Director of Public Prosecutions v C, KL - [2008] SASC 275

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
DIRECTOR OF PUBLIC PROSECUTIONS v C, KL & ORS
[2008] SASC 275
Judgment of The Honourable Justice Bleby (ex tempore)
8 October 2008
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS
Appeal against refusal by a Magistrate to grant a suppression order in respect of appellant’s identity – appellant charged with criminal neglect, endangering life and acts likely to create risk of harm – alleged victims are the children of the appellant and bear her name – Magistrate suppressed publication of victims’ names and images but not appellant’s name – whether suppression order should be made to prevent undue hardship to an alleged victim of a crime or to a child – appeal allowed, in part – special circumstances exist giving rise to a sufficiently serious threat of undue hardship to justify the making of an order in respect of the identity of the children – whether publication of accused’s name and suppression of names and images of children is adequate to prevent undue hardship – consideration of the appropriate form of the order – not necessary to suppress appellant’s name if order in respect of children made more effective – order made suppressing the name of and any information tending directly or indirectly to identify the children.
Evidence Act 1929 (SA) s 69A, s 69B, referred to.
Packer v Police (2007) 247 LSJS 410, discussed.
Channel 7 Adelaide Pty Ltd v An Accused; Advertiser Newspapers Pty Ltd v An Accused [2008] SASC 246; R v Francis (2007) 251 LSJS 221, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"suppression order", "undue hardship", "special circumstances", "open justice"

DIRECTOR OF PUBLIC PROSECUTIONS v C, KL & ORS
[2008] SASC 275
Magistrates Appeal
BLEBY J (ex tempore).
Introduction

