Director of Public Prosecutions v Channel 9 South Australia P/L - [2006] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DIRECTOR OF PUBLIC PROSECUTIONS v CHANNEL 9 SOUTH AUSTRALIA P/L
[2006] SADC 141
Judgment of His Honour Judge Robertson
22 December 2006
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION
Application by DPP to have Court direct Registrar to issue Summons for Contempt - Suppression Order made by a Judge in time between committal and filing of Information - were there proceedings in the District Court at the time - proceedings in Magistrates Court same proceedings as those in District Court - Magistrate functus officio in relation to committal proceedings - District Court criminal jurisdiction only enlivened when Information filed - criminal proceedings still on foot in Magistrates Court - Suppression Order made by Judge exercising powers of Magistrate but sitting as a Judge of the District Court - breach of the Order is a contempt of the District Court - order to direct Registrar to issue Summons.
Evidence Act 1929 s 68, 69A; Magistrates Act 1983 s 22; Judicial Administration (Auxillary Appointments and Powers) Act 1988 s 5; Criminal Law Consolidation Act 1935 s 276; District Court Rules 1992 r 93.03, referred to.
Mane Market Pty Ltd v Temple Judgment Number S6986; Re F (1989) 159 LSJS 141; R v Hackett (1996) 185 LSJS 156; Watson v Attorney-General for New South Wales (1987) 8 NSWLR 685 at 700; Jago v District Court (NSW) (1989-90) 168 CLR 23 ; R v His Honour Judge Noud ex parte MacNamara (1991) 2 Qd R 86 ; Tarasenko v Boylan and Attorney-General for South Australia (1992) 58 SASR 588 at 590, applied.
R v Carroll and Nosal (1990) 156 LSJS 303, not followed.
Muscat v Magistrates Court (1996) 66 SASR 367; R v Brooks and Childs (2006) 95 SASR 369; R v Gibbs (2004) 89 SASR 31, considered.

DIRECTOR OF PUBLIC PROSECUTIONS v CHANNEL 9 SOUTH AUSTRALIA P/L
[2006] SADC 141
Judge Robertson
Civil
Nature of the Proceedings

The Director of Public Prosecutions for the State of South Australia (“DPP”) has issued a Summons pursuant to s 7 of the Director of Public Prosecutions Act 1991 seeking an order that Channel 9 South Australia Pty Ltd (“Channel 9”) be convicted of acting in contempt of the District Court of South Australia (“the District Court”). It is alleged that the contempt of Court occurred on 19 March 2004, when Channel 9, as part of its National Nine News Program, broadcast images of the children of Norman John Rose (“Mr Rose”), a Defendant in a criminal prosecution, in breach of a Suppression Order made in the District Court on 22 November 2002.
The procedure for contempt of court proceedings is governed by Rule 93 of the District Court Rules 1992 (“1992 Rules”). Rule 93.03 provides that where it is alleged that a contempt has been committed, the Court may direct the Registrar to issue a Summons in which is stated the nature of the alleged contempt, and direct the Registrar to cause it to be served upon the party alleged to be in contempt. It is not usual for the party alleged to be in contempt to be involved in the process of the Court directing the Registrar to issue the initiating Summons. The Court’s function in this process has been described as a “screening function”. In Mane Market Pty Ltd v Temple[1], Debelle J described the role of the Court in directing the Registrar to issue a Summons in the following manner:
When determining whether a Registrar’s summons should issue, the court is exercising a screening function something similar to that exercised by a Magistrate in committal proceedings in respect of a criminal offence. To make an order that a Registrar’s summons should issue, the court must be satisfied that there is sufficient evidence which, if accepted, would prove the contempt.
[1] Judgment Number S6986; unreported Judgment of Debelle J dated 29 November 1998 at 1-2
In this case, the parties have agreed to treat the Summons issued by the DPP and the present proceedings as an application for the issue of a Registrar’s Summons for Contempt. Channel 9 opposes the issue of the Registrar’s Summons. It has been agreed by the parties that, as Channel 9’s challenge relates to threshold issues relevant to any direction by the Court for the issue of a Registrar’s Summons, for practical reasons, it is appropriate to determine the issues arising from Channel 9’s challenge to the proceedings at this stage. I am satisfied that the course adopted by the parties is consistent with the “screening function” described in Mane Market.
