R v Collie (No 2) No. Sccrm-02-67

[2002] SASC 247

R v COLLIE (No. 2)
[2002] SASC 247

SUPPRESSION ORDER

GRAY J     

Background

1. Garry John Collie was jointly charged with two counts of murder.[1] He was further charged with common assault.[2]  A magistrate refused bail.  An application to review that order was dismissed.[3]

   [1]The information was in the following terms

   “On the 19^th day of February 2002 at Parafield Gardens in the said State [Garry John Collie] murdered John Douglas Powers. Section 11 of the Criminal Law Consolidation Act, 1935.

   On the 19^th day of February 2002 at Parafield Gardens in the said State [Garry John Collie] murdered Leila Hoppo. Section 11 of the Criminal Law Consolidation Act, 1935.”

   [2] The complaint was in the following terms:

   [3] R v Collie [2002] SASC 131

2. During the review hearing the court received various statements and a summary of the Crown allegations.  This was said to be an incomplete statement of the Crown case provided for the purposes of the application.  Reference was also made to the applicant’s criminal and personal antecedents. 

3. By consent an interim suppression order was made of the entire review proceedings except for the fact of the application and the result.   Both counsel later submitted that the order should be continued.  Members of the press (“the press”) who were present in court opposed the initial order and its continuance.  It was said that similar submissions had been put to the magistrate.  These had not been suppressed and media publication had occurred without complaint.  The press argued that any prejudice which resulted from further publication could be addressed by the trial judge’s directions. It was said that the public interest in publishing the material outweighed any prejudice that might arise and that it would be wrong for this court to adopt a conservative approach.

   Section 69A

4. When considering whether to make or continue a suppression order the court is required to balance a number of interests. Section 69A of the Evidence Act 1929 (SA) (“the Act”) identifies specific needs which must be protected. There is a need to prevent undue hardship to alleged victims and witnesses, and to prevent prejudice to the proper administration of justice. There is also a legitimate public interest in keeping the community informed about court proceedings.

5. Section 69A provides:

   “ (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

   ...

   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.

   (5)   Where an application is made to a court for a suppression order —
                     (a)    any of the following persons, namely:

   (i)     the applicant for the suppression order;

   (ii)a party to the proceedings in which the suppression order is sought;

   (iii)a representative of a newspaper or a radio or television station;

   (iv)any person who has, in the opinion of the court, a proper interest in the question of whether a suppression order should be made, is entitled to make submissions to the court on the application and may, by leave of the court, call or give evidence in support of those submissions;

   (b)    the court may (but is not obliged to) delay determining the application to make possible or facilitate non-party intervention in the proceedings under paragraph (a)(iii) or (iv).

   (6) A suppression order may be varied or revoked by the court by which it was made, on the application of any of the persons entitled to make submissions by virtue of subsection (5)(a).

   (7) On an application for the making, variation or revocation of a suppression order —

   (a)    a matter of fact is sufficiently proved if proved on the balance of probabilities;

   (b)    if there appears to be no serious dispute as to a particular matter of fact, the court (having regard to the desirability of dealing expeditiously with the application) may —

   (i)     dispense with the taking of evidence on that matter; and

   (ii)    accept the relevant fact as proved.”

6. Section 69A refers to the “proper administration of justice”. This concept has been the subject of considerable judicial discussion and it has been afforded a wide meaning. In Advertiser Newspapers Ltd & Ors v Bunting & Ors [4]  Martin J said:

   “…the concept of the “proper administration of justice” encompasses wider considerations.  It is prejudicial to the proper administration of justice to create a risk of jeopardising a fair trial.  The proper administration of justice is concerned with ensuring, as far as is possible, that an accused receives a fair trial.  To create a risk that the fundamental right to a fair trial will not be achieved is to prejudice the proper administration of justice.”

   [4] (2001) 212 LSJS 12 at 17

7. The need for an accused to have a fair trial is paramount. In some circumstances the publication of matters aired in court may lead to an unfair trial. This may be through public prejudice, misunderstanding, ignorance, exploitation, fear or mistake. Section 69A recognises the need to protect and maintain the presumption of innocence. This presumption is a well established cornerstone of the criminal justice system. There is always the potential for the presumption of innocence to be weakened or eroded by inappropriate publication.