This is an appeal by the Director of Public Prosecutions against the refusal of a magistrate to make an order suppressing from publication the name of the accused who, in these edited reasons and for reasons that will become apparent, I will call “C”. She and a person I will refer to as LA are separately charged with five counts of criminal neglect, two counts of acts endangering life and three counts of an act likely to create risk of harm. Another person, who I will refer to as TS is charged with two counts of acts endangering life, three counts of acts likely to cause harm and one count of impeding an investigation.
The victims in each case are a number of very young children, a number of whom are the natural children of C and who bear her name.
On 26 September 2008 a magistrate made an order pursuant to s 69A of the Evidence Act 1929 (SA) that the victims’ names and images and the images of each of the defendants be suppressed from publication. The suppression of the images of the defendants relates to the conduct of ongoing procedures concerning identification of the defendants and the prejudice to the administration of justice if the images were published at this stage. There is no complaint about the making of the order suppressing the images of the three accused, and accordingly nothing further need be said about that.
The Director of Public Prosecutions has appealed against the refusal of the Magistrate to make orders suppressing the names of the three accused. The Director has indicated that he does not propose to proceed with the appeal in respect of the failure to suppress publication of the names of LA and TS. Neither of those accused persons have appealed against that refusal. Neither of them has sought to be heard on the Director’s appeals, although both are aware of the intention of the Director to abandon those two appeals. Accordingly, the Director’s appeals in respect of the refusal to grant suppression orders in respect of LA and TS will be dismissed. The suppression orders made in those proceedings in respect of the names and images of the alleged victims of the offences alleged will, of course, remain.
The Director has persisted in his appeal against the refusal to make a suppression order in respect of the name of C. The substantial ground of appeal is based on the undue hardship that may be caused to the children of C who are the alleged victims of the crimes and the biological children of the accused. It is alleged that the publication of the name of the accused may tend to identify the victims of the offences with which the accused is charged.
Upon the Director indicating that he proposed to institute the appeal, another magistrate made an order suppressing from publication the name of C until 5.00pm on 30 September 2008. When the appeal first came before me on the same day, I made an interim order continuing that suppression until further order. As the Chief Justice observed in Packer v Police[1] the provisions of s 69A(3) relating to the making of an interim suppression order may well not apply to an appeal brought pursuant to s 69B of the Evidence Act, which this appeal is. However, it was necessary to make the order because without it the appeal would 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.
[1] (2007) 247 LSJS 410; [2007] SASC 98.
On the hearing of the appeal, counsel for C supported the submissions of the DPP in favour of allowing the appeal and making the relevant suppression order. The appeal was opposed by Channel 7 Adelaide Pty Ltd.
Section 69A of the Evidence Act 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.
The appellant relies upon the provisions of subparagraphs (i) and (iii) of s 69A(1)(b).
No-one complains about the Magistrate suppressing from publication the victims’ names and images. There is ample justification for that order. On the evidence before me, the victims have suffered shocking physical and emotional neglect and abuse. It is not necessary to elaborate on the details. Their mother has been in custody since her arrest in respect of these charges. The children are in the custody and care of the Department for Families and Communities. They require intensive care and monitoring. They suffer acute behaviour problems towards each other and their carers. They will require intensive trauma and therapeutic counselling for a period of years. They need continued protection and the provision of a safe and secure environment. They continue to live together and have commenced school. Their satisfactory integration into the community will require care and delicacy.
Although the evidence obtained at short notice is necessarily sketchy as to the effect of future therapy and the possible effect on that of public identification of the children, the children are extremely young and vulnerable. That vulnerability requires that one err on the side of protection rather than risk to the children.
On that basis and on the evidence before me, their identity being exposed to media coverage will potentially expose them to negative attention focused upon them, and is likely severely to prejudice their well-being, their recovery and their integration. It is likely to affect adversely the necessary therapy they now require. Their identification as victims of the alleged offences or as children of the accused within the community to which they must now be integrated would be likely to lead to comments which would impact adversely on their well-being and therapy.
The likely hardship would go well beyond the inevitable embarrassment or level of suffering that would normally afflict the young children of a person accused of serious crimes. They are not only the accused’s children but victims of her alleged offences. The allegations are very serious, involving extreme levels of neglect, physical injury, malnutrition and injury to health. The psychological damage that the children have suffered is likely to be lasting. Any additional hardship they will suffer as a result of publication of their identity can readily be categorised as “undue” for the purposes of s 69A(1)(b) of the Evidence Act.
I am satisfied that special circumstances exist giving rise to a sufficiently serious threat of undue hardship to them to justify the making of the order in respect of the children notwithstanding 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.
Having satisfied myself that an order suppressing publication of the identity of the children is necessary in order to prevent undue hardship to them, the only question to be addressed is whether, in the circumstances of the orders made by the Magistrate, publication of the name of C is likely to reveal the identity of the children. I am not concerned as to whether publication of her name will cause hardship to her. There is no suggestion that publication of her name, as opposed to her image, will prejudice the proper administration of justice.
The order made by the Magistrate only prevents publication of the name and image of any of the children. It does not prevent publication of other material which might tend to identify them. There has already been substantial media coverage of the circumstances in which the accused and her children were living at the time when the children were taken into care. Publication of the name of the accused and of information concerning the allegations against her is almost bound to identify the children, even if they are not named or their images are not published. They bear the same family name as the accused. They live together and presumably attend the same school. Even if their names are not published, it is therefore likely that they will be identified among the community in which they live and with whom they interact as being associated with the accused. That identification, even without media publicity of their names, is likely adversely to affect their therapy, their well-being and their integration, and is likely thereby to cause undue hardship to them.
However, the answer is not to prevent publication of the accused’s name. The principles of open justice to which I referred in Channel 7 Adelaide Pty Ltd v An Accused and Advertiser Newspapers Pty Ltd v An Accused[2] and to which Gray J referred in R v Francis,[3] coupled with the amendments to the Evidence Act now reflected in s 69A and the clear policy behind s 69A designed to limit the circumstances in which suppression orders should be made, all require that there should be no order suppressing publication of the accused’s identity.
[2] [2008] SASC 246 at [25].
[3] (2007) 251 LSJS 221 at 228-229; [2007] SASC 364 at [30]-[32].
The answer to this appeal is therefore not to impose a suppression order in respect of the accused. It is to make more effective the order as it relates to the children. Suppression from publication of their names and of their images is, in the circumstances inadequate. The order needs to go further and to prohibit publication of anything that may tend to identify them. That may well have the effect of severely restricting or even, in some cases, of prohibiting the publication of the name of the accused. However, if there are circumstances in which the accused’s name may be published without identifying the children, it is not for the court to place an unnecessary restriction on that publication. Whether that can be done is something which those wishing to publish will need to consider and on which they may need to take advice in the particular circumstances.
The appeal is only against the refusal to make a suppression order in respect of the name of the accused. There is no appeal against the order made by the Magistrate in respect of the children. However, the situation of both the accused and the children are very much interdependent. They were treated as such by the Magistrate. The order was made as a composite suppression order. The order suppressing publication of the name of the accused was only refused by the Magistrate because he considered that publication of the name of the accused would not give rise to a sufficiently serious threat of undue hardship to the children to justify such an order. Given the limited nature of the suppression order made in respect of the children, I consider that the Magistrate erred in that regard.
Under s 69B(3)(b) of the Evidence Act I have power to make an order or decision that could have been made by the Magistrate. Publication of the name of the accused should only occur if it will not prejudice the identity of the children. I therefore propose to vary the order made in respect of the children in order to justify the decision of the Magistrate in respect of the accused.
Accordingly, the appeal will be allowed, but only for the purpose of making more effective the suppression order in respect of the children, and to prevent publication not only of their names and images but of anything which may tend directly or indirectly to identify them. I will also revoke the interim orders that I made in respect of these proceedings on 30 September and 1 October 2008.