have taken an accompanying person at tax-payers’ expense on an overseas trip when such person did not live with Ms Draper as her spouse on a genuine domestic basis. Channel Seven intends to state that such an occurrence is wrong irrespective of whether or not it complies with statutory or regulatory requirements or has received other approval.
…
-We have undertaken significant steps to satisfy ourself as to the accuracy of the information in the proposed story and in the promotional material broadcast in respect of the proposed story. Channel Seven will defend any proceedings commenced on the basis of the story which is to be broadcast and will rely on the defence of justification (as well as other defences, eg, fair comment and qualified privilege) in relation to any imputation arising therefrom that it was wrong for Ms Draper to have taken [A] on the overseas trip at taxpayers’ expense.
On 16 May 2004 the Acting Chief Judge of the District Court ordered:
1.Until further order the defendant (whether by its agents or employees) be restrained from:
1.1 the ongoing broadcasting of promotion advertisements featuring the plaintiff in the defendant’s programme “Today Tonight”;
1.2 broadcasting a “Today Tonight” programme referring to the plaintiff in the context of parliamentary travel allowance and/or association with [A];
2. The cost of the application be reserved.
3. The parties may apply for further orders and directions at short notice.
On 19 May 2004 solicitors for Channel Seven put before the court by affidavit a copy of a news items published on the Sydney Morning Herald website said to have been in relation to the forthcoming Today Tonight program. The news items included the following:
Mr Howard said he hadn’t personally discussed the issue with Ms Draper, who was accompanied on a trip to Europe in 2000 by her then boyfriend [A], an Adelaide-based photographer. It is understood they did not live with each other and ABC reported today that A had supplied pictures of women to a “soccer babes” website.
…
After checks carried out under Freedom of Information legislation, Today Tonight went to Mrs Draper, who Mr Archer described as “singularly unhelpful”. Mrs Draper then went to her lawyers. “After about two hours of argument, which included some representation from this fellow’s barrister as well, the judge decided that the story and the promo for it should be injuncted,” Mr Archer said.
Anti-porn MP tightlipped about trip with ex-lover - Samantha Maiden/Andrew McGarry. He was the pony-tailed boyfriend who accompanied Liberal MP Trish Draper on a taxpayer-funded European tour to investigate “name-and-shame” laws for paedophiles.
But anti-porn campaigner Mrs Draper declined to answer questions yesterday about her former partner, Adelaide-based photographer [A], who is credited on the footballbabes.com website as providing additional photography of scantily clad, busty young adult women.
Mrs Draper, who holds the marginal seat of Makin in Adelaide’s northern suburbs, sought an injunction over the weekend against the Seven Network’s Today Tonight program following a weekend promo promising revelations of her $9000 European trip in August 2000.
The affidavit also included an article published on The News website on 19 May 2004 which included the following:
Parliamentary records show Ms Draper took her then boyfriend – newspaper photographer [A] – to Europe in August 2000 as part of a “study tour”.
The 10-day jaunt was supposed to help Ms Draper further her knowledge about child sexual abuse crimes, a subject to which she has devoted her political career.
Between intimate dinners, Ms Draper went to London to study “naming and shaming” campaigns for paedophiles.
They then flew to Dublin to study heroin victims and then to Amsterdam to investigate illegal drug use.
Taxpayers paid $9832 for the study tour, which took in Ireland, Britain, France and Holland.
[A] celebrated his birthday on the continent with Ms Draper on August 24, two days before the couple returned home to Adelaide.
He was able to join Ms Draper on the tour because she nominated him as her “spouse” on the official parliamentary documents.
It is believed Ms Draper cancelled several official engagements during the tour, but has explained this as the result of food poisoning.
After one year together, the pair broke up soon after their return to Australia.
Also included in the affidavit was an article published on ABC online on 19 May 2004 which provided:
Meanwhile, an Adelaide District Court judge is still deciding whether to maintain a prohibition on Channel Seven from reporting its story.
The judge said he was concerned that Channel Seven had mentioned the man in question had been a murder suspect.
The court heard that late on Sunday, lawyers for Ms Draper won a court injunction preventing Channel Seven from running a story that claimed she went on an overseas study tour in August 2000 with her then-boyfriend, [A].
Channel Seven’s lawyers argued the horse had bolted as the story had already become a political talking point on which the Prime Minister and Opposition leader had commented.
Judge Tony Bishop said he would not have imposed an injunction if the story was just about a travel rort.
He said he was concerned Channel Seven referred to [A] as a murder suspect.
Judge Bishop will decide the issue later today.
On 19 May 2004 the Australian published an article titled “Anti-porn MP tight-lipped about trip with ex-lover” which included a photograph of A above his name. The article included the following passage:
He was the pony-tailed boyfriend who accompanied Liberal MP Trish Draper on a taxpayer-funded European tour to investigate “name-and-shame” laws for paedophiles.
But anti-porn campaigner Mrs Draper declined to answer questions yesterday about her former partner, Adelaide-based photographer [A], who is credited on the footballbabes.com website as providing additional photography of scantily clad, busty young adult women.
On 19 May 2004 the Acting Chief Judge amended his previous order as follows:
1.Until further order the defendant (whether by its agents or employees) be restrained from:
1.1 the ongoing broadcasting of promotion advertisements featuring the plaintiff in the defendant’s program “Today Tonight”;
1.2 broadcasting a “Today Tonight” program referring to the plaintiff in the context of parliamentary travel allowance and/or association with her companion of August 2000;
2. The cost of the application be reserved.
3. The parties may apply for further orders and directions at short notice.
On 21 May 2004 the order was further amended.
1.The order made in paragraph 3 of the sealed orders of the Court dated 19 May in this action is hereby revoked.
2.The oral application of the Defendant made on 21 May 2004 to have the suppression order with respect to [A] discharged, as set out in paragraph 4 of the sealed orders of the Court made on 19 May 2004 in this action, is dismissed.
3. The question of costs be reserved.
The orders made by the Acting Chief Judge with respect to Ms Draper have been set aside on appeal by a single judge of this court.[1]
[1] Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 144
The Acting Chief Judge when making the order with respect to A acted as a matter of urgency. No reasons were published for his discretionary order. However, it is clear that the interests of the administration of justice played a significant role in his decision when regard is had to the transcript of argument.
Before this court a considerable body of further evidence was advanced primarily concerning subsequent events. Counsel for A submitted that the Acting Chief Judge was well justified in making the orders on the information placed before him. The further information advanced to this court is said to further justify the orders made with respect to A.
In considering this appeal the well-settled principles of interfering with a discretionary order have application. The issue is not whether an appeal court would make a different order. If the order made was open on the evidence, and no error of law or fact is identified, and the order is not wholly unreasonable, the appeal court should not interfere.
The Appeal
Channel Seven seeks to have the suppression orders made by the Acting Chief Judge set aside. Counsel submitted that in the circumstances the Acting Chief Judge had no discretion to make a suppression order pursuant to the terms of the Evidence Act, he had no common law power to make an order and that Channel Seven had done nothing to breach of the Forensic Procedures Act or any other statute.
Counsel for Channel Seven submitted that if the Acting Chief Judge had jurisdiction, that the interests of the public to be fully and appropriately informed about A outweighed any private interest. It was said that, if a trial eventuated, there was no real risk of a fair trial being put in jeopardy. It was argued that A’s difficulties with employment did not give rise to undue hardship as that phrase was to be understood. Finally it was contended that there had been widespread publicity and disclosure about A being a suspect. As a result it was said that there was no point in making a suppression order. Such an order would have little effect.