A Brief History
On 23 August 2004, Mr Rose was charged in the Magistrates Court on a Magistrates Court Information that he, on 18 August 2002, unlawfully and maliciously by stabbing, wounded Michael Alan Clark with intent to do grievous bodily harm contrary to s 21 of the Criminal Law Consolidation Act 1935 (“CLCA”), (“the charge”). On 30 October 2002, Mr Rose pleaded not guilty in the Magistrates Court to the charge. On that occasion, he conceded that there was a case to answer. As a result, pursuant to s 107 of the Summary Procedure Act 1921, the presiding Magistrate committed Mr Rose to the District Court to stand trial and he was ordered to appear in the District Court on 9 December 2002. The Order committing Mr Rose was signed by the presiding Magistrate on 30 October 2002.
On 15 November 2002, Mr Rose filed a written application in the District Court seeking an order suppressing from publication the names and images of his two children, together with his de facto, Rebecca Schutt. The application came on for hearing before Judge Lunn on 22 November 2002. His Honour granted the application in respect of the two children, but refused it in relation to Ms Schutt. The terms of the order made by Judge Lunn were:
Pursuant to s69A(1)(B)(3) Evidence Act 1929 the names and faces of (names of children excluded) be suppressed from publication until further order.
On 4 December 2002, the DPP filed an Information in the District Court charging Mr Rose with Wounding With Intent To Do Grievous Bodily Harm. On 9 December 2002, Mr Rose was Arraigned in the District Court and he pleaded not guilty. On 11 February 2004, following a Trial in the District Court, a Jury found Mr Rose not guilty of the charge, but guilty of the alternative charge of Unlawful Wounding.
The Suppression Order Register and Index held by the Sheriff of South Australia, contained an entry indicating that the names and faces of Mr Rose’s two children were to be suppressed from publication until further Order.
The Alleged Contempt
On 19 March 2004, Mr Rose was sentenced by Judge Rice. On the same day, Channel 9 broadcast a story during the course of its evening news program concerning the sentencing of Mr Rose. In the course of that broadcast, the images of Mr Rose’s two children were broadcast. Prior to the broadcast, the Journalist presenting the story did not have any knowledge of the existing Suppression Order.
Section 69A of the Evidence Act
The Suppression Order was made pursuant to the provisions of s 69A of the Evidence Act 1929 (“Act”). Section 69A(1) provides:
69A(1)       Where a court is satisfied that a suppression order should be made –
(a)    to prevent prejudice to the proper administration of justice; or
(b)    to prevent undue hardship -
(i)     to an alleged victim of crime; or
(ii)to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or
(iii)to a child,
the court may, subject to this section, make such an order.
It is also relevant in these proceedings to refer to the definition of “suppression order” contained in Section 68 of the Act:
Suppression order means 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.
(Emphasis added.)
Summary of Submissions for Channel 9 and the DPP
I mentioned earlier, that Channel 9 challenges the issue of the Registrar’s Summons. That challenge is based upon the following two submissions:
·that the Suppression Order made by Judge Lunn was made exercising his power as a Magistrate and not a District Court Judge and, as a result, any contempt was of the Magistrates Court and not the District Court;
·that, in any event, the Suppression Order related to the Magistrates Court proceedings as they were the only proceedings on foot, and that the broadcast of the images related to the District Court proceedings and, as a result, the broadcast did not breach the Suppression Order.
With respect to both of these submissions, the fundamental proposition submitted by Mr Swan, Counsel for Channel 9, was that the Magistrates Court committal proceedings were different proceedings than the proceedings that eventually took place in the District Court. It was Mr Swan’s submission that the District Court proceedings only commenced at the time that Mr Rose was Arraigned on 9 December 2004.
Mr Hinton, Counsel for the DPP, submitted that:
·Judge Lunn was exercising powers of a District Court Judge when he made the Suppression Order;
·that the Magistrate had become functus officio as a result of the order committing Mr Rose to stand trial in the District Court and at that time the District Court’s jurisdiction was enlivened;
·the proceedings in the District Court were the same proceedings as the Magistrates Court proceedings.
