R v Francis - [2007] SASC 364

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v FRANCIS
[2007] SASC 364
Judgment of The Honourable Justice Gray
11 October 2007
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS
Suppression order reviewed pursuant to Evidence (Suppression Orders) Amendment Act 2006 - defendant convicted of attempted murder - the victim was the defendant's former husband - defendant and victim had an 11 year old son - on 5 December 2006, prior to the commencement of the trial, a suppression order was made suppressing any evidence that would identify, or tend to identify, the child of the defendant and the victim - whether the Evidence (Suppression Orders) Amendment Act applies retrospectively to mandate review of the 5 December 2006 suppression order - whether the reasons underlying the making of the suppression order still exist to justify the continuation of that order - whether revocation of the order would cause the child “undue hardship" - whether “special circumstances” exist to justify the continuation of the order against the public interest requirement for the publication of information related to court proceedings - Held (revoking the supression order): - the Evidence (Suppression Orders) Amendment Act operates retrospectively to apply in the present case - the circumstances such as media interest, and the child’s level of involvement in the trial that justified the making of the order initially, are no longer relevant factors - there was no evidence that any harm that might cause the child from bullying in the schoolyard can properly be classed as unwarranted or excessive, as opposed to an inevitable level of suffering or embarrassment that will always befall the family of an offender - the possibility of such harm does not override the public interest requirements in the administration of justice - suppression order revoked.
Evidence (Suppression Order) Amendment Act 2006 (SA); Evidence Act 1929 (SA) s 69A, s 69AB; Acts Interpretation Act 1915 (SA) s 16, referred to.
Rodway v The Queen (1990) 169 CLR 515; Maxwell v Murphy (1957) 96 CLR 261; Re F (1989) 51 SASR 141; Re JN Taylor Holdings Ltd (in liq) (2007) 62 ACSR 695; Russell v Russell (1976) 134 CLR 495; R v Tait and Bartley (1979) 24 ALR 473; John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131; G v The Queen (1984) 35 SASR 349; Packer v Police (2007) 247 LSJS 410, considered.

R v FRANCIS
[2007] SASC 364
Criminal
GRAY J.

On 5 December 2006, a suppression order was granted in relation to a charge of attempted murder and endangering life. That order was in the following terms:
Any evidence in the case that would or would tend to identify the child of the accused and the alleged victim is suppressed.
The suppression order is to be reviewed pursuant to the recent Evidence (Suppression Orders) Amendment Act 2006 (SA), which came into operation on 1April 2007.
Background
On 5 December 2006, the defendant, Michelle Jane Francis, was arraigned on charges of attempting to murder her former husband, John Graham Francis, and, in the alternative, endangering his life.
The relevant facts of the case can be summarised as follows. On 26 April 2004, Mr Francis, the defendant’s former husband, went to the home of the defendant, pursuant to an access arrangement, to return their child. The child is the natural child of the defendant and Mr Francis and was born on 11 May 1995.
As Mr Francis was about to leave, the defendant asked him to wait and gave him a plastic bag containing a cake and two biscuits. The defendant told Mr Francis that the defendant’s mother had bought these at David Jones and requested that half of them be given to him. She added that they had blueberry seeds in them.
Mr Francis was suspicious of the food items on the basis of an earlier conversation he had had with the defendant’s mother. Upon receiving the food items, he had a further conversation with the defendant’s mother which confirmed his suspicions. Mr Francis then took the bag containing the food items to the police. Upon examination, the cake and biscuits were found to contain a lethal quantity of the drug digoxin. The drug was blue in colour and present throughout the cake and biscuits. The defendant was subsequently arrested and charged with attempted murder.
Evidence at trial disclosed that there had been considerable marital difficulties between the defendant and her former husband. Family Court proceedings were instituted with regard to custody and access arrangements, and it appears that further tension was created over the defendant’s wish to take her son and move to Victoria. The terms of the custody order dictated that the defendant could not leave Adelaide without her former husband’s permission. Counsel for the prosecution submitted that these custody disputes were a possible motive for the defendant’s attempt to kill her former husband.
On 13 December 2006, the defendant was found guilty of attempted murder by unanimous jury verdict. On 12 April 2007, the defendant was sentenced to imprisonment for 11 years and 3 months. A non-parole period of 6 years was fixed. The defendant has not appealed against the conviction or sentence. The proceedings are at an end.
