Police v Trzesniowski (No 2)
[2005] SASC 457
•6 December 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
POLICE v TRZESNIOWSKI (No 2)
Judgment of The Honourable Justice Gray
6 December 2005
PROCEDURE - JUDGMENTS AND ORDERS
Application for suppression of the name of a person subject to an interim Summary Protection Order - the applicant was named and details concerning her relationship with the respondent were published in a prior judgment - a member of the media subsequently contacted the applicant causing her embarrassment - a third party application was issued for her name and those of her family to be suppressed from the judgment - consideration of Summary Protection Orders - consideration of obligation of disclosure when seeking an ex parte Summary Protection Order - consideration of the public interest in protecting victims of domestic violence - application granted.
Evidence Act 1929 (SA) s 69A(1)(b)(ii); Summary Procedure Act 1921 (SA) s 99, referred to.
Police v Trzesniowski [2005] SASC 299; Jarrad v Santamaria (2005) 91 SASR 514; Thomas A Edison Ltd v Bullock (1912) 15 CLR 679, considered.
POLICE v TRZESNIOWSKI (No 2)
[2005] SASC 457Application
GRAY J:
This is an application for suppression of the name of a person the subject of an interim Summary Protection Order.
The application is made pursuant to section 69A(1)(b)(ii) of the Evidence Act 1929 (SA). Subsections (1) to (4) relevantly provide:
(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.
(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 recognised 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.
...
(4)A suppression order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.
This application was made after the names of the applicant and family members had been published through my judgment in Police v Trzesniowski[1]
[1] Police v Trzesniowski [2005] SASC 299.
Police v Trzesniowski
A police officer made a complaint pursuant to section 99A of the Summary Procedure Act 1921 (SA). The complaint was based on an affidavit of the applicant sworn on 21 July 2004 and provided to the Norwood Police Station on the same day. The applicant deposed to a fear for her safety and that of her family.
On 22 July 2004, a magistrate made an ex parte restraining order pursuant to section 99C of the Summary Procedure Act. Section 99C provides that a restraining order can be made in the absence of the defendant but in that case the court must summon the defendant to appear before the court to show why the restraining order should not be confirmed.
Counsel for Mr Trzesniowski challenged the confirmation of the order on the ground that the order was invalid as it purported to protect adult members of the applicant’s family when the only complainant was the applicant. Prior to the hearing with respect to the confirmation of the restraining order, Mr Trzesniowski was charged with breaching the restraining order by approaching the applicant’s mother.
On 30 March 2005, the breach of restraining order proceedings commenced before a magistrate. The magistrate held that in so far as the order purported to protect the applicant’s mother it was not legally enforceable. It was held that the ex parte order made on 22 July 2004 was too wide and could not protect adult members of the applicant’s family.
The decision of the magistrate was the subject of an appeal by the Police and was brought before this Court on 10 May 2005. The appellant submitted that the procedure followed by the magistrate was irregular, that the magistrate made material errors of fact, and misunderstood and misinterpreted the effect of the legislative scheme.
On 9 August 2005, the appeal was allowed and the decision of the magistrate was set aside. The matter was remitted to the Magistrates Court for rehearing.
In my reasons, after assessing the legislative scheme of Division 7 of the Summary Procedure Act, I concluded:[2]
The correct test for validity of the restraining order concerns the question of whether the defendant has acted so as to reasonably arouse in the complainant apprehension of fear of personal injury or damage to property, not whether the behaviour was directed at the complainant.
…
[Section 99 restraining orders] can extend protection to third parties not named as complainants. This is clearly intended by the legislative scheme and the provisions of the Act.
In the present case, the magistrate proceeded under a misapprehension of fact and a misunderstanding of law. The complaint giving rise to the restraining order in question was made by a police officer having obtained an affidavit from [the applicant]. The magistrate erred in proceeding on the assumption that the complaint was made by [the applicant]. This assumption was not supported by the evidence.
The magistrate erred in finding that the validity of the order depends upon the identity of the complainant. Such a requirement does not form part of the legislative scheme.
The procedure the magistrate followed when determining the legal enforceability and validity of the restraining order resulted in a denial of procedural fairness to the Crown. No evidence was called to determine the identity of the complainant, no voir dire hearing was conducted, no proceeding for judicial review was conducted, no section 99F procedure was followed, no enquiry into the provisions of the Summary Procedure Act was made. This amounted to a miscarriage of justice.
[2] Police v Trzesniowski [2005] SASC 299 at [50], [54]-[57].
In the course of the reasons for judgment, reference was made to the applicant by name and to the information that she had provided in her affidavit as the basis for the application for a restraining order against Mr Trzesniowski. This included details of the applicant’s prior relationship with Mr Trzesniowski and of his threatening and intimidating behaviour toward her family.
This Application
At no time during the magistrate’s hearing, the appeal to this Court or at the delivery of judgment was an application made by the applicant to suppress her name or that of her family members.
Some time after judgment was delivered, a journalist in Melbourne contacted the applicant seeking information about her father. The journalist had obtained the judgment from the internet and had spoken to Mr Trzesniowski who provided further information about the applicant. The journalist then contacted the applicant.