Were the District Court Proceedings Different Proceedings?
In the first instance, it is necessary to identify the proceedings to which the Suppression Order attaches. An application for a Suppression Order is not a separate proceeding. It is a procedural incident of current legal proceedings. This point was made clear in the observations of King CJ in the decision of In Re F[2]:
The power of a court to make a suppression order conferred by section 69a of the Evidence Act is, in my opinion, a mere procedural incident of the legal proceedings in the course of which the order is made. No right is conferred upon a person who is a potential subject of a suppression order, except a right to apply to the court and to make submissions; see section 69a(3)(b) as it stood prior to the 1989 amendment. The making of an order confers no additional right upon the person who is the subject of the order, except the right to have the order observed while it remains in force.
[2] (1989) 159 LSJS 141 at 143
As I pointed out earlier, it was Mr Swan’s submission that the Magistrates Court committal proceedings were different proceedings to those in the District Court. He submitted that the only proceedings on foot at the time Judge Lunn made the Suppression Order on 22 November 2002 were the proceedings dealt with in the Magistrates Court. Mr Swan submitted that it is only after a person is arraigned in the District Court, that proceedings arise in the District Court, and that those proceedings are different proceedings to the Magistrates Court committal proceedings. Accordingly, it was submitted that the order must have related to the Magistrates Court committal proceedings. As a corollary to that submission, it was submitted that Judge Lunn must have been exercising his powers as a Magistrate at the time of making the Order[3].
[3]Section 22 Magistrates Act 1983; Section 5(1) Judicial Administration (Auxillary Appointments and Powers) Act 1988
I cannot accept the submission that the Magistrates Court proceedings were different proceedings than those in the District Court. The question whether the Magistrates Court committal proceedings are different proceedings than the proceedings conducted in a higher court following committal of a Defendant, was considered by the Court of Criminal Appeal in R v Hackett[4].
[4] (1996) 185 LSJS 156
The appeal in Hackett involved an Information which contained a major indictable offence and four summary offences. The Defendant was committed to stand trial in the District Court in relation to all of the offences. Following committal, a District Court Information was filed by the DPP in accordance with his obligations under Section 276(1) of the CLCA, charging the same offences as those contained in the original Magistrates Court Information. It was argued in the Appeal that the Magistrates Court proceedings had been determined by the order for committal and the new Information filed in the District Court commenced fresh proceedings in that Court. It was further argued that as the District Court Information instigated fresh criminal proceedings with respect to the charges, then the summary offences were statute barred as they were, by then, out of time.
In addressing the issue of different proceedings, Lander J made the following observations[5]:
I must say, I am not sure what the relevance of either of those propositions is to the matter to be determined. It does not seem to me to matter whether the proceedings before the summary court on committal proceedings is administrative, nor that the summary court is functus officio after it makes its order for committal to a superior court.
Inherent in the appellant’s argument is the proposition that the proceedings before the Magistrate are different proceedings to those in the superior court. In my opinion that is a misconception.
In my opinion, the information which is laid before the Magistrate commences the same proceedings which are in due course determined by a Judge or a Judge sitting with a jury. The information which is laid before the Magistrate generates a procedure which requires the Magistrates Court to determine whether there is sufficient evidence to put the defendant upon his trial. They are not separate proceedings, in my opinion, to those proceedings which are in due course heard in the superior court.
The proceedings are commenced by the filing of that information in the Magistrates Court and they are concluded either by the Magistrate determining that the defendant ought not to be committed to the superior court, and in circumstances where the Director does not present an ex officio information to the superior court consequent upon the refusal to commit, or in the alternative, if the Magistrate concludes the defendant ought to be committed to the superior court upon either the Director, giving a certificate under s276(2) or the entry of a verdict by a jury, or the entry of a verdict by a Judge sitting alone, or the filing of a nolle prosequi. They are one and the same proceedings, in my opinion, from start to finish.
