Packer v Police - [2007] SASC 98

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
PACKER v POLICE
[2007] SASC 98
Judgment of The Honourable Chief Justice Doyle (ex tempore)
15 March 2007
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS
Appeal against a decision of the Magistrates Court to refuse to issue a suppression order - submission that the appellant's wife and child will suffer undue hardship if the appellant is identified - consideration of what constitutes "undue hardship" in the circumstances of the appellant's alleged offending - consideration of the public interest in the publication of information relating to court proceedings - public interest outweighs potential hardship to the appellant's wife and child in the circumstances.
Held: appeal dismissed.
Evidence Act 1929 (SA) s 69A, s 69B, s 71A; Criminal Law Consolidation Act 1935 (SA) s 63B, referred to.
G v The Queen (1984) 35 SASR 349, applied.
Channel 7 Adelaide Pty Ltd v Draper (2004) 90 SASR 160, considered.

PACKER v POLICE
[2007] SASC 98
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): This is an appeal pursuant to s 69A(8)(a) of the Evidence Act1929 (SA) against a decision by a magistrate refusing to make a suppression order.
The appellant appeared before the Magistrates Court charged with the offence of communicating to entice a child for sexual activity contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA). I assume that this is an offence that attracts the operation of s 71A of the Evidence Act. Accordingly, publication of evidence given before the Magistrate or of any material that might identify the appellant was prohibited unless and until the appellant was committed for trial.
On 10 January 2007 the appellant was committed to the District Court to stand trial. The appellant then applied for an order under s 69A of the Evidence Act prohibiting the publication of his name and the publication of any material tending to identify him.
The Magistrate declined to make the order. The Magistrate gave reasons for his decision. I have considered those reasons.
The appellant appeals to this Court against the Magistrate’s decision. The powers of the Court on appeal are found in s 69B(3) of the Evidence Act. They are expressed in the usual way, indicating that on appeal the Court can interfere only if satisfied that the Magistrate has erred: Channel 7 Adelaide Pty Ltd v Draper (2004) 90 SASR 160.
After the appellant instituted his appeal a judge of this Court made a suppression order pending the hearing and determination of the appeal. The order is described as “an interim suppression order”. If that is intended to be a reference to an interim suppression order made under s 69A(3), it may be that the terminology is incorrect. An interim suppression order can be made under that provision only when an application is being made to a court for a suppression order as distinct from an appeal. If an interim suppression order is made the Court must determine the substantive application as a matter of urgency and if practicable within 72 hours. My impression is this provision applies to interim suppression orders made by the Court to which the application is first made, and that it does not apply to this Court on appeal from a lower court.
If it does apply that would suggest that the appeal should have been heard within 72 hours. However, it was appropriate to make the order that the Judge made in any event because unless it was made the appeal would be rendered futile.
The appellant based the appeal and the application for a suppression order on s 69A(1)(b)(ii) and (iii). The appellant submits that if the order is not made his wife, who is a potential witness, and his child would suffer undue hardship.
In his submissions on appeal Mr Longson focused his submissions mainly on undue hardship to the child. It is not clear whether that is how the matter was put before the Magistrate, but nothing turns on that.
I turn to the facts.
The appellant lives with his wife and children in a country town. His wife is employed at a school nearby and is involved in a number of community groups. In connection with her employment, and through those groups, she has many dealings with parents in the town and in the region. The appellant submits that if no suppression order is made the fact of the charge will become well known in the town where he lives and in nearby towns. People with whom his wife deals in her employment and in her community activities will soon come to know that her husband is the person charged.
The appellant submits that the wife will find it difficult to deal with parents of the children at the school where she works once it becomes known that her husband has been charged with the offence. The appellant submits that she will suffer from innuendo and gossip among parents, and makes the point that in connection with the clubs with which she is involved she must deal with the parents and with the children.
The appellant makes the further point that, having regard to the nature of the charges, they attract a degree of odium and disapproval, and that to some extent this will be transferred to his family. The appellant submits that because the family live in a small country town, the effect of this will be greater than it would be if they lived in a larger town.
The appellant’s youngest child attends a local school, and is also involved in local sporting clubs. Similar submissions were made in relation to him. Indeed, as I mentioned, in the submissions in support of the appeal Mr Longson focussed his submissions mainly on the son. I have referred equally to the wife’s position because to my mind there is no real distinction between their two positions.
In relation to the son, the point is made that he also will suffer embarrassment through being associated with the appellant once it is known that the appellant has been charged. Mr Longson emphasises the difficulty in a small country town of preserving one’s privacy and anonymity. He submits that it is more or less impossible for the wife and the child to escape from the attention that they will receive. As he said, when they walk out the front gate they will encounter people who are aware of the charge.
I accept that submission as a matter of fact. I also accept Mr Longson’s submission, as a matter of fact, that the child is trapped in the situation because the child does not have the ability to move to live elsewhere. The wife has that ability, but I do not by any means underestimate the difficulty of exercising that choice. That is one of the reasons why, contrary to Mr Longson’s submissions, I see little difference between the position of the wife and the child.
Section 69A(2) requires that in considering the appeal, I give substantial weight to the public interest in the publication of information relating to court proceedings. I bear that in mind.
The same provision provides that I could make an order only if satisfied that the undue hardship that would occur if the order were not made should be accorded greater weight than the public interest in the publication of information related to court proceedings.
Bearing that in mind, and without turning initially to the Magistrate’s reasons, I turn to the question of whether undue hardship has been established.
The first question is whether the appellant’s wife is a witness or potential witness in the proceedings. That is not in dispute.
