D v Director of Public Prosecutions (Cth) - [2018] SASCFC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
D v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
[2018] SASCFC 33
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Doyle)
11 May 2018
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - SUPPRESSION ORDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AND OTHER MATTERS RELATING TO TERRORISM
Appeal against decision not to make suppression order.
The appellant is charged in the District Court with four counts of advocating terrorism. At arraignment, the Director of Public Prosecutions and the appellant applied for orders suppressing publication of the four videos the subject of the charges, other videos allegedly made by the appellant and material tending to identify the appellant. The appellant also sought an order suppressing publication of the names or material tending to identify his children.
The Judge suppressed publication of the names of or material tending to identify the appellant’s children but declined to make the other orders sought.
The appellant appeals against the Judge’s refusal to make the other orders sought.
Held by the Court:
1. The Judge did not address the questions he was required to address and this vitiates his decision (at [64]).
2. The open justice principle applies with less force in respect of evidence tendered at committal or intended to be tendered at trial compared to evidence that has been tendered and received into evidence at trial (at [70]).
3. Publication of the four videos (other than the visual component in which the man in the video is not holding an alleged weapon or prop) would potentially prejudice the interests of justice due to the potential effect thereof on potential jurors (at [80]).
4. Weighing the potential prejudice caused by publication against the very limited prejudice to the public interest principle caused by suppression, publication of the four videos should be suppressed (at [83]).
5. For similar reasons, publication of the other videos that may be relied on by the Director should be suppressed (at [93]).
6. Given that the practical effect of the suppression order made by the Judge in respect of material tending to identify the appellant’s children extends to prevent publication of material tending to identify the appellant, publication of the appellant’s name or material tending to identify him should be suppressed (at [99]).
7. The suppression orders should be reviewed at the time of trial (at [100]).
8. Appeal allowed. Orders to be made suppressing until further order publication of the four videos, the 20 videos or any material tending to identify the appellant; except that publication of the video component of the four videos in which the man in the video is not holding an alleged weapon or prop and in which his face and distinctive features tending to identify him are pixelated is not prevented (at [101-102]).
Evidence Act 1929 (SA) 69A and 69AB; Criminal Code (Cth) 80.2C(1); Summary Procedure Act 1929 104 and 105; District Court Act 1991 (SA) 54, referred to.
An Accused v Adelaide Magistrate’s Court [2014] SASC 18, (2014) 123 SASR 448; Attorney-General v Times Newspapers Ltd [1974] AC 273; Channel 7 Adelaide Pty Ltd v An Accused SASC 246, (2008) 103 SASR 459; Channel 7 Adelaide Pty Ltd v Draper [2004] SASC 351, (2004) 90 SASR 160; Commissioner of Police v Coroners Court of South Australia; Commissioner of Police v Coroners Court of South Australia [2018] SASCFC 26; House v The King (1936) 55 CLR 499; R v Von Einem (No 1) (1991) 55 SASR 199, discussed.

D v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
[2018] SASCFC 33
Full Court: Kourakis CJ, Blue and Doyle JJ
THE COURT:

This is an appeal[1] against a decision by a District Court Judge not to make a suppression order.
[1] Pursuant to section 69AC of the Evidence Act 1929 (SA).
The appellant D is charged on indictment by the respondent Commonwealth Director of Public Prosecutions with four counts of advocating terrorism in contravention of subsection 80.2C(1) of the Criminal Code (Cth) (the Criminal Code).[2]
[2] The Criminal Code is enacted and given statutory force by the Criminal Code Act 1995 (Cth).
Before D’s arraignment, the Director applied in the District Court for an order pursuant to section 69A of the Evidence Act 1929 (SA) (the Act) suppressing publication of the four videos the subject of the charges and other videos also allegedly made by the appellant. D applied for orders suppressing publication of his name or other material tending to identify him and the names of or other material tending to identify his children. The Director and D each supported the other’s application.
The Judge suppressed publication of the names of or material tending to identify D’s children but declined to make the balance of the orders sought.
D appeals against the Judge’s decision. The Director takes no position on the appeal. Advertiser Newspapers Ltd (The Advertiser) opposes the appeal and effectively acts as a contradictor.
Background
In December 2016 D was arrested by the Australian Federal Police and charged with the four counts of advocating terrorism by creating four videos each advocating the doing of a terrorist act. The prosecution case is that D created the videos between July and November 2015 and uploaded them onto social media platforms between October 2015 and January 2016. The prosecution case is that D is the man who appears in each video and that man advocates by words and actions the doing of terrorist acts. D denies the charges.
In December 2016 D appeared in the Magistrates Court on the charges. It is common ground between the prosecution and defence that D had a history of mental health problems since 1997. The Magistrate made an order that a psychiatric report be prepared in relation to D’s fitness to plead and mental competence at the time of the alleged commission of the offences. The Magistrate made an order suppressing publication of D’s name or image in any form that would identify him (subsequently extended to encompass pseudonyms). The Magistrate remanded D in custody pending receipt of the report. Since then D has been remanded in custody and remains in custody awaiting his trial.
In February and March 2017 applications by a representative of The Advertiser to revoke the suppression order were dismissed.
In May 2017 there was a committal hearing before a Magistrate. The four videos the subject of the four counts (the four videos), together with 20 other videos allegedly created and uploaded by D (the 20 videos), had been provided to the Magistrate in a sealed envelope. They were not tendered in open court. The Director relied inter alia on the four videos and the 20 videos (collectively the videos) as tending to establish D’s guilt for the purpose of committal for trial under sections 104 and 105 of the Summary Procedure Act 1929 (SA). D conceded that the evidence was sufficient to justify committal for trial. The Magistrate committed him for trial in the District Court.
At the conclusion of the committal hearing the Magistrate reviewed the suppression order as required by section 69AB(1)(a)(i) of the Act. The Magistrate revoked the suppression order.
In May 2017 D appealed to a single Judge of this Court against the revocation (the May appeal). On the hearing of the appeal the Director applied for an extension of the suppression order to any video in which D allegedly appears holding a weapon. The Judge allowed the appeal, set aside the revocation order and made orders suppressing publication of D’s name or pseudonyms and of any aural or visual material insofar as it may identify him until the conclusion of the first hearing in the District Court.