The other two members of the Court agreed that the proceedings in the District Court were the same proceedings that were commenced on Information in the Magistrates Court, albeit that a fresh Information was laid in the District Court. (See also: Watson v Attorney-General for New South Wales[6]).
[5] R v Hackett (1996) 185 LSJS 156 at 165-166
[6] (1987) 8 NSWLR 685 at 700
The decision in Hackett was not referred by either Counsel in their submissions. Nevertheless, I consider it is decisive in resolving the issue whether the Magistrates Court proceedings were different proceedings than those in the District Court regarding the prosecution of Mr Rose.
Mr Swan referred me to the decision in this Court of R v Carroll and Nosal[7], where it was held that committal proceedings in the Magistrates Court are different proceedings than those that followed in the District Court after committal. The decision in Hackett overrules that decision.
[7] (1990) 156 LSJS 303 at 306
Was Judge Lunn Exercising Powers of a District Court Judge?
Whilst I have reached the conclusion that the criminal proceedings in the Magistrates Court were the same criminal proceedings that were conducted in the District Court relating to Mr Rose, nevertheless it is still necessary to determine whether Judge Lunn made the order as a Judge of this Court exercising his powers as a District Court Judge. In other words, during the period after committal and before the filing of the Information, was the District Court seized of the criminal proceedings relating to the prosecution of Mr Rose? It is only if the District Court was seized of those criminal proceedings that Judge Lunn could have been exercising the powers of a District Court Judge when he made the order. If the District Court was not seized of those powers, then the alternative is that Judge Lunn was exercising his powers as a Magistrate (the submission by Mr Swan). I suppose there is one further alternative, namely, that there is a hiatus in which neither Court is seized of those criminal proceedings.
(i) Submissions for the DPP
Mr Hinton, Counsel for the DPP, submitted that upon the presiding Magistrate signing a minute of his Order committing Mr Rose to the District Court to stand trial, the Magistrate became functus officio and the criminal proceedings regarding Mr Rose passed to the District Court. In other words, it was at that point that the District Court gained jurisdiction over the criminal proceedings which had previously been in the Magistrates Court. Counsel for the DPP submitted that such a proposition is supported by implication from the terms of s 276(2) of the CLCA. He argued that those terms recognise that the District Court has jurisdiction over those criminal proceedings in the period after committal and before an Information is filed. Mr Hinton submitted that, as a result, when Judge Lunn made the Suppression Order he was exercising the powers of a District Court Judge.
(ii) Submissions for Channel 9
Mr Swan’s submission was that the District Court’s jurisdiction commenced at the time Mr Rose was arraigned on 9 December 2002, which followed the filing of an Information by the DPP on 4 December 2002. It was submitted by Mr Swan that as Judge Lunn’s Suppression Order was made on 22 November 2002, Judge Lunn must have been exercising powers as a Magistrate. Counsel for Channel 9 said that even if the Magistrate was functus officio with regard to the committal proceedings, a hiatus did not arise between the order for committal and the arraignment of Mr Rose. Mr Swan submitted that the fact that the Magistrate was functus officio did not prevent that Court from making ancillary orders in relation to the criminal proceedings of Mr Rose, including the making of a Suppression Order under Section 69A of the Evidence Act.
Mr Swan’s primary submission that the proceedings in the District Court commenced by the Arraignment of Mr Rose, and that they were different proceedings to those in the Magistrates Court, must fail. I have already concluded that the criminal proceedings in the Magistrates Court were one and the same criminal proceedings in the District Court. However, as I stated previously, whilst they are one and the same criminal proceedings, the question still needs to be determined whether Judge Lunn, in making the Order, was exercising his powers as a District Court Judge.
(iii) Was the Magistrate Functus Officio?
As I mentioned previously, it was Mr Hinton’s submission that the presiding Magistrate was functus officio regarding the committal proceedings on the signing of the minute by the Magistrate committing Mr Rose to the District Court and, at that time, the District Court’s jurisdiction was enlivened. He said the proposition that the presiding Magistrate was functus officio is supported by analogy with the decision in Muscat v Magistrates Court[8]. In Muscat it was held with respect to a sentence that the Magistrates Court becomes functus officio on the pronouncement of the sentence and the signing of the minute required under s 70 of the Summary Procedure Act. Mr Hinton also referred to the decision of R v Brooks and Childs[9]. In that case, it was held that the power to exercise the common law right to vary or revoke a sentence may be undertaken prior to the Judge signing the Report of Prisoner Tried. It was said that the signing of the Report by the Judge is the final act by the Judge in sentencing.