Forensic Procedures
As earlier observed A was subject to an order made pursuant to the Forensic Procedures Act. This act authorises that forensic procedures take place on persons against their will. The procedures include invasive procedures. The legislation contains provisions designed to provide a measure of protection for the privacy of persons subjected to orders under the Act. Sections 47 and 48 of the Forensic Procedures Act provide:
47(1)A person who has, or has had, access to information obtained through the conduct of forensic procedures under this Act must not disclose the information unless—
(a) the information is publicly known; or
(b) the disclosure is necessary for the investigation of a criminal offence or criminal offences generally; or
(c) the disclosure is necessary for the purpose of deciding whether to begin proceedings for an indictable offence; or
(d) if the procedure was an intrusive forensic procedure—the disclosure is necessary for the purpose of proceedings for a serious offence; or
(e) if the procedure was a non-intrusive forensic procedure—the disclosure is necessary for the purpose of proceedings for any criminal offence; or
(ea) the disclosure is necessary for the purpose of determining whether it is necessary to carry out a forensic procedure under this Act; or
(f) the disclosure is necessary for the purpose of a coronial inquest or inquiry; or
(g) the disclosure is necessary for the purpose of civil proceedings (including disciplinary proceedings) that relate to the way in which the procedure was carried out; or
(h) the disclosure is necessary for the medical treatment of the person to whom the information relates or any other person; or
(i) the disclosure is necessary for the purposes of an arrangement with the Commonwealth, or another State or a Territory under this Act; or
(j) the person to whom the information relates consents to the disclosure.
(1a)A person who has, or has had, access to information stored on the DNA database system must not disclose the information except—
(a) for the purposes of a criminal investigation; or
(b) for the purposes of proceedings for a criminal offence; or
(c) for the purposes of determining whether it is necessary to carry out a forensic procedure under this Act; or
(d) for the purposes of making the information available to the person to whom the information relates; or
(e) for the purposes of administering the DNA database system; or
(f) for the purposes of an arrangement with the Commonwealth, or another State or a Territory under this Act; or
(g) for the purposes of an investigation by the Ombudsman or the Police Complaints Authority.
(2)A person who intentionally or recklessly discloses information in contravention of this section is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for two years.
48.A person must not intentionally or recklessly publish by newspaper, radio, television or in any other way, a report of proceedings under this Act containing the name of a person under suspicion, or other information tending to identify the person, unless—
(a) the person consents to the publication; or
(b) the person has been charged with the suspected offence or a related criminal offence; or
(c) the appropriate authority, in proceedings for an order under Part 3, authorises the publication.
Maximum penalty: $5 000 or imprisonment for one year.
It is to be noted that the offences carry terms of imprisonment.
There is a public interest that persons subject to compulsory invasive procedures pursuant to the Forensic Procedures Act are accorded a measure of real protection concerning the confidentiality of the process and of the results obtained. Counsel for A submitted that it was in the interests of the administration of justice that effect be given to the underlying need for protection. It was contended that the protection provided by the Forensic Procedures Act was a matter directly relevant to the administration of justice. Attention was drawn to the following:
-that A, seven years after the alleged murder of C was subject to compulsory forensic procedures;
-that A’s attendance at court on 3 March 2004 was for the purpose of the hearing of the application for an order under the Forensic Procedures Act;
-that in the circumstances A was entitled to the confidentiality and protection of the Forensic Procedures Act;
-that the media received information about the application and were able to attend with recording equipment to take a film of A as he arrived and then to attend in court and observe the application;
-that the tests failed to produce any evidence that linked A to the crime scene;
-that the police conducted a media briefing advising of the results of the tests but maintained the person subject to the tests remained the prime suspect;
-that later media reports identified A as the suspect or the prime suspect;
In these circumstances it was submitted that a substantive disclosure that A was the person subjected to the forensic procedures concerning a police investigation into the murder of C would be a matter of grave concern to the administration of justice.
The Administration of Justice
Inherent Jurisdiction
It is well established that the courts have an inherent jurisdiction to control the criminal process and protect the fundamental right of the citizen to a fair trial. This inherent jurisdiction has been recognised by the High Court in Barton[2], Jago v The District Court of New South Wales[3] and Dietrich[4] and referred to in many other cases. In Jago Deane J described the right to a fair trial as follows:[5]
The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law. As a matter of ordinary language, it is customary to refer in compendious terms to an accused's "right to a fair trial". I shall, on occasion, do so in this judgment. Strictly speaking, however, there is no such directly enforceable "right" since no person has the right to insist upon being prosecuted or tried by the State. What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.
The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience.
[2] Barton v The Queen (1980) 147 CLR 75
[3] Jago v The District Court of New South Wales (1989) 168 CLR 23
[4] Dietrich v The Queen (1992) 177 CLR 292
[5] (1989) 168 CLR 23 at 56-57
In Dietrich Mason CJ and McHugh J observed:[6]
The right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system. … The right is manifested in rules of law and of practice designed to regulate the course of the trial. However, the inherent jurisdiction of courts extends to a power to stay proceedings in order "to prevent an abuse of process or the prosecution of a criminal proceeding ... which will result in a trial which is unfair".
[6] (1992) 177 CLR 292 at 299-300
As observed in Jago and Dietrich, the ultimate power of the court to ensure a fair trial is in a stay and a permanent stay in the case of abuse. There is a public interest in those who commit offences being brought to justice and accordingly the power to order a permanent stay or even a partial stay is to be exercised sparingly. It will only arise in the rare and exceptional case. Another way in which the courts can act to ensure a fair trial takes place and to avoid the risk of the need to consider an order for a stay is to make suppression orders in appropriate, albeit limited, circumstances. The court has that jurisdiction as part of its inherent jurisdiction.
Identification of an accused is not infrequently an area of particular concern in criminal trials and the use of identification evidence may have an impact on the accused’s right to a fair trial. The issue of identification in criminal trials has been the subject of detailed comment by the High Court. In Davies and Cody,[7] Alexander,[8] Domican[9] and Festa[10] to name but four, the High Court has been concerned to take steps against the risks associated with suggestibility and displacement when considering identification evidence. The same issue concerned Duggan J in Von Einem[11].
[7] (1937) 57 CLR 170
[8] (1980) 145 CLR 392
[9] (1992) 173 CLR 555
[10] (2001) 208 CLR 593
[11] (1991) 55 SASR 199 at 221
In Davies and Cody Latham CJ, Rich, Dixon, Evatt and McTiernan JJ explained the risks associated with suggestibility or displacement as follows:[12]
A witness who is taken by the police for the purpose of seeing whether he can identify a person who is in custody in relation to a particular crime has in his mind a recollection or impression of the person whom he saw, or, it may be, heard, at the scene of the crime or in relation to some matter which is connected with the crime. The recollection probably relates to the appearance of the person, and possibly to his mode of standing, moving, or speaking or some other characteristic. It is important that this recollection should not be overlaid or in any way affected by suggestions that a particular person in custody is either the person previously seen by the witness or is the person suspected of or charged with the crime. Moreover, inspection of a photograph of the person in custody before viewing him naturally tends to impress on the mind the characteristics shown in the photograph, so that the witness, however honest he may be, tends to identify the person in custody with the person shown in the photograph rather than with the person whom he himself saw previously.
Similarly, if a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him. This tendency will be greatly increased if he is shown the person actually in the dock charged with the very crime in question.
[12] (1937) 57 CLR 170 at 182
The courts discretion to exclude identification evidence giving rise to suggestibility or displacement was articulated by the High Court in Alexander where Gibbs CJ observed:[13]
The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.
[13] (1980) 145 CLR 392 at 402
Stephens J noted:[14]
In the early case of Varley the rogues' gallery effect is referred to when it is said, of police photographs going before the jury, that "It is almost impossible that the jury will not be influenced by the fact--which they may infer--that the prisoner is known to the police" . Palmer also refers to this prejudicial effect as do Goss , Seiga and Lawrenson . In Wainwright , it was said that, because of their prejudicial effect, it was "unheard of" that the prosecution should itself put forward as any part of its evidence in chief the photographs used in identification. In Dwyer and Ferguson the photographs were of a particularly prejudicial character, taken of the accused in prison garb; although the photo-identification had there been used initially in the detection process their prejudicial effect was such as to result in the conviction being quashed.
