R v Kingsley John Foreman No. SCCRM 96/53 Judgment No. 5643 Number of Pages 3 Evidence Prohibition of Publication of Evidence

[1996] SASC 5643

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LANDER J

CWDS
Evidence - prohibition of publication of evidence - powers of court - application for access to videotape and still photograph exhibits - whether access would interfere with the proper administration of justice, and in particular, interfere with a person's fair trial. Evidence Act 1929 (SA) s69a; Supreme Court Act 1935 (SA) s131; Evidence Publication Act 1917 (SA), referred to. Scott v Scott (1913) AC 47, discussed.

HRNG ADELAIDE, 14 May 1996 #DATE 14:5:1996 #ADD 4:7:1996

Counsel for appellant:     Ms A Vanstone QC, with her
   Ms C Mealor

Solicitors for appellant:    DPP (SA)

Counsel for respondent:     Mr M David QC with him
   Mr G Cappolo

Solicitors for respondent: Kelly and Co

Counsel for Intervener Advertiser Newspapers Ltd:     Mr A Short

Counsel for Interveners The Proprietors of Channels 7, 9 and 10:         Mr A Harris

ORDER
Adjourn the application to a time immediately after the verdict has been given.

JUDGE1 LANDER J In 1913, the House of Lords decided in England in the decision of Scott v Scott (1913) AC 47 that the English courts ought to be open generally to the public and, in particular, to the media for the purpose of reporting anything that is said in the courts. Indeed, the Earl of Halsbury said (at 440): "I am of the opinion that every Court of Justice is open to every subject of the King."

2. It was said in that decision that it was important for society that English persons have access to the courts so that persons could know that justice was being administered fairly and impartially.

3. That principle has been received into Australia subject to various pieces of legislation which have, in certain respects, restricted the access of the public to the courts.

4. In 1917 the predecessor of s69 of the Evidence Act was enacted for the purpose of allowing courts to be closed in circumstances where it would be in the interests of the administration of justice for courts so to be closed (Evidence Publication Act 1917). The circumstances in which a court could be closed were widened in 1984 to a point where the legislation allowed, in order to prevent hardship or embarrassment, for the names and anything tending to identify persons who had committed crime, to be suppressed from publication (Evidence Act Amendment Act (No. 3) 1984).

5. In 1989, the circumstances in which the court could be closed were limited with the passing of the present s69a of the Evidence Act (Evidence Act Amendment Act 1989). It is now only in limited circumstances that a court may make an order suppressing from publication the matters referred to in s69a. In particular, the court must be satisfied that an order ought to be made only to prevent prejudice to the proper administration of justice or to prevent undue hardship to a victim of crime or to a witness who is not a party to the proceedings.

6. In 1992, Parliament passed s131 of the Supreme Court Act, which it amended in 1993. It is clear from s131 that Parliament contemplates that members of the public, and also the media as representing those members of the public ought to have access to transcript, documentary material and judgments and orders of the court and in certain circumstances ought to have access to any material that was not taken or received in open court and other material including photographs, videos and the like.

7. It seems to me that s131 contemplates, as did the enactment of s69a in 1989, that the courts ought to be open as much as possible to the public so that the public can, as was decided in 1913, be satisfied that justice is being delivered fairly, impartially and expeditiously.

8. In those circumstances the media has a right to claim, as the media have today claimed, an entitlement to evidence admitted in court. Of course, s69a of the Evidence Act and s131 of the Supreme Court Act both contemplate that the court will not release information to the public or to the media where the release of that information may interfere with the administration of justice, and in particular, in the criminal courts where the release of that information might affect the fair trial of any one citizen then before the courts.

9. I therefore approach the applications made today by The Advertiser and each of the commercial television stations upon the basis that there is a right on the part of the media to the information provided in s131(1) and an entitlement subject to permission of the Court provided in s131(2), which entitlement will give way only if the entitlement is likely to interfere with the proper administration of justice, and in particular in the criminal court, interfere with a person's fair trial.

10. It has been put by Mr Short, on behalf of The Advertiser, and Mr Harris, on behalf of the television stations, that it is in the public interest that, in the case of The Advertiser, still photographs and, in the case of the television stations, video film be released during the trial of Mr Foreman so that the public can be aware of the matters to which I have referred.

11. On the other hand, it has been put by both Ms Mealor, on behalf of the DPP, and Mr David QC, who appears in the trial for Mr Foreman, that it would be inappropriate to release the information, because the release of the information would have a tendency to interfere with Mr Foreman's fair trial.

12. In particular, it has been put that that tendency will arise by reason of the fact that it is likely that the video film will get extensive coverage in the media and will be available to be seen by the jury outside the courtroom atmosphere and in circumstances where the jury may be influenced by external pressures, which are not usually present in the court. The DPP submitted that it would be inappropriate to allow for the release of either the still photographs, or the video film until such time as the trial has completed and in the event of conviction until the appeal process has been exhausted. Mr David, on behalf of the accused, has submitted that the material certainly ought not to be released until such time as the trial has completed.

13. It seems to me that there is some risk that the release of the information will allow the jury to see what is a critical piece of evidence in this trial in circumstances outside the appropriate setting, which is, in my opinion, is the courtroom.

14. It seems to me, therefore, that it would be inappropriate to release that information and allow it to be disseminated widely and to come to the attention and to the knowledge of the jury outside the courtroom situation. However, consistent with the legislative enactments in the Evidence Act and the Supreme Court Act, it seems to me that the media will, in due course, be entitled to that information for the purpose of showing it generally.

15. It, therefore, is my view that the present application is premature and ought to be renewed immediately upon a verdict being given in this case, when I will give the matter further consideration.

16. Mr Harris, on behalf of the television stations, asked, if I was not prepared to order the release of the information at present, that his clients have access to the exhibits, for the purpose of copying them, so that, in the event that I rule in his clients' favour, in due course, they would be shown immediately upon the trial being completed.

17. I am disposed to assist the media in obtaining or allowing them access to the exhibits so that they may identify the material which they would, in due course, wish to publish. And, subject to the integrity of the exhibits not being interfered with, to allow the media access to the exhibits, for the purpose of copying them, in the event that, in due course, I would rule in favour of the media. However, saying that, I would not allow access by the media to the exhibits which would in any way interfere with the integrity of the exhibits, or in any way interfere with either the prosecution or the defence in the conduct of the prosecution of the defence case. It therefore seems to me that the most appropriate way of dealing with Mr Harris's alternative submission is perhaps for his instructing solicitors to liaise with those instructing the DPP and those instructing Mr David and my associate.

18. For all of those reasons, I adjourn the application to a time immediately after the verdict has been given.