The Original Suppression Order
On 5 December 2006, prior to the commencement of the trial, the defendant applied for a suppression order pursuant to section 69A of the Evidence Act 1929 (SA). Counsel for the defendant requested the court to make an order suppressing any evidence that would identify, or tend to identify, the child of the defendant and the alleged victim.
The defendant’s son was 11 years of age at the time of the application for the suppression order, and was attending school in Adelaide. Counsel for the defendant submitted that, in deciding whether to grant an order, the court should consider the tender age of the child, the high level of media interest in the case, the child’s significance in the trial, and the fact that he was a possible motive for the crime.
Counsel for the defendant further submitted that section 69A of the Evidence Act directs the court to have specific regard to the best interests of a child as a primary consideration. The child, as the natural son of both the defendant and the victim, featured prominently during the trial. Given the media attention to the trial, there was a real risk that, if the child’s name was published, he would be subject to taunts and rumours about his family. This would be a very distressful and overwhelming situation for a child of that age. Therefore, considering all the circumstances, counsel submitted that any evidence tending to identify the child would cause him to suffer undue hardship and be particularly detrimental to the child’s best interests.
The Court accepted these submissions and granted a suppression order to prevent “undue hardship” to the child under section 69A(1)(b)(iii) of the Evidence Act.
A consequence of an order such as this, is that it has the practical result of also suppressing the name of the defendant – as any identification of the defendant would give rise to the possible indirect identification of her son.
Review of the Suppression Order
This Court has a duty to review suppression orders under the Evidence (Suppression Orders) Amendment Act. The Act came into operation on 1 April 2007, and amended Part 8 of the Evidence Act dealing with orders prohibiting the publication of evidence. In particular, the amending Act inserted section 69AB into the Evidence Act which provides:
(1)     Subject to the regulations, a suppression order becomes liable to review as follows:
(a)If the order relates to criminal proceedings and is in force at the time, the order becomes liable to review as follows:
(i)     On the completion or termination of a preliminary examination;
(ii)On the withdrawal of a charge after the completion of a preliminary    examination;
(iii)     On the acquittal of the defendant;
(iv)When an appeal against conviction or sentence has been determined or all rights to appeal against conviction or sentence have been exhausted or expired;
(v)On the defendant being declared under Part 8A of the Criminal Law    Consolidation Act 1935 to be liable to supervision;
(vi)In any other case – when the proceedings are otherwise concluded or   terminated, (and, if more than 1 such occasion for review occurs in the      course of the same proceedings, the order becomes liable to review on each such occasion);
(b)     If the order relates to a coronial inquest, the order becomes liable to review when the coroner gives his or her findings on the inquest;
(c)     If the order relates to civil proceedings, the order becomes liable to review when the court gives its judgment in the proceedings or the proceedings are settled or withdrawn.
(2)When a suppression order becomes liable to review, the court that made the order must conduct a review as soon as practicable.
(3)       The following persons are entitled to be heard on a review:
(a)     The applicant for the suppression order;
(b)     A party to the proceedings in which the suppression order was made;
(c)     A representative of a newspaper or a radio or television station;
(d)     Any other person who has, in the opinion of the court, a proper interest in the matters to be considered on the review
(4)       On a review, the court may confirm, vary or revoke the suppression order.
Section 69AB does not alter the nature of a suppression order. The new section merely provides that suppression orders become liable to review at the end of the particular proceedings, when a court will be in a better position to consider whether the order should be confirmed, varied or revoked.
Section 69AB was inserted into the Act after the suppression order of 5 December 2006 was made.
Issues before this Court
There are two primary issues for determination before this Court. The first is whether the Evidence (Suppression Orders) Amendment Act applies retrospectively to mandate review of the 5 December 2006 suppression order.
The second issue requires this Court to determine whether the reasons underlying the making of the 5 December 2006 suppression order still exist to justify the confirmation and continuation of the order. This question involves a consideration of whether revocation of the order would cause the child “undue hardship”,[1] and whether “special circumstances” [2] exist to justify the continuation of the order against the public interest requirement for the publication of information related to court proceedings.
[1] Evidence Act 1929 (SA), section 69A (1)(b)(iii).
[2] Evidence Act 1929 (SA) section 69A(1), (2).
Retrospective Operation of section 69AB
A statute should not be given retrospective operation, unless the language of the statute demands a contrary construction.[3] However, statutes that affect mere matters of procedure are considered an exception to the rule and such statutes generally have retrospective operation provided they do not affect existing rights and obligations.[4]
[3]See Rodway v The Queen (1990) 169 CLR 515 at 518; Acts Interpretation Act 1915 (SA) section 16(1).