The applicant conducted a search on the internet and found that by entering her name as a search term, the judgment and the references to her were revealed.
In October 2005, an application for suppression was made. In an affidavit filed in support, the applicant expressed her concern including the following:
I am concerned that publication of my name in the Judgment may embarrass me with respect to future job applications.
I am also embarrassed generally about the matter involving Mr Trzesniowski.
I believe the publication of the names of my immediate family will also serve to identify me and continue my embarrassment about the matter.
The Legislative Framework
Before considering the suppression application, it is necessary to discuss the statutory scheme of section 99 of the Summary Procedure Act and its purpose. The history of Division 7 of the Summary Procedure Act was discussed in Police v Trzesniowski.[3]
[3] Police v Trzesniowski [2005] SASC 299 at [26]-[44].
Since 1994 numerous amendments have been made to the Summary Procedure Act. Many of the amendments were intended to reform the law in the area of domestic violence restraint and to provide a framework for the speedy attainment of restraining orders in situations of apprehended violence, damage to property or intimidating or offensive behaviour. At the same time, protective mechanisms were provided to ensure that persons subject to a restraining order are provided with opportunities to challenge, revoke or vary the order as appropriate in the circumstances.[4]
[4] For a detailed discussion of the legislative framework of the Summary Procedure Act see Police v Trzesniowski [2005] SASC 299.
The speedy obtaining of restraining orders in many instances will require a complainant to bring an ex parte application. An ex parte application places an obligation of full and frank disclosure on the complainant. This responsibility was discussed in Jarrad v Santamaria.[5] In that case, reference was made to Thomas A Edison Ltd v Bullock,[6] where Isaacs J observed:[7]
[I]t is the duty of a party asking for an [application] ex parte to bring under the notice of the Court all facts material to the determination of his right to that [application], and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application.
Consequently, affidavit evidence used to support an ex parte application for a restraining order must be candid in its detail. Given the nature of domestic violence, it is readily foreseeable that this may require an applicant to provide details of personal relationships. This may involve the disclosure of details that are private, embarrassing and distressing.
[5] Jarrad v Santamaria (2005) 91 SASR 514.
[6] Thomas A Edison Ltd v Bullock (1912) 15 CLR 679.
[7] Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681 cited in Jarrad v Santamaria (2005) 91 SASR 514 at 518-519.
As previously noted, section 69A of the Evidence Act provides that a court may, if satisfied that it should be made, make a suppression order to prevent prejudice to the proper administration of justice, to prevent undue hardship to an alleged victim of crime, to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings, or to a child.
Counsel for the Crown as amicus curiae, submitted that in cases dealing with section 99 of the Summary Procedure Act, it may be appropriate for a court to make a suppression order to prevent prejudice to the proper administration of justice. Counsel submitted that before a court can make a restraining order it must be satisfied that the making of the order is appropriate. One way in which the court may be satisfied is by a consideration of the contents of an affidavit supporting a complaint disclosing matters of a highly personal and potentially humiliating or embarrassing nature. Counsel for the Crown and counsel for the applicant submitted that if details of such a nature were published, there exists the potential for prejudice to the proper administration of justice. Persons seeking the protection of a section 99 order may be hampered in their efforts to “satisfy” a court of relevant matters. This may arise from a fear that if they reveal to the court embarrassing or humiliating material in support of the application it may become accessible to the public.
These submissions are of substance. The purpose of section 99 of the Summary Procedure Act is to provide speedy access to the courts to seek protection for people who fear physical violence, damage to property or intimidating or offensive behaviour. However, given that many of these applications are ex parte, there is a responsibility to disclose all relevant details in order to satisfy the court that an order is required. If applicants believe that they may be exposed, embarrassed and humiliated if these details are published those fears may act as a deterrent to seeking the protection of the law. Therefore one can expect that in this type of case grounds justifying the grant of a suppression order may exist.
Counsel for the applicant has submitted that this Court should suppress the name of the applicant under section 69A(1)(b)(ii) as she is a witness who is not a party to the original proceedings before this Court as the police brought the complaint. It is also submitted that the names of the applicant’s immediate family should be suppressed.
It is to be borne in mind that these proceedings arose out of a domestic situation which of itself is essentially private in nature. There is a public interest in the protection of those subjected to domestic violence and a public interest in the prompt seeking of the court’s protection. However, the publication of the names of those involved will generally be of little or no public interest. These are considerations of particular importance in the present proceedings.
As earlier observed, the applicant in the present case has outlined in her affidavit the embarrassment she has already suffered as a result of a journalist obtaining details from the previously published judgment and her concerns of potential future embarrassment. I am satisfied that in all the circumstances, a suppression order should be made.
In reaching this conclusion I have given substantial weight to the public interest that may be served by the publication of the information relating to these court proceedings and the right of the news media to publish such information. However, I am satisfied that the undue hardship that would occur if an order for suppression were not made should be accorded greater weight than the consideration of the public interest and the right of the news media.
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