R v Berger No. DCCRM-96-1294, DCCRM-97-143 Judgment No. D3569

[1997] SADC 3569

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons of His Honour Judge Lunn

Hearing

24/02/97.

Catchwords

CRIMINAL LAW Inspection of depositions from committal proceedings on District Court file - held to be "documentary material" within S52(2)(d) of District Court Act - criteria for exercise of administrative discretion for permission to inspect - procedure to be followed - permission granted to media - cases considered. CRIMINAL LAW Inspection of application for enforcement of a bond - held not within S54(2)(c) as material placed before Court on sentencing - held to be "process relating to proceedings" within S54(1)(aa) and so available for inspection as of right.

Representation

R:
Counsel: MS K SHEPHERD - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS

Accused ADAM JAMES BERGER:
No Attendance

Participant ADVERTISER NEWSPAPERS:
Counsel: MR A SHORT - Solicitors: MINTER ELLISON

DCCRM-96-1294, DCCRM-97-143

Judgment No. D3569

11 March 1997

(Criminal)

R v ADAM JAMES BERGER

Criminal

Judge Lunn

REASONS FOR ORDERS UNDER SECTION 54 OF THE DISTRICT COURT ACT FOR INSPECTION OF THE COURT FILE

An Information was presented against the defendant in this Court charging him with supplying amphetamine (Ecstasy). The Director of Public Prosecution filed with this Court the material which had been before the Magistrates Court on the committal proceedings which consisted of two statements of witnesses and a record of interview between a detective and the defendant. (There are also other formal papers on the Court file but there is no issue in relation to them.) On 10 February 1997 the defendant pleaded guilty to the charge. At the request of all counsel the further steps in the sentencing process were adjourned to 3 March 1997 for the prosecution to institute proceedings for breach of a bond against the defendant and for his solicitors to obtain a psychological report. No allocutus was given.

Representatives from the media requested to inspect the depositions on the Court file. I informally indicated I would give the necessary permission under Section 54(2) of the District Court Act without holding any hearing if the defendant's solicitors consented. They did not consent. Solicitors for Karen Michelmore, a journalist employed by the Advertiser Newspaper, wrote to the Registrar on 14 February 1997 formally requesting inspection of the depositions. I held a hearing on 24 February to consider the request. Solicitors for the defendant were notified of it but did not attend or otherwise respond. The DPP took a neutral stance. At the conclusion of the hearing I gave permission for the depositions to be inspected by the Advertiser and anyone else who sought to do so. I indicated I would subsequently publish these reasons for my decision because there has been considerable uncertainty about the operation of S54 in respect of depositions and the appropriate procedures to be adopted.

Section 54 of the District Court Act at present provides as follows:

"54(1) Subject to this section, the Court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of -

(aa) any process relating to proceedings and forming part of the Court's records;

(a) a transcript of evidence taken by the Court in any proceedings;

(b) any documentary material admitted into evidence in any proceedings;

(c) a transcript of submissions by counsel;

(d) a transcript of the judge's summing up or directions to the jury, in a trial by jury;

(e) a transcript of reasons for judgment (including remarks made by the Court on passing sentence);

(f) a judgment or order given or made by the Court.

(2) A member of the public may inspect or obtain a copy of the following material only with the permission of the Court:

(a) material that was not taken or received in open court;

(b) material that the Court has suppressed from publication;

(c) material placed before the Court during sentencing proceedings (including material furnished under section 7 of the Criminal Law (Sentencing) Act1988);

(d) documentary material filed in connection with a preliminary examination;

(e) a transcript of any oral evidence taken at a preliminary examination;

(f) a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced;

(g) material of a class prescribed by the regulations.

(3).The Court may permit inspection or copying of material referred to in subsection (2) subject to any condition it considers appropriate, including a condition limiting the publication or use of the material.

(4) A decision by the Court on an application under this section is administrative and is final and not subject to any form of review.

(5) The Court may charge a fee, fixed by regulation, for inspection or copying of material under this section."