[4]Rodway v The Queen (1990) 169 CLR 515 at 518; Maxwell v Murphy (1957) 96 CLR 261 at 267 (Dixon J); Re F (1989) 51 SASR 141 at 143 (King CJ).
A suppression order is an order made collateral to substantive proceedings. In that regard, it is of an interlocutory nature as it does not finally dispose of an issue between parties but rather is intended to exist only for as long as required by the circumstances. As King CJ observed in Re F:[5]
The power of the court to make a suppression order conferred by s 69a of the Evidence Act is, in my opinion, a mere procedural incident of the legal proceedings in the course of which the order is made. No right is conferred upon a person who is a potential subject of a suppression order, except a right to apply to the court and make submissions ... A suppression order is of its nature an order operating pro tem and may be varied or revoked at any time by the court by which it was made … When a suppression order comes up for review by the court on application for its continuation, variation or revocation, the court is engaged upon the determination of a procedural matter related to the proceedings in which it arises. The law to be applied is therefore the law in force at the date of the determination of the application.
[5] Re F (1989) 51 SASR 141 at 144 (King CJ).
The review of a suppression order is a mere procedural matter that does not substantially affect the rights of an applicant. The law to be applied is the law in place at the time of the review. Accordingly the Evidence (Suppression Orders) Amendment Act operates retrospectively to apply in the present case.
As earlier observed, the defendant has not appealed against her conviction or sentence. Pursuant to section 69AB of the Evidence Act, a suppression order becomes liable to review when an appeal has been determined or all rights to appeal have been either exhausted or expired. The court must conduct the review as soon as practicable.
Review of the Suppression Order
Section 69A was introduced into the Evidence Act by the Evidence Amendment Act 1989 (SA). The power to make suppression orders is contained in section 69A of the Evidence Act 1929 (SA):
(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.
(3)Where an application is made to a court for a suppression order, the court may, without inquiring into the merits of the application, make such an order (an “interim suppression order”) to have effect, subject to revocation by the court, until the application is determined; but if such an order is made the court must determine the application as a matter of urgency and, wherever practicable, within 72 hours after making the interim suppression order.
(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.
(8)An appeal lies against –
(a)     a suppression order or a decision by a court not to make a suppression order;
(b)     the variation or revocation of a suppression order or a decision by a court not to vary or revoke a suppression order.
(9)Any of the following persons is entitled to institute, or to be heard on, an appeal:
(a)     where an application for a suppression order was made to the primary court – the applicant; or
(b)     a party to the proceedings in which the order or decision subject to appeal was made; or
(c)     a representative of a newspaper or a radio or television station; or
(d)     a person who had, in the opinion of the primary court, a proper interest in the question of whether a suppression order should be made; or
(e)     a person who did not appear before the primary court but has, in the opinion of the appellate court, a proper interest in the subject matter of the appal or proposed appeal,
but a person who did not appear before the primary court may only bring an appeal, or be heard on an appeal, by leave of the appellate court (which will be granted if the appellate court is satisfied that that person’s failure to appear before the primary court is not attributable to a lack of proper diligence).
(10)Where a court makes a suppression order (other than an interim suppression order), the court must –
(a)     immediately forward to the Registrar a copy of the order; and
(b)     within 30 days forward to the Attorney-General a report setting out –
(i)the terms of the order; and
(ii)the name of any person whose name is suppressed from publication; and
(iii) a transcript or other record of any evidence suppressed from publication; and
(iv)full particulars of the reasons for which the order was made.
(11)Where a court varies or revokes a suppression order (other than an interim suppression order), the court must forward to the Registrar a written notification of the variation or revocation.
(12)The Registrar will establish and maintain a register of all suppression orders (other than interim suppression orders).
(13)The register will be made available for inspection by members of the public free of charge during ordinary office hours.
(14)In this section –
“the Registrar” means a person to whom the functions of the Registrar under this section are assigned by the Attorney-General.
