R v Penney No. SCCRM 96/194 Judgment No. 5825 Number of Pages 3 Evidence Prohibition of Publication of Evidence

[1996] SASC 5825

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Evidence - prohibition of publication of evidence - application to copy and publish video tape and still photograph exhibits - notice to all parties - whether access would interfere with fair trial of accused - safeguards not sufficient - risk of prejudice to fair trial of accused - leave granted to copy material in order to identify what applicants wish to publish - nothing to be published until leave granted. Supreme Court Act, 1935 131, referred to. R v Foreman (Lander J, 14 May 1996, No. 5643 (unreported, available on SCALE)); R v Fairclough (Cox J, 31 May 1996, unreported), applied.

HRNG ADELAIDE, 9 September 1996 #DATE 9:9:1996

Counsel for applicant
Television Broadcasters Ltd:                 Mr A Harris

Solicitors for applicant
Television Broadcasters Ltd:                 Fisher Jeffries

Applicant South Australian Telecasters
Ltd represented by:   Mr G Hunter

Applicant Southern Television Corporation
Ltd represented by:   Mr P Emmett

ORDER
Application granted.

JUDGE1 DEBELLE J
1. I want to say something briefly about the nature of the applications before ruling on the application.

2. These applications were initially made by letter addressed to me. It is very proper to give written notice of the application, and indeed written notice should, as a general rule, be given. I say "as a general ruleÓ because there may be occasions where an oral application could fairly, by reason of some degree of urgency, be made. But the general rule is that written notice should be given. Only in special circumstances should there be a departure from that rule.

3. I see no reason for a formal application. A letter setting out the nature of the application, what is sought and the reasons for the application would again as a general rule suffice.

4. What I am concerned about is that there seems to be a practice of making these applications in writing to the trial judge without notifying other persons who have a legitimate interest. The risk of applications being made in that way is that there could be a breach of the rules of natural justice. Justice must not only be done, but be seen to be done, and if a party makes an application of that kind which is not disclosed to other parties, there is a risk that one party will have a perception that it is not being fairly treated. For those reasons, whenever an application of this kind is made, copies of the application should be given immediately to the Director of Public Prosecutions, either to his office or to counsel at the trial, and of course to counsel for the accused, and, if there are more than one accused, counsel for each accused.The application must be made in due time to enable it to be heard. For example, if an application is made for the purpose of showing videotape film in an evening news program, the application should be made before the court rises, preferably long before it rises. It is obviously not possible to prescribe a regime to deal with every case. Commonsense will dictate what is reasonable notice in any particular case.

5. I say all this because the interests involved in applications of this kind include others in addition to the television station or other media applicants. In addition to the interest of those making the application, there are first the interests of securing the proper administration of justice, which means that nothing should be done which would prejudice the fair trial of an accused person. Secondly, as a corollary of that, there are the interests of the accused, not only in securing a fair trial, but in addition any proper interests of privacy which ought to be protected. Thirdly, in some cases, there may be the interests of the victim to consider. In other cases, there may also be the interest of a witness or witnesses.

6. In order that all relevant interests might be represented and heard, the application must be made in open court. It cannot be granted just simply on a letter addressed to the trial judge in chambers.

7. I turn to the merits of this particular application. I have regard to the observations of Lander J in R v Foreman, and Cox J in R v Fairclough. I share the views that their Honours expressed in those reasons as to the effect of the inclusion of s131 of the Supreme CourtAct, and of the general operation of that provision and the purpose it was intended to serve.

8. Each of the applications which is now being made is for access to the material and for leave to copy it and screen it. There is considerable force in what Mr Harris has said, which has been adopted by Mr Hunter, that the publication of this material would have to be within the ambit of the law of contempt, and that the publication would have to be without any commentary other than to state that it is publication of an experiment, or otherwise identifying how the material came to be before the court.

9. There is plainly an advantage, as Mr Harris emphasised, in a pictorial representation as opposed to a written summary of that which has been tendered. All of that, coupled with a warning to the jury, which is generally given in any criminal trial, to refrain from engaging in discussion, provides potential safeguards. Reality reminds one that whatever safeguards might exist, inadvertence either on the part of the media outlet or on the part of the jury might diminish the effect of those safeguards and thereby, in some respect, prejudice the fair trial of the accused.

10. For these reasons, notwithstanding that the accused consents to publication of a portion of the material which is sought, I am not prepared at this stage to order that the material can be released for the purpose of copying and later publishing. I think there is a risk to the fair trial of the accused.

11. I adopt again what was said by Lander and Cox JJ in the cases to which I have referred. I am prepared, if the two applicants consent to the condition I am about to impose, to permit access to the material for the purpose of them deciding that which it is they seek to publish. That access will be on the clear condition that nothing will be shown and nothing will be published in any form, either in a newspaper, by television or any other form of media, until leave to publish has been granted.

12. I am prepared to indicate that I will hear any later application. I adjourn these applications to enable that to be done if the applications are to be pressed.

13. In all the circumstances, I am only prepared to grant the application on that limited basis.

14. Mr Harris, are your prepared to accept the condition I have just outlined? (DISCUSSION AS TO THE MANNER OF COPYING FOLLOWED.)

15. In relation to the applications by Television Broadcasters and South Australian Telecasters Ltd, there will be orders permitting access to the video tape and photographs which have been tendered in the course of this trial. Each applicant will also be permitted to copy the video tapes and photographs, but at a time convenient to the court. I note that Mr Hunter for South Australian Telecasters Ltd has been appointed the deputy to make a copy of this material for the purpose of subsequent distribution to Television Broadcasters.

16. The grant of leave to inspect and copy in that way is on the condition that nothing will be shown and nothing will be published in any form either in a newspaper, television or any other manner, until leave has subsequently been granted to do so. Last week I refused a like application by the company which operates Channel Nine. I refused that application. As I understand the presence of Mr Emmet here today, he seeks to enliven that application. In all fairness Channel Nine should be granted the same leave as has just been granted to Channels Seven and Ten.