…
…[W]hen photo-identification is used after the detection process is over, that will in itself be a strong ground for excluding from the trial all evidence of identification by a witness who has been involved in that photo-identification. The police will in such a case already know, at the time of the photo-identification, the identity of the "wanted man". Accordingly, the particular advantages which photo-identification offers as a means of supplying that information will no longer apply. Instead it will possess only its character of a second-best mode of identification, particularly prone to error and also productive of those well-recognized consequences so likely to be prejudicial to an accused. This will in most cases be reason enough, at least where some more reliable mode of identification such as an identification parade was available, to exclude from evidence the identification testimony of a witness whose testimony has been infected by contact with photo-identification.
[14] (1980) 145 CLR 395 at 412-13 and 417-418
In addition to the risk of suggestibility arising from the publication of photographs of A, the naming of a suspect at any stage of investigation before an arraignment may also give rise to possible prejudice to a fair trial. As Duggan J observed in R v Von Einem[15]:
[T]he naming of a suspect at this stage of the investigation could be justified only in a very limited category of cases. The naming of a fugitive from justice would be an example of such a case. And if a suspect is identified at this preliminary stage considerable care must be taken to ensure that he is not prejudiced at any subsequent trial by any comments which might be made at the time of identifying him.
[15] (1991) 55 SASR 199 at 221
In the present case it was open to the Acting Chief Judge to conclude that the proposed disclosure gave rise to a risk of suggestibility concerning identification and possible prejudice to a fair trial. The Acting Chief Judge had inherent jurisdiction to make a suppression order. Such an order was justified, to ensure, as far as possible, that if A was charged with an offence he would receive a fair trial.
The Evidence Act
In addition to his inherent jurisdiction, the Acting Chief Judge also had jurisdiction to make the suppression order pursuant to the legislative scheme prescribed by the Evidence Act.
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. This is demonstrated by the second reading speech introducing the proposed amendments to section 69A of the Evidence Act where the Minister observed:
… The section 69a now proposed by the Bill has the following new features:
(i)It makes it quite clear that it is no longer merely a matter for the court to ‘consider it desirable’ upon enumerated grounds to make a suppression order. Instead, the court must be satisfied on the balance of probabilities that an order ought to be made.
…
(iii)…the sole basis for the making of an order will be ‘to prevent prejudice to the proper administration of justice’ a formula that is similar to, though stronger than, that which obtains in nearly all other Australian jurisdictions…This change will ensure than the attention of the courts will be focused almost exclusively upon the assurance and promotion of the integrity, well-being, efficacy and effectiveness of its own processes and procedures…But there is to be a further assurance that any decision to make a suppression order on this single basis will not lightly be taken. That guarantee is provided by the fact that the court must recognise as considerations of substantial weight, the public interest in publication of the relevant material and the right of the news media to publish it. For the first time in relevant Australian legislation the right of the news media … to publish relevant material is to be accorded full recognition by the courts..[16]
[16]South Australia, Parliamentary Debates, Legislative Assembly, 15 March 1989, 2415-2416 (C J Sumner)
Sections 69A and 70 of the Evidence Act relevantly provide:
69A. (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) 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
(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.
…
(4) A suppression order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.
(5) Where an application is made to a court for a suppression order—
(a) any of the following persons, namely:
(i) the applicant for the suppression order;
(ii)a party to the proceedings in which the suppression order is sought;
(iii)a representative of a newspaper or a radio or television station;
(iv)any person who has, in the opinion of the court, a proper interest in the question of whether a suppression order should be made,
is entitled to make submissions to the court on the application and may, by leave of the court, call or give evidence in support of those submissions;
(b)the court may (but is not obliged to) delay determining the application to make possible or facilitate non-party intervention in the proceedings under paragraph (a)(iii) or (iv).
(6) A suppression order may be varied or revoked by the court by which it was made, on the application of any of the persons entitled to make submissions by virtue of subsection (5)(a).
(7) On an application for the making, variation or revocation of a suppression order—
(a)a matter of fact is sufficiently proved if proved on the balance of probabilities;
(b)if there appears to be no serious dispute as to a particular matter of fact, the court (having regard to the desirability of dealing expeditiously with the application) may—
(i) dispense with the taking of evidence on that matter; and
(ii) accept the relevant fact as proved.
…
70(1) Where a person disobeys an order under this Division, he shall—
(a)if the court by which the order was made has power to punish for contempt—be guilty of a contempt of that court and punishable accordingly; and
(b)whether or not that court has power to punish for contempt—be guilty of a summary offence punishable by a fine not exceeding two thousand dollars or imprisonment for a term not exceeding six months.
…
The statutory scheme invests a discretion in the court to make a suppression order. The discretion is enlivened where a court is satisfied that a suppression should be made to prevent prejudice to the proper administration of justice or to prevent undue hardship to a potential witness in civil proceedings who is not a party to those proceedings.
The suppression order is defined to mean an order forbidding the publication of specified evidence or of any account or report of specified evidence or forbidding the publication of the name of a witness or a person alluded to in the course of proceedings before the court and of any other material tending to identify any such person.
In Re F[17], King CJ discussed the application of the undue hardship ground in section 69A(1)(b) to limited class of persons. His Honour observed:[18]
The dichotomy between prejudice to the administration of justice and undue hardship is emphasised by the structure of the new subs (1) [of section 69a of the Evidence Act] which places those grounds in separate subparagraphs. Moreover the amendment by limiting the persons to whom the undue hardship ground applies gives a strong indication that hardship is not to be regarded as a prejudice to the proper administration of justice as that expression is used in the section. I think that the structure of the section and the legislative history combine to refute any argument that hardship to the accused may still be regarded as a ground for suppression under par (1). The legislature by limiting the classes of persons to whom the undue hardship ground applies, has made it clear that undue hardship to persons outside those classes is not to be a ground for suppression. General considerations as to the content of the concept “the administration of justice” must give way to the legislative intention as disclosed by the structure of the section and the legislative history. It need hardly be added, I suppose, that although hardship to the accused is no longer of itself a ground for a suppression order, considerations which are relevant to some other aspect of prejudice to the proper administration of justice are not to be disregarded simply because they disclose hardship to the accused.
[17] (1989) 51 SASR 141
[18] (1989) 51 SASR 141 at 147
In G v The Queen[19] the meaning of undue hardship was further explored. Prejudice to a person’s employment was identified as a paradigm example of undue hardship. The court observed:[20]
Some degree of hardship could be expected to be caused by publicity to almost every person, other than the known hardened criminal, who is charged with a criminal offence. 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. There would be little point in a statutory provision which prevented the publication of names which would not be published anyway and which authorised the prohibition of names on the very ground which would be likely to attract publicity: In re a Prosecution under the Customs Act. Moreover, it seems to me that the circumstances must be very rare in which hardship in the form of distress of physical or mental harm to others could be shown to be the likely result of publication of an accused person’s name: In re a Prosecution under the Customs Act. That ground is most often resorted to in support of applications under s. 69. In most cases, however, it cannot be shown that the publication of the name will add very much if anything to the distress and suffering which those close to the accused will suffer from the knowledge that he has been charged and that that fact is known or will soon be known, irrespective of publication, to his friends and close acquaintances. Cases must be rare in which the added factor of media publicity would cause significantly additional distress or physical or mental harm.
Damage to an accused person’s livelihood is a common, perhaps the most common, example of undue hardship caused by publicity….. If a person might be prejudiced in his employment, or in an opportunity to obtain employment, or in his business or profession, in consequence of publication of his name, he should generally be considered to suffer hardship, which is undue by reason of the fact that he might sustain what amounts to a pecuniary penalty, perhaps of a severe kind, at a time when he has not been convicted. This consideration, where it applies, should generally, in my opinion, lead to the prohibition of the publication of the name, at least until committal for trial and in some cases until trial or verdict.