[8] (1996) 66 SASR 367
[9] (2006) 95 SASR 369

Whilst there are obvious factual differences between those cases and the present situation, and that Muscat was dealing with a specific provision of the Summary Procedure Act, I consider they do provide some assistance on this question. It seems to me that upon a presiding Magistrate ordering a Defendant to stand trial in a higher court during committal proceedings, and signing a minute or endorsement of the Order on the file, then the Magistrate does become functus officio regarding the proceedings relating to the committal of a Defendant.
As I said, Mr Hinton submitted that at the time the Magistrate became functus officio, then criminal proceedings relating to Mr Rose passed to the District Court. He also relied on the terms of Section 276 and, in particular, sub-section(2), to support the proposition that the District Court had jurisdiction with respect to the criminal proceedings of Mr Rose after committal and before an Information is filed.
(iv) Section 276 of the CLCA
I turn to consider Section 276 of the CLCA. The Section 276 reads:
(1)Subject to subsection (2), in every case in which any person has been lawfully committed for trial at any criminal sessions, it shall be the duty of the Director of Public Prosecutions to present, or cause to be presented, an information against that person.
(2)If on examining the depositions taken in any case the Director of Public Prosecutions is of the opinion that there is no reasonable ground for putting the person committed for trial upon his trial for any offence, he may so certify, in the form contained in Schedule 1, to the judges of the Supreme Court or the District Court, any one of who may, if the accused person is in prison, thereupon, by warrant in the form contained in Schedule 2 direct the Director of Correctional Services, or the gaoler in whose custody the person is, immediately to discharge him from imprisonment in respect of the offence mentioned in that warrant and, where the person mentioned in the certificate is on bail, the recognizances of bail taken from him and his sureties shall, on the Director of Public Prosecutions so certifying, become void.
Sub-section(2) provides that a Certificate is to be presented to the higher court indicating that the DPP has concluded that there is no reasonable ground for putting a person on trial where the DPP has formed that opinion. The Certificate is commonly called “a white paper”. As a result of receiving the Certificate, the higher court is entitled to take action set out in the sub-section. In Hackett[10] Lander J acknowledged that a Certificate under sub-section (2) is one method of bringing the criminal proceedings commenced in the Magistrates Court to an end.
[10] (1996) 185 LSJS 156 at 166
There is some force in the submission that the underlying stratum of Section 276(2) is that there must be some proceedings on foot at the time the Certificate is presented. I accept that the Certificate cannot be filed in a vacuum. Logically, at the time of the filing of the Certificate, it would seem that the proceedings before the Court, for the purpose of the Court receiving the Certificate by the DPP, are the criminal proceedings which were committed to the Court by the order of the Magistrate. However, even if that is accepted, I do not think it provides the answer to the issue.
(v) The Role of the Information
In Jago v District Court (NSW)[11], Brennan J said:
Absent any special statutory investiture the District Court has no jurisdiction in a criminal matter prior to the presentation of an indictment.
This proposition has been followed on a number of occasions in Courts in Australia. In R v His Honour Judge Noud ex parte MacNamara[12], McPherson J said:
The presentation of an indictment is effected by filing it in a court having jurisdiction to hear and determine the offence charged. It is only when that has taken place that the jurisdiction of a District Court becomes exercisable: see Jago v. District Court (N.S.W.), at 36.
Williams J[13] expressed himself in similar terms:
Section 58 of the District Courts Act confers on the District Court jurisdiction to hear and determine indictable offences. Primarily it is a section which confers jurisdiction on the court. The jurisdiction to deal with a particular matter stems from the presentation of the indictment to the court; the indictment, like the plaint on the civil side, enlivens the court’s jurisdiction to deal with the matter thereby brought before it (s.560 of the Code). That was the view of Brennan J. in Jago v. District Court of New South Wales (1989) 168 C.L.R. 23 at 36-37 with respect to the District Court of New South Wales; there is no reason in principle why the same should not be the position here.