On 14 July 2017 there was an arraignment hearing in the District Court. It was largely devoted to the suppression order issue.
The hearing before the Judge
Before D’s arraignment, the Director applied for an order suppressing publication of the four videos the subject of the charges and other videos also allegedly made by the appellant. D applied for orders suppressing publication of his name or other material tending to identify him and the names of or other material tending to identify his children. The Director and D each supported the other’s application.
At the start of the arraignment hearing the Director sought orders suppressing publication of:
1.D’s name or any names or pseudonyms by which he is or has been known and any visual material insofar as it may identify him (the proposed name suppression order);
2.any video recording in which D allegedly appears, including any moving image or audio content thereof, any transcript or translation of such audio content or any visual material derived from any such video recording in which D is holding a weapon (the proposed video suppression order);
3.any reference to D’s children (the proposed children suppression order).
The Director informed the Judge that the videos had been posted online, shared across various websites, accessed by a significant number of people and some remained available online. There had been extensive media reports about the charges, a segment of one video showing the pixilated image of the man in the video had been showed on television and a still photograph from that segment had been published in newspapers.
The Director relied on the prevention of prejudice to the proper administration of justice limb (the administration of justice limb) of subsection 69A(1) of the Act as the foundation for the proposed video suppression order. In turn there were two grounds of the Director’s reliance on this limb.
The first ground was that publication of the content of the videos would lead to potential members of a jury seeing that material in an unfiltered way which would give rise to a significant risk of jurors prejudging the matter. This would pose a serious threat to a fair trial for D and hence to the administration of justice. The Director submitted that this case fell into an exceptional category both because it had a very high public profile and because the four videos comprised not merely evidence of alleged offences but the actual alleged offences themselves.
The second ground was that publication of the content of the videos would perpetuate (on the prosecution case) the advocacy of terrorism. The Director eschewed any suggestion that by publishing the videos the media would themselves commit the offence of advocating terrorism; rather the Director submitted that publication would perpetuate the very conduct that the legislative provision is designed to prevent.
The Director also relied on the administration of justice limb as the foundation for the proposed name suppression order. The Director submitted that, if D’s name were published, members of the public could search on the internet using a search engine (such as Google) and find some of the videos. This would give rise to the same risk of prejudice due to potential members of a jury seeing the material in an unfiltered way referred to above.
D adopted the Director’s submissions. D advanced two additional grounds. The first was that publication of the matters sought to be suppressed may destabilise A’s mental health, leading to his being unfit to plead to the charges. It was submitted that this would be prejudicial to the administration of justice. The second was that the admission into evidence of the 20 videos would be opposed and it would be prejudicial to the administration of justice if potential jurors saw the 20 videos in circumstances in which they would not be admitted into evidence and regard ought not to be had to them.
Representatives of Nine News, ABC News and The Advertiser informed the Judge that they did not oppose the proposed name suppression or children suppression orders, nor suppression of publication of the audio content of the videos or transcript or translation thereof. They did oppose suppression of publication of pixilated images of the man in the videos when not holding alleged weapons. Their principal concern was that there not be an order suppressing publication of evidence once admitted at trial.
In response the Director informed the Judge that he did not seek an order suppressing publication of pixilated images (moving or still) of the man in the videos when not holding alleged weapons. D informed the Judge that he did not seek an order suppressing publication of still pixilated images of the man in the videos when not holding alleged weapons but did seek an order suppressing publication of moving pixilated images.
The Judge adjourned the hearing of the application to consider the submissions made.
On 25 July 2017 the Judge heard further submissions. The Director informed the Judge that the Australian Federal Police had been successful in having the primary material removed from the internet, and that it was not as easy as before to find on the internet the other material allegedly uploaded by or derived from D. The Director refined the orders sought by confining the proposed order suppressing publication of a video or visual material derived therefrom to those in which the man is holding a weapon. The Director adopted the submission previously made by D that it would be prejudicial to the administration of justice if potential jurors saw the 20 videos in circumstances in which they may not be admitted into evidence. The Director said that the 20 videos comprised evidence of “discreditable conduct” within the meaning of section 34P of the Act and anticipated that there would be a need in due course to give a discreditable conduct notice in relation to them.
A representative of The Advertiser was the only media representative who appeared on this occasion. He made submissions in opposition to the proposed name suppression and evidence suppression orders. The Judge reserved his decision and continued in effect the interim orders made by the Supreme Court Judge.
The reasons of the Judge
On 10 August 2017 the Judge gave ex tempore reasons for declining to make the orders sought except the children’s suppression order.
The Judge divided the orders sought into three categories and identified four grounds on which he considered that the applicants relied to establish that the proposed orders were necessary to prevent prejudice to the proper administration of justice:
These are joint applications by the Commonwealth DPP and the accused for a number of suppression orders. I turn, firstly, to the orders sought pursuant to s.69A(1)(a) of the Evidence Act to prevent prejudice to the proper administration of justice. The orders sought under that provision are as follows:
1. Suppression of the name or any pseudonyms of the accused;
2. Suppression of four videos which are an essential part of the prosecution case, and;
3.Suppression of other material, including videos and written material, that are or may be accessible on the internet.
Simply stated, the specific bases upon which suppression orders are said to be necessary to prevent prejudice to the proper administration of justice are as follows:
(a)Publication of the accused’s name could lead to persons accessing material relating to the accused on the internet and that material or some of it may never be led in evidence and may be prejudicial to the accused;
(b)As to the four videos which largely comprised the prosecution case, there may be applications to exclude some of that material;
(c)Publication of the accused’s name could cause a deterioration of his psychological condition, and;
(d)Publication of the four videos or of the material said to be on the internet could constitute an offence on the part of the person or organisation who publishes it.
Having articulated the grounds that the Judge considered had been advanced in support of the orders sought, the Judge gave the following reasons for rejecting those grounds and rejecting the application:
Suffice to say, I am not persuaded on the material and submissions before me that there is a realistic or plausible possibility of prejudice to the administration of justice, based upon any or all of the topics outlined above.
As to topic (a), it is commonplace that internet searches of a defendant’s name would reveal inadmissible or prejudicial material.
As to topic (b), so far as the videos are evidence, it is open to the court to decline media access to them if an application is made pursuant to s.54 of the District Court Act.