   Pre-trial Bail Applications

8. Pre-trial bail applications are common.  There are features about them that set them apart from other hearings[5], particularly those made during the course of a trial. Bail applications must be determined expeditiously.  Time is of the essence.  The Crown will make allegations against an applicant.  These will often be untested assertions and may include information about the applicant’s character, propensity to act in a certain way, uncharged conduct and the perceived fears of an alleged victim or victims. The court is required to make an assessment of the strength of these allegations and make predictions about the applicant’s future conduct.  The scope of a bail hearing is much broader than many other criminal proceedings.  There is a level of informality about the entire process.  The rules of evidence are not strictly enforced as the court is assessing risk not determining guilt. 

   [5] R v Cooper 1999 ABQB 553 GT Trotter, The Law of Bail in Canada (2nd ed, 1999)

   Section 10 of the Bail Act 1985 (SA) provides:

   (1) Where an application for bail is made to a bail authority by an eligible person who has been charged with, but not convicted of, an offence in respect of which he or she has been taken into custody, the bail authority should, subject to this Act, release the applicant on bail unless, having regard to —

   (a)     the gravity of the offence in respect of which the applicant has been taken into custody;

   (b)    the likelihood (if any) that the applicant would, if released —

   (i)     abscond;

   (ii)    offend again;

   (iii)   interfere with evidence, intimidate or suborn witnesses, or hinder police inquiries;

   …

   (d)    any need that the applicant may have for physical protection;

   (e)     any medical or other care that the applicant may require;

   (f)     any previous occasions on which the applicant may have contravened or failed to comply with a term or condition of a bail agreement;

   (g)     any other relevant matter,

   the bail authority considers that the applicant should not be released on bail.

   …

   (4) Despite the other provisions of this section, where there is a victim of the offence, the bail authority must, in determining whether the applicant should be released on bail, give primary consideration to the need that the victim may have, or perceive, for physical protection from the applicant.

9. The court must release an applicant on bail unless, having regard to the provisions of section 10, the court considers that the applicant should not be released on bail. This includes an evaluation of the gravity of the alleged offence, the likelihood that the applicant would abscond, offend again, interfere with evidence, intimidate witnesses or hinder police enquiries if released. It may also involve an inquiry into whether the applicant has any need for physical protection or medical or other care and whether the applicant has contravened or failed to comply with the terms of any bail agreement in the past. Primary consideration must be given to a victim or victim’s actual or perceived need for physical protection from the applicant. It does not follow that because information of this kind was raised on a bail application that it will be relied upon by either party at trial or necessarily admitted into evidence at trial.

10. A consideration of the factors specified in section 10 is critical to the determination of a bail application. However the material proffered on a bail application or bail review will often not be relevant at trial or may be excluded at trial as a matter of discretion.

11. As earlier observed the bail review hearing in this case involved a consideration of a large amount of material, including matters personal to the applicant.  This material has the potential to be unfairly prejudicial.  There is a substantial risk that that if published this material will impede the applicant’s fair trial. 

12. Recent developments have raised a further matter of concern.  It now appears that a Crown witness or a potential Crown witness who is not a party to the proceedings is at risk of suffering hardship if the suppression order is not continued.  

13. Having reviewed all of the submissions, the material before me and having regard to the purposes of section 69A of the Act, I am satisfied that the suppression order must be continued. The public interest in publication and the position of the press has been weighed, however the prejudice to the administration of justice and the undue hardship that would result if the order is not continued is of more importance in this case. I have considered whether discrete parts of the material could be separately identified with a view to publication, however this not possible given that so much of the material is interconnected and incapable of dissection.

14. The order of the court is that the suppression order be continued.  The hearing of the application for bail review, the evidence and submissions made and all related matters are suppressed from publication.  The fact of the applications and the orders made are not suppressed.  These reasons are not suppressed.

    LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT

    1      The information was in the following terms

    “On the 19^th day of February 2002 at Parafield Gardens in the said State [Garry John Collie] murdered John Douglas Powers. Section 11 of the Criminal Law Consolidation Act, 1935.
    On the 19^th day of February 2002 at Parafield Gardens in the said State [Garry John Collie] murdered Leila Hoppo. Section 11 of the Criminal Law Consolidation Act, 1935.”

    2      The complaint was in the following terms:

    “On the 21^st day of January, 2002 at ADELAIDE in the said State [Garry John Collie] assaulted Mark Stokes.”

    Section 39 of the Criminal Law Consolidation Act, 1935.

    3      R v Collie [2002] SASC 131

    4 (2001) 212 LSJS 12 at 17

    5R v Cooper 1999 AABQB 553GT Trotter, The Law of Bail in Canada (2nd ed, 1999)

    
    

“On the 21^st day of January, 2002 at ADELAIDE in the said State [Garry John Collie] assaulted Mark Stokes.”
Section 39 of the Criminal Law Consolidation Act, 1935.