H v Director of Public Prosecutions No. Scgrg-98-322 Judgment No. S6600

[1998] SASC 6600

H  v  DIRECTOR OF PUBLIC PROSECUTIONS

Magistrates’ Appeal

Bleby J

This is an appeal against a refusal by a magistrate to grant an order suppressing the name of an accused person charged with 31 counts of fraudulent conversion, one of which is a major indictable offence.  The present stage of proceedings is that they have only recently been commenced, the two informations containing the charges being dated 3 and 4 March 1998.  Application was made by the present appellant and others for the suppression of their own names as potential witnesses in the proceedings, and on the basis that the publication of their names would cause undue hardship to them.  The learned magistrate who heard the application acceded to those applications and ordered the suppression of their names or anything which would tend to identify them, and that included, of course, the present appellant.  I do not have the benefit of any notes of argument put to the learned magistrate or of any published reasons of the magistrate.

It appears that during the course of that application, application was also apparently made by the present appellant for the suppression of the names of the accused person and the alleged victims of the offences, but the magistrate only made an order suppressing their identity on an interim basis until 5 p.m. today pending the institution of this appeal. This appeal does not seek to perpetuate any suppression order in respect of the identity of the victims, so I need consider that no further. The appeal does seek to perpetuate a suppression order in respect of the accused. The grounds of appeal against the magistrate's order are that as the appellant is a witness in the criminal proceedings against the accused, publication of the accused’s name would identify the appellant and is likely to cause him undue hardship within the meaning of s69a(1) of the Evidence Act. Sub-s(1) and (2) of s69a of the Evidence Act are as follows:

“(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,

the court may, subject to this section, make such an order.

(2) Where the question of making a suppression order (other than an interim suppression order) is under consideration by a court -

(a)...... the public interest in publication of information related to court proceedings, and the consequential right of the news media to publish such information, must be recognized as considerations of substantial weight; and

(b)the court may only make the order if satisfied that the prejudice to the proper administration of justice, or the undue hardship, that would occur if the order were not made should be accorded greater weight than the considerations referred to above.”

The appellant carries on business as a solicitor.  He is in sole practice.  He also conducts the practice of a registered tax agent.  In his tax agency practice, he employs the accused.  He has employed the accused in that capacity since 1 September 1996 and continues to so employ him.  The accused is paid a salary by the appellant.  The appellant himself is not a victim or an alleged victim of the alleged offending of the accused.  I am satisfied, and there is no argument, that he is a likely witness in the proceedings against the accused. 

The alleged victims of the accused’s behaviour are clients of the appellant.  They are also, I am told, clients of the accused.  They are clients of the appellant in his tax practice.  As explained to me - and this went a little further than was contained in the affidavit filed obviously somewhat hastily by the appellant - the accused himself is involved in the conduct of an accountancy practice.  Neither the accused himself nor the firm under which he operates is a registered taxation agent.  The appellant is.  There appears to be some arrangement between the appellant and the accused whereby clients of the accused will have their taxation returns prepared and lodged by the appellant, being the registered tax agent, and most of the shared clients appear to have been introduced to the appellant by that means.  That is not to say, of course, that the appellant does not have independent clients, clients of his own in respect of his tax practice.  The appellant is not charged with any offence, and it is not suggested that the offending arises out of any conduct by the appellant or any of his other staff in the course of his own tax practice. 

I am told that the informations relate to the alleged conversion of refund cheques from the Taxation Department which were properly authorised to be sent to the accused at the office of his accountancy practice, and that it is alleged that the conversions then took place. It does not appear to be alleged that the conversions took place in the course of any business being conducted by the appellant. The appellant’s case is that publication of the accused’s name will have an adverse commercial impact on his - that is, the appellant’s - business and profession. He of course is required in terms of s69a to demonstrate that he will suffer undue hardship or that he is likely to suffer undue hardship if the publication of the accused’s name is allowed to be made. In the case of G v The Queen (1984) 35 SASR 349, and in particular at p352, the former Chief Justice said:

“Some degree of hardship could be expected to be caused by publicity to almost every person, other than the known hardened criminal, who is charged with a criminal offence.   The use of the adjective ‘undue’ to qualify ‘hardship’ in the section, indicates that something more than that ordinary degree of hardship is required.” 