Insofar as the material in the videos is already on the internet partially or entirely, a suppression order will not be efficacious in any event.
Furthermore, I consider there needs to be more than the suggestion that there may be an application to exclude some of that evidence. That can be said about any matter that comes before the court.
As for topic (c), this was not considered to come within the concept of prejudice to the proper administration of justice in the case of Advertiser Newspapers v V. In any event, there is nothing tangible to support the suggestion or hypothesis.
Given my findings above, strictly it is unnecessary for me to turn to the second limb of the provision. However, I’m certainly not satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice to justify the making of any of the suppression orders sought as referred to above.
I briefly note that I consider topic (d) is not something to be addressed by suppression order in any event.[3]
[3] Footnote omitted.
The Judge then turned to the application with respect to D’s children. The Judge was persuaded that publication of the names of or of material tending to identify D’s children would cause undue hardship to them amounting to special circumstances within the meaning of section 69A(2)(b) of the Act. The Judge made an order suppressing publication of the names of or anything that would identify or tend to identify D’s children. There is no appeal by any party against that order.
D applied for an interim suppression order pending the hearing and determination of an appeal against the Judge’s refusal to make the suppression order sought. The Judge made an interim order suppressing publication of D’s name or any names or pseudonyms by which he is or has been known, any visual material insofar as it may identify him, any video recording in which he allegedly appears in which he is holding a weapon, any audio content or transcript or translation thereof of any video recording in which he allegedly appears, or any visual material derived from any such video recording.
The anti-terrorism legislative regime
The Commonwealth first enacted specific terrorism offences in 2002 following the 11 September 2001 attacks in the United States. A new Part 5.3 – Terrorism was inserted into the Criminal Code.[4] New offences were created including engaging in a terrorist act (section 101.1); doing acts in preparation for or planning a terrorist act (sections 101.2 to 101.6); being a member or director of or recruiting for or providing support to or associating with a terrorist organisation (sections 102.2 to 102.8); and financing terrorism (section 103.1). For the purpose of some of these provisions, new section 100.1 defined a “terrorist act”.
[4] New provisions inserted by the Security Legislation Amendment (Terrorism) Act 2002 (Cth) and the Suppression of the Financing of Terrorism Act2002 (Cth).
In 2010 a new Subdivision C of Part 5.1 was inserted into the Criminal Code. Further new offences were created of urging the use of force or violence against a targeted group or person believed to be a member of a targeted group (sections 80.2A and 80.2B).[5]
[5] New provisions inserted by the NationalSecurity Legislation Amendment Act 2010 (Cth).

Section 80.2C of the Criminal Code was inserted by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) with effect from 1 December 2014. Section 80.2C creates an offence of advocating (defined as counselling, promoting, encouraging or urging) the doing of a terrorist act or the commission of a terrorism offence. Although the language of counselling etc is the traditional language of ancillary (aid and abet) offences, a section 80.2C offence is committed regardless of whether there is what would otherwise be termed a principal offence. It is the counselling etc which is the contravention.
Section 80.2C relevantly provides:
80.2C Advocating terrorism
(1)     A person commits an offence if:
(a)     the person advocates:
(i)    the doing of a terrorist act; or
…
and
(b)     the person engages in that conduct reckless as to whether another person will:
(i)    engage in a terrorist act; or
…
Note: There is a defence in section 80.3 for acts done in good faith.
Penalty:     Imprisonment for 5 years.
Definitions
(3)     In this section:
advocates: a person advocates the doing of a terrorist act or the commission of a terrorism offence if the person counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence.
…
terrorist act has the same meaning as in section 100.1.
(4)A reference in this section to advocating the doing of a terrorist act or the commission of a terrorism offence includes a reference to:
(a)advocating the doing of a terrorist act or the commission of a terrorism offence, even if a terrorist act or terrorism offence does not occur; and
(b)advocating the doing of a specific terrorist act or the commission of a specific terrorism offence; and
(c)advocating the doing of more than one terrorist act or the commission of more than one terrorism offence.
Section 100.1 relevantly defines a terrorist act as follows:
100.1 Definitions
(1)     In this Part:
…
terrorist act means an action or threat of action where:
(a)     the action falls within subsection (2) and does not fall within subsection (3); and
(b)the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c)     the action is done or the threat is made with the intention of:
(i)    coercing, or influencing by intimidation the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii)    intimidating the public or a section of the public.
…
(2)     Action falls within this subsection if it:
(a)     causes serious harm that is physical harm to a person; or
…
(c)     causes a person’s death; or
(d)     endangers a person’s life, other than the life of the person taking the action; or
…
(3)     Action falls within this subsection if it:
(a)     is advocacy, protest, dissent or industrial action; and
(b)     is not intended:
(i)    to cause serious harm that is physical harm to a person; or
(ii)    to cause a person’s death; or
(iii)to endanger the life of a person, other than the person taking the action; or
…
Section 7.3 of the Criminal Code relevantly provides:
7.3 Mental impairment
(1)A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:
(a)     the person did not know the nature and quality of the conduct; or
(b)     the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c)     the person was unable to control the conduct.
…
(3)   A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.
…
(6)   A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility.
…
Without attempting to be comprehensive or definitive,[6] the elements of the offence of advocating the doing of a terrorist act on the prosecution case in this particular matter appear to include at least the following:
[6] The interaction between section 80.2C, the definition of terrorist act in section 100.1 and the fault element provisions in Division 7 render identification of the elements and particularly the fault elements a complex process. This may be the subject of legal dispute at trial.
1.    The defendant counselled, promoted, encouraged or urged the doing of an act.
2.    The act promoted etc is an action or threat of action meeting each of the following three requirements (a terrorist act):
(a)     it causes death or serious physical harm or endangers life or creates a serious risk to public health or safety;
(b)     it is done or made with the intention of:
(i)     advancing a political, religious or ideological cause; and
(ii)coercing or influencing by intimidation a government or intimidating the public or a section of the public; and
(c)    it does not comprise advocacy, protest or dissent not intended to cause death or serious physical harm or endanger life or create a serious risk to public health or safety.
3.The defendant intended to counsel, promote, encourage or urge (as the case may be) the doing of the act referred to in 1.
4.The defendant engaged in the conduct referred to in 1 reckless as to whether another person would engage in a terrorist act (as defined in 2).
