R v Harrap - [2020] SADC 148

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HARRAP AND ORS
[2020] SADC 148
Reasons for Decision of His Honour Judge Slattery
26 October 2020
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - SUPPRESSION ORDERS
On 6 July 2020, an interim suppression order was made by a Judge of this Court. The addresses of the defendants were suppressed.
On 18 September 2020, an application was made to review and extend that suppression order. A separate application was made for a suppression order in respect of two psychological reports.
Held:
1. Discharge the interim suppression order made by Judge McEwen on 6 July 2020;
2. Order for the suppression of the addresses of the defendants Mr Robert Bruce Harrap; Ms Melanie Jane Freeman; Ms Catherine Jayne Moyse and Ms Abigail Rebecca Foulkes pursuant to s 69A(1)(a) of the Evidence Act 1929;
3. Order that the name of the infant son of the defendant Mr Robert Harrap and Ms Catherine Moyse is anonymised wheresoever it appears in the reports of the psychologists Mr Richard Balfour dated 16 September 2020 and Dr Pam Carroll dated 16 September 2020;
4. Order that the name of the school at which the son attends is anonymised wheresoever it appears in the reports of the psychologists Mr Richard Balfour dated 16 September 2020 and Dr Pam Carroll dated 16 September 2020;
5. Order for the suppression of the report of Mr Richard Balfour dated 16 September 2020, pursuant to s 69A(1)(b)(iii) of the Evidence Act 1929 as follows:
a. The preamble paragraph entitled ‘Sensitive Information Warning …’;
b. On page 10, in the third paragraph under the heading ‘Interpersonal History’, from the sentence commencing “After we had…” to “play sport”;
c. On page 10 (through to page 11) in the fifth paragraph under the heading ‘Interpersonal history’ from ‘it’s kind of …’ through to the word ‘time’ at the commencement of the sixth line on page 11 of that report;
d. On page 17 of the report, paragraphs numbered 1, 2, 3, the last sentence of paragraph 5 and paragraph 6.
6. Order for the suppression of paragraph 4.4 of the report of Dr Pam Carrol, clinical psychologist, dated 16 September 2020 under the inherent jurisdiction of the court.

R v HARRAP AND ORS
[2020] SADC 148

On 27 July 2020, Mr Robert Harrap pleaded guilty to the following offences:
Two counts of Deceive Another To Benefit Self – Basic Offence (s 139(a) Criminal Law Consolidation Date 1935)
One count of Public Officer Exercise Power to Secure Benefit – Basic (s 251(1)(a) Criminal Law Consolidation Act 1935).
On 27 July 2020, Ms Melanie Jane Freeman pleaded guilty to the following offence:
One count of Deceive Another To Benefit Self – Basic Offence (s 139(a) Criminal Law Consolidation Date 1935)
On 3 August 2020, Ms Abigail Rebecca Foulkes pleaded guilty to the following offence:
One count of Deceive Another To Benefit Self – Basic Offence (s 139(a) Criminal Law Consolidation Date 1935)
On the 27 July 2020, Ms Catherine Jayne Moyse pleaded guilty to the following offence:
One count of Public Officer Exercise Power to Secure Benefit – Basic (s 251(1)(a) Criminal Law Consolidation Act 1935).
Each of the defendants were committed for sentence in this court. On 18 September 2020, submissions were made on behalf of Mr Harrap and Ms Moyse in respect of the offences to which they have pled guilty.
Submissions on behalf of Ms Freeman and Ms Foulkes will be made on 10 November 2020. All four defendants will be sentenced by this court on 26 November 2020.
On 6 July 2020, Judge McEwen of this court made an interim suppression order of the addresses of each of the defendants. Orders are sought for the extension of that suppression order as a final order.
Prior to the hearings before me on 18 September 2020, the Court was provided with two reports of specialist psychologists. The report of Dr Pam Carroll, dated 16 September 2020, concerned Mr Harrap. The report of Mr Richard Balfour, dated 16 September 2020, concerned Ms Moyse. Each report carried a sensitive information warning.
On 18 September 2020, counsel for Mr Harrap and Ms Moyse separately sought orders for suppression of portions of these reports. The prosecution did not oppose these applications.