The next question is whether the hardship to the wife and to the child is undue hardship. As I said a moment ago, I accept that they will suffer hardship for the reasons put by Mr Longson.
According to the Macquarie Dictionary (4^th ed, 2005) “undue” means “unwarranted, excessive or too great”.
It is appropriate to bear in mind that when charges are laid, especially a charge of a sexual offence, the family of the person charged will usually suffer some embarrassment, and some transferred odium. The fact of the charge will usually become known to people who know them well and to others with whom they associate. As Ms Charlesworth said and I agree, even a person living in a large town or in a major city will move within various circles within which the fact of a charge is likely to become known.
These are points that were made by King CJ in G v The Queen (1984) 35 SASR 349 at 352. King CJ made the point, and I agree, that something more than the ordinary degree of hardship to be expected must be established. And, it is necessary to bear in mind that even if a suppression order is made, there will be people who know of the charge and therefore there will be some embarrassment for family members in any event.
The judicial task does not involve subtracting from whatever degree of hardship might be made out, that degree of hardship that is inevitable. Precision of that kind is not possible. Rather, it is a matter of considering the hardship that is established, that bearing in mind that hardship to family members, at least in a case like this, is something that is almost inevitable to some degree.
Turning to the facts, I accept that the appellant’s wife and son will suffer significant embarrassment if a suppression order is not granted. I also accept that, having regard to the nature of the charges, some odium will be attracted to the appellant, and some of that will be transferred to his wife and son. Living in a small community it will be difficult for them to escape from this and, indeed, probably impossible.
I repeat that the child has no ability to escape by moving to another place, the choice that is theoretically open to the appellant’s wife. But I also remind myself that the concern here is embarrassment and what might be called transferred odium. There is no indication that the employment of the appellant’s wife is at risk or that the education of his son at risk. To say this is not in any way to ignore the difficulties that they will face. But I do have to bear in mind that embarrassment is often caused to the family of a person charged with an offence. I have to bear in mind that, even if a suppression order is made, some people will know of the charge and there will be some degree of suffering on the part of the wife and child.
These matters are not easy to assess. I understand the appellant’s concern for his family. I too am concerned about their welfare, but I am not persuaded the hardship they will suffer is undue, bearing in mind, as I have already said, the element of hardship that is likely to result in any event. My particular concern is whether there will be undue hardship if a suppression order is not made.
Even if the hardship in the present case were to be characterised as undue hardship, I am not persuaded, on the facts of this case, that the undue hardship should be accorded greater weight than the public interest in the publication of information related to court proceedings. That public interest has been declared by Parliament to be a matter of substantial weight. It is not enough for me to be persuaded that undue hardship will occur if a suppression order is not made. I must further be satisfied that the undue hardship is entitled to greater weight than the public interest. That implies that there will be degrees and kinds of undue hardship and that this must be taken into account when deciding whether the undue hardship is to be given greater weight than the public interest. If this were not so there would have been no point in Parliament imposing that additional barrier to the making of a suppression order.
This consideration of the public interest involves qualitative and quantitative considerations. They are very much a matter of impression. It is not easy to explain to another how one has made a decision under such a provision. But having regard to the substantial weight to be given to the public interest, I am not persuaded that the hardship here, even if it should be called undue hardship, should be given greater weight than the public interest.
For those reasons, looking at the merits, I am not satisfied that a suppression order should have been made.
I return to the Magistrate’s reasons. He referred to the decision in G v The Queen, and appears to me to have correctly identified the matters that fell for consideration. He considered the facts. It is relevant that he is a resident Magistrate, living in the same region, and is well placed to make an assessment of the facts, although I doubt whether there is any real issue as to how the facts should be assessed.
He reached the conclusion that undue hardship had not been made out. For the reasons that I have given, I am not persuaded that he was in error subject to one point. Mr Longson drew my attention to one particular part of the Magistrate’s reasons where at para 11 he said, referring to the son, that if it were said that undue hardship was established in this case:
… it would mean that … in the case of a defendant who had children there would always be an application under the section and on all occasions that application must succeed.
There is certainly one error in that. Even if undue hardship were made out, it would still be necessary to consider, under the terms of the section, whether the requirements of s 69A(2) were met. That is, to consider, what I will loosely call, the implications of the public interest.
Mr Longson submitted that this passage indicated that the Magistrate had, as it were, missed the point of the application, namely, that the application was based very much on the fact that the child and the mother lived in a small country town and was based on the particular difficulties that they would face for that reason. I have some difficulty accepting that the Magistrate would have missed the point of the application, having regard to the facts that were put before him and the facts on which he relied. However, I do agree with Mr Longson that, taken at face value, this passage suggests that the Magistrate was not drawing any distinction between family members in a small country town and family members in a larger town.
It is for those reasons that, in considering the matter, I have, as my reasons indicated, initially approached the matter afresh, rather than by first referring to the Magistrate’s reasons. So, while it may be that there is an error in the Magistrate’s reasons, although I am not quite satisfied that there is, I have considered the matter afresh in case there is an error there. As I have indicated, I am not persuaded in any event that a suppression order should be made.
The Magistrate also came to the conclusion that the hardship of the appellant’s wife and son does not outweigh the public interest in the publication of the information. In that respect I am also not persuaded he was in error.
Accordingly, I have come to the conclusion, even considering the matter afresh, that I would have reached the same decision as the Magistrate and for those reasons I dismiss the appeal.
I order:
1      That the appeal be dismissed.
2      That the suppression order made on 12 January 2007 be revoked.
3That the Registrar be notified the appeal has been dismissed and of the revocation of the interim order.
4      That there be no order as to the costs of the appeal.