There are specific[7] and general defences[8] to the offence of advocating the terrorism enacted by the Criminal Code. These need not be considered for the purposes of this appeal.
[7] Section 80.3 creates a good faith defence to offences within Part 5.1 including section 80.2C.
[8] See for example Divisions 9 and 10.
If the first two (physical) elements are proved beyond reasonable doubt but it is proved on the balance of probabilities that the defendant did not know the nature and quality of his or her conduct or that it was wrong or was unable to control his or her conduct, the defendant will be not guilty because of mental impairment[9] but will be liable to supervision under part 8A of the Criminal Law Consolidation Act 1935 (SA).[10]
[9] Criminal Code section 7.3
[10] Pursuant to sections 68 and 79 of the Judiciary Act 1903 (Cth): Kesavarajah v The Queen (1994) 181 CLR 230 at 241-244 per Mason CJ, Toohey and Gaudron JJ (with whom Deane and Dawson JJ relevantly agreed).
A charge of advocating terrorism is required to be tried before a jury and there is no power for the trial to proceed before a judge alone.[11]
[11] Commonwealth of Australia Constitution section 80; Alqudsi v The Queen [2016] HCA 24, (2016) 258 CLR 203 at [115] per Kiefel, Bell and Keane JJ, [141] per Gageler J and [216] per Nettle and Gordon JJ.
The suppression order regime
Section 69A of the Evidence Act empowers and governs the making of suppression orders.
A suppression order is defined by section 68 to mean an order:
(a)forbidding the publication of specified evidence or of any account or report of specified evidence; or
(b)     forbidding the publication of the name of—
(i)    a party or witness; or
(ii)    a person alluded to in the course of proceedings before the court,
and of any other material tending to identify any such person.
“Evidence” is defined by section 68 to include:
any statement made before a court whether or not the statement constitutes evidence for the purposes of the proceedings before the court;
and publish is defined by section 68 to mean:
publish by newspaper, radio or television, or on the internet, or by other similar means of communication to the public.
Section 69A relevantly provides:
69A—Suppression orders
(1)     Where a court is satisfied that a suppression order should be made—
(a)     to prevent prejudice to the proper administration of justice; or
(b)     to prevent undue hardship—
(i)    to an alleged victim of crime; or
(ii)to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or
(iii)     to a child,
the court may, subject to this section, make such an order.
(2)If a court is considering whether to make a suppression order (other than an interim suppression order), the court—
(a)     must recognise that a primary objective in the administration of justice is to safeguard the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings; and
(b)     may only make a suppression order if satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify the making of the order in the particular case.
…
(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).
When considering whether to make a suppression order, a court is required to balance two competing public interests. The first is the public interest in open justice. The second is the public interest in preventing or minimising the threat of prejudice to the proper administration of justice and/or undue hardship to the persons referred to in section 69A(1)(b). In undertaking the balancing process, the court is required to recognise that a primary objective in the administration of justice is to safeguard the public interest in open justice. The general principle is that court proceedings are to be conducted in public and reports of proceedings may be published to the public. The court cannot make a suppression order unless satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice or undue hardship to justify the making of the order in the particular case.[12]
[12] Channel Nine SA Pty Ltd v Police (No 2) [2014] SASCFC 119, (2014) 121 SASR 87 at [4]-[6] per Kourakis CJ, Blue and Parker JJ.
Because the court when deciding whether to make a suppression order acts in and by reference to the public interest, while the court will have regard to submissions by the parties, the court cannot decide the matter merely in accordance with the consent of the parties and is required to determine for itself whether the balancing exercise requires the making of a suppression order and if so in what terms.[13]
[13] Channel Nine SA Pty Ltd v Police (No 2) (2014) 121 SASR 87 at [8] per Kourakis CJ, Blue and Parker JJ.
Contentions on appeal
The principal contention advanced by D on appeal is that the Judge erred by not finding that publication of the videos or of his name or identity would lead to potential members of a jury seeing that material in an unfiltered way; and that this would give rise to a significant risk of jurors prejudging the matter and thus pose a serious threat to a fair trial for A and hence to the administration of justice. It is contended that this threat was sufficiently serious to amount to special circumstances justifying the making of an order suppressing such publication.
A secondary contention advanced on appeal is that the risk of such prejudice is enhanced in respect of publication of the 20 videos because there is a real prospect that they will not be admitted as evidence at trial either because they will not be tendered by the Director (the Director not yet having decided whether to tender them or if so which videos and which parts of such videos) or because they comprise discreditable conduct evidence within the meaning of section 34P of the Act and are either not admissible or liable to exclusion under that provision.
D makes two tertiary contentions. First publication of his name or identity would be liable to cause a deterioration in his mental health which may result in his being unfit to plead and this is contrary to the proper administration of justice. Secondly publication of the content of the videos would perpetuate (on the prosecution case) the advocacy of terrorism, this being the very conduct that the legislative provision is designed to prevent.
Essentially D reiterates on appeal the submissions that were made at first instance to the Judge by the Director and by D. The Director adopts a neutral position on the appeal.
The Advertiser opposes the appeal but does so in the context that it accepts (which is common ground) that the child suppression order made by the Judge (which no party challenges on appeal) in any event prevents publication of the name or identity of D (due to his connection with his children), and further in the context that it does not intend to publish any audio from the videos or translation thereof or any images of the videos showing the face of the man or men therein or showing any alleged weapons.
The Advertiser points to the provisions of subsection 69A(2) of the Act requiring recognition that a primary objective in the administration of justice is to safeguard the public interest in open justice and precluding the making of a suppression order unless special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice or undue hardship to justify making the order in the particular case.
The Advertiser points to the fact that no expert evidence has been adduced that publication of D’s name or identity would be liable to cause a deterioration in his mental health which may result in his being unfit to plead. The Advertiser contends that the type of publication proposed by it would not perpetuate the advocacy of terrorism and in any event this would fall outside the concept of “prejudice to the proper administration of justice” in section 69A.
Approach on appeal
The appeal was argued on the assumption that an appeal against making or refusing to make a suppression order under section 69B of the Act is tantamount to a hearing de novo.[14]
[14] D cites the view expressed by Bleby J in Channel Seven Adelaide Pty Ltd v An Accused; Advertiser Newspapers Pty Ltd v An Accused [2008] SASC 246 (2008) 103 sasr 459 at [11]. The other parties do not take issue with D's contention.
