R v Zai (a pseudonym)
[2023] SASC 148
•11 October 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v ZAI (A PSEUDONYM)
[2023] SASC 148
Reasons for Decision of the Honourable Justice McDonald (ex tempore)
11 October 2023
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - SUPPRESSION ORDERS
The defendants have entered guilty pleas to various offences, the victim of much of this offending is a member of their immediate family. The prosecution applies for a suppression order over the “name, image and anything that may tend to identify” the victim on the basis that the order was necessary to “prevent undue hardship to an alleged victim of a crime.” Given the familial relationship between the victim and the defendants, the effect of that order would be to prohibit the publication of not only the victim’s identity but also the identity of the defendants.
Representatives of the media were heard on the application, and supported the orders sought by the prosecution.
Held: Application granted. The alleged victim would suffer undue hardship were the order not made. This undue hardship outweighs the public interest in open justice such that it amounts to “special circumstances” warranting a suppression order.
Evidence Act 1929 (SA) S 69A, referred to.
Packer v Police [2007] SASC 98, considered.
R v ZAI (A PSEUDONYM)
[2023] SASC 148Criminal: Application
McDONALD J (ex tempore): The defendants were due to stand trial on 18 June 2023 for various offences, the most serious of which was attempted murder. The victim of the offences was Ms Zai.[1] The defendants are her mother, father, sister, brother-in-law and two brothers. On the 21 June the matter resolved with the defendants entering pleas to lesser charges as set out in the following table:
[1] ‘Zai’ has been used as a pseudonym as most Pashtun surnames end with ‘zai’. ‘Zai’ means “the son of” in Pashto and is a common word used across Pashtun clans.
Father
· Aggravated cause serious harm with intent to cause serious harm
· False imprisonment
Mother
· Aggravated cause harm with intent to cause harm
· False imprisonment
Sister
· Aggravated cause harm with intent to cause harm
· False imprisonment
Brother-in-Law
· Aggravated cause harm with intent to cause harm
· False imprisonment
Older brother
· Aggravated serious criminal trespass
· Aggravated cause harm with intent to cause harm
· False imprisonment
Younger brother
· Aggravated serious criminal trespass
After the entry of the guilty pleas the prosecution made an application for a suppression order over the “name, image and anything that may tend to identify Ms Zai” pursuant to s 69A Evidence Act 1929 (SA). Given the familial relationship between Ms Zai and the defendants it is an inevitable consequence of making such an order that the defendants will be granted permanent anonymity and avoid public denunciation for their criminal conduct. Such an outcome is a significant departure from the normal consequences of convictions for serious criminal offences.
This is however an exceptional and unique case and for the reasons that follow I have determined to make the suppression order.
The Offences
As I am yet to hear sentencing submissions and know only limited details of the basis upon which the pleas have been entered, I am reliant on the Prosecution Case Statement for the details of the offences. This may or may not ultimately be the same basis upon which the defendants come to be sentenced.
The defendants and Ms Zai are Pashtun Muslims. The motive for the offending was that the defendants had become aware that Ms Zai was in a relationship with a man of a different culture and faith and they did not approve.
The offending occurred between 28 and 30 November 2021. On or about 28 November there was a confrontation between the mother, sister and younger brother and Ms Zai and her boyfriend. This resulted in Ms Zai not returning to the family home. She stopped replying to her family’s text messages and telephone calls.
That evening the two brothers forced entry into a house in the inner northern suburbs believing that it was the house where Ms Zai and her boyfriend were residing. They were wrong. Upon the occupant opening the door the two brothers forced their way in, pushed the occupant against the wall and threatened him with knuckle dusters. They demanded to know where Ms Zai was and proceeded to search the house. They were unsuccessful in their efforts to locate her.
This conduct is the subject of the offence of aggravated serious criminal trespass to which the two brothers have pleaded guilty.
Phone records indicate that throughout the course of that evening and the following day, various defendants repeatedly tried to contact Ms Zai.
On the morning of 30 November 2021, Ms Zai arranged to meet her mother in the company of a friend at the Sefton Park Shopping Centre so she could collect some equipment that she needed for work and study.
The friend and the mother drove to the shopping centre together. Unbeknownst to Ms Zai the father, sister, brother-in-law and older brother also drove to the shopping centre in a separate car.
Ms Zai met up with the mother, friend and sister in a car park at the front of the shopping centre. The mother and sister grabbed both of her arms. The older brother joined the group and assisted in restraining her.
Ms Zai yelled out for them to leave her alone and one of the defendants placed their hand over her mouth to silence her.
As Ms Zai was being detained her father and brother-in-law ran towards her. Her father was armed with a knife. He used the knife to stab his daughter twice to the abdomen as she continued to be held by her mother and sister.
After she had been stabbed Ms Zai was forced into the rear passenger seat of the family vehicle. The mother and sister sat on either side of her. The older brother drove the car to their home. On the way the older brother chastised Ms Zai for being in a relationship. She was hit and had her hair pulled by the mother and sister.