[11] (1989-90) 168 CLR 23 at 35
[12] (1991) 2 Qd R 86 at 91
[13] (1991) 2 Qd R 86 at 99
The weight of authority is clearly against the submission of Mr Hinton that the District Court’s jurisdiction is enlivened at the point when a presiding Magistrate signs the minute which evidences the decision to commit a Defendant for trial in the District Court. It is the filing of the Information which enlivens the jurisdiction of the District Court.
Such a proposition does not deny the legitimacy of Mr Hinton’s argument that when the DPP presents a Certificate under sub-section(2) of Section 276 of the CLCA, it is done so in the context of proceedings before the Court. It would seem that at that point the criminal proceedings are before the Court for the purpose of the exercise of filing the Certificate. That proposition can be seen as an exception to the general rule that the jurisdiction is only enlivened by the filing of an Information in that the jurisdiction, for that particular purpose, has been vested by Statute.
(vi) Is there a Hiatus?
Mr Hinton submitted that if his proposition that the District Court is vested with jurisdiction from the time the minute is signed by the Magistrate is not correct, then there is a hiatus arising from the fact that the Magistrate is functus officio. I do not agree.
“Functus officio” literally means having discharged his duty. The expression has been recognised in the law as applying to a Magistrate or Judge who has completed the particular power or function which is being exercised. Examples of where a Magistrate or Judge has become functus officio have earlier been given in the decisions of Muscat[14] and Brooks v Childs[15].
[14] (1996) 66 SASR 367
[15] (2006) 95 SASR 369
I have accepted the proposition that the presiding Magistrate became functus officio regarding the committal proceedings at the time he signed the minute recording his Order that Mr Rose be committed to trial in the District Court. As a result, he had no power to further consider the question of the committal of Mr Rose. Nor did any other Magistrate in the Magistrates Court. However, the fact that the Magistrate is functus officio in relation to the committal, does not translate into a wider proposition that the Magistrates Court is functus officio with respect to, the criminal proceedings initiated in that Court when the DPP filed a Magistrates Court Information. The Court still retains jurisdiction with respect to those criminal proceedings until the District Court jurisdiction is enlivened. In my opinion, if Mr Rose had applied for a Suppression Order immediately after the Magistrate had signed the minute regarding the committal of Mr Rose to the District Court to stand trial, the Magistrate would have had the jurisdiction to hear the application and make orders if it was thought appropriate.
In What Capacity was Judge Lunn Acting?
I have concluded that at the time of the making of the Suppression Order, the District Court’s jurisdiction relating to the prosecution of Mr Rose had not been enlivened. I have also found that the criminal proceedings relating to Mr Rose were still on foot in the Magistrates Court. It must follow that when he made the Order, Judge Lunn was exercising his powers under Section 22 of the Magistrates Act1983, which provides that a District Court may “may exercise the jurisdiction, powers or functions of a magistrate”.
In Tarasenko v Boylan and Attorney-General for South Australia[16], King CJ said, (when referring to Section 22):
I am unable to agree with Judge Lunn’s view that a District Court judge is not authorised to sit as the Magistrates Court. I think that the jurisdiction powers and functions of a magistrate, which a judge is authorised to exercise by s22 of the Magistrates Act, include the totality of a magistrate’s jurisdiction powers or functions, from whatever source derived, and include his jurisdiction powers and functions when sitting as the Magistrates Court. The distinction sought to be made between the jurisdiction power or functions of a magistrate as such and his jurisdiction powers or functions when sitting as the Magistrates Court, is unduly subtle and, in my opinion, not warranted by the section.
The section seems to me moreover to have a wider operation. It enables the judge to exercise the jurisdiction powers or functions of a magistrate by sitting in the Magistrates Court, but it goes further than that. It does not limit the means by which a judge may exercise the jurisdiction powers and functions of a magistrate, to sitting as the Magistrates Court. The language of the section is apt to confer on the District Court judge, while sitting as the District Court, the jurisdiction powers and functions of a magistrate. As the jurisdiction powers or functions of a magistrate include the jurisdiction powers or functions which he enjoys in sitting as the Magistrates Court, it follows that the District Court judge sitting as the District Court may exercise the jurisdiction powers or functions of the Magistrates Court.