[19] (1984) 35 SASR 349
[20] (1984) 35 SASR 349 at 352
In the present case counsel for A submitted that the statutory discretion provided in section 69A of the Evidence Act had been enlivened. It was submitted that the statutory tests had been met. It was said that the court should be satisfied that a suppression order should be made to prevent prejudice to the proper administration of justice. In particular counsel relied on the undermining of the protection offered by the Forensic Procedures Act and of the problems with identification of a suspect and the attendant risks if a trial eventuates.
It was also contended that undue hardship would be occasioned to A as a witness in the civil proceedings brought by Ms Draper. A has been employed as a photographer by a media outlet. On 4 March 2004 an officer of the media outlet informed A that he had been identified as the murder suspect in the case of C by work colleagues as a result of the publicity surrounding the events of 2 and 3 March 2004 as the murder suspect. He was informed that should publicity occur again his future employment would have to be reviewed.
On 18 May 2004 the officer informed A that as a result of the broadcast by Channel Seven after the promotion identifying A as a murder suspect that A would have to take leave from work until further notice.
On 20 May 2004 A met with the General Manager of the media outlet and another officer. A was informed that he was suspended on full pay due to concerns raised by work colleagues about his involvement in the murder of C. The officer gave A the option of either resigning his employment or allowing his employer to investigate his alleged involvement in the murder.
A’s solicitors wrote to the officer advising that A did not intend to resign. A further meeting occurred on 21 June 2004 and the media outlet offered A a four month termination package and if that was not accepted his employment would be terminated. A was told that the reason why his employment was to be terminated was the promotion broadcast by Channel Seven. A refused to resign.
The media outlet terminated A’s employment on 5 July 2004. A commenced Industrial Court proceedings with respect to wrongful dismissal seeking an order for reinstatement.
It is A’s fear and belief that the termination of his employment by the media outlet would make it difficult if not impossible for him to obtain any gainful alternative employment in the media industry in Australia.
It was said that in the circumstances a suppression order made by the Acting Chief Judge of the District Court forbidding the publication of A’s name and of any other material tended to identify A and forbidding publication of the evidence that he was a suspect in a murder case was entirely appropriate.
Counsel for Channel Seven submitted that the discretion provided in section 69A of the Evidence Act was not enlivened. It was said that Channel Seven had done nothing to breach the Forensic Procedures Act, that the risk associated with identification was too remote and that the loss of employment by A did not amount to undue hardship. These submissions were supported by counsel for the Advertiser who intervened as of right pursuant to section 69A.
The order made by the Acting Chief Judge falls within the meaning of suppression order in section 68 of the Evidence Act. The Acting Chief Judge restrained the publication of ‘specified evidence of statements made before the court’ in civil proceedings. He also restrained the publication of the name of A being a person alluded to in the court proceedings. He further restrained the publication of any other material tending to identify A.
Once the statutory discretion has been enlivened and the basis for a suppression order within the terms of the statute has been established the court is required to engage in the balancing exercise identified in section 69A(2) of the Evidence Act.
The court is further directed by sub-section 69A(2)(a) to recognise the public interest in publication of information related to court proceedings and the consequential right of the news media to publish such information as considerations of substantial weight.
The court is directed that it may only make an 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 given greater weight than the considerations of public interest in publication of information related to the court proceedings.
In undertaking the balancing process regard should be had to the nature of the information sought to be published. In the present case Channel Seven seeks to publish the fact that A is a suspect with respect to the murder of C. Channel Seven does not seek to support by evidence that there are reasonable grounds for this suspicion. Channel Seven is only prepared to assert that a police officer has suggested that reasonable grounds exist. The basis of that officer’s belief has not been disclosed.
Counsel for Channel Seven drew attention to section 131 of the Supreme Court Act 1935 (SA). This section allows the public inspection of processes relating to proceedings. However the court retains a residual discretion to refuse to allow inspection. The right to inspect is subject to a suppression order. Section 131 does not restrict or limit the inherent jurisdiction of the court to protect its processes from abuse. Section 131 is in aid of and does not impede the administration of justice.
Conclusion
The analysis of the evidence in this matter demonstrates that there was material on which the Acting Chief Judge was entitled to treat his discretion to make a suppression order both in his inherent jurisdiction and pursuant to the Evidence Act as enlivened. It has not been shown that the Acting Chief Judge had regard to any inappropriate material or that he failed to have regard to any relevant matter. No error of principle has been identified or demonstrated. In these circumstances his exercise of discretion should not be interfered with.
The further evidence before this court provides additional support for the orders made. The statutory scheme which is designed to protect confidentiality of forensic procedures has been undermined in a way that has a tendency to affect the administration of justice. A has suffered hardship with respect to employment.
The order made by the Acting Chief Judge was made within discretion. The order should not be disturbed. This appeal should be dismissed.
BESANKO J: This is an appeal against a suppression order made by a Judge of the District Court on 19th May 2004. On that day the Judge made an order pursuant to s 69A(1)(b) of the Evidence Act 1929 (“the Act”) suppressing from publication any reference to a named person being a murder suspect. I will not name the person in these reasons for judgment. The majority of the Court have decided to uphold the suppression order and there are the provisions of s 48 of the Criminal Law (Forensic Procedures) Act 1998 (referred to below) to consider. I will refer to the named person as Mr A. This is also an appeal against an order made by the Judge on the 21st May 2004 dismissing an oral application by the appellant to have the suppression order made on the 19th May 2004 discharged. Strictly, the proper term is “revoked” but for convenience I will use the term “discharged” (s 69A(6)). The appeal against these two orders is brought pursuant to s 69A(8) and 69B of the Act.
The suppression order was made in an action in the District Court between Ms Patricia Draper and Channel Seven Adelaide Pty Ltd. Channel Seven Adelaide Pty Ltd is the appellant and it appeals to this Court against the suppression order, and the Judge’s order refusing to discharge it. Ms Draper is the respondent to the appeal, but before this Court she indicated that she did not wish to make submissions and her counsel was given leave to withdraw. At the hearing of the appeal, the Advertiser Newspaper Pty Ltd (“the Advertiser”) exercised its right to be heard on the appeal (s 69A(9)(c)) and made submissions in support of the appeal being allowed. Mr A was given leave to appear before the Judge of the District Court, and he exercised his right to be heard on the appeal to this Court (s 69A(9)(d)) and he made submissions in support of the appeal being dismissed.
The factual background and the course of the proceedings before the Judge
The respondent is the Federal Member for the seat of Makin in the State of South Australia, and the appellant is a commercial television broadcaster.
The appellant broadcasts throughout South Australia a current affairs program called “Today Tonight”. It is broadcast at 6.30 pm each night from Monday to Friday. The program includes stories of current interest. The appellant decided that it would broadcast a story about allowances given to members of Parliament for overseas travel including allowances for a member’s partner. The story involved the respondent and her then partner, Mr A, who went on an overseas trip in 2000.
From time to time the appellant broadcasts a promotion of a story to be shown on the program the following night, or if a Friday, to be shown on the program on the following Monday night.
On Friday, 14th May 2004 at about 7:00 pm, the appellant broadcast the following promotion in relation to the story about the respondent and Mr A to be broadcast the following Monday night:
“South Australia’s Federal MP – (whilst depicting a picture of the plaintiff) – her boyfriend (while broadcasting a picture of [Mr A]) and the business trip – disgusted that taxpayers’ funds have been used (whilst depicting a person with an obscured face) the paper trail and whistleblower and he is a suspect in a murder case (whilst broadcasting a picture of [a young woman, C]).”
