R v Brown
[2009] SASC 124
•11 May 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BROWN
[2009] SASC 124
Reasons for Decision of The Honourable Justice Vanstone
11 May 2009
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE
Application for revocation of suppression orders in force at time of entry of nolle prosequi.
Evidence Act 1929 69A, 71B, Part 8, referred to.
R v BROWN
[2009] SASC 124Criminal
VANSTONE J: In 2007 Mr Brown was charged with a number of offences of a sexual nature dating back to 1980. Late in 2008 he was committed for trial on some of those charges.
An Information was filed in the District Court dated 29 September 2008. It contained charges of indecent assault and unlawful sexual intercourse; seven in number.
The trial of the matter was to commence today. Late on 7 May my associate was advised that a nolle prosequi would be entered in relation to all counts on the Information. That was done on Friday, 8 May 2009.
Ahead of the trial several suppression orders pursuant to s 69A Evidence Act 1929 remained in force.
The first in time of those was made on 15 September 2008 by Justice Bleby who heard an appeal against suppression orders made at the time of committal. Those orders are as follows:
(a)evidence of any facts relating to charges which have been brought against the accused or which might tend to disclose the fact that charges have been brought against the accused, other than allegations contained in the charges themselves on which the accused is now committed for trial;
(b)evidence of any fact which might tend to disclose the fact that there are two complainants named in the charges on which the accused is now committed for trial; and
(c)evidence of the intention of the accused to apply for a separate trial of any one or more of the charges on which the accused is now committed for trial.
Bleby J’s orders were also the subject of an appeal. The Full Court dismissed that appeal. Additional orders were made on 24 October 2008 as regards evidence given on the appeal.
On 27 October 2008 the matter was before Judge McIntyre in the District Court. There, orders were made in similar terms to orders (a), (b) and (c) of Bleby J, but also an order suppressing the name of the accused, his occupation and any other material tending to identify him, as well as evidence in relation to the application for those orders.
The matter again travelled to the Full Court which set aside only that aspect of the judge’s order which prohibited the publication of the accused’s name and other details. The Full Court also made an order forbidding publication of any evidence given in the hearing of that appeal, other than the fact of the appeal.
On 8 May 2008, after the nolle prosequi was entered, Mr McAvaney, for The Advertiser and Sunday Mail asked the court to revoke all existing orders in relation to the matter. Mr McAvaney submitted that the justification for all the orders – namely to prevent prejudice to the proper administration of justice (s 69A(1)(a)) – no longer existed.
Mr Abbott QC, who appeared for Mr Brown, and Ms McDonald, as counsel for the prosecution, had no submission to make in relation to the order labelled (b) of Justice Bleby, but otherwise contended that the orders should stand. Ms McDonald took a similar position with respect to order (b). As to the order labelled (c) of Justice Bleby, Mr Abbott reminded me that the intention to make application for a separate trial in relation to the charges of the two complainants named in the charges was contained within a Rule 9 Notice filed some time ago. However, at an early stage – now some weeks ago – Mr Abbott informed me that such an order was no longer sought.
There was reference made by all counsel to s 71B Evidence Act, which though not directly relevant to this application, seemed to me to throw light on the legislative purposes underlying the provisions within Part 8 of the Evidence Act.
My opinion is that, leaving aside order labelled (b), the suppression order should stand. For getting on towards two years Mr Brown has had charges of a sexual nature hanging over his head. He has contended all along that he will defend them. He has pleaded not guilty to them. Now at the eleventh hour the prosecution has abandoned the charges. That must mean either that the Director of Public Prosecutions has taken the view that there is no reasonable prospect of conviction, or that the prosecution is not in the public interest. It seems clear that the former criterion would have been the relevant one. I do not think it is to the point that, had no suppression orders ever been made, the media would now be free to publish the facts of the matter as revealed in the statements submitted to the magistrate. The fact is, those matters were suppressed at a time when the charges were outstanding. In my view it would be now perverse to allow publication of those allegations at a time when the prosecution has abandoned them. I do not find it persuasive that in the usual case where no suppression order is made, publication of the allegations can occur, even after an acquittal or abandonment of the charges. It is hard to see what the public interest in such a publication would be.
Notwithstanding Mr McAvaney’s contrary argument, I do draw support for my position from s 71B, which essentially requires any media organisation which has published a report of proceedings, which proceedings do not result in conviction of the person, to publish a fair and accurate report of the result of the proceedings with reasonable prominence having regard to the prominence given to the earlier report. Plainly that section is designed to ensure that where there has been publicity of allegations which are later not substantiated or later abandoned, the fact of that lack of substantiation or abandonment is similarly to be published. That provides some redress for the embarrassment already suffered.
Accordingly, the only order I make at this time is to revoke order named (b) of Justice Bleby made on 15 September 2008 and order number 3 of Judge McIntyre, which is in the same terms.
Otherwise, the application is dismissed.
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