R v O'Neill

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 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 who may, by leave of the court, call or give evidence in support of those submissions;
(b)     …”
Mr Tony Hull appeared as a representative of a television station namely ABS 2 which is controlled by the Australian Broadcasting Corporation. Mr Steene appeared as the representative of ‘the Advertiser’ which is published by Advertiser Newspapers Limited. I shall refer to those parties as the media.
In my opinion, both Mr Hull and Mr Steene were entitled to appear as respective representatives of the television station and the newspaper. They were entitled to make an application to revoke or vary the orders to which I have referred and be heard in relation to that application.
The plaintiff appeared by counsel. The first defendant, the State of South Australia, also appeared by counsel. It indicated that it would abide the decision of the Court and did not wish to be heard on the application. The second defendant appeared in person. There was no appearance of the third defendant. The fourth defendant appeared by counsel.
The plaintiff and the second defendant opposed the application either to revoke or vary the orders. Initially the fourth defendant opposed the media application but that opposition was withdrawn on the adjourned hearing. On the adjourned hearing counsel for the fourth defendant indicated, by way of concession, that the fourth defendant could not bring herself within the terms of s 69A of the Act and therefore was content to abide any order of the Court. The submissions made by the fourth defendant on the first occasion were abandoned. Different submissions were put on behalf of the plaintiff and the second defendant.
Paragraph 1 of my order made on 26 June 2001 indicates in general the proceedings which has been brought by the plaintiff against the defendants. However, it is necessary to indicate, with a little more detail, the proceedings before the Court so that my reasons can be understood.
The plaintiff is a male now aged 21 years.
He claims that when he was aged about 10 and 11 the second defendant committed a series of sexual assaults upon him. He further claims that when he was about 10 years of age the third defendant abducted him from this State to New South Wales where the third defendant committed a number of sexual acts upon the plaintiff.
He claims, in these proceedings, that the first defendant is liable to him in respect of those assaults, because it is liable for the breach of the duty of care owed to him by the Parole Board, the then Minister for Family and Community Services and senior Social Workers employed by the Department of Family and Community Services. He claims those parties were negligent and as a result of their negligence he was subject to the sexual assaults to which I have referred. He claims the fourth defendant, who was the co-ordinator of a recreational centre, also owed him a duty of care and breached that duty of care and as a result of that breach the plaintiff was assaulted by the second defendant.
At this stage of the proceedings only the second defendant has filed a defence. He denies that he assaulted the appellant. He asserts that he was charged with sexually assaulting the plaintiff but was acquitted by trial and appeal in the Supreme Court. He denies therefore that the plaintiff is a victim of a crime.
The third defendant has not filed a defence.
The plaintiff is a person who it is alleged in legal proceedings is a victim of a sexual offence.
The plaintiff had previously brought proceedings seeking discovery in advance of proceeding and orders were made in those proceedings in like terms to those which I have made.
Prior to commencing these proceedings the plaintiff approached the Court seeking the orders which I made. The application was made orally and was not opposed by the first defendant who was represented at the hearing.
The media now complain that the orders made are too wide and unnecessary for the protection of the plaintiff. They assert that no orders could be made for the protection of the defendants and especially the second defendant.
In support of those contentions the media claimed that the provisions of s 71A of the Act prevented the identity of the plaintiff being published and there was thus no need for the orders.
Section 71A is in the following form:
“71A.        (1)    A persons shall not, before the relevant date, publish -
(a)any evidence given before a Magistrate or Justice in proceedings against a person charged with a sexual offence (whether the evidence is given in the course of proceedings for a summary or minor indictable offence or in a preliminary examination of an indictable offence); or
(b)any report on such proceedings; or
(c)any evidence given in, or report of, related proceedings in which the accused person is involved after the accused person is charged but before the relevant date,
unless the accused person consents to the publication.
Penalty:Two thousand dollars.
(2)   A person shall not, before the relevant date, publish any statement or representation -
(a)by which the identity of a person who has been, or is about to be charged with a sexual offence is revealed; or
(b)from which the identity of a person who has been, or is about to be, charged with a sexual offence, might reasonably be inferred,
unless the accused person consents to the publication.
Penalty:Two thousand dollars.
* * * * * * * * * *
(4)A person shall not publish any statement or representation -
(a)by which the identify of a person alleged in any legal proceedings to be the victim of a sexual offence is revealed; or
(b)from which the identify of a person alleged in any legal proceedings to be the victim of a sexual offence might reasonably be inferred,
unless the judge authorises, or the alleged victim consents to, the publication (but no such authorisation or consent can be given where the alleged victim is a child).
Penalty:     Two thousand dollars.