Section 69A of the Evidence Act provides for exceptions to be made to the common law position that the business of a court should be conducted in the public domain. A purpose of the section is to protect the integrity of the administration of justice and to protect those persons in the court who may be vulnerable or who are exposed to hardship. This is demonstrated by the second reading speech introducing proposed amendments to section 69A of the Evidence Act where the Minister observed: [6]
The section 69a now proposed by the Bill has the following new features:
(i)It makes it quite clear that it is no longer merely a matter for the court to ‘consider it desirable’ upon enumerated grounds, to make a suppression order. Instead, the court must be satisfied on the balance of probabilities that an order ought to be made. …
…
(iii)… the sole basis for the making of an order will be ‘to prevent prejudice to the proper administration of justice’ a formula that is similar to, though stronger than, that which obtains in nearly all other Australian (federal, state and territory) jurisdictions. … This change will ensure that the attention of the courts will be focused almost exclusively upon the assurance and promotion of the integrity, well-being, efficacy and effectiveness of its own processes and procedures. … But there is to be a further assurance that any decision to make a suppression order on this single basis will not lightly be taken. That guarantee is provided by the fact that the court must recognize as considerations of substantial weight, the public interest in publication of the relevant material and the right of the news media to publish it. For the first time in relevant Australian legislation the right of the news media … to publish relevant material is to be accorded full recognition by the courts.
…
(v)To enhance and assist the public administration of the new provisions, courts will be obliged to forward a copy of any suppression order made (other than an interim order) to a central register. The Registrar will be required to establish and maintain a register of all suppression orders, made by all empowered courts, to which the public (including representatives of the news media) will have a right of access and inspection free of charge during ordinary office hours.
[6]South Australia, Parliamentary Debates, Legislative Assembly, 15 March 1989, 2415-2416 (C J Sumner)

The legislation gives statutory power to the court to protect an accused person’s right to a fair trial where such a right may be eroded or placed in doubt by the publication of evidence, submissions or identity or other matters arising in court.
Courts are frequently requested to make suppression orders at short notice. This is a necessary incident of the trial process. It is within the scope of the legislation that suppression orders will apply not only to those persons present in the courtroom when the order is made, but also to a wider audience encompassing the whole community. Were this not the case, the intended protection to be provided by the order would be much reduced, if not rendered nugatory.
Section 69A(5) of the Evidence Act provides certain classes of persons affected by a proposed suppression order with the statutory right to make submissions to the court prior to the making of the order, and to appeal from a suppression order once made. The newspaper media are one such class. Section 69A(2) of the Evidence Act provides that the interest of the “news media” must be taken into consideration in the making of any suppression order.
The legislation requires a register to be kept and maintained of all suppression orders made. This register is to be available to all members of the public for inspection during normal business hours.[7] This legislative requirement has resulted in all relevant information being collated and available from one place to any interested member of the public.
[7] Evidence Act 1929 (SA), section 69A(13).
The public interest as a primary consideration was emphasised by, and underpinned, the insertion of the new section 69AB: [8]
The Bill will require a court to recognise that a primary objective in the administration of justice is to safeguard the public interest in open justice and the right of the news media to publish information about court proceedings. The court may only make a suppression order (other than an interim order) if satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, so as to justify the making of an order. The government wants to send a strong signal to the courts that they must give more weight to the public interest in publication.
It is evident that Parliament, in introducing the 2006 amendments to the Evidence Act, sought to further limit the circumstances in which suppression orders could be made to afford greater public scrutiny of the judicial process.
[8] The Hon, M J Atkinson, House of Assembly, Wed 30 August 2006, 785-6.
The presumption that justice be administered in public is a well-recognised common law principle and has been consistently applied in this Court.[9] Gibbs J in Russell v Russell[10] explained the basis of this presumption as follows: [11]
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted "publicly and in open view" (Scott v. Scott). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for "publicity is the authentic hall-mark of judicial as distinct from administrative procedure" (McPherson v. McPherson ). To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament.
[9]See for example Re JN Taylor Holdings Ltd (in liq) (2007) 62 ACSR 695 (Debelle J); McLachlan v Australian Stock Exchange Ltd (No 2) (unreported, SASC, Lander J, 18 December 1998).
[10] Russell v Russell (1976) 134 CLR 495.
[11] Russell v Russell (1976) 134 CLR 495 at 520 (footnotes omitted).
In R v Tait and Bartley, [12] the Full Court of the Federal Court observed:
To deny the public knowledge of any part of the proceedings of a court is a matter of gravity, especially where the court is exercising criminal jurisdiction.
[12] R v Tait and Bartley (1979) 24 ALR 473 at 487 (Brennan, Deane and Gallop JJ).
