Lloyd Murray Reed v Francis Rex Ranger No. SCGRG 1921 of 1992 Judgment No. 3620 Number of Pages 2 Evidence Prohibition of Publication of Evidence

[1992] SASC 3620

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DUGGAN J

CWDS
Evidence - prohibition of publication of evidence - appellant charged with separate sets of offences - considerable publicity expected - application to suppress name during hearing of evidence at preliminary examination - suppression order justified by reason of risk that publicity could prejudice subsequent trial.

HRNG ADELAIDE, 31 August 1992 #DATE 31:8:1992
Counsel for appellant:     Mr R. Bleechmore
Solicitors for appellant:    R. Bleechmore
Counsel for respondent:     Mr S. Mcewan
Solicitors for respondent: Director of Public Prosecutions

ORDER
Appeal allowed.

JUDGE1 DUGGAN J The appellant in this matter stands charged with certain drug offences which arise out of two separate and distinct sets of circumstances. First, it is alleged that he sold heroin on 10th July, 1992 and 7th August, 1992. Those alleged offences have been charged under s.32 of the ControlledSubstances Act, 1984 (SA). Secondly he is charged under s.233B of the Customs Act, 1901 (Commonwealth) with possessing a prohibited import, namely heroin, on 6th April, 1992. I have been told that all matters will be contested. At present the appellant is awaiting committal proceedings in respect of the State matters. He was committed for trial on the Commonwealth matter on 25th August, 1992. If he is committed for trial on the State offences he will be tried separately on the State and Commonwealth informations. In other words, there will be two trials and Mr McEwen for the respondent has indicated to me that to his knowledge there is no suggestion that evidence relating to the State offences will be admissible in respect of the Commonwealth offence or vice versa. 2. When the appellant appeared before the learned magistrate on the State offences an application for suppression of his name was refused. The application was based upon the risk that publicity in respect of one matter would prejudice the trial of the appellant on the other matter. A similar application has been made to another magistrate with respect to the Commonwealth offence. An interim order for suppression has been made in that matter which has been adjourned to 2nd September, 1992 for a final order to be made. 3. It should not be necessary to stress the fact that where a person is charged with a criminal offence the law is ever vigilant to ensure that allegations of criminal conduct unconnected with that offence or any other suggestion that the accused person is of bad character, should not be made known to jurors or potential jurors who are or may be engaged in the trial of that offence. Indeed publication of such material is often a contempt of court. (Hinch v Attorney-General for Victoria 164 CLR 15 and Attorney-General for New South Wales v Willesee and Others (1980 2 NSWLR p.143.) 4. Of course it will not be a contempt of court if the reports are no more than accurate accounts of committal proceedings or other court proceedings, but it is for this reason that suppression orders are quite common in cases where a person is being tried in respect of one matter and will face trial before a jury in an unconnected matter in the near future. Sometimes these orders are made after the court of trial has severed one or more counts which will then be tried at some time in the near future. 5. This is not to say that suppression will be granted automatically in cases where a person is charged with more than one offence and where separate trials will take place. It depends on the circumstances of the case and whether it can be said that a suppression order should be made to prevent prejudice to the proper administration of justice. (s.69a(1)(a) Evidence Act, 1929.) 6. However I have no doubt that a suppression order is warranted in the present case. It is not in dispute that both sets of charges are likely to attract considerable publicity. In the event of a committal for trial on the State charges it is likely that a second trial will take place within a reasonably short time of the first trial, whichever of the two informations in tried first. There is a clear danger that each trial may be prejudiced because of publicity in relation to the other matter. 7. It was suggested at the hearing of the application before the learned magistrate that the damage has already been done in that the appellant's appearances on the State matters thus far have attracted considerable publicity. However it is my view that the potential for prejudice will increase as the time for trial draws closer and the court has a clear duty to minimise the prejudicial effect of publicity which has already taken place as well as to prevent further prejudice by reason of additional publicity. 8. For these reasons I am of the view that the appeal should be allowed. However I should emphasise that the only justification for a suppression order in this case is that which I have identified and if for any reason there is no longer a risk of prejudice by reason of these circumstances, the suppression order should be revoked. 9. I should also mention that whereas the right of the public to be kept informed is a most important consideration in suppression applications, an order in a matter such as this is usually of a temporary nature in that after the hearings and the conclusion of any appeals, there is no longer a danger that jurors or potential jurors will be improperly influenced by material which would be inadmissible at trial. I set aside the order of the learned magistrate and in lieu thereof I order that the name of the appellant in respect of the charges which I have been describing as the "State offences" be suppressed until further order.