It has been significantly amended since a number of the relevant authorities were decided. It is in identical form to S131 of the Supreme Court Act 1935 and S51 of the Magistrates Court Act 1991. Insofar as the decided cases referred to these equivalent provisions of the other Acts and their predecessors I treat them in these reasons as being references to the corresponding provisions of S54 and its predecessors.

Counsel for the Advertiser expressed some doubt about whether the District Court was performing an administrative or judicial function under S54(2). Section 54(4) was introduced by S7 of the Statutes Amendment (Courts) Act 1995 No 84 as from 25 December 1995. The subsection 54(4), which was enacted by the Statutes Amendment (Recording of Interviews) Act 1995 No 65, has never been proclaimed to come into operation. Thus under the existing S54(4) the application is to be determined on an administrative basis. However, the administrative discretion now conferred by S54(2) is to be exercised in the same way as the similar judicial discretion under the former versions of S54(2). The fact that the discretion is now administrative rather than judicial only goes to the procedure by which it may be exercised and not to the criteria which are to be applied. Thus the previous authorities on the judicial exercise of the discretion are still applicable.

There was some argument about whether the depositions came within S54(1)(b). I need not determine that. By its preamble S54(1) is subordinate to S54(2). Thus insofar as any material comes within both SS54(1) and (2) permission is required under (2) for its inspection.

It is not obvious on the face of S54(2) whether witness statements taken at a preliminary examination come within its ambit. Section 54(2)(d) refers to "documentary material filed in connection with a preliminary examination". This clearly encompasses the record of interview which was a document put forward at the committal under S104(1)(a)(ii) or (iii) of the Summary Procedure Act 1921. The term "documentary material" is also used in S54(1)(b) where it would seem to mean exhibits tendered in the course of a trial. In SA Telecasters Ltd v DPP
(1995) 64 SASR 123 at 125 it was said that the expression should be given a liberal construction. I note that while S104(1)(a) of the Summary Procedure Act refers to statements of witnesses and documents in separate subparagraphs, subsections 104(1)(b) and (2) of that Act clearly envisage that the witness statements are included in the omnibus expression "documentary material" as used in S104(1)(b). It would seem that this wider meaning of "documentary material" from S104(1)(b) of the Summary Procedure Act should be adopted for the expression in S54(2)(d) of the District Court Act. If "documentary material" in (2)(d) is confined to exhibits or the like by reference to S54(1)(b) it would produce the strange result that permission is needed under
(2)(d) and (e) for inspection of exhibits and oral evidence taken on committal proceedings but not for the witness statements. Insofar as it is proper to use a purposive approach in construing S54(2)(d) (Owen v State of SA (1996) 66 SASR
251) the second reading speech for the Statutes Amendment (Courts) Act 1995 supports this interpretation as it refers to "material admitted at a committal hearing pursuant to S107(1)(b) of the Summary Procedure Act." (Hansard, 19 October 1995, Legislative Council 273.) The only reported case dealing with the criteria for the exercise of a discretion for granting permission under S54(2), as distinct from cases dealing with earlier versions of (2), is R v Penney
(1996) 188 LSJS 60. That case was somewhat different in that it related to an application apparently under (2)(f) in the course of a trial, but there Debelle J held that the three classes of interest to be protected by the Court were the accused having a fair trial, the accused's limited right of privacy and the victim's interest. In SA Telecasters Ltd v DPP (above) at 126-7 the Full Court said in respect of an earlier version of S54(2) that "some material, because of its nature or the harm that may flow from its inspection or publication or for some other good reason, may be withheld from inspection" and upheld a refusal of inspection on a criterion of it not being in the interests of the proper administration of justice, but without determining that there could not also be other relevant criteria. In DPP v Williams (1993) 172 LSJS 14 at 18-19 Debelle J said in relation to an earlier version of S54(2) that the Court had to look at the public interest in open justice, in the freedom of the press and in the proper preservation of medical confidences concerning the defendant.

If a defendant who has pleaded guilty wishes to object that inspection of the documentary material from the committal proceedings might interfere with the proper administration of justice or his rights of privacy, he should raise those objections. While the Court may act on its own motion on such matters where they are clear and beyond dispute it is not incumbent upon it to pursue such issues where the defendant himself elects not to do so. Here I have read the documents in question. I can see nothing in them in respect of the interests of the deponents of the statements or the victim of the offence which would override the public interest in having open justice carried out by disclosure of the contents of those documents in the media.