I interpose there to say, of course, that the former Chief Justice was then speaking of a different section of the Evidence Act, but the phrase “undue hardship” appeared in that section as well. His Honour continued:

“I do not think that the mere fact that a person who is well known in the community, or follows a particular calling, and is therefore likely to attract greater publicity than another, can be sufficient. There would be little point in a statutory provision which prevented the publication of names which could not be published anyway and which authorised the prohibition of names on the very ground which would be likely to attract publicity. Moreover, it seems to me that the circumstances must be very rare in which hardship in the form of distress or physical or mental harm to others could be shown to be the likely result of publication of an accused person’s name. That ground is often resorted to in support of applications under s69. In most cases, however, it cannot be shown that the publication of the name will add very much if anything to the distress and suffering which those close to the accused will suffer from the knowledge that he has been charged and that that fact is known or will soon be known, irrespective of publication, to his friends and close acquaintances. Cases must be rare in which the added factor of media publicity would cause significantly additional distress or physical or mental harm.”

It is put by Mr Cuthbertson on behalf of the appellant that this is one of those cases, although it is not a case of physical or mental harm but the potential of economic harm.   The Chief Justice in that case then continued:

“Damage to an accused person’s livelihood is a common, perhaps the most common, example of undue hardship caused by publicity.  If a person might be prejudiced in his employment, or in an opportunity to obtain employment, or in his business or profession, in consequence of publication of his name, he should generally be considered to suffer hardship, which is undue by reason of the fact that he might sustain what amounts to a pecuniary penalty, perhaps of a severe kind, at a time when he has not been convicted.  This consideration, where it applies, should generally, in my opinion, lead to the prohibition of the publication of the name, at least until committal for trial  and in some cases until trial or verdict.”

The Chief Justice was there, of course, speaking of the publication of the name of an accused person, and those comments must be read in that light. True it is, however, that his Honour did recognise a form of economic hardship as possibly amounting to undue hardship for the purposes of s69 of the Evidence Act, as it then was, and one must apply similar principles when dealing with s.69a.

As I said, the allegations in the information are that the fraud has been carried out in respect of taxation refund cheques due to clients in respect of returns lodged on their behalf, presumably through the practice of the appellant, but in respect of whom the cheques or their proceeds were returned to the accused. 

The appellant deposes to the fact that his tax agency practice has hundreds of clients.  It is not clear to me how many of those are associated directly with him or how many are associated with him through means of the accused.   He says that he believes, as a result of the police investigation of the matters in question, that the tax agency practice has already lost six of the clients that are referred to in the charges.  He says that if the accused’s name is published he believes that the clients of his tax agency practice will associate those charges with himself and with his tax agency practice and will give rise to the potential for substantial loss of business and consequential loss of income, goodwill or worth to attract new clients to the practice.  He believes publication of the name of the accused would be inevitably linked to his business, to himself and to his tax agency practice by existing clients and by potential clients.  He believes that such publication will cause irreparable significant harm or potential significant harm to his business or profession as a tax agent or legal practitioner, and that he would suffer undue hardship by publication.  He further believes that publication of the name of the accused, especially at this stage of the criminal proceedings, whereby the information has only just been laid, would have an adverse impact on his business and profession.  He believes that the publication of the name of the accused will result in association being made in the minds of existing clients, potential clients and members of the public between the conduct which is alleged against the accused and his own position as a principal of the business and profession carried out in the tax agency practice. 

I am prepared to accept that publication of the accused’s name may well have some adverse effect on the appellant’s business, even if it is only through business which he derives solely by means of his association with the accused.  I bear in mind also that the accused has not been found guilty, and, until he is, he enjoys the presumption of innocence.  Unfortunately, not all members of the community necessarily think along those lines.  Not everyone thinks along lines of ideal detachment, nor do they suspend their private or public judgment on a person accused of a serious crime.  Not all people, even if they know where the accused was employed, at least for part of his time, will necessarily draw their line of judgment at the accused.  Regrettably, some may associate some sort of guilt with the appellant, although I think it is true to say that the degree of association, as I now understand it, may result in fewer rather than larger numbers of people adopting that association.  It seems to me that the association, if it does arise, can only be in the minds of a rather limited class of the community, namely, those who know where the accused is presently employed, and that will be principally the clients of accused or his firm, and being those who have, in the past, also had their tax returns prepared by or in the name of the appellant.  Otherwise, persons are unlikely, it seems to me, to identify the accused with the appellant, particularly as the appellant himself is already protected by the suppression order which has been made by the magistrate. 

