Director of Public Prosecutions v B - [2013] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
DIRECTOR OF PUBLIC PROSECUTIONS v B
[2013] SASC 120
Judgment of The Honourable Justice Peek
29 July 2013
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - STATUTORY POWERS
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS
Appeal against refusal by a Magistrate to grant a suppression order extending to the defendant's name and address - defendant charged with murder - the deceased was a well-known public servant - case expected to attract extensive media and social media interest - Magistrate suppressed publication of images and photographs of the defendant but not his name or address.
Whether the Magistrate erred in not suppressing the defendant's name and address from publication - whether the potential for contamination of identification evidence gave rise to a sufficiently serious threat of prejudice to the proper administration of justice to justify the suppression of the respondent's name.
Held (Peek J): Appeal allowed - failure to suppress the name and address of the defendant from publication posed a serious threat of prejudice to the proper administration of justice - the potential contamination of identifcation evidence by the use of social media represents a serious detriment to both the defendant and to the prosecution's ability to gather uncontaminated evidence - special circumstances exist giving rise to a sufficiently serious threat to the proper administration of justice to justify the making of a suppression order suppressing from publication the name and address and any image or photograph of the respondent for a period of 28 days.
Evidence Act 1929 s 69A, referred to.
Police v Strauss (2013) 115 SASR 90; Channel Seven Adelaide Pty Ltd v An Accused (2008) 103 SASR 459; R v Francis (2007) 251 LSJS 221, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"suppression order", "special circumstances", "serious threat of prejudice to the proper administration of justice", "displacement effect", "Facebook", "social media websites"

DIRECTOR OF PUBLIC PROSECUTIONS v B
[2013] SASC 120
Magistrates Appeal
PEEK J
Introduction

The Director of Public Prosecutions appealed against the refusal of a Magistrate on the morning of 19 July 2013 to make an order suppressing from publication the name and address of the defendant who had been arrested for, and charged with, the murder of Ms Dianne Rogan, late of Whyalla. Her death occurred on or about 11 July 2013. On the afternoon of 19 July 2013, I allowed that appeal and made the following order:
I suppress from publication the name and address and any image or photograph of the person arrested for the murder of Ms Dianne Rogan, late of Whyalla, which murder occurred on or about 11 July 2013 for a period of 28 days commencing from 4.45pm on Friday 19 July 2013.
I then gave brief reasons and indicated that I would later publish written reasons. Those reasons follow.
Background
On 16 July 2013, SA Police (SAPOL) made an application to a Magistrate for an order suppressing all or any information, including any photograph or image, that may identify the defendant. His Honour made an interim order pursuant to s 69A, Evidence Act 1929 to that effect and adjourned further consideration of a final suppression order until the morning of 19 July 2013.
On the morning of Friday, 19 July 2013, the Magistrate made an order suppressing only the publication of any image or photograph of the defendant; his Honour refused to suppress the name or address of the defendant. Upon application of SAPOL, the Magistrate ordered that the operation of that order be stayed until 5:00pm on that same day, 19 July 2013 and that the previous interim order made on 16 July 2013 suppressing all or any information that may identify the defendant continue in force until 5:00pm on 19 July 2013.
The hearing of the appeal by the Director of Public Prosecutions against the refusal of the Magistrate to make final orders suppressing the name and address of the defendant was listed as a matter of urgency before me on the afternoon of 19 July 2013. Members of the media were notified in the normal way through the Courts Administration Authority Media and Communications Branch as to the time and place of the hearing of the appeal.
When the hearing of the appeal was called on at just before 4:00pm on 19 July 2013, I made an interim order suppressing the name and address of the defendant, it being unclear at that time whether the hearing of the appeal would be completed before 5:00pm when the previous interim order of the Magistrate would expire. (It was necessary to make that interim order because without it the appeal could have been rendered futile; it was justified in order to protect the integrity of the process of this Court and to prevent prejudice to the proper administration of justice in respect of the hearing of this appeal.)