The operation of s22 of the Magistrates Act is, for relevant purposes, twofold. It empowers the judge to sit in the Magistrates Court as though he were a magistrate and to exercise the jurisdiction powers and functions of a magistrate therein. It also enables him, while sitting in his own court and exercising the jurisdiction of that court, to exercise the jurisdiction powers or functions of a magistrate including those which the magistrate could exercise when sitting as the Magistrates Court.
[16] (1992) 58 SASR 588 at 590
King CJ made the following further observations regarding the operation of Section 22 of the Magistrates Act:
I am of the opinion therefore that a judge of the District Court is authorised to hear and determine charges of summary offences in proceedings which have been instituted in the Magistrates Court and that there is no occasion to discontinue the practice which has hitherto been followed. It is not necessary for the District Court judge to sit as the Magistrates Court. He is entitled to exercise the jurisdiction as a judge of the District Court. The proceeding is not, of course, in any sense removed from the Magistrates Court into the District Court, but is dealt with by the District Court judge pursuant to the special powers conferred by s 22 of the Magistrates Act and s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act. It remains a “Criminal Action” within the meaning of s 3 of the Magistrates Court Act and an appeal would therefore be governed by s 42 of the Magistrates Court Act.
Emphasis added.
[17] (2004) 89 SASR 31 at 35-36
(See also R v Gibbs[17]).
In my opinion, when Judge Lunn made the Suppression Order he was exercising the powers and functions of a Magistrate pursuant to Section 22 of the Magistrates Act in relation to proceedings then current in the Magistrates Court. However, he was exercising the jurisdiction as Judge of the District Court.
Was the Broadcast in Breach of the Order?
I mentioned earlier that Mr Swan submitted that the broadcast did not breach the Order. He submitted that the allusion to the two children occurred in the committal proceedings in the Magistrates Court. Mr Swan further submitted that as the broadcast related to the conviction and sentence of Mr Rose in the District Court there was no breach. This submission must be rejected. I have earlier found that the criminal proceedings relating to the prosecution of Mr Rose was one continuous set of proceedings. The proceedings in the District Court were the same proceedings as those in the Magistrates Court. They were not two sets of proceedings as submitted by Mr Swan. The proceedings at the time the Order was made were the same proceedings referred to in the broadcast on Channel 9 News. Accordingly, Channel 9, in publishing the images of the two children was in breach of the Suppression Order.
Is the Suppression Order Invalid?
During the course of his oral submissions, Mr Swan raised a matter which he had not considered previously. He submitted that the Suppression Order was invalid. This argument was also premised on the proposition that the proceedings in the Magistrates Court were different proceedings than those proceedings in the District Court. Mr Swan submitted that the only way that a Suppression Order could be obtained on behalf of the children is because they were alluded to in court proceedings. He referred to the definition “suppression order” in Section 68 of the Act. He submitted that as the two children had only been alluded to in the course of the Magistrates Court proceedings, then Judge Lunn did not have the power to make the Suppression Order because the children had not been alluded to in the course of the District Court proceedings.
There are two short answers to this submission. The first is that there is one set of proceedings and the children were alluded to in those proceedings. Accordingly, Judge Lunn was entitled to make the Suppression Order. Secondly, in any event, it is too late to complain about the Order. There was no appeal challenging the Order. It was on foot when the broadcast was made.
Conclusion
As I have stated, in my opinion Judge Lunn’s Suppression Order was made by him exercising the powers and functions of a Magistrate in relation to proceedings on foot in the Magistrates Court. However, he was exercising his jurisdiction as a Judge of the District Court. Accordingly, the Suppression Order was made in his capacity as a District Court Judge. As a result, the breach of the Order by Channel 9 was a breach of an Order of the District Court.
For the reasons I have expressed, I direct the Registrar of the District Court to issue a Summons for Contempt pursuant to Rule 93 of the 1992 Rules.