Conversely, in Commissioner of Police v Coroners Court of South Australia; Commissioner of Police v Australian Lawyers Alliance Ltd[15] the appeal was argued on the assumption that House v The King[16] principles apply to an appeal under section 69B.
[15] [2018] SASCFC 26.
[16] (1936) 55 CLR 499.
The question of the nature of an appeal may depend on the extent to which a decision whether to make a suppression order involves an evaluative judgment or exercise of a discretion or both. It is unnecessary on this appeal to resolve the question because the appeal can be determined on the assumption that House v The King principles apply.
In the passage from his reasons extracted above, the Judge set out to articulate the four grounds advanced in support of the orders sought. The Judge gave reasons why he rejected each of those four grounds, as articulated by the Judge. However, the Judge did not articulate accurately three of the four grounds advanced in support of the orders sought. In consequence, the reasons given by the Judge for declining to make the suppression orders sought did not address the questions the Judge was required to consider.
The primary ground on which the Director and D contended that publication of A’s name or the videos would prejudice the proper administration of justice was that such publication would lead to potential jury members seeing that material in an unfiltered way, which would give rise to a significant risk of jurors prejudging the matter and thus pose a serious threat to a fair trial for D. The Judge did not refer to this risk. The Judge only referred to a risk that would only materialise if the four videos were not admitted into evidence and rejected this as a basis for suppression because the possibility of such material becoming known before trial exists in every case.
Secondly the Judge referred to the contention by D that there was a risk that publicity would cause a deterioration in his psychiatric condition. The Judge treated this as a contention that such a deterioration in itself would prejudice the administration of justice and rejected such a contention. However, this was not the contention that D made. This was only the first step in D’s contention that a deterioration in his psychiatric condition might in turn lead to his being unfit to plead and hence prevent a trial proceeding and it was this which would prejudice the administration of justice. The Judge did not address this asserted prejudice.
Thirdly the Judge referred to what he considered was a contention that publication of the videos could constitute an offence on the part of the person or organisation who publishes it. The Judge rejected this contention as not something to be addressed by a suppression order in any event. However, the Director eschewed any suggestion that such publication would amount to advocacy of terrorism. On the contrary, the contention by the Director was that such publication would perpetuate the conduct that the legislative provision is designed to prevent. The Judge did not address this asserted prejudice.
We return to the primary ground on which the Director and D relied, namely that publication of A’s name or the videos would lead to potential jury members seeing that material in an unfiltered way giving rise to a significant risk of jurors prejudging the matter, and thus posing a serious threat to a fair trial for D. The Judge addressed the secondary ground relating to the 20 videos potentially not being admitted into evidence. In this context, the Judge said that, insofar as the videos are evidence, it is open to the court to decline media access to them if application is made pursuant to section 54 of the District Court Act 1991 (SA) and insofar as they are already on the internet a suppression order would not be efficacious in any event.
The Judge did not address the submissions that suppression of publication of D’s name would greatly reduce the likelihood of potential jurors finding the prejudicial material still accessible on the internet; that such material was now less easily accessible on the internet than previously; that publication by the mainstream media would be much more likely to come to the attention of potential jurors; or that, if a suppression order were made in relation to such material, maintaining it on the internet would be in disobedience of the suppression order. Nor did the Judge address the Director’s critical submission that the suppression sought was limited temporally and was not intended to prevent publication of the evidence upon admission at trial.
Returning to the secondary ground that the prejudice to the administration of justice is enhanced in respect of publication of the 20 videos because there is a real prospect that they will not be admitted as evidence at trial, the Judge said that it was commonplace that internet searches of a defendant’s name could reveal inadmissible or prejudicial material. However, this was not an answer to the contentions of the applicants: the Judge was required to weigh the prejudice as a result of potential jurors seeing inadmissible material against the public interest of open justice.
The combination of the above matters resulted in the Judge not addressing the questions he was required to address and vitiates his evaluative judgment or exercise of discretion. Although reasons for judgment on applications under section 69A need not be overly detailed, they should address the principal arguments of the parties. This Court is required in the circumstances to determine the matter itself.
The four videos

The open justice principle and the concept of prejudice to the proper administration of justice can only be understood in the context of the way in which the justice system operates.
Criminal cases (and indeed civil cases) are decided on the evidence adduced and admitted at trial. In the case of trial by jury, juries are instructed at trial that they must decide the case only on the evidence admitted at trial and not on any other material. Evidence at trial is considered with and in the context of all other evidence admitted at trial. It is considered in the context of the cases advanced by the parties and the relevant governing principles of law (including principles as to onus of proof) and in a case of a jury trial in accordance with directions given by the trial judge. In the case of a jury trial, juries are instructed that they should assess the evidence and the parties’ cases dispassionately notwithstanding that the subject matter of the trial or particular evidence may have strong emotional connotations.
The open justice principle applies particularly to trials. In general, trials should be open to public observers and evidence adduced and submissions made at trials should be able to be published to those not present at the trial. The open justice principle applies, but to a lesser extent, to pre-trial hearings. For example directions hearings in criminal matters on indictment are generally held in closed court.[17] The open justice principle is subject to exceptions in the public interest to which we shall return.
[17] District Court Criminal Rules 2014 (SA) rule 10; Supreme Court Criminal Rules 2014 (SA) rule 10.
Parties are subject to various requirements to lodge with the Court and serve on other parties in advance evidence that they intend to adduce at trial. In civil cases, these requirements generally apply to all parties. In criminal cases, it is usually the prosecution that is required to produce such evidence in advance but there are also some obligations on the defence in respect of specific types of evidence (such as expert evidence,[18] alibi evidence[19] and when directed by the court evidence of specified defences such as mental incompetence[20]). The prosecution is required for example to serve on the defence and lodge with the court declarations by witnesses from whom statements have been taken (even if the prosecution does not intend to call a witness at trial), attach to the statements documents which the prosecution intends to tender at trial and give advance notice to the defence of real evidence and other evidence in the possession of the prosecution.
[18] Criminal Law Consolidation Act 1935 (SA) section 285BC. See now Criminal Procedure Act 1921 (SA) section 124.