On the hearing of the appeal, counsel for the DPP appeared to prosecute the appeal. The members of the media present selected Ms Candice Marcus of ABC News to make submissions in opposition to the appeal being allowed.
The legislation
Section 69A, Evidence Act 1929 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.
Consideration
The DPP argued that the Magistrate erred in failing to hold that the cumulative effect of all of the circumstances taken together constituted “special circumstances” giving rise to a sufficiently serious threat of prejudice to the proper administration of justice as to justify the making of an order suppressing the name and address of the defendant. The serious threat of prejudice asserted was the threat or risk of contamination of prosecution evidence. (The “undue hardship limb” in s 69A(1)(b) was not relied upon).
It is to be noted that the Magistrate correctly appreciated that the publication of images or photographs of the defendant at this early stage of the investigation does give rise to a serious threat of prejudice to the proper administration of justice such that a suppression order was justified in relation to the publication of images or photographs of the defendant. His Honour stated:
I accept that gathering evidence is an essential step in the administration of justice and that any proven impediment to that process may well interfere with the defendant’s ability to obtain a fair trial. Of the issues that have been raised, the “displacement effect” is the only one that gives me some concern. I accept that the defendant has been in custody for a short while and that police have not had time to arrange identification procedures. I am aware of the issue that is referred to as the displacement effect and I have regard to the description given by Stephen J in Alexander’s case. I believe it is the issue alluded to by Mr Campbell in his helpful submissions. It is clearly desirable that any witnesses are able to give a proper description or make some form of identification without a previously widely circulated image in their mind.
The DPP submitted that while his Honour was correct in so far as he went, his Honour ultimately took too narrow an approach to the serious threat of prejudice posed by the risk of contamination of identification evidence in the present case.
It was submitted that while his Honour did correctly refer to the so called “displacement effect” in the context of a detriment to the defendant (which is, of itself, an important matter), his Honour did not fully appreciate that the risk of contamination of evidence poses a threat of prejudice to the proper administration of justice not only in the context of a detriment to the defendant but also in the context of a detriment to the prosecution’s ability to gather uncontaminated evidence.
I accept these submissions. One consequence of the advent of massive use of social media is that it has become increasingly difficult for investigative agencies to gather evidence (and particularly identification evidence) before it becomes degraded or contaminated through the posting of images of persons, and allegations and discussion in relation to persons, on social media websites such as Facebook. The nature and effect of such processes and their potential to contaminate evidence is discussed at some length in the recent decision in Strauss v Police (Strauss)[1] and I will not repeat what was there said. However, in very short form, in some cases (such as in the case of Strauss itself), the effect of gossip, misinformation and allegations coupled with the posting of images of persons asserted to be responsible for, or suspected of, a crime may significantly contaminate the mind of potential identifying witnesses. The result may be that the cogency of any “identification” made when such witnesses later undergo a police identification process may be severely diminished. Such a process may lead to the requirement for a Judge to warn a jury against convicting on the basis of such contaminated identification evidence or, in extreme cases, may result in the exclusion of the identification evidence entirely.[2]
[1] (2013) 115 SASR 90.
[2] Strauss v Police (2013) 115 SASR 90, 96-104, 120-123, 130-133.
A media submission put in opposition to the appeal was that the argument of SAPOL and the DPP was too speculative in that it had not been established that publishing the name and address of the defendant would lead to contamination of evidence or, for example, that a search on the name or address of the defendant on the internet would directly lead to an image of the defendant.
In essence, the response to such a submission is that whilst a court must be “satisfied that special circumstances exist”, such satisfaction does not require a demonstration that the contamination of evidence or other prejudice has already occurred; indeed, such a requirement would be nonsensical since the purpose of an order under s 69A is to prevent such prejudice from occurring. In other words it is not necessary to prove that such prejudice will certainly occur; rather, it is necessary to show that special circumstances exist which give rise to a real and serious threat that such prejudice will occur such as to justify the making of the order in the particular case.