(5)    In this section -
“relevant date” means -
(a)in relation to a charge of a major indictable offence or a charge of a minor indictable offence for which the accused person has elected to be tried by a superior court - the date on which the accused person is committed for trial or sentence; or
(b)in relation to a charge of any other minor indictable offence or a charge of a summary offence - the date on which a plea of guilty is entered by the accused person or the date on which the accused person is found guilty following a trial; or
(c)in any case - the date on which the charge is dismissed or the proceedings lapse by reason of the death of the accused person, for want of prosecution, or for any other reason.”
Clearly enough s 71A (1) only applies to proceedings before a Court of Summary Jurisdiction. Section 71A (2) could only apply only to criminal proceedings. It speaks of a person being charged. However, it was submitted that s 71A (4) applies to both civil and criminal proceedings because it makes reference to ‘legal proceedings’.
Legal proceedings is defined in s 4 of the Act:
“ ‘Legal proceedings’ or ‘proceeding’ includes any action, trial, inquiry, cause, or matter, whether civil or criminal, in which evidence is or may be given and includes an arbitration.”
In my opinion the contention made by the media is correct. I believe that s 71A (4) applies to any legal proceedings including civil proceedings. That the subsection is included in a section otherwise dealing only with criminal proceedings does not, in my opinion, allow it to be said that the section is limited in its terms.
It applies to any legal proceedings in which it is alleged that a person is the victim of a sexual offence.
Section 71A (4) applies to these proceedings and, in my opinion, it would be an offence for any person to publish any statement by which the identity of the plaintiff is revealed or might reasonably be inferred.
There is therefore no need, in my opinion, for any order to be made, pursuant to s 69A of the Act, suppressing the publication of the plaintiff’s name or any other material tending to identify him. The plaintiff’s identity is protected by s 71A (4).
However that is not the end of the matter. The second defendant contends that order should stay in place for the second defendant’s protection.
In my opinion, the second defendant cannot bring himself within the terms of s 69A (1)(b) of the Act. He is not a person to whom s 69A (1)(b) applies because he is not a victim of crime, a child and he is a party.
The second defendant, however, contended that the order ought to stay in place to prevent prejudice to the proper administration of justice. In that regard he relied on s 69A (1) (a) of the Act. He said that if his name was released he would be liable to assault and attacks from members of the public. In those circumstances he might be unable to conduct his defence.
I am not satisfied that the release of the second defendant’s name would prejudice the proper administration of justice in that the release might prevent him from being able to conduct his defence. Even if the release of the second defendant’s name had that tendency, in my opinion, an order should not be made. The public interest in the publication of this information would outweigh the prejudice to the proper administration of justice. His application therefore for the continuation of the order is refused.
The plaintiff says, however, that an order ought to be made under s 69A of the Act notwithstanding that the plaintiff is already protected under s 71A (4). It was argued on behalf of the plaintiff that the plaintiff was the victim of a crime and therefore entitled to claim the benefits of an order to prevent undue hardship; s 69A (1)(b)(i).
Section 69A(1)(b) provides for three classes of persons who can apply to the Court for a suppression order. Those persons must satisfy the Court that such an order should be made to prevent undue hardship. The classes of persons who might apply are alleged victims of crime, witnesses who are not parties to the proceedings and children.
In my opinion, the plaintiff could not claim the benefit of an order under s 69A(1)(b)(ii) as a witness, because he is a party. However, on the other hand, in my opinion, simply because he is a party he is not prevented from claiming an entitlement to an order under this paragraph if he is also an alleged victim of crime.
I think s 69A(1)(b)(i) applies to all alleged victims of crime whether they are parties or otherwise to the legal proceedings.
In my opinion, therefore the plaintiff is entitled to argue that, as an alleged victim of crime, he is entitled to an order under s 69A(1)(b) of the Act to prevent him suffering undue hardship.
On the application of the plaintiff I adjourned the proceedings to allow the plaintiff to submit evidence to the Court of any undue hardship that he claims he might suffer if the orders were revoked or varied.
During the period of the adjournment the plaintiff filed an affidavit in which he claims that if the names of the second, third or fourth defendants were published the general public would be able to identify him by reference to the defendants. He says that when he was abducted by the third defendant from his home there was extensive publicity which identified him by name, location and photograph. He says that on his return to his home he faced torment and ridicule from his peers due to the sexual nature of the offences and the crimes committed upon him. He says that he still lives within the same area as at the time of the commission of the crimes and works within that same area.
He says that if the current proceedings are published those people in the local community will immediately recognise him and recall the incident involving the three defendants by reference to the abduction.
He fears that if that occurs that people will talk about him and that he will suffer abuse and questions about his sexual orientation. He further fears that if his identity is disclosed through the publication of the proceedings his employment would be put in jeopardy.