[19] Criminal Law Consolidation Act 1935 (SA) section 285C. See now Criminal Procedure Act 1921 (SA) section 124.
[20] Criminal Law Consolidation Act 1935 (SA) section 285BB. See now Criminal Procedure Act 1921 (SA) section 134.
Criminal proceedings on indictment have usually been the subject of committal proceedings in the Magistrates Court. This is not essential because the Crown has the right to lay an ex officio indictment. Committal proceedings are administrative rather than judicial in nature;[21] they merely determine whether the evidence is sufficient to put the defendant on trial for the offence charged.[22] There is no entitlement (except with the permission of the court) of any person to inspect or copy documentary material filed in connection with or transcript of oral evidence taken at committal proceedings.[23]
[21] R v Seigneur [2009] SASC 59, (2009) 103 SASR 207 at [45] per Gray J and [135] per Kourakis J.
[22] Criminal Procedure Act 1921 (SA) section 105(2)(c)(ii) and 107.
[23] Magistrates Court Act 1991 section 51(2)(d) and (e); District Court Act 1991 (SA) section 54(2)(d) and (e); Supreme Court Act 1935 (SA) section 131(2)(d) and (e).
The open justice principle does not apply, or does not apply with the same rigour and to the same extent, to evidence before it has been admitted (usually at trial) in open court. In particular it does not apply to witness statements and other evidentiary material lodged with the court or notified to the other party in advance pursuant to requirements such as those referred to in the previous paragraph. Thus section 54 of the District Court Act 1991 (SA) and its analogues in the Supreme and Magistrates Courts[24] provide that a member of the public is entitled to inspect and obtain a copy of a transcript of evidence and documentary material admitted into evidence in any proceedings taken or received in open court (that is not suppressed from publication).[25] However there is no entitlement (absent permission by the court) to inspect or take a copy of evidentiary material that has merely been filed and not received in open court.[26] As observed above there is no entitlement (absent permission) to inspect or take a copy of documentary material filed in connection with or transcript of oral evidence taken at committal proceedings.[27] Nor is there any entitlement (absent permission) to inspect or take a copy of a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced.[28]
[24] Supreme Court Act 1935 (SA) section 131; Magistrates Court Act 1991 (SA) section 51.
[25] District Court Act 1935 (SA) section 54(1)(a) to (d).
[26] District Court Act 1935 (SA) section 54(2)(a) and (b).
[27] District Court Act 1935 (SA) section 54(2)(d) and (e).
[28] District Court Act 1935 (SA) section 54(2)(f).
The sub judice principle, which forms part of the law of contempt of court, is both a limitation on the open justice principle and an example of a principle that seeks to prevent or limit prejudice to the proper administration of justice due to publicity in advance of a criminal trial (particularly a trial that is to proceed before a jury). In broad terms, it is a contempt of court to publish matter which “has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case”, that is, a “real and definite tendency to prejudice or embarrass pending proceedings”.[29] The test whether the matter has the requisite tendency is objective[30] and liability does not depend on the publisher’s appreciation that the matter may have the requisite tendency.[31] The question whether the matter has the requisite tendency is determined as at the time of publication.[32]
[29] John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370 and 372 per Dixon CJ, Fullagar, Kitto and Taylor JJ.
[30] However if the matter is published with the intention of prejudicing or embarrassing pending proceedings, that will be a relevant factor: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371 per Dixon CJ, Fullagar, Kitto and Taylor JJ; Lane v The Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 at 258 per Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ.
[31] John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371 per Dixon CJ, Fullagar, Kitto and Taylor JJ; Lane v The Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 at 258 per Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ.
[32] Attorney-General for New South Wales v John Fairfax & Sons Pty Ltd (1985) 6 NSWLR 695 at 711 per McHugh JA (with whom Glass and Samuels JJA agreed).
In Attorney-General v Times Newspapers Ltd[33] Lord Diplock (with whom Lord Simon of Glaisdale agreed) gave the following useful overview of the law of contempt:
The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in the evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of the court to decide it according to law. Conduct which is calculated to prejudice any of the three requirements or to undermine the public confidence that they will be observed is contempt of court.
The commonest kind of conduct to come before the courts on applications for committal for contempt of court has been conduct which has been calculated to prejudice the second requirement. This is because trial by jury has been, and it still is, the mode of trial of all serious criminal offences … Laymen, whether acting as jurymen or witnesses (or, for that matter, as magistrates), were regarded by the judges as being vulnerable to influence or pressure which might impair their impartiality or cause them to form preconceived views as to the facts of the dispute ... The conduct most commonly complained of was the publication, generally in a newspaper, of statements or comments about parties to pending litigation or about facts at issue in the litigation; so the discussion in the judgments tends to be directed to consideration of the question whether the publication complained of involved a risk of causing someone who might be called upon to serve as a juror to be prejudiced against a party or to form a preconceived view of the facts before the evidence was adduced in court.
The mischief against which the summary remedy for contempt of court is directed is not merely that justice will not be done but that it will not be manifestly seen to be done. Contempt of court is punishable because it undermines the confidence not only of the parties to the particular litigation but also of the public as potential suitors, in the due administration of justice by the established courts of law.[34]
[33] [1974] AC 273.
[34] At 309.
What amounts to contempt depends on the individual circumstances of the particular case. No universal rules can be formulated. However it is well established that, depending on the circumstances, publishing alleged confessions,[35] interviews with witnesses[36] and photographs or film of the accused[37] can amount to contempt of court.
[35] See for example Attorney-General for New South Wales v John Fairfax & Sons Pty Ltd [1980] NSWLR 362 at 372 per Street CJ, Hope and Reynolds JJA.
[36] See for example Attorney-General for New South Wales v John Fairfax & Sons Pty Ltd [1980] NSWLR 362 at 372 per Street CJ, Hope and Reynolds JJA.
[37] See for example Attorney-General for New South Wales v John Fairfax & Sons Pty Ltd [1980] NSWLR 362 at 372 per Street CJ, Hope and Reynolds JJA.
Leaving aside the fact that the four videos had been available on the internet, in the ordinary course the mere fact that they had been lodged with the District Court attached to a witness declaration or relied on in the Magistrates Court for committal would not have invoked the open justice principle. Before considering the significance of the fact that the four videos had been available on the internet, we address the potential prejudice to the proper administration of justice if their publication before trial were not suppressed.