This prompted almost immediate action from the respondent. She sought an interlocutory injunction from a Judge of the District Court. The respondent issued an inter partes summons against the appellant, a statement of claim and a notice for specific directions. It seems that this was done on 18th May or 19th May 2004 although the application for an interlocutory injunction first came before the Judge on 16th May 2004. Nothing turns on the date the documents were issued. Broadly speaking, the respondent sought interlocutory and final injunctions restraining the broadcasting by the appellant of the story and the further broadcasting of the promotion by reason of the fact that they were defamatory of and concerning her, and damages for defamation in relation to the broadcasting of the promotion. In her statement of claim the respondent alleges that the imputations which arose from the promotion are as follows:
“(a)that the plaintiff has unlawfully obtained payments of taxpayers’ money for travel expenses;
(b)that the plaintiff has been engaged in conduct concerning the use of taxpayers’ money which is being kept a secret from relevant authorities;
(c)that unlawful conduct by the plaintiff is now being disclosed;
(d)that the plaintiff has a current relationship with a person currently suspected by the authorities of murder of [C].”
The respondent’s application for an interlocutory injunction came before the Judge on the afternoon of Sunday, 16th May 2004. There was no reporter present and there is no transcript of the hearing. The Judge heard submissions from counsel for the respondent, counsel for the appellant, and by leave, counsel for Mr A. The Judge had before him an affidavit of the respondent and an unsworn affidavit of the executive producer of the program, Today Tonight, Mr Peter Graham Archer. Not surprisingly, in view of the short notice, it would seem from evidence put before this Court that a number of the submissions put to the Judge were assertions as to matters of evidence. After hearing the submissions, the Judge made the following order (relevantly):
“1.Until further order the defendant (whether by its agents or employees) be restrained from:
1.1 The ongoing broadcasting of promotion advertisements featuring the plaintiff in the defendant’s program “Today Tonight”;
1.2 Broadcasting a “Today Tonight” program referring to the plaintiff in the context of parliamentary travel allowance and/or association with Mr A;”
For the sake of completeness I mention that on 19th May 2004, the above order was amended to delete from paragraph 1.2 “Mr [A]” and substitute therefore “her companion of August 2000”. It is unnecessary to explain the reasons for this amendment.
The respondent’s application for an interlocutory injunction came on again before the Judge on Wednesday, 19th May 2004. At that time, the Advertiser also appeared before the Judge. The appellant and the Advertiser applied for orders discharging the interlocutory injunction. During the course of the hearing before the Judge on 19th May 2004, the appellant tendered three affidavits sworn by members or employees of the firm of solicitors representing it, two from a Mr John Joseph Kelly, and one from Mr Haroon Riaz Hassan. Speaking generally for the moment, the appellant said that the affidavits established that the story which was the subject of the promotion and was to be part of the program was already the subject of considerable publicity by various media outlets and therefore in the public domain. A number of publications by various media outlets were exhibited to the affidavits. For their part, the respondent and Mr A sought a suppression order in terms of the order eventually made. After hearing submissions, the Judge refused to discharge the interlocutory injunction and he made the suppression order. At the same time, he made a second and more wide reaching suppression order, but as that order has since been discharged it is unnecessary to go into the details of that order.
The appellant appealed against the suppression order and the interlocutory injunction and its appeal came before Perry J. After some debate before Perry J the appellant did not pursue its appeal against the suppression order. It appears that it adopted that course because it took the view that an appeal against the suppression order lay to this Court and not to a single Judge. The appeal against the interlocutory injunction was pursued and Perry J heard argument from counsel for the appellant, counsel for the respondent and counsel for Mr A. The Advertiser was also present by counsel, but it did not put submissions in relation to the appeal against the interlocutory injunction.
Before Perry J the appellant tendered a fourth affidavit sworn by a member or employee of the firm of solicitors representing it, again establishing it was said, that the story involving the respondent and Mr A was already the subject of considerable publicity and therefore in the public domain. Perry J heard submissions on Thursday 20th and during the morning of Friday 21st May 2004 and he delivered an ex tempore judgment upon the conclusion of the submissions (Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 144). He allowed the appeal and quashed the interlocutory injunctions. He said (at [14]-[15]):
“I found my decision principally on the footing that the balance of convenience overwhelmingly favours publication. As was pointed out by Doyle CJ in Jakudo, with whose judgment the other members of the Court concurred, there is a substantial public interest in free discussion of matters of public or general interest.
Furthermore, in this case there are reasonable grounds to suppose that a defence of justification may succeed.”
The appellant then applied to the Judge of the District Court for an order discharging the suppression order (s 69A(6)). The application came before the Judge during the afternoon of Friday 21st May 2004. The Judge was referred to the additional affidavit tendered during the hearing before Perry J. He heard submissions from counsel for the appellant, counsel for the respondent, counsel for the Advertiser and counsel for Mr A, and at the conclusion of the submissions he dismissed the applicant’s application to discharge the suppression order.
Two other matters should be mentioned before leaving this overview of the factual background and the course of the proceedings before the Judge. First, on 21st May 2004, Mr A commenced an action in this Court against the appellant and the Australian Broadcasting Commission (sic Corporation) (“ABC”) claiming damages for defamation in relation to the promotion, which he said was broadcast on more than one occasion on Friday 14th and Saturday 15th May 2004, and in relation to an article published by the ABC late in the afternoon of Wednesday 19th May 2004. Mr A alleges in his action that the imputations which arise from the promotion are as follows:
“(a)the plaintiff is a suspect in a murder case arising from the death of [C], and
(b) there are grounds to so suspect him, which are reasonable.”
The appellant filed a defence in this action on 18th June 2004. It accepted that the imputation arose that Mr A is a suspect in a murder case arising from the death of C and it seeks to justify that imputation. It denies that an imputation arose that there are reasonable grounds to so suspect him and does not seek to justify such an imputation. As I understand it, no suppression order has been made in that action.
Secondly, various affidavits were tendered on the hearing of the appeal before this Court. First, the Advertiser tendered an affidavit sworn by a member of the firm of solicitors representing it. That affidavit deals with the position of Mr A’s employment by a media organisation. Mr A tendered three affidavits, one from himself and two from members or employees of the firm of solicitors representing him. Those affidavits deal with the position of Mr A’s employment by the media organisation, and the investigations by the police in relation to the murder of C insofar as they involved him. I will refer to these affidavits in more detail later.
The reasons of the Judge
The Judge did not deliver formal reasons for his decision to make the suppression order or for his decision not to discharge it. He made some observations in the course of submissions, but I think it is fair to say that he did not give any detailed reasons for his decisions. However, the Judge had the benefit of detailed submissions from the persons and entities who appeared before him which, as far as I am able to tell, were directed to all issues possibly relevant on the applications.
The terms of the suppression order indicate that the order was made pursuant to section 69A(1)(b) of the Act, and in the circumstances the Judge must be taken to have formed the view that a suppression order should be made to prevent undue hardship to Mr A as a potential witness in the civil proceedings commenced by the respondent. The Judge said on 21st May 2004 that he had regard to the competing considerations referred to in s 69A(2) when making the suppression order on 19th May 2004, and there is no reason to think that that is not so.
The Judge might have said more than he did, but I think when all the circumstances are considered the criticisms which might be made of his reasons do not rise to the level of an error of law and I did not understand it to be suggested otherwise (Herald & Weekly Times Ltd v Director of Public Prosecutions & Vlassakis [2003] SASC 234; (2003) 86 SASR 70 per Lander J at [227] – [236] per Bleby J at [308] and per Besanko J at [339] – [341]).
The issues on the appeal
It is convenient to start by setting out the relevant statutory provisions in the Act. The relevant provisions of s 69A are as follows:
“69A. (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) 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
(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.
…
(4) A suppression order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.
…
(6) A suppression order may be varied or revoked by the court by which it was made, on the application of any of the persons entitled to make submissions by virtue of subsection (5)(a).
(7) On an application for the making, variation or revocation of a suppression order –
(a)a matter of fact is sufficiently proved if proved on the balance of probabilities.
(b)if there appears to be no serious dispute as to a particular matter of fact, the court (having regard to the desirability of dealing expeditiously with the application) may –
(i)dispense with the taking of evidence on that matter; and
(ii)accept the relevant fact as proved.