I have already said that, in my opinion, the plaintiff’s identity cannot be disclosed. I reject the plaintiff’s claim that the publication of the defendants’ names will lead to him being identified by anyone apart from those who previously knew that he was the alleged victim of the crimes referred to in the pleadings.
I accept, of course, that there are a number of people who know that the plaintiff is alleged to be the victim of crimes committed by the second and third defendants. There will be people who know that the third defendant was convicted in relation to those offences. The publication of these proceedings and the identity of the defendant will not inform those people of anything they do not already know. I am not satisfied that the publication of these proceedings and the identity of the defendants will publish the plaintiff’s identity to anyone apart from those who already know of the allegations.
In those circumstances I reject the plaintiff’s contentions that the publication of the proceedings and the second, third and fourth defendants’ identities will lead to the plaintiff’s identification or will cause him undue hardship.
It was further contended that the plaintiff would suffer further psychological trauma by the publication of the defendant’s names and of the proceedings brought against the defendants.
In support of that application a report dated 14 February 2002 from Professor MacFarlane, the Professor of Psychiatry at Adelaide University, was tendered to the Court. Professor MacFarlane says in his report that there are three issues to be considered. The first is that the plaintiff has suffered and is suffering from a post traumatic stress disorder consequent upon the matters complained of in the pleadings. Anxiety and distress associated with that disorder can be triggered by specific reminders of the events and the individuals involved. Therefore the direct disclosure and publication of material relating to his case is likely to lead to an exacerbation of his distress. Professor MacFarlane says that this may have adverse behavioural consequences for the plaintiff.
I do not, of course, wish to minimise the plaintiff’s condition. However, it must be the case that the plaintiff, who has filed an affidavit on this application has already been reminded of the events and the individuals concerned. The plaintiff has, in his affidavit, given some detail of the anxiety and stress he suffered at the time these alleged offences were committed. If the trigger is to operate it may already have done so.
The second matter, which Professor MacFarlane believes is relevant, is that the process of disclosure may re-enact the plaintiff’s sense of vulnerability within the community at large. That is a possibility and a possibility to which I will have regard.
Thirdly, Professor MacFarlane believes that the publication of details could identify the circumstances of victimisation which could potentially re-open discrimination directed to the plaintiff. That can only be so if the plaintiff is identified in any future publications. As I have already said, in my opinion, it would be a breach of s 71A for anyone to publish any material by which the plaintiff’s identity is revealed or from which his identity might reasonably be inferred.
I have already decided that the plaintiff does not need the benefit of an order under s 69A to protect the publication of his identity. If, however, no order is made under s 69A the media would be at liberty to publish details of the proceedings provided, of course, that they did not publish any material which would identify the plaintiff.
In the end result the plaintiff’s contention is that if the nature of these proceedings and the identity of the defendants is made known he will suffer further psychological trauma in that his post traumatic stress disorder will be aggravated.
The media opposes the plaintiff’s application. They say that these proceedings raise real questions of public interest. They say that the public ought to be entitled to know that proceedings have been brought against the State of South Australia alleging breaches of duty on behalf of instrumentalities of the State which have resulted in sexual attacks on a child.
They say that if the Court was to balance the matters required to be balanced under s 69A (2) then the public interest and the publication of the information would outweigh the undue hardship that might be suffered by the plaintiff.

It is not easy to balance competing considerations which are quite unlike. On the one hand a person who has brought proceedings in courts which are ordinarily open to the public claims that he will suffer injury to his health if an order was not made. On the other hand the media claim that the public has a right to know that these proceedings have been brought and that this plaintiff claims to be entitled to damages as a result of injuries suffered by reason of the negligence of the State.
In the end result I am not satisfied that the undue hardship which might be suffered by the plaintiff would outweigh the public interest in the publication of the information and I therefore believe that an order ought to be made revoking the orders made by me on 26 June 2001.
Paragraph 1 of the orders also protected the identity of R Centre. I am told that that centre no longer operates and has not for some years. No suggestion was made that the proprietors or anyone connected with that Centre could suffer undue hardship.
The orders which are sought to be revoked included an order that the plaintiff’s mother and sister be described by initials. That part of the order is no longer necessary. If publication of the plaintiff’s mother or sister’s identity could lead to the identification of the plaintiff it would be a breach of s 71A of the Act. If on the other hand fact publication of their names does not lead to the identification of the plaintiff then the protection is unnecessary.
In making an order revoking those orders I stress again that, in my opinion, it would be a breach of s 71A (4) 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.
I therefore make an order discharging the orders of 26 June 2001, except for paragraph 5 of those orders.

[2002] SASC 53

14 February 2002