In assessing the degree and seriousness of such a postulated threat, regard must be had to the past experience of the courts. In the present case, the DPP did not just rely on the experience of the courts but adduced specific evidence before me that the present case does involve disputed identification of the person responsible for the death of the deceased and that there is a particular need to carry out identification procedures before such identification evidence becomes contaminated. Thus, SAPOL Sergeant Adrian Bellamy stated in his affidavit:[3]
The defendant has given an account of events that SAPOL believe is an inconsistent account of events when they were subjected to scrutiny. There is a need to conduct an indeterminate number of formal identification processes that will either prove or disprove some, or all, of the defendant’s version of events.
SAPOL believe that any formal identification will be tainted and potentially ruled as inadmissible if the defendant’s name and/or image are publically distributed prior to any formal identification process being undertaken.
…
The public can be assumed to be generally aware that an unknown suspect has been arrested. Thanks to the prevalence of social media it is possible that there has already been significant speculation, local and non-local, as to the identity of the arrested suspect but this has not been, to SAPOL’s knowledge, confirmed in any official sense.
SAPOL submits that if the arrested suspect’s details are published by the news media, the evidentiary reliability of a large number of witnesses who may be able to materially assist in identification will potentially be compromised, and that therefore such publication of the arrested person’s details at this stage of the investigation will potentially prejudice the proper administration of justice by admitting the possibility of the displacement effect in identification procedures yet to be undertaken.
…
SAPOL therefore contends that [there is significant] potential for prejudice to the continuing investigation and any future prosecution arising from (but not confined to) the displacement effect upon witnesses… (Emphasis added)
[3] Affidavit of SAPOL Sergeant Adrian Bellamy dated 19 July 2013 (at Appendix A).
The above remarks are precisely targeted and perceptive. The remarks are, of course, addressed to the many decided authorities on identification evidence and must be read against that implied background. [4]
[4] Thus, in the penultimate line, Sergeant Bellamy rightly emphasises that the “displacement effect” is only one aspect of a larger number of inter-related problems that arise in the area of identification evidence; a number of such matters are collected and considered in Strauss v Police (2013) 115 SASR 90.
The media also argued to the effect that:
· the policy embodied in ss 69A - 69AC, Evidence Act 1929 is to limit the circumstances in which suppression orders should be made;
· a primary objective in the administration of justice is to safeguard the public interest in open justice; and
· the news media have a right to publish accurate information relating to court proceedings.
I accept that these are valid points. The policy behind the amendments to the Evidence Act 1929 embodied in ss 69A - 69AC is to limit the circumstances in which suppression orders should be made and I further accept 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. In undertaking the balancing exercise in both limbs of s 69A(2), I had close regard to the principles of open justice which are referred to in such decisions as Channel Seven Adelaide Pty Ltd v An Accused[5] and R v Francis.[6]
[5] (2008) 103 SASR 459, 466 [25] (Bleby J).
[6] (2007) 251 LSJS 221, 228-229 (Gray J).
In undertaking the balancing exercises, in addition to the matters already referred to above, I took into account the following further important matters.
First, the present application is only for a suppression order for the relatively short fixed period of 28 days, a period which will end before the next appearance of the defendant in court and obviously well before committal proceedings take place. It is thus a matter of temporarily delaying publication of the name and address of the defendant rather than a prohibition on publication.
Second, it is to be remembered that that 28 day period occurs in a context where an arrest has already been made rather than where the police may be actively seeking the assistance of the public in the locating of an individual.
Finally, it is to be noted that the accused is in custody and not on bail; his next court appearance will be after the proposed 28 day period expires. Since the fact that the defendant is not on bail has been reported (and the media are quite free to further report that fact), public anxiety as to the identity of the defendant will be less than in a situation where a defendant is at large on bail.
Conclusion
Having undertaken the balancing exercises, I was satisfied that special circumstances do exist which give rise to a sufficiently serious threat of prejudice to the proper administration of justice to justify the making of an order suppressing the name and address (as well as any image or photograph) of the defendant and that the Magistrate erred in failing to make such order. Accordingly, I allowed the appeal and made the suppression order reproduced above which will remain in force for the stated 28 day period.