…
(10) Where a court makes a suppression order (other than an interim suppression order), the court must –
(a) immediately forward to the Registrar a copy of the order; and
(b) within 30 days forward to the Attorney-General a report setting out –
(i) the terms of the order; and
(ii) the name of any person whose name is suppressed from publication; and
(iii) a transcript or other record of any evidence suppressed from publication; and
(iv) full particulars of the reasons for which the order was made.”
Section 68 is a definition section. The term “suppression order” is defined as follows:
“ ‘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 any other material tending to identify any such person.”
Importantly, the term “evidence” is defined broadly and includes any statement made before a court whether or not the statement constitutes evidence for the purposes of the proceedings before the court.
The powers of this Court on appeal are set out in s 69B(3) of the Act and are as follows:
“(3) Upon an appeal under this Division, the appellate court –
(a)may confirm, vary or revoke the order or decision subject to the appeal; and
(b)may make any order or decision under this Division that could have been made in the first instance; and
(c)may make orders for costs and orders dealing with any other incidental or ancillary matters.”
In the course of its submissions, the appellant made reference to s 131 of the Supreme Court Act 1935 (“SCA”) and the provisions of that section relevant to the issues on the appeal are as follows:
“131. (1) Subject to this section, the court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of –
(aa)any process relating to proceedings and forming part of the court’s records;
(a) a transcript of evidence taken by the court in any proceedings;
(b) any documentary material admitted into evidence in any proceedings;
(c) a transcript of submissions by counsel;
(d)a transcript of the judge’s summing up or directions to the jury, in a trial by jury;
(e)a transcript of reasons for judgment (including remarks made by the court on passing sentence);
(f)a judgment or order given or made by the court.
(2) A member of the public may inspect or obtain a copy of the following material only with the permission of the court:
(a) material that was not taken or received in open court;
(b) material that the court has suppressed from publication;
(c)material placed before the court during sentencing proceedings (including material furnished under section 7 of the Criminal Law (Sentencing) Act 1988);
(d)documentary material filed in connection with a preliminary examination;
(e)a transcript of any oral evidence taken at a preliminary examination;
(f)a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced;
(g)material of a class prescribed by the regulations.
(3) The court may permit inspection or copying of material referred to in subsection (2) subject to any condition it considers appropriate, including a condition limiting the publication or use of the material.”
There is an equivalent section in the District Court Act 1991 (s 54).
The appellant submits that the Judge made a number of errors in making the suppression order and then in deciding not to discharge it. First, it submits that the order which the Judge made is not a suppression order within the terms of the Act. By reference to the definition, it is submitted that there is no specified evidence of Mr A being a murder suspect (paragraph (a) of the definition) and the order made by the Judge does not forbid the publication of Mr A’s name or of any other material tending to identify him (paragraph (b) of the definition). If this submission is correct, the order is invalid and it is unnecessary to consider the further submissions in support of the appeal. This submission raises a question of law. Secondly, it is submitted that there was no basis upon which the Judge could find that the suppression order should be made to prevent undue hardship to Mr A within the terms of s 69A(1)(b). It is submitted that any hardship to Mr A could not be characterised as undue, particularly when regard is had to the fact that (so it is said) it is already well-known that Mr A is a murder suspect, the fact that he is a murder suspect and the fact that he has commenced his own action in relation to the promotion seeking (so it was said) to publicly vindicate his reputation. It is submitted that those proceedings are open to inspection by any member of the public (s 131 of the SCA). The appellant submits that a necessary precondition to the making of the suppression order – undue hardship to Mr A – was not made out. Thirdly, it is submitted that the Judge failed to take account of the fact that the matter the subject of the suppression order had received a good deal of publicity by other media outlets and he failed to accord substantial weight to the public interest in the publication of information related to court proceedings and the consequential right of the news media to publish such information. In other words, it is submitted that the Judge had failed to carry out correctly what I will call the balancing exercise required by s 69A(2) of the Act. It is submitted that had the Judge carried out the exercise correctly he would not have made the suppression order on 19th May 2004, or he would have discharged it on 21st May 2004.
The Advertiser also submits that the appeal should be allowed. It submits that it was never said by the respondent or Mr A what Mr A would be a witness about, and it is also submitted that the Judge failed to take into account the extent of the publicity which had already taken place. The Advertiser submits that insofar as the undue hardship related to the potential adverse effect of publicity on Mr A’s employment that was no longer a consideration as the evidence showed that his employment had been terminated since the hearings before the Judge.
Mr A submits that the suppression order was valid, the Judge had approached his task correctly and there was material upon which he could reach the conclusions which he did. Mr A submits that the appellant has not identified an error of the type which would justify the intervention of this Court.
Mr A also filed a Notice of Alternative Contentions wherein he said that the suppression order might be upheld on the ground that it fell within the terms of s 69A(1)(a), namely, that it should be made to prevent prejudice to the proper administration of justice. In support of this submission, Mr A relied on two matters. First, he submits that if it is broadcast that he is a murder suspect that may result in him being erroneously identified as a person involved in the murder. In those circumstances he could never receive a fair trial if he was tried and the proper administration of justice would be prejudiced. Secondly, Mr A submits that the source of the statement that he is a murder suspect is proceedings instituted against him in March 2004 by the police under the Criminal Law (Forensic Procedures) Act 1998 (“the Forensic Procedures Act”). The police sought an order under the Forensic Procedures Act for a forensic procedure, namely, the provision of fingerprints and handprints by Mr A. That Act prohibits the publication of a report of proceedings under the Act containing the name of a person under suspicion or other information tending to identify the person save in certain circumstances not presently relevant (s 48). It is said that a suppression order is necessary to prevent a breach of s 48 of the Forensic Procedures Act, and therefore it should be made to prevent prejudice to the proper administration of justice.
I turn now to consider each of the issues raised on the appeal.
Is the order made by the Judge on the 19th May 2004 a suppression order within the terms of the Act?
I have already referred to the wide definition of the term “evidence” in s 68 of the Act. It includes evidence given orally and evidence given by way of an affidavit. As the definition makes clear it also includes a statement made before the Court whether or not the statement constitutes evidence in the proceedings. That would include statements made before a court by counsel for a party or by a party in person. Proceedings include not only the trial of an action or charge, but also any interlocutory proceedings in the action or charge.
I did not understand the appellant to argue that there was not a reference to Mr A being a murder suspect in the respondent’s affidavit and/or in the submissions made to the Judge on Sunday, 16th May 2004 and/or in the submissions made to the Judge on Wednesday, 19th May 2004. The appellant’s submission was that the words in paragraph (a) of the definition of suppression order and the apparently wide definition of evidence should be read down to recognise the object and purpose of Part 8 of the Act. The appellant submits that in most cases an order under s 69A of the Act would be designed to protect a person’s identity in some way. The suppression order made by the Judge did not have that quality. The appellant submits that the information that Mr A is a murder suspect was not confidential before the respondent commenced her action in the District Court and that the action in which the suppression order was made did not directly involve Mr A.
Assuming for the moment the factual assertions are made out, nevertheless I do not think the appellant’s submission is correct. There is no reason to read down the words in paragraph (a) of the definition of suppression order, or the wide definition of evidence in the Act. Furthermore, the appellant was unable to suggest a way in which the definitions might be read down so to produce a clear, logical and workable test for determining what constitutes a suppression order. In my opinion, the order made by the Judge was a suppression order within paragraph (a) of the definition of that term in s 68 of the Act. A statement was made before the Judge to the effect of Mr A being a murder suspect.
