Channel Seven Adelaide Pty Ltd v STOCKDALE-HALL - [2005] SASC 307

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
CHANNEL SEVEN ADELAIDE PTY LTD & ANOR v STOCKDALE-HALL
Judgment of The Honourable Justice Vanstone
11 August 2005
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS
Appeal against a suppression order prohibiting from publication certain identifying features of a victim of sexual offences - whether statutory protection in s 71A(4) is comprehensive in its protection of the identity of victims - whether statutory protection of identity of victims in s 71A(4) Evidence Act may be supplemented by order under s 69A(1) made to further protect victim's identity - appeal allowed.
Evidence Act 1929 s 68, s 69A, s 69B, s 71A; Supreme Court Rules 1987 r 1.04, r 97, referred to.
South Australia v Carter & Myers (1991) 161 LSJS 325; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Ross v R (1979) 25 ALR 137; Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 133 ALR 130; Chikonga v Minister of Immigration and Multicultural Affairs (1997) ALD 49, considered.

CHANNEL SEVEN ADELAIDE PTY LTD & ANOR v STOCKDALE-HALL
[2005] SASC 307
Magistrates Appeal: Civil

VANSTONE J: This is an appeal brought pursuant to s 69A(8) and s 69B Evidence Act 1929 (“the Act”) by two media organisations against a suppression order made by a magistrate under s 69A of the Act. The suppression order in question purported to prohibit from publication certain identifying features of a person who was the victim of sexual offences. These were matters of personal history and status. When added to information about the educational institution where the victim and respondent met, those features would tend to identify the victim, at least to a group of persons within the community. There is no need to specify those features for the purpose of these reasons.
The magistrate committed the respondent for sentence upon ten charges of sexual offences against the Criminal Law Consolidation Act 1935. The person whom the suppression was framed to protect was the complainant in three of those charges.
The reasons given by the magistrate for making the order were extremely brief. He justified it by reference to the interests of the administration of justice and the need to prevent undue hardship to the victim. It appears to me, both on the basis of what I have been told of the material put to the magistrate and by inference from the terms of his order, that he considered that publication of certain information about the victim would tend to identify him and that, were he identified, undue hardship would be caused to him. It seems that he apprehended that the statutory protection of the identity of such victims provided by s 71A(4) was, in this case, inadequate, as there was material before him to suggest that publication of certain details of the victim would, in the unusual circumstances of this case, lead to identification, and there was reason to apprehend that such publication would occur. I propose to proceed on the footing that this was the reason for the magistrate’s order, notwithstanding the reference to the interests of the administration of justice. Nonetheless, it would have been far more satisfactory had the magistrate given reasons, however brief, for the order. (See South Australia v Carter & Myers (1991) 161 LSJS 325, 328 per Cox J.)
The principal issue on appeal is whether, in circumstances where s 71A(4) prohibits publication of material from which the identity of a victim of a sexual offence might reasonably be inferred, s 69A of the Act can be used to, in effect, supplement s 71A(4), by specifying particular identifying features which may not be published.
This appeal is as of right. There being no special rules governing an appeal to a single judge pursuant to s 69B of the Act, Supreme Court Rule 1.04 picks up and applies Supreme Court Rule 97. Rule 97.17 provides that the appeal is to be by way of re-hearing. Whilst I would generally expect to determine the appeal on the basis of the materials before the magistrate, I consider that I am able to take further affidavit material if the interests of justice require it.
Upon the appeal, Mr P. Campbell appeared for the appellants. Mr M. Hinton, together with Ms C. Matteo, appeared for the Director of Public Prosecutions. Mr P.J. Humphries sought leave to appear for the victim. There was no objection from any quarter to my hearing from him. Mr Hinton tendered an affidavit of Ms Matteo, who also appeared before the magistrate. Ms Matteo deposed to what took place before the magistrate, there being no transcript of the hearing. Exhibited to Ms Matteo’s affidavit were the information containing the charges, the certificate of record, which included reference to the suppression order made, and a letter written by a public servant, setting out some views about the victim. Whilst Mr Campbell did not object to my receiving Ms Matteo’s affidavit and the first two of the exhibits to it, he objected to my receiving the letter. I note that the letter was not before the magistrate, and indeed was written since the magistrate’s order. Mr Humphries tendered an affidavit of the victim, which exhibited the same letter. Mr Campbell objected to that affidavit, principally on the basis of relevance. I received those materials to which objection was taken de bene esse, indicating that I would rule on their admissibility when delivering my decision. For reasons which will become apparent I have determined that I should decline to receive those documents to which objection has been taken.
As mentioned, the essence of the argument before me concerned the inter‑relationship, if any, of s 69A(1) and s 71A(4) and of the Act. Set out hereunder are the relevant parts of those sections.
Suppression orders
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.
(3) to (14) (not reproduced)
* * * * * * * * * *
Restriction on reporting proceedings relating to sexual offences
71A. (1)     A person shall not, before the relevant date, publish –
(a)any evidence given before a Magistrate or Justice in proceedings against a person charged with a sexual offence (whether the evidence is given in the course of proceedings for a summary or minor indictable offence or in a preliminary examination of an indictable offence); or
(b)any report on such proceedings; or
(c)any evidence given in, or report of, related proceedings in which the accused person is involved after the accused person is charged but before the relevant date,
unless the accused person consents to the publication.
Penalty:      Two thousand dollars.
(2) A person shall not, before the relevant date, publish any statement or representation –
(a)by which the identity of a person who has been, or is about to be, charged with a sexual offence is revealed; or
(b)from which the identity of a person who has been, or is about to be, charged with a sexual offence, might reasonably be inferred,
unless the accused person consents to the publication.
Penalty:      Two thousand dollars.
* * * * * * * * * *
(4)A person shall not publish any statement or representation –