At that time, I heard submissions from counsel and then from Mr Sean Fewster. Mr Fewster said that he was authorised to make submissions on behalf of all of the members of the press.[1] He said that, in that capacity, he made no submissions about the content of the reports concerning hardship to an identified child or children of Mr Harrap or in relation to the addresses of the defendants. I have anonymised the name of the infant son of Mr Robert Harrap and Ms Catherine Moyse wheresoever it appears in the reports of the psychologists Mr Richard Balfour and Dr Pam Carroll. I have also anonymised the name of the school at which the son attends.
[1] Section 69A(5)(a)(iii) Evidence Act 1929 (SA).
Mr Fewster was obviously at some disadvantage because he had not seen the reports. He asked that if any of the matters about which an application for suppression is made affects or forms part of the considerations to be taken into account in the sentencing discretion, then those matters should be fully ventilated in an open court.
I have now had the opportunity to fully consider the contents of those reports, the submissions of counsel and the submissions of the interested parties. I am satisfied that the content of the reports sought to be suppressed do not have any immediate relevance to the exercise of my sentencing discretion. They are matters that stand in the background of the submissions that have been made. There are some portions of those reports that I consider relevant to the sentencing discretion and would not normally attract an order under s 69A of the Evidence Act 1929. I refer here to paragraphs numbered 1-6 inclusive on pages 17-19 of the report of Mr Balfour. I am now satisfied that portions of the content of those paragraphs have been fully ventilated during submissions and therefore a blanket suppression order as sought should not be made in relation to them. I am satisfied that an order should be made in relation to a portion of them for the reasons which I set out hereunder.
There were three topics which were the subject of the suppression orders. The first was an application for the continuation of a suppression order made by Judge McEwen of the home addresses of the defendants, Mr Harrap, Ms Freeman, Ms Foulkes and Ms Moyse. The basis of this application was to prevent prejudice to the proper administration of justice. That application was made under s 69A(1)(a) of the Evidence Act 1929 which provides as follows:
69A – Suppression orders
(1) Where a court is satisfied that a suppression order should be made‑
(a)To prevent prejudice to the proper administration of justice; or
…
There is to be no trial of the issues in this matter and the names of each defendant have all been disclosed. There have been press reports about the charges arising from the hearings before the various courts. The public interest in open justice under s 69A(2)(a) of the Evidence Act 1929 has been served. The expression: “… administration of justice …” includes and covers every aspect of the administration of justice. The publication of the addresses of the defendants Ms Moyse, Mr Harrap, Ms Freeman and Ms Foulkes, it is accepted, leaves the families of those defendants exposed to those who, for example, may have been sentenced by Mr Harrap as a magistrate or dealt with by his staff, such as Ms Freeman, or those who had contact with Ms Foulkes in her role as a senior police officer. At the hearing before Judge McEwen, submissions were made and accepted that one of the defendants has provided information to assist the prosecuting authority and, as a matter of public policy, her privacy should be protected. In those circumstances, it was appropriate to treat all defendants consistently. Although I was unable to identify the same interest arising in relation to Ms Moyse as arose for Mr Harrap, Ms Freeman and Ms Foulkes, I considered that for the sake of consistency, it is similarly appropriate to suppress the details of her address.
In those circumstances and in the absence of any opposition to the orders sought by either the prosecution or by members of the press, I would make permanent the interim orders for the suppression of the home addresses of Mr Harrap, Ms Freeman, Ms Foulkes and Ms Moyse.
I turn then to the question of the suppression of the contents of the reports of the psychologists. There are two aspects to these applications and because of the circumstances they stand to be decided differently. The application in relation to the content of these reports concerns reference made to two of the children of Mr Harrap and was made under s 69A(1)(b)(iii) of the Evidence Act 1929. That sub placitum provides as follows:
69A – Suppression orders
(1) Where a court is satisfied that a suppression order should be made‑
…
(b)To prevent undue hardship‑
…
(iii) to a child
As recounted earlier, both of the reports carry an explicit warning about portions of the content thereof. It is my task to consider the contents of those reports and to decide whether a suppression order should be made to prevent undue hardship to a child or on any other basis.
