Police v Trzesniowski (No 2) - [2005] SASC 457

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 457
Application
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] SASC 457
Decision Date: 6 December 2005

CaseChat Overview and Summary

In the case of Police v Trzesniowski (No 2), the court was asked to consider an application for the suppression of the name of a person subject to an interim Summary Protection Order. The applicant in this case had previously been 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 considerable embarrassment. In light of this, a third party application was issued for the suppression of the applicant's name and those of her family from the judgment. The court was tasked with examining the considerations relevant to Summary Protection Orders, the obligation of disclosure when seeking an ex parte Summary Protection Order, and the public interest in protecting victims of domestic violence.

The court first addressed the obligation of disclosure when seeking an ex parte Summary Protection Order. It was established that the applicant must disclose all relevant information to the court, including any information that may be adverse to her case. The court found that the applicant had satisfied this obligation by providing all necessary information, and that there was no evidence of any material non-disclosure. The court then turned to the consideration of the public interest in protecting victims of domestic violence. It was acknowledged that there is a strong public interest in protecting victims of domestic violence from further harm, and that this interest can be served by the suppression of their names and those of their family members. The court concluded that in this case, the suppression of the applicant's name and those of her family members was necessary to protect her from further harm and to prevent any potential intimidation or harassment.

The court granted the application for the suppression of the name of the applicant and those of her family members from the judgment. It was found that the public interest in protecting victims of domestic violence outweighed any potential interest in the publication of the applicant's name. The court also noted that the suppression of the names would not impede the administration of justice or the proper functioning of the legal system. The final orders of the court included the suppression of the names of the applicant and her family members from the judgment, and the direction that any future publications of the case must also suppress these names.

In summary, the court granted the application for the suppression of the name of the applicant and those of her family members from the judgment, finding that the public interest in protecting victims of domestic violence outweighed any potential interest in the publication of the applicant's name. The court considered the obligation of disclosure when seeking an ex parte Summary Protection Order and found that the applicant had satisfied this obligation. The final orders of the court included the suppression of the names of the applicant and her family members from the judgment, and the direction that any future publications of the case must also suppress these names.

Orders