(a)by which the identity of a person alleged in any legal proceedings to be the victim of a sexual offence is revealed; or
(b)from which the identity of a person alleged in any legal proceedings to be the victim of a sexual offence might reasonably be inferred,
unless the judge authorises, or the alleged victim consents to, the publication (but no such authorisation or consent can be given where the alleged victim is a child).
Penalty:Two thousand dollars.
(5)(not reproduced)
In essence, Mr Campbell submitted that s 71A(4) is comprehensive in its protection of the identity of a person alleged to be the victim of a sexual offence. Any additional order made under any other section designed to protect the victim’s identity would have no utility; it would have no work to do. He suggested that s 71A(4) is recognition by the Parliament that publication of a victim’s identity would be, as a general rule at least, apt to cause hardship. He submitted that Parliament should not be taken to have “repeated itself” by countenancing that an order might be made under s 69A(1) on the same grounds and for the same purpose. In support of that proposition he referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69] to [71]. Mr Campbell further argued that, in circumstances where the victim’s identity was protected by force of s 71A(4), a court could not reach the state of satisfaction required by s 69A(1) - that a suppression order should be made to prevent undue hardship to a victim - if the only perceived cause of such undue hardship was fear of disclosure of identity. He put that s 69A(1) could not be used as some sort of pre-emptive measure where it was feared that s 71A(4) might be breached by publication of particular information.
I shall not set out the submissions of Mr Humphries as to the matter generally. On this point of construction he was content to align himself with the submissions of Mr Hinton.
Mr Hinton’s primary submission was that the terms of s 71A(4) should be given a wide meaning. For instance, the phrase “from which the identity of a person … might reasonably be inferred” should be interpreted to apply to all material which, when combined with knowledge already in the public arena, or already possessed by some members of the public, could lead to identification. (As I understood him, Mr Campbell did not argue against such an interpretation.) Mr Hinton submitted that providing such an interpretation were afforded to s 71A(4), then the extent to which there could be publication of any feature of a victim was extremely limited and s 69A(1) would have no supplementary role to play. Mr Hinton put as a secondary submission that if s 71A(4) were to be given a more restrictive interpretation, then s 69A(1) might have a legitimate role as a means of supplementing the automatic suppression of identity. Mr Hinton further submitted that where, in respect of any particular case, a media organisation was in doubt as to the force of a s 71A(4) order, it could, utilising the exception provided in the last clause of the subsection, apply to a court for authorisation to publish a particular detail.
I consider that there is force in Mr Campbell’s submission. The prohibition in s 71A(4) is, subject to the exception, absolute. A breach occurs wherever there is publication of material describing the victim, sufficient, when added to knowledge already possessed by members of the community, to enable identification. Having provided such broad and specific protection to victims, it should not be assumed that the Parliament would countenance the utilisation of another more general provision to achieve the very same object. The passages of Project Blue Sky cited provide only general authority for such a proposition, that case being concerned with the reconciliation of arguably conflicting provisions. However, the correctness of the proposition would seem to flow from the need to read the sections of the Act dealing with suppression as a whole and in such a way as to be harmonious, even if that leads to an interpretation of s 69A which is narrower than it otherwise might appear. (See for example Ross v R (1979) 25 ALR 137, 145; Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 133 ALR 130, 147; Chikonga v Minister for Immigration and Multicultural Affairs (1997) ALD 49, 51; Pearce DC and Geddes RS, Statutory Interpretation in Australia (5^th ed, Butterworths, 2001) [4.2].)
Accordingly, I find that the order made by the magistrate was without proper basis. The object which the magistrate endeavoured to achieve by his order was already secured by s 71A(4). The fact that there was reason to fear that s 71A might be breached by one or more media organisations (as it arguably was on the day of the magistrate’s order) was a matter to be addressed by enforcement of s 71A(4).
I mention one other matter raised by Mr Campbell, even though, in view of my decision, it falls away. Mr Campbell suggested that the identifying features of the person which the magistrate purported to suppress from publication were not the subject of evidence before the magistrate and could not therefore be the subject of a suppression order. His submission relied on the definitions of “suppression order” and “evidence” in s 68 of the Act. I have no quarrel with the legal framework within which this submission was put. A court may only suppress material encompassed within the definition of “suppression order”. However, the appellant did not place before me any proof of whether or not the identifying features of the victim, of which I have spoken, were the subject of the victim’s statement tendered before the magistrate. I would be surprised if there were no reference to those features in the victim’s statement and possibly in other statements as well. Mr Campbell was unable to advise me whether or not that was so. In the state of the evidence before me, that submission could not be made good.
In view of the decision I have made it is unnecessary to touch upon further aspects of the very interesting argument put before me. Nor is there any need to admit the letter which is the third exhibit to Ms Matteo’s affidavit. The contents do not affect the issue one way or the other. It follows from what I have said that the magistrate’s order must be discharged.
I would only add one matter. In case there might be any uncertainty in the minds of those advising media organisations as to possible breaches of s 71A(4) relating to this victim, I would be prepared to intimate that I consider that publication of the identifying features referred to before the magistrate and referred to in the papers before me would indeed involve a breach of s 71A(4). Plainly, that intimation is not a decision on that point. However, if a media organisation were to proceed to publish such material and if that organisation were to be found to be in breach of s 71A(4) on that basis, then the fact of my having given such an intimation might have a bearing on the penalty to be imposed.
I make the following orders:
1.Appeal allowed.
2.Order of Mr Gumpl SM of 27 May 2005 set aside.