Paragraphs (a) and (b) of the definition of suppression order are alternatives, and in view of my conclusion in relation to paragraph (a), it is not strictly necessary for me to consider the appellant’s submission that the order does not fall within the terms of paragraph (b) of the definition. There is much to be said for the appellant’s submission because the order does not forbid the publication of Mr A’s name, and I am disposed to think that the assertion that he is a murder suspect is not a matter tending to identify him. Whether the order could nevertheless be upheld by reference to s 69A(4) is debatable. However, in the circumstances it is not necessary for me to decide these questions because of my conclusion that the order is a suppression order within the terms of paragraph (a) of the definition.
I reject the appellant’s submission that the order does not fall within the definition of the suppression order. The suppression order is not invalid on this ground.
Undue hardship within s 69A(1)(b) of the Act and the balancing exercise required by s 69A(2) of the Act
The Judge found that the suppression order should be made to prevent undue hardship and he found that that consideration should be accorded greater weight than the consideration referred to in s 69A(2)(a). Those two matters overlap because the nature and extent of the hardship is relevant to the balancing exercise required by s 69A(2). It is convenient to consider the appellant’s submissions and those of the Advertiser in the context of both issues.
The appellant submitted that the Judge erred in finding that the suppression order should be made to prevent undue hardship to Mr A or, in the alternative, in finding that that consideration should be accorded greater weight than the consideration referred to in s 69A(2)(a) and it put forward four arguments in support of that submission. First, it said that as at 19th May 2004, the suppression order should not have been made because there had already been substantial publicity of the assertion that Mr A was a murder suspect and therefore it could not be said that the suppression order should be made to prevent undue hardship to Mr A. Secondly, it said that as at 21st May 2004, the suppression order should have been revoked because by that time Mr A had issued his defamation proceedings thereby placing the assertion that he was a murder suspect on the public record (s 131 SCA) and he could no longer say that the suppression order should be made to prevent undue hardship to him or, in the alternative, that that consideration should be accorded greater weight than the consideration in s 69A(2)(a). Thirdly, it said that as at 21st May 2004, the suppression order should have been revoked because in light of further publicity and the fact (so it was argued) that the proceedings before Perry J could be reported it could not be said, or it could no longer be said, that the suppression order should be made to prevent undue hardship to Mr A. Fourthly, it said that as at the time of the hearing before this Court, Mr A had lost his employment by a media organisation and therefore he could no longer say that the suppression order should be made to prevent undue hardship to him or, in the alternative, that that consideration should be accorded greater weight than the consideration in s 69A(2)(a).
Before considering these submissions, it is convenient to summarise the relevant legal principles. First, the question of what constitutes undue hardship has been considered by this Court on a number of occasions. It is sufficient to refer to two decisions. In R v Lennon (1985) 38 SASR 356, King CJ said (at 361):
“A court should not lightly, or as a matter of course, make an order prohibiting publication of the names of witnesses. It should only be done where the court perceives a real, and not merely, fanciful advantage to the administration of justice or hardship which can properly be regarded as ‘undue’.”
In G v The Queen (1984) 35 SASR 349 King CJ said in the context of the suppression of the name of a person charged with a criminal offence (at 352):
“The use of the adjective ‘undue’ to qualify ‘hardship’ in the section, indicates something more than that ordinary degree of hardship is required.”
Secondly, there is no doubt that the extent of publicity of the matter which is the subject of a proposed suppression order is relevant to the question of whether the order should be made. In other words, an order will not be made if the damage has already been done (State of South Australia v Carter and Myers (1991) 161 LSJS 325 per Cox J at 327).
Thirdly, this is an appeal and at least insofar as the decision made under s 69A(2) is concerned it is an appeal against the exercise of a discretion. This Court will only interfere if the exercise of the discretion miscarried. The relevant principles for deciding if that has occurred are well known (House v The King (1936) 55 CLR 499 at 504 – 505).
I turn now to consider the submissions made by the appellant and the Advertiser.
As to the first argument, it is true that as at 19th May 2004 there had been considerable publicity of the story involving the respondent and the allowances she received for her overseas trip and some publicity of the fact that her partner at the time of the trip was Mr A and that he was a murder suspect. There was the promotion which had been broadcast more than once between Friday 14th May 2004 and the time at which the Judge granted the interlocutory injunction on Sunday 16th May 2004. The evidence is not clear as to how many times the promotion was broadcast during that period. The promotion did not mention Mr A’s name, but it did show his image and those persons recognising his image were told that he was a murder suspect. In addition to the promotion there was also the ABC online news article which referred to the fact that Mr A was a murder suspect.
The Judge was referred to these matters but he nevertheless made the suppression order. I am not persuaded that he was wrong to do so. No doubt some damage had been done to use the words of Cox J in State of South Australia v Carter and Myers (supra), but the publicity was not so widespread that it can be said that the Judge erred in making the order.
As to the second argument, I note that the Inter Partes Summons and Statement of Claim/Orders Sought issued by Mr A on 21st May 2004 would reveal to any person reading the same that Mr A complains of a broadcast by the appellant that asserts that he is a murder suspect and a publication by the ABC which contains an assertion that he is a murder suspect. Mr A asserts that those statements are defamatory of and concerning him. He seeks damages in relation to those statements.
The Inter Partes Summons and Statement of Claim/Orders Sought are “process relating to proceedings” and they form part of this Court’s records within s 131(1)(aa) of the SCA. On application any member of the public is allowed to inspect and obtain a copy of the Inter Partes Summons and Statement of Claim/Orders Sought. By reason of s 131(2) certain material may only be inspected and copied by a member of the public with the leave of the Court. There might be some difficulties with the interpretation of subsection (2) and the extent to which it qualifies subsection (1), but it seems to me to be clear that absent a suppression order in relation to the Inter Parte Summons and Statement of Claim/Orders Sought (assuming for the moment that one could be made) those documents are available for inspection and copying by any member of the public without the need for the leave of the Court. In that sense those documents and the assertions contained in them are part of the public record. It seems to me that that is a significant matter when considering the resolution of the present issue. I appreciate that s 131 SCA deals with the right of inspection and copying and not directly with the right of publication. However, the fact is that the suppression order relates to the proceedings instituted by the respondent and not to the proceedings instituted by Mr A. He has instituted proceedings and at the moment those proceedings including the reference to the promotion are part of a record which can be inspected and copied by any member of the public. Absent a suppression order in the proceedings instituted by Mr A, a member of the public, including a media organisation, could publish a report of the proceedings. It seems to me that just as it is relevant in determining whether a suppression order should be made to know if the damage has already been done, it is relevant that the damage could be done whether or not the suppression order is made or remains in place.
There are two further relevant considerations. The first is that the reasons for an award of damages in an action in defamation includes a vindication of the plaintiff to the public. In Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Windeyer J said (at 150):
“It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”
(See also John Fairfax and Sons Ltd v Palmer [1987] 8 NSWLR 297 per Samuels JA at 309.) Secondly, as I understand it, absent a suppression order any steps in Mr A’s action insofar as they may involve hearings in open court can be reported. This includes any interlocutory hearings as well as the trial of the action. In his action Mr A could not obtain a suppression order pursuant to s 69A(1)(a) of the Act because he is a party to the action. I think it is unlikely he would obtain an order pursuant to s 69A(1)(a) (ie., to prevent prejudice to the proper administration of justice) bearing in mind the reason for an award of damages in defamation proceedings referred to above.
In my opinion, once Mr A issued his defamation proceedings it could no longer be said that a suppression order should be made to prevent undue hardship to Mr A. The Inter Partes Summons and Statement of Claim/Orders Sought can be inspected by any member of the public, any future steps in the proceedings in open court can be reported and one of the reasons for an award of damages in an action in defamation is the public vindication of the plaintiff’s reputation.
Mr A issued his defamation proceedings on 21st May 2004 and the Judge should have discharged the suppression order on 21st May 2004 on the ground that it could no longer be said that the suppression order should be made to prevent undue hardship to Mr A, or if this be wrong, it could no longer be said that it was reasonable to accord greater weight to hardship to Mr A than the public interest in the publication of information related to court proceedings, and the consequential right of the news media to publish such information.