In respect of the procedures to be followed for applications for inspection the Full Court said in relation to an earlier version of S54 as follows in SA Telecasters Ltd v DPP (above) at 124-125:

"(Section 54) deals generally with administrative matters .. and it would appear to create no rights beyond the right to make an application for inspection and, if the material is made available for inspection, the right to receive a copy of it on payment of the appropriate fee. On that view of the matter any application for inspection would be made in the first instance to the Registrar or other proper officer, and one might suppose that inspection would ordinarily be allowed as a matter of course. Where, exceptionally, a question arose whether the material should be withheld from inspection pursuant to subs (2), the Court would have to make a decision about it. No doubt it would not do so, except in the clearest of cases or in accordance with a settled policy, without giving the applicant the opportunity of explaining, orally or in writing, the grounds of the request, and I expect that in the nature of things any contentious applications would normally be referred in accordance with the Courts' administrative procedures to a judge. The judge may or may not decide to have the issue debated before him in chambers or in open court. A decision of the Court would then be made in accordance with subs (2). .."

In R v Penney (above), which proceeded under the existing S54(2), but in the context of an application during a trial by jury, Debelle J said at pp 60-1:

"These applications were initially made by letter addressed to me. It is very proper to give written notice of the application and indeed written notice should, as a general rule, be given. I say 'as a general rule' because there may be occasions where an oral application could fairly, by reason of some degree of urgency, be made. .. I see no reason for a formal application. A letter setting out the nature of the application, what is sought, and the reasons for the application would again as a general rule suffice. .. Whenever an application of this kind is made, copies of the application should be given immediately to the Director of Public Prosecutions .. and .. to counsel for the accused. .. The application must be made in due time to enable it to be heard. .. In order that all relevant interests might be represented and heard, the application must be made in open court. It cannot be granted just simply on a letter addressed to the Judge in chambers."

In my view where permission is sought under S54(2) in this Court to inspect documentary material from the committal proceedings the proper procedure is for a letter to be sent to the Registrar requesting permission and briefly setting out the grounds on which it is sought. The letter should only not be sent to a Judge, but if a Judge is then involved in the proceedings the Registrar may refer the request to that Judge. The Registrar should immediately send copies of the request to the prosecution, the defendant's solicitors and any other person who apparently has a particular interest in the contents of the documents with an intimation that if there is any objection to the application written notice of it should be given to the Registrar within two business days of the Registrar having posted the letter. If any such objection is received, or if the Registrar considers there is any difficulty about the disclosure of the documents, the Registrar should refer it to a Judge for a determination of the request. If not, the Registrar may allow inspection.

By the time of the hearing on 24 February it had come to my attention that separate proceedings had been instituted in the Court on behalf of the Director of Public Prosecutions against the defendant for enforcement of a breached bond. Counsel for the Advertiser also sought inspection of this file. The only document on the file was the application, although annexed to it is a certificate from the Magistrates Court evidencing a bond previously entered into by the defendant.

I do not consider that this application for the enforcement of a bond is "material placed before the Court during sentencing proceedings" within S54(2)(c). It is a separate proceeding in its own right but it is to be heard in conjunction with the sentencing proceedings because that is a convenient course for the Court and the parties.

Counsel for the Advertiser submitted that this application came within S54(1)(aa) as being "process relating to proceedings and forming part of the Court's records". I have some difficulty in fully understanding what is meant by "any process relating to proceedings". On a purposive approach to the interpretation of the phrase I have ascertained from the second reading speech referred to above that the following was said in relation to introduction of
(1)(aa):

"A further category of material has been included in the material that the Court must make available for inspection or copying: processes related to proceedings. This includes the Information and Complaint in criminal proceedings. These were available for inspection under Section 72 of the Summary Procedure Act, which has been repealed."

On this basis "process" encompasses documents by which proceedings are initiated and thus includes an application under S57 of the Criminal Law(Sentencing) Act 1988 for enforcing a breached bond. I therefore ruled that the Advertiser had a right under S54(1) to inspect this document.