This was subsequently echoed by Kirby P (as he then was) in John Fairfax Group Pty Ltd v Local Court of New South Wales:[13]
The normal rule of our courts is that justice is administered in a court open to the public where the names of the parties are openly revealed and may be the subject of fair and accurate reports without fear of prosecution for contempt or action for defamation or other civil wrong. This rule, which we have inherited from the common law of England, has been described as an “inveterate” rule of our system of justice: see Earl Loreburn in Scott v Scott [1913] A.C. 417 at 445.
[13] John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 140.
Consequently, the issue for determination is whether the reasons underlying the making of the suppression order still exist to justify the continuation of that order. This involves a consideration of whether the child in this case would, if the suppression order was revoked, suffer undue hardship as to outweigh the public interest in the publication of information related to the court proceedings.[14]
[14] Evidence Act 1929 section 69A(1), (2).
The child in question is now 12 years old and continues to attend school in Adelaide. Pursuant to a Family Court Order, he is prohibited from having any form of communication with the defendant. Counsel for the defendant submitted that the suppression order should remain, given that the child might continue to be subjected to harm and bullying in the schoolyard, and that proceedings regarding the child were still being instituted in the Family Court.
Accordingly, this application must be decided on whether the potential of a 12 year old being exposed to general harm is sufficient to constitute undue hardship, warranting the continuation of the suppression order.
No material was placed before the Court to support this submission. No evidence was produced to demonstrate the damage that might flow from any bullying at school for this particular child.
Counsel for the Director of Public Prosecutions initially informed the Court that he was advised that the child’s father was of the opinion that it would be preferable if the order continued. However, following an adjournment to allow evidence to be placed before the Court, the Court received a letter from the DPP stating:
I write to advise you that this Office does not intend to place before the Court any evidence in support of the continuation of the suppression order in this matter. Having consulted Mr John Francis we have been advised that he does not believe it likely that his son will suffer undue hardship in the event that his mother’s name appears in the media. In the circumstances, it would appear that the order should be reviewed such that it no longer prohibits the identification of Ms Francis whilst maintaining a specific prohibition upon the publication of the name of her son …
In G v The Queen,[15] King CJ made the following observations on what may constitute undue hardship:[16]
The use of the adjective “undue” to qualify “hardship” in the section, indicates something more than that ordinary degree of hardship is required. … Moreover, it seems to me that the circumstances must be very rare in which hardship in the form of distress or physical or mental harm to others could be shown to be the likely result of publication of an accused person’s name … Cases must be rare in which the added factor of media publicity would cause significantly additional stress or physical or mental harm
[15] G v The Queen (1984) 35 SASR 349.
[16] G v The Queen (1984) 35 SASR 349 at 352.
In Packer v Police[17] Doyle CJ defined “undue” as “unwarranted, excessive or too great”. However, his Honour also observed that in cases claiming undue hardship to family members of the accused: [18]
The judicial task does not involve subtracting from whatever degree of hardship might be made out, that degree of hardship that is inevitable. Precision of that kind is not possible. Rather, it is a matter of considering the hardship that is established, that bearing in mind that hardship to family members, at least in a case like this, is something that is almost inevitable to some degree.
[17] Packer v Police (2007) 247 LSJS 410 at [22].
[18] Packer v Police (2007) 247 LSJS 410 at [25].
In that case, his Honour accepted that the wife and child of the accused would suffer significant embarrassment and some degree of odium if a suppression order was not granted. However, his Honour also noted that there would always be some degree of embarrassment and suffering caused to the family of a person charged with an offence and that that, in itself, is not sufficient to establish “undue hardship”.[19] His Honour concluded that, even if the hardship suffered in that case could possibly be classed as “undue”, the circumstances did not justify that it should be accorded greater weight than the public interest in the publication of information related to court proceedings.[20]
[19] Packer v Police (2007) 247 LSJS 410 [27]-[28].
[20] Packer v Police (2007) 247 LSJS 410 at [29].
Upon consideration of these authorities, there appears to be nothing in the present case to suggest that this child would or may suffer “undue hardship” if the suppression order were lifted. The circumstances such as media interest, and the child’s level of involvement in the trial that justified the making of the order initially, are no longer relevant factors. There is no evidence that any harm that might cause the child from bullying in the schoolyard can properly be classed as unwarranted or excessive, as opposed to an inevitable level of suffering or embarrassment that will always befall the family of an offender. In addition, I am of the view that the possibility of such harm does not override the public interest requirements in the administration of justice, according to Parliament’s intention under section 69A of the Evidence Act.
Conclusion
For these reasons the suppression order of 5 December 2006 is revoked.