Herald and Weekly Times Limited v Director of Public Prosecutions & Anor No. Scciv-02-1819

[2002] SASC 422

HERALD AND WEEKLY TIMES LIMITED  v  DIRECTOR OF PUBLIC PROSECUTIONS AND ANOR
[2002] SASC 422

Full Court:  Doyle CJ, Lander and Bleby JJ (ex tempore)

1. DOYLE CJ, LANDER & BLEBY JJ:     The Herald and Weekly Times Limited (“HWT”) has made application for an extension of time within which to appeal to the Full Court, and for leave to appeal to the Full Court.

2. HWT wishes to appeal against an order made by Martin J on 21 June 2001 in the course of proceedings on an Information presented to this Court charging Mr Vlassakis and others with murder.

3. The order made by Martin J is an order under s 69A of the Evidence Act 1929 (SA) suppressing from publication the image of Mr Vlassakis in any form, including photographs, sketches and illustrations. The order was made by Martin J before a jury was empanelled. In making the order the Judge drew on powers conferred by s 285A of the Criminal Law Consolidation Act 1935 (SA), empowering the Judge to determine questions of law affecting the conduct of the trial before the jury was empanelled.

4. HWT publishes a daily newspaper with an extensive circulation in Victoria and with a limited circulation in South Australia.

5. A Registrar’s Summons has been issued out of this Court charging HWT with contempt of court.  The Summons alleges that HWT breached the suppression order referred to.

6. HWT wishes to challenge the validity of the order made by Martin J.  It is not necessary for present purposes to summarise the grounds upon which it wishes to do so.  Whether a successful challenge to the order means that the order is to be treated as ineffective from the outset, and therefore incapable of providing a basis for a charge of contempt, is an issue to be determined later.  Even if the order were to be set aside, it does not follow that a breach of it could not give rise to a charge of contempt.

7. The application for leave to appeal is made under r 94.03 of the Supreme Court Rules. It is made ex parte. Presumably the application for an extension of time is made under r 95.02 of the Supreme Court Rules.

8. If HWT requires leave to appeal, it requires leave to appeal only because it did not appear before Martin J when the suppression order was made. Section 69A(8) of the Evidence Act confers a right of appeal against a suppression order. Section 69A(9)(e) includes among the persons entitled to appeal:

   “a person who did not appear before the primary court but has, in the opinion of the appellate court, a proper interest in the subject matter of the appeal or proposed appeal.”

   HWT appears to have a proper interest in the proposed appeal.  But the final part of s 69A(9) provides that:

   “… a person who did not appear before the primary court may only bring an appeal, or be heard on an appeal, by leave of the appellate court (which will be granted if the appellate court is satisfied that the person’s failure to appear before the primary court is not attributable to a lack of proper diligence).”

   Those words appear to apply to each of the preceding sub-paragraphs of s 69A(9).

9. HWT requires leave to appeal only because it did not appear before the Court when Martin J made the suppression order.  There is no reason to suggest that this was attributable to a lack of proper diligence on the part of HWT.

10. By s 69B(1) the appeal against the suppression order lies to:

    “(a)the court to which appeal lies against final judgments or orders of the primary court …”

    Accordingly, the appeal lies to the Full Court of the Supreme Court, and presumably to that Court exercising jurisdiction under the Criminal Law Consolidation Act.  That is the Court to which an appeal would lie against final judgments or orders of the Court trying the Information.

11. That being so, it seems that leave to appeal cannot be granted under r 94.03 of the Supreme Court Rules. Although that Rule refers to an application for leave to the Full Court, it has been taken as referring to an application to that Court exercising civil jurisdiction. So, while it is the Full Court which will hear the appeal, for the purposes of s 69A(9) “the appellate court” is the Full Court exercising jurisdiction under the Criminal Law Consolidation Act.

12. If that is correct, the time limit fixed by r 95.02 of the Supreme Court Rules does not apply in this case.  No time limit for an appeal is specified by the Evidence Act. However, r 95.02 could be regarded as a Rule applicable to appeals under the Evidence Act, in relation to appeals against suppression orders made by this Court when exercising civil jurisdiction.  The same comment applies in relation to the time limit fixed by r 94.01 for the seeking of leave to appeal.

13. The matters that we have canvassed are not addressed by HWT in its application for leave to appeal.  Because the application is made ex parte, we do not have the benefit of submissions from the Director of Public Prosecutions.  Not having heard submissions on these matters, it is undesirable to decide them at this stage.  Accordingly, while we are of the tentative view that the application is incompetent, we will not strike it out.

14. We order that the application now before us be referred to the Full Court for consideration with any appeal or application for leave to appeal that might be made by HWT under s 69A(8) and 69A(9) of the Evidence Act.

15. HWT is at liberty to make further application in relation to the application before us, if it sees fit.

16. We direct that a copy of these reasons be provided to HWT and to the Director of Public Prosecutions.