Staying first with the question of undue hardship, it is well accepted that the adjective “undue” qualifies the meaning of the noun “hardship” to the effect that more than mere hardship is required. It is also well settled that undue means hardship that is too great or is excessive. That is the approach that I have taken here.
The law generally treats children as being in a special category of case in all circumstances because of their special vulnerability. Vulnerability in this context is another way of expressing the innocence of children and that their lives as children should not be so adversely affected by material connected with others who have a direct influence upon and connection with their lives. It is therefore my task to make a judgment upon that question. In so doing, I have also considered the whole of the content of the reports in the background of the information within them that relates to these two children. I have done so because the application for suppression concerns only small portions of the report and there is a public interest in the release of the balance of those reports.
There is a complicating feature here in relation to the report of Dr Carroll. Section 4 of the Evidence Act 1929 defines a child to be a person under the age of 18 years. This reflects the common law approach that a person generally reaches the age of majority at 18 years; a person who may vote, may marry and enter binding contracts. It is different to the age of consent under the criminal law.
The son of Mr Harrap is under 18 years but his daughter, “A”, is aged almost 28 years. The report of Dr Carroll explains that “A” is suffering a medical condition such that she requires full time care as she is unable to care for herself. I have inferred from the content of the material put before me that she is not able to function as would ordinarily be expected of a person aged 28 years. She is, as a result, a vulnerable person and falls into the category of persons who require protection. As a matter of policy, common-sense and experience, these considerations are little different to those applicable to a child under the age of 18 years.
Notwithstanding, and for the reasons given, I am not in a position to make any order under s 69A(1)(b)(iii) of the Evidence Act 1929 in respect of the report of Dr Carroll. I am also not in a position to make any suppression order under s 69A(1)(a) of the Evidence Act 1929 because the issue of the health of “A” and its disclosure would not prejudice the administration of justice under the authorities which govern the operation of that subsection. There is not to be a trial and “A” is not to be called as a witness. There are other considerations but these principally inform this issue for my decision. I therefore would not make an order under s 69A(1)(a) Evidence Act 1929 for those reasons.
Separately, I have an inherent discretion to make a form of suppression order in relation to documents. The Court has exercised this discretion, for example, to place documents into a sealed envelope where it is necessary for the proper administration of justice.[2] The inherent discretion is not limited to those factual circumstances. For example, in the exercise of that discretion, I may protect legally privileged documents; I may suppress evidence that may prejudice a fair trial; and I may suppress evidence that may prejudice a future trial. The touchstone of the exercise of this discretion appears to be the proper administration of justice. Obviously, in the exercise of this inherent discretion, that consideration is broader than contemplated under s 69A(1)(a) of the Evidence Act 1929. So much is apparent from the decision of Debelle J in JN Taylor at [24]. After considering the breadth of the application of s 69A(2) of the Evidence Act 1929 as it was then applied, Debelle J said:
[24] Section 69A(2)(b) does not prevent an order sealing up documents where it has been determined that the public disclosure of those documents would defeat the interest of justice. The purpose of an order sealing up confidential documents is to provide a means of preserving the confidentiality of those documents in a case where the court has already determined that the court should be closed, or other measures taken, to preserve that confidentiality. It is an instance of the principles of open justice yielding to the more fundamental principle of insuring that justice is done that the subject matter of the action is not destroyed. Implicit in that decision is that there are special circumstances which give rise to a sufficiently serious threat of prejudice to the proper administration of justice as to warrant the documents being sealed up. In that way, the terms of s 69A(2)(c) are justified.
[25] Once an order sealing confidential documents has been made, s 131(2)(a) ensures that those documents cannot be inspected except by order of a judge of the … court.
[26] For these reasons, the court has inherent power to close the court and sit in camera for either the whole or part of the hearing of this application. The court also has power to make orders to the extent necessary for the purpose of preserving the confidentiality of confidential documents and the transcript relating to the application.
[2] JN Taylor Holdings Ltd (in liquidation) 249 LSJS 80 at [24].
The decision of Debelle J concerns the preservation of the confidentiality of documents placed before the court in a hearing held in a closed court on an application which involved the question of the court’s consent to a liquidator’s compromise.