D’s trial in the District Court is required by the Constitution to proceed before a jury because D is charged with an offence against a Commonwealth law.[38] This position is different to that in respect of offences against State law where a defendant can elect for trial by judge alone.[39]
[38] Commonwealth of Australia Constitution section 80; Alqudsi v The Queen [2016] HCA 24, (2016) 258 CLR 203 at [115] per Kiefel, Bell and Keane JJ, [141] per Gageler J and [216] per Nettle and Gordon JJ.
[39] Juries Act 1927 (SA) section 7.
This case has attracted great media and public interest because it is a terrorism case, because it is the first prosecution in South Australia for a terrorism offence and because it is the first prosecution in Australia for advocating terrorism. Terrorism offences naturally involve a high emotional dimension from the perspective of members of the public.
If potential jurors view and listen to the four videos as a result of pre-trial publicity, they are likely to form views on the issues to be decided at trial based thereon. Those issues include:
·whether the man in each video is counseling, promoting, encouraging or urging the doing of an act and if so what act?
·whether the act the subject of the counseling etc in each video is a terrorist act within the technical and complex definition of a terrorist act in section 100.1 of the Criminal Code?
·whether the man in each video is D?
·whether the man in each video intended to counsel etc the doing of the act in question?
·whether the man in each video was reckless whether another person would engage in a terrorist act (as defined)?
·whether the man in each video was mentally incompetent?
Such views are likely to be influenced by discussion by potential jurors with others. Such views may well be strong or entrenched views and their strength and persistence may well be at least partially unconscious. The formation of such views and such discussions would be “unfiltered” (in the words of the Director) or uncontrolled. They would not be formed in the context of a juror considering matters at trial and after the juror had been directed by the trial judge about the need to be dispassionate, to keep an open mind, not to discuss matters with others (except fellow jurors) and only to decide the issues at the conclusion, and in the context, of all the evidence and after closing addresses and summing up by the trial judge.
During jury selection, the trial judge will no doubt ask members of the jury panel if they have seen or heard publicity about the matter or discussed it with others and will excuse those members of the panel who say that they have done so. However this will not eliminate the risk of prejudice to the appellant because members of the jury panel may have forgotten at that point of the publicity or of discussion with others, may have been unconsciously influenced in the first place or may not realise that the matter is the same matter the subject of previous publicity or discussion. This leaves open the possibility either that a juror will realise the position and disclose it to the trial judge during the trial, potentially causing the trial to miscarry, or that a juror will not realise the position or disclose it, causing potential prejudice to the appellant. In addition, the prospect of such prejudice may lead to an application to defer or stay the trial, which is not in the public interest. It is no doubt this last prospect which contributed to the decision of the Director on the appeal from the order of the Magistrate and at the appellant’s arraignment in the District Court to seek or support the making of a suppression order.
In light of the content of the videos and the issues that will arise at trial, there is a substantial risk that pre-trial publication of the videos will prejudice a fair trial due to conscious and unconscious influence on potential jurors.
We return to the question of the significance of the fact that the four videos had been available on the internet. This appears to have been a major reason why the Judge declined to make the suppression orders sought. The Judge considered that, insofar as the material in the videos was already on the internet, a suppression order would not be efficacious in any event.
The Judge was informed that the Australian Federal Police had taken steps to reduce the extent to which the videos could be accessed by members of the public on the internet and this had been partially successful. It is obviously much more likely that potential jurors would see the four videos if no suppression order were made and traditional media outlets and the principal social media platforms were permitted to publish them (or allow them to be published). This is so notwithstanding that the videos might remain in an obscure portion of the internet (notwithstanding the suppression order) and could be accessed by an inquisitive member of the public. An order suppressing publication of the four videos, particularly one coupled with an order suppressing publication of D’s name, would greatly reduce the likelihood of potential jurors finding the four videos still accessible on the internet.
Given the attenuated force at this stage of proceedings of the open justice principle in respect of evidentiary material not yet tendered or received into evidence, and the risk of prejudice to a fair trial if a suppression order is not made, special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice to justify the making of an order suppressing publication of at least some aspects of the four videos.
In undertaking the balancing exercise required by subsection 69A(2) of the Act, it is critical to take into account the temporal aspect of the suppression order sought. When the four videos are tendered and admitted into evidence at trial, the position will be radically different. The open justice principle will then have full application. The potential prejudice to the administration of justice which currently exists will not apply because by then the jurors will have seen the four videos and will have been given directions by the trial judge as to how they are to approach their task at trial. It is unlikely that any party would seek a suppression order in respect of the publication of the four videos at that point and, while it is unnecessary to pre-empt the result of any application that might be made, it is difficult to see that it would be successful. In any event such an application would be decided in very different circumstances.
In An Accused v Adelaide Magistrate’s Court,[40] Nicholson J emphasised the temporal aspect of a suppression order in the following passage:
It is not as if there will not be open justice. In time, the media should be free to fully report all that has taken place and is to take place in the future. The principle of open justice and the consequential right of the media to publish information relating to court proceedings should not be confused with a right to immediate publication at any cost.[41]
[40] [2014] SASC 18, (2014) 123 SASR 448.
[41] At [44].
It is true that, if no suppression order is made and the four videos come to the attention of potential jurors, steps could be taken to attempt to minimise the prejudice caused, including attempts to excuse members of the jury pool who had seen the publicity and directions to the jury to put aside any matters other than what occurs in the courtroom during the trial. However, those steps can only reduce, and cannot eliminate, the risk of prejudice, especially as a result of unconscious matters. In this respect, given that there is no competing dictate arising from the open justice principle, prevention is better than cure.
In Channel 7 Adelaide Pty Ltd v Draper[42] Gray J (with whom Nyland J agreed) said:
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.[43]
[42] [2004] SASC 351, (2004) 90 SASR 160.
[43] At [39].

In Channel 7 Adelaide Pty Ltd v An Accused,[44] in a passage approved by this Court on appeal,[45] Bleby J said:
Where allegations are made without the safeguards of a trial and are widely publicised for what they are – allegations of fact – attitudes and preconceptions are inevitably influenced. Whatever directions may be given, it is difficult to erase the preconceptions. It is then that the right to publish comes into tension with the right of the accused to be tried before a jury whose preconceptions and attitudes to others have not been unduly influenced by wide-spread publicity of and media discussion about certain aspects of the case at a time when the accused is not required to and is in no position to answer those allegations.[46]
[44] [2008] SASC 246, (2008) 103 SASR 459.
