Channel Seven Adelaide Pty Ltd v Draper

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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…

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Details
Case
[2004] SASC 351
Decision Date

CaseChat Overview and Summary

Channel Seven Adelaide Pty Ltd appealed against a suppression order made by the Acting Chief Judge of the District Court, arguing it was invalid at common law and under the Evidence Act. The suppression order prevented the appellant from broadcasting information about a person, referred to as A, who was a suspect in a murder investigation. The appeal raised issues concerning the conflict between the privacy of the individual and the freedom of the press. The court needed to decide whether the Acting Chief Judge had the inherent jurisdiction to make the suppression order, whether the order was made within the jurisdiction provided by the Evidence Act, and whether the suppression order was justified.

The court held that the Acting Chief Judge had inherent jurisdiction to make suppression orders to protect a person's right to a fair trial. The court also held that the Acting Chief Judge acted within the jurisdiction provided by the Evidence Act. The court found that the suppression order was justified to prevent undue hardship to A and to protect the fair administration of justice. The court rejected the argument that the suppression order was invalid at common law and under the Evidence Act. The court also found that A suffered undue hardship in relation to his employment, and that the suppression order was made within the discretion of the Acting Chief Judge. The appeal was dismissed.

The court concluded that the suppression order should not be disturbed as it was made within the inherent jurisdiction of the court and the jurisdiction provided by the Evidence Act. The court found that the suppression order was justified to prevent undue hardship to A and to protect the fair administration of justice. The statutory scheme designed to protect the confidentiality of forensic procedures had been undermined in a way that had a tendency to affect the administration of justice. The court held that the order made by the Acting Chief Judge was made within discretion and should not be disturbed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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)

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 JusticeInherent 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