However, it is apparent that the breadth of the discretion is not limited to those circumstances because, for example, in the decision of the Full Court of the Supreme Court of South Australia in Harrington v Coote (No 1),[3] eight paragraphs of the decision of Gray J in the Full Court decision were suppressed and were not made available to the public generally. Each of the Justices of the Full Court were satisfied that there was a sufficient reason to proscribe the publication of those paragraphs within a judgment of that Court, which, it may be thought, is at the pinnacle of the need for open justice within South Australia.[4] The judgment of Gray J both at first instance and in a second judgment does not disclose the reasons for the suppression of those paragraphs (Harrington v Coote (No. 2)).[5] His Honour was not exercising a power under s 69A(1)(a) of the Evidence Act 1929 and was exercising his inherent power to make orders for suppression. Kourakis CJ and Peek J agreed with the order for suppression of those paragraphs.
[3] [2013] SASC 51.
[4] Section 69A(2)(a) Evidence Act 1929.
[5] [2014] SASCFC 39.
That said, little judgment is required to identify why those paragraphs were suppressed. That case concerned complaints of sexual misconduct made against a priest of the Anglican Diocese of the Murray. Questions of the priest’s fitness to hold that office were referred to the Professional Standards Board of the Diocese. A determination was made by the Professional Standards Board of the Diocese following a reference to the Professional Standards Committee. It sought declarations that it had jurisdiction to determine a reference of the Diocese. A reading of the judgment of Gray J leads inevitably to the conclusion that the relevant paragraphs concerning such an internal inquiry were intrinsically confidential to the parties before the Court. They had been involved in an inquiry initiated by a Diocese of the Church for a Professional Standards Board to determine a reference under an ordinance of the Diocese. The decision turned upon questions of jurisdiction and the meaning of the by-laws of the Diocese. The absence of the paragraphs did not detract from the adequacy of the reasons of Gray J.
The exercise of such a discretion in the inherent jurisdiction of the court is limited to particular circumstances and reasons because it is the exercise of an inherent jurisdiction. It is therefore to be exercised within strict limits and its exercise will always depend upon particular fact circumstances about whether the discretion is available or appropriate to be exercised.
I consider that in these very particular circumstances, I have an inherent power in the exercise of my discretion to suppress from publication paragraph 4.4 of the report of Dr Pam Carroll dated 16 September 2020. The basis of the exercise of my discretion is the need to suppress information about the health of the daughter of Mr Harrap, “A”. A person who suffers a medical condition that prevents her from functioning in the way that may be expected of a person of 28 years of age is in no different position than an innocent child. That is the basis of the exercise of my discretion.
Having considered the content of the report of Mr Balfour, I consider that a suppression order should be made in respect of portions of it pursuant to s 69A(1)(b)(ii) of the Evidence Act 1929. It is not necessary for me to recount the detail of that report. I consider that the circumstances overwhelmingly favour the making of a limited form of order.
I address first the report of Mr Balfour of 16 September 2020.
I make an order for suppression of the following content of that report:
1The preamble paragraph entitled ‘Sensitive Information Warning …’;
2On page 10, in the third paragraph under the heading ‘Interpersonal History’, from the sentence commencing ‘After we had…’ to ‘…play sport’;
3On page 10 (through to page 11) in the fifth paragraph under the heading ‘Interpersonal history’ from ‘it’s kind of …’ through to the word ‘time’ at the commencement of the sixth line on page 11 of that report; and
4On page 17 of the report, paragraphs numbered 1, 2, 3, the last sentence of paragraph 5 and paragraph 6.
In relation to paragraph numbered 4 above, and as I have earlier indicated, I do not agree with the submissions of counsel that the whole of paragraphs 1 to 6 should be suppressed. I have therefore not suppressed the content of paragraph 4 on page 18 and have only suppressed the last sentence of paragraph 5 commencing on page 18 of Mr Balfour’s report. I consider that the submissions of the parties do not identify any undue hardship that may be caused to a child by the publication of those paragraphs.

I address now the report of Dr Carroll of 16 September 2020. I order the suppression of paragraph 4.4 of that report. I do so on the basis of the exercise of my inherent discretion as I have explained above.
For the avoidance of any doubt, I order that the form of both of the reports of Mr Balfour and Dr Carroll be redacted in accordance with the orders for suppression that I have made in this judgment and lie upon the court file.
I so order.