R v O'Neill - [2002] SASC 53

X V STATE OF SOUTH AUSTRALIA, O’SHEA, HUMPHREYS AND SPURR
[2002] SASC 53

LANDER J. This is an application by the Australian Broadcasting Corporation and Advertiser Newspapers Ltd for orders revoking or varying orders made by me pursuant to s 69A of the Evidence Act (the Act) on 26 June 2001.
The orders which are sought to be varied or revoked are:
“1That pursuant to section 69A of the Evidence Act, 1929, the name and address of the plaintiff, his mother and his sister and any material which may tend to identify them be suppressed from publication including references to the R Centre or any other geographical reference which would tend to identify the places where the alleged sexual assaults upon the plaintiff occurred and including any reference to the alleged abduction of the plaintiff to New South Wales in 1991 except for such publication as is required by the defendants for the purpose of proper investigation, the collection of evidence (including but not limited to expert opinion) and obtaining of instructions, such as publication to be subject to the requirement that the defendants notify any party to whom the suppressed information is published that the mater is subject to an Order pursuant to Section 69a of the Evidence Act, 1929, and that any further publication would amount to a breach of the said Order.
2All documents including pleadings and affidavits which tend to identify the plaintiff, the plaintiff’s mother, the plaintiff’s sister and the Centre are to be filed in a sealed envelope and opened only at the Order of the Court.
3That the application seeking a suppression order and all submissions made in relation to the application be suppressed.
4That the plaintiff be described hereafter as “X”, the plaintiff’s mother as “Y”, the plaintiff’s sister as “W”, the Centre as “R” and the suburb as “Z”.
5That the costs of and incidental to the said Application and this Order be costs in the cause AND the parties may be at liberty to apply.”
Section 69A(6) provides:
“(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).”
Suppression order is defined in s 68 of the Act in the following terms:
“ ‘suppression’ order means an order -
(a)forbidding the publication of specified evidence or any account or report of specified evidence; or
(b)forbidding the publication of the name of -
(i)a party or witness; or
(ii)a person alluded to in the course of proceedings before the court,
and of any other material tending to identify any such person.”
The orders made on 26 June 2001 are suppression orders and therefore I have jurisdiction to vary or revoke those orders pursuant to s 69A(6).
Section 69A(6) of the Act refers to persons entitled to make submissions by virtue of subsection (5)(a).
Section 69A(5) of the Act provides:
“(5) Where an application is made to a court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v O'Neill

Details

AGLC: R v O'Neill [2002] SASC 53
Case: [2002] SASC 53
Decision Date: 14 February 2002

CaseChat Overview and Summary

In the case of X v State of South Australia, O'Shea, Humphreys, and Spurr, the South Australian Supreme Court considered an application by the Australian Broadcasting Corporation and Advertiser Newspapers Ltd to revoke or vary suppression orders made pursuant to s 69A of the Evidence Act. The initial suppression orders were made to protect the identity of the plaintiff, a male who was allegedly a victim of sexual offences. The media sought to revoke or vary the orders, arguing that they were too wide and unnecessary for the protection of the plaintiff. The court found that the plaintiff's identity was already protected under s 71A of the Act, which prohibits the publication of the identity of alleged victims of sexual offences without the victim's consent or a judge's authorization. The court further considered the plaintiff's contention that the publication of the proceedings and the identity of the defendants would cause him undue hardship, but ultimately found that the public interest in the publication of the information outweighed any potential hardship that the plaintiff might suffer.

The court examined the legal issues of whether the suppression orders were necessary and whether they should be revoked or varied. The court considered the arguments of the media and the plaintiff, as well as the submissions of the other defendants. The court concluded that the suppression orders should be revoked, except for the provision relating to costs. The court emphasized that it would be a breach of s 71A of the Act to publish the identity of the plaintiff or any statement or representation by which the identity of the plaintiff is revealed or from which the identity of the plaintiff might reasonably be inferred.

The final orders of the court discharged the orders of 26 June 2001, except for paragraph 5 of those orders, which related to the costs of the application. The court stressed that the plaintiff's identity was already protected under s 71A of the Act, and that the public interest in the publication of the information outweighed any potential hardship that the plaintiff might suffer. The court also noted that the suppression orders relating to the plaintiff's mother and sister were no longer necessary, as their publication would not lead to the identification of the plaintiff.

Orders