In view of this conclusion it is strictly unnecessary for me to consider the third and fourth arguments put by the appellant and the Advertiser. I will comment on them briefly.
As to the third argument, there was some further publicity of the assertion that Mr A was a murder suspect between 19th May and 21st May 2004, but the evidence is not clear as to the nature and extent of the publicity in this State. If this was the only argument the appellant and the Advertiser relied on I would not hold that the Judge erred in refusing to discharge the suppression order on 21st May 2004. The nature and extent of the further publicity is unclear and I could not confidently conclude it was so extensive that it can be said that the damage had been done.
The appellant and the Advertiser argued that the appeal hearing before Perry J can be reported and that the hearing included the assertion that Mr A was a murder suspect. Perry J declined to make a suppression order in relation to the proceedings before him. The appellant and the Advertiser submitted that the suppression order made by the Judge only related to the proceedings before him and not to the appeal hearing before Perry J. This point may be a difficult one and it was not the subject of detailed submissions from all parties. The appeal can be decided on other grounds and in the circumstances I do not propose to address it further.
As to the fourth argument, the evidence before this Court is to the effect that on 5th July 2004 Mr A’s employer purported to terminate his employment. Mr A does not accept that the termination was valid and effective. The appellant and the Advertiser submitted that this Court should conclude that the hardship to Mr A could no longer be characterised as undue because his employment could no longer be affected. I reject this submission for two reasons. First, such an argument, based as it is on a circumstance arising after the Judge made the suppression order and after he refused to discharge it, should ordinarily form the basis of an application to the Judge for a revocation of the order, not an application to this Court to form its own view based on fresh evidence. Secondly, I am not persuaded that the fresh evidence should lead this Court to conclude that the Judge was wrong. Repetition of the assertion may affect Mr A’s ability to obtain relief against his employer and could certainly affect his ability to obtain new employment.
Did the Judge err in not finding that the suppression order should have been made to prevent prejudice to the proper administration of justice?
As I have said, Mr A filed a notice of alternative contentions raising this as an additional or alternative ground upon which the suppression order should be upheld. He submitted that the Judge should have found (and this Court should find) that the suppression order should be made to prevent prejudice to the proper administration of justice (s 69A(1)(a)), and in support of this submission he advanced the two matters which I have previously identified.
It is convenient to start by stating the facts which are relevant to this submission.
On 25th February 2004 the police applied for an order authorising a forensic procedure under the Forensic Procedures Act namely, the taking of fingerprints and handprints from Mr A. The application was filed in the Adelaide Magistrates Court and it was supported by an affidavit from an investigating police officer setting out the reasons he suspected on reasonable grounds that Mr A had murdered C. It is not necessary for me to state those reasons. On 26th February 2004 the application and affidavit were served on Mr A. On 28th February 2004 the Advertiser published an article about the murder of C and the application for an order authorising a forensic procedure. Mr A was not named in the article.
On 2nd March 2004 the application came on for hearing before a Magistrate. Mr A and his solicitor were present. A large number of representatives of various media outlets were also present. The order authorising a forensic procedure was made and Mr A and his solicitor went to police headquarters where the procedure was carried out. Mr A was filmed by various media outlets.
Mr A’s solicitor was advised by the police that none of the DNA samples (which had been taken earlier) or fingerprint samples taken from Mr A on 2nd March 2004 matched those found at the scene of the murder. He was told that Mr A would not be charged, although that might change if new evidence came to light. On 3rd March 2004 a representative of the police conducted a press conference and advised representatives of the media that the suspect’s fingerprints and handprints did not match those found at the scene.
The above summary is taken from an affidavit from a member or employee of the firm representing Mr A which was tendered on the hearing of the appeal. However, in substance the above matters were put to the Judge on 16th May and 19th May 2004.
Counsel for Mr A submitted to the Judge that the suppression order (and indeed the interlocutory injunction) should be made for the two reasons I have previously identified.
It seems that various media outlets broadcast a story about the application under the Forensic Procedures Act and used film footage of Mr A obtained at the time of the application. However, Mr A’s face was obscured such that he could not be recognised. The same film footage without Mr A’s face being obscured was shown when stories about the respondent were broadcast after the interlocutory injunction had been quashed by Perry J.
Mr A’s first submission is that to allow the publication of an assertion that he is a murder suspect may lead to him being identified erroneously as having been involved in the murder. If he was then to be tried for the murder, he may not receive a fair trial because of the erroneous identification resulting from the publication of the assertion. In those circumstances, the suppression order should be made to prevent prejudice to the proper administration of justice.
It seems that both the Director of Public Prosecutions and the police were advised of the proceedings before the Judge, but at no time did either seek to appear before the Judge and make submissions.
The law of contempt deals with a case in which, identity being an issue, a photograph of the accused is published. It is not necessary for me to discuss the relevant principles. It is sufficient for me to say that I do not think the concept of the proper administration of justice for the purposes of s 69A(1)(a) is any broader than the concept of the administration of justice which lies behind the principles of the law of contempt. It is clear that for the purposes of the law of contempt the relevant rules as to contempt do not begin to operate until a person is charged or about to be charged (Ex parteAuld; Re Consolidated Press Limited (1936) 36 SR (NSW) 596 per Jordan CJ at 597; Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368). In this case Mr A has not been arrested, and in fact he has been told that he will not be charged as things presently stand.
I reject the first ground upon which Mr A submits that the suppression order should be upheld under s 69A(1)(a).
Mr A’s second submission is that the suppression order should be made to prevent prejudice to the proper administration of justice because as far as the appellant is concerned the source of the information that Mr A is a murder suspect is the application made by the police under the Forensic Procedures Act and that in effect the appellant has, and without a suppression order, will continue to publish a report of those proceedings identifying Mr A contrary to s 48 of that Act. Mr A’s submission involves a number of steps. First, the appellant became aware that Mr A was a suspect in the investigation of the murder of C as a result of the application made under the Forensic Procedures Act. Secondly, the appellant used that information to make the assertion in the promotion that Mr A is a murder suspect. Thirdly, it was only because of the promotion and the proposed story that the respondent was forced to issue her action in the District Court and in the course of those proceedings a statement was made before the Court to the effect of Mr A being a murder suspect. Fourthly, it was that statement which was the subject of the suppression order.
Before dealing with this submission I wish to make it perfectly clear that nothing I say should be construed as in any way detracting from the importance of compliance with s 48 of the Forensic Procedures Act, and the decision I make is based on the evidence put before this Court.
The first reason I reject the submission is that I am not satisfied on the balance of probabilities that the source of the information is the proceedings under the Forensic Procedures Act. Even though the appellant has not sought to identify its source, there are possible sources other than the application under the Forensic Procedures Act, particularly when it is borne in mind that the investigation by the police has been an extensive one. Secondly, even if the source of the information is the proceedings under the Forensic Procedures Act, what is prohibited by s 48 is a report of proceedings under that Act, and I am not satisfied that the promotion constitutes such a report. Nor can it be said with a fair degree of certainty that if the suppression order is discharged what will be published will be a report of proceedings under the Forensic Procedures Act.
Thirdly, and perhaps most importantly, even if the first two matters are decided in favour of Mr A, I am not satisfied that the provisions of the Act should be used as an indirect means of enforcing the provisions of the Forensic Procedures Act when that Act has its own penalty provisions in s 48. I reject the second ground upon which Mr A submits that the suppression order should be upheld under s 69A(1)(a).
I am not satisfied that the suppression order should be made to prevent prejudice to the proper administration of justice. The suppression order cannot be upheld by reference to s 69A(1)(a). It is therefore unnecessary for me to address how the balancing exercise should be carried out if I was satisfied that a suppression order should be made to prevent prejudice to the proper administration of justice within s 69A(1)(a).
Conclusion
For the reasons I have given I would allow the appeal and I would revoke the suppression order made by the Judge on 19th May 2004. I would hear the parties on the question of costs.
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