It is an unusual association between the accused and the appellant.  I infer that the accused is employed by the appellant in his tax agency practice principally to prepare tax returns for the accused’s own clients.  Any loss of business by the appellant is likely to occur not by virtue of a public perception of the appellant’s association with the accused, if the accused’s name is published, but by clients deserting the accused and therefore not being referred to the appellant.  One must guard against confusing protection of the accused with protection of the appellant.

I accept that there will be some hardship of an economic nature to the appellant.  Some clients have, perhaps not unexpectedly, indicated that they will leave the appellant’s practice, presumably because they have left the accused’s practice, others may also do so.  It would be most unusual if all the alleged victims of the charges which have been laid do not already know of the charges against the accused and of the accused’s association with the appellant, by virtue of their involvement in the charges.  They are the ones, of course, who have been allegedly affected by the actions of the accused.  The real question in this case is whether that is likely to amount to what the Act calls “undue hardship” not to the accused but to the appellant.  It might do if the appellant sat idly by.  In any occurrence like this, there will be emergency measures which need to be taken to reassure innocent clients of the innocence of those associated with an accused person and perhaps even of the accused’s innocence himself until he is convicted.  The appellant may be well advised to take such measures, depending on his perception of the extent of the clients’ knowledge.  If so, it is unlikely to result, as I believe, in undue hardship.  It may, in some respects, be beneficial to his business and professional interests if he were to take such steps.  That, of course, is a matter of judgment for him.  There are many circumstances which occur in a business relationship which may cause diminution of clients from a particular source which may be said to cause hardship.  That is one of the exigencies of carrying on business not protected by s69A.

Given the apparently limited extent of the association which is likely to occur in the public mind and the limited reasons why there might be a loss of clients, I find it difficult to describe any hardship that the accused suffers as undue.

That is not all that needs to be considered, however.  Even if I were considered to be wrong, and that the hardship could be shown to be undue hardship, then one has to consider the provisions of sub-s(2) of 69a, to which I have already referred.  That requires the court to undertake certain balancing considerations under sub-s(2) that the public interest in the publication of court proceedings and the consequential right of publication must be recognised as what the Act describes as “considerations of substantial weight”.  The court can only make the order if it is satisfied in this case that the undue hardship that would occur if the order were not made should be accorded greater weight than the considerations referred to in para (a), namely, the public interest in the publication of information related to court proceedings. 

One of the considerations which is relevant to the public interest in the publication of information related to court proceedings, and indeed it was recognised as such by Nyland J in D v SA Police (Unreported, 18 October 1994, Judgment No S4799), is a situation where investigations are still proceeding, as they are in this case.  There is a public interest in publication of the identity of the accused and the fact that that may well encourage other alleged victims to come forward and assist in the investigation or, if necessary, cause it to be extended.  That, in my opinion, is a relevant consideration in this case. 

The other factor is that the provisions of s69a, as they now are, are somewhat different from the provisions of s69 of the Evidence Act as they were at the time, for example, when G v The Queen (supra) was decided. At that time, as I pointed out when referring to some passages in that case, it was open to an accused person to seek suppression of his or her own name on grounds of undue hardship. That is not now an option available to an accused person under s69a. One can infer from that change and from the provisions of s69a sub-s(2) para (a) that the public interest in publication of information related to court proceedings which includes a public interest in the publication of the identity of an accused person. That also becomes a relevant consideration to be weighed in the exercise of the discretion which it is necessary to exercise under sub-s(2). That is not to say, of course, that in some situations the publication of the identity of the accused does not outweigh the undue hardship which will occur or may occur to another if publication takes place.

I am not persuaded, if there is undue hardship on the part of the appellant, that it is not outweighed by the considerations which I have referred and to which I am required to have regard by sub-s(2).  It follows that in the exercise of my discretion I would not be prepared to continue the interim order of suppression, and that the appeal must be dismissed.