[45] BRD v Channel 7 Adelaide Pty Ltd [2008] SASC 282, (2008) 103 SASR 478 at [30]-[33] per Doyle CJ (with whom White and Layton JJ agreed).
[46] At [45].
It is not necessary to make an absolute suppression order in relation to the four videos. Publication should be suppressed of portions of the videos in which the man in the video is holding an alleged weapon or prop and of the words spoken in the videos due to the risk of potential jurors prejudging issues (including issues whether the man in each video was advocating a terrorist act) in relation thereto. Publication should be suppressed of the face, any other distinctive visual features and the voice of the man in each video due to the risk of potential jurors prejudging issues (including issues as to identity). However there is no necessity to suppress publication of the visual components of each video other than in these two respects.
The twenty videos
The Director has not yet decided at this stage which (if any) of the 20 videos or which portions thereof will be tendered at trial. If they are tendered, it is inevitable that issues as to their admissibility will arise, including the issues that must be considered under section 34P of the Act.
If an order is not made suppressing pre-trial publication of the 20 videos, there is a substantial risk that they will come to the attention of potential jurors. This has the potential to cause the same type of prejudice to the administration of justice as in respect of the four videos. It also has the potential to cause additional prejudice because the videos may not be admitted in evidence and yet potential jurors would have seen and been influenced by them.
In R v Von Einem (No 1),[47] Duggan J said:
When there is a genuine challenge to evidence such as confessional material or evidence of a prejudicial nature it is undesirable that the content of the evidence be revealed to jurors or potential jurors prior to a decision being made to admit it into evidence. It is this reasoning, based on considerations of fairness, which constitutes the main justification for the practice of hearing argument on such matters in the absence of the jury. It is undesirable for every such argument to take place at the preliminary examination [committal] as well as at trial and this accounts for the practice… of the Crown not opposing applications for suppression of evidence given at the preliminary examination when there is to be a challenge to that evidence at trial. In these circumstances, the suppression order is clearly justified in order to prevent prejudice to the proper administration of justice. Although a Court is required to take into account, “the public interest in publication of information related to court proceedings and the consequential right of the news media to publish such information”… to recognise that these considerations are of substantial weight… and to refrain from making an order unless the prejudice to the proper administration of justice is of greater weight than the public interest, it should be borne in mind that the order may be reviewed by the superior court after a ruling has been made on admissibility by that court. The justification for suppressing the evidence would no longer exist if it were admitted. On the other hand in the event of a ruling excluding the evidence the suppression order should remain. In neither case would the public interest suffer… I am quite satisfied that the learned Magistrate erred in relying upon the safeguards which could be taken at trial as a reason for not suppressing the evidence. It is quite undesirable to rely upon the cure when appropriate preventative measures are available.[48]
[47] (1991) 55 SASR 199.
[48] At 215-216.
Given the attenuated force at this stage of proceedings of the open justice principle for the reasons explained above and the double risk of prejudice to a fair trial if a suppression order is not made, special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice to justify the making of an order suppressing publication of the 20 videos.
The name and material tending to identify D
The Judge made an order suppressing publication of the names of or anything that would identify or tend to identify D’s children. There is no appeal by any party against that order.
It is common ground on appeal, and evident in any event, that the suppression order made by the Judge in respect of D’s children indirectly prevents publication of the name of or material tending to identify D. This fact is important when undertaking the balancing exercise required by section 69A of the Act on the application for an order in its own right suppressing publication of the name of or material tending to identify D.
An application for suppression of publication of the name of or material tending to identify a defendant in criminal proceedings gives rise to different considerations from those arising on an application for suppression of publication of potential evidence. In general, there is a public interest in the public knowing from the outset the identity of persons charged with crimes and particularly serious crimes.
In this case, publication of D’s name would give rise to a risk that potential jurors would undertake searches of material on the internet and would access some or all of the videos. Evidence was adduced on appeal that a search undertaken by the Australian Federal Police case officer at the time of the hearing of the appeal by entering D’s name and pseudonyms into the Google search engine and the YouTube application did not produce any results linked to the videos. However it is not known what results would be obtained using different search engines or different methods of attempting to locate the videos. In addition the search results obtained as a result of any given search can vary over time. It is common ground on appeal and in any event evident that it is impossible to be confident that publication of D’s name would not result in searches on the internet uncovering the videos. This would cause the risk of prejudice to the administration of justice addressed above.
In this case, because D is in custody and is expected to remain in custody until trial, non-publication of D’s name would not have the disadvantage that he could continue to live in the community without his neighbours or others being aware of the charges that might otherwise be argued as a factor against suppression.
Undertaking the balancing exercise having regard to the fact that publication of D’s name and material tending to identify him is already practically precluded by the children’s suppression order made by the Judge, special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice to justify the making of an order suppressing publication of D’s name and material tending to identify him.
Again, there is a temporal aspect to this order. Once the jury has been empanelled and such videos as are admitted into evidence have been admitted at trial, the prejudice to the administration of justice identified above will cease to exist. It may be expected that at that point this suppression order will be discharged. That would not necessarily affect the children’s suppression order but that can be considered at the appropriate time.
Conclusion
The appeal will be allowed. The decision of the Judge will be set aside except the decision to make the suppression order made by the Judge.
Orders will be made:
1. suppressing until further order publication:
(a)subject to order 2, of the four videos the subject of the charges including the audio and video components thereof and any transcript or translation of the audio component and any visual material derived therefrom;
(b)of the 20 videos not the subject of the charges but relied upon by the Director at the committal hearing including the audio and video components thereof and any transcript or translation of the audio component and any visual material derived therefrom;
(c)of D’s name or any names or pseudonyms by which he is or has been known or any oral or visual material tending to identify him.
2.Order 1(a) does not prevent the publication of visual material derived from the four videos in which:
(a)the man in the video is not holding an alleged weapon or prop;
and
(b)the face and any distinctive features tending to identify the man in the video are pixilated.
We will hear the parties as to the precise form of the orders.