Once at the house the mother and the sister dragged Ms Zai inside, placed her in the shower and turned on the water. Ms Zai’s sister-in-law (who was not involved in the offending) attempted to render assistance by placing a cloth over her wounds.
The police arrived shortly thereafter.
As is apparent from this brief recital of facts this was no doubt a terrifying ordeal for Ms Zai at the hands of her family, those whom she should have been most able to trust.
The basis of the application for a suppression order
The prosecution made the application for a suppression order pursuant to s 69A(1)(b)(i) of the Evidence Act in order to “prevent undue hardship to an alleged victim of a crime.”
To date the names of Ms Zai and her family have not been in the public arena. As to the basis for the application, the prosecution submitted the following:
This is very significant and serious offending on the complainant and carries with it not only the stigma of being a victim of a serious crime but a victim at the hands of the entirety of her family. That already carries with it a significant trauma in my submission and to have that then more publicly put out in the community is something that she will have to carry with her through her employment and the rest of her life and that will only add to the burden of the trauma that she suffered as a result of this offending.
None of the counsel who appeared for the defendants took a position on the application.
As required under s 69A(5)(a)(iii) of the Evidence Act I afforded representatives of the media an opportunity to be heard on the application. Whilst the majority of the mainstream media were represented in Court, only Mr Fewster, who represented The Advertiser made submissions. Mr Fewster quite appropriately acknowledged that this case is unique in that the trauma experienced by Ms Zai came not only from being a victim of crime, but a victim of her own family who committed that crime. On that basis Mr Fewster supported the maintaining of the status quo, by imposing a suppression order that would not only have the effect of prohibiting the publication of Ms Zai’s identity but also that of her family.
No other members of the media sought to be heard. By their silence, I took their position to be the same as that of Mr Fewster.
Despite the position taken by defence counsel and the media it still falls upon the Court to be satisfied that it is appropriate to make an order for suppression.
In considering whether to make a suppression order the Court must first determine whether the precondition for the making of such an order has been established under s 69A(1) of the Evidence Act. That subsection sets out the basis upon which a suppression order may be made. It relevantly reads:
(1)Where a court is satisfied that a suppression order should be made –
(a) to prevent prejudice to proper administration of justice; or
(b) to prevent undue hardship –
(i)to an alleged victim of crime; or
(ii)to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or
(ii)to a child,
the court may, subject to this section, make such an order.
If the Court is so satisfied it is then necessary to determine whether to exercise the discretion to order a suppression order.
There is no presumption for or against the making of a suppression order. The issue is whether the statutory test has been satisfied.
The test is set out in s 69A(2) of the Evidence Act it reads:
69A(2) - Suppression Orders
If a court is considering whether to make a suppression order (other than an interim suppression order), the Court –
(a)must recognise that a primary objective in the administration of justice is to safeguard the public interest in open justice and the consequential right of the news media to publish information relating to court proceedings; and
(b)may only make a suppression order if satisfied that special circumstances exist giving rise to a sufficiently serious threat of prejudice to the proper administration of justice, or undue hardship, to justify the making of an order in a particular case.
Has it been established that Ms Zai will suffer undue hardship if the order is not made?
It is not any hardship that justifies the making of a suppression order it is hardship that is “undue”. “Undue” means “unwarranted, excessive, too great or unjustified.”[2]
[2] Macquarie Dictionary (8th ed 2020).
There is no doubt that some members of the community, in particular in the cultural community of the Zai family, will know the identities of those involved in these crimes. That of itself means that Ms Zai has and will suffer some hardship as a consequence. It follows that I am required to determine the nature of the hardship Ms Zai will suffer beyond that which she otherwise would experience if a suppression order is not made. In Packer v Police, Doyle CJ discussed the manner in which such a determination should be made. His Honour said: [3]
The judicial task does not involve subtracting from whatever degree of hardship might be made out, that degree of hardship that is inevitable. Precision of that kind is not possible. Rather, it is a matter of considering the hardship that is established, that bearing in mind that hardship to family members, at least in a case like this, is something that is almost inevitable to some degree.
[3] [2007] SASC 98 at [25].
In determining this question, I have been assisted by an expert report of Dr Jaward Hassan Zadeh.[4] Dr Zadeh has expertise in the Afghanistan and Palestinian cultures. The focus of his report however is on the Pashtun culture and how that cultural background may have impacted on the Zai family leading up to and during these offences. Without descending into detail, in that report Dr Zadeh explains the importance of honour, familial loyalty and hierarchy in Pashtun families and communities. The report provides me with a degree of insight into the particular impact of these offences on Ms Zai, that goes beyond that which any young woman would experience in being treated in this manner by her family.
[4] 14 September 2023.
Hardship that arises from the public exposure of Ms Zai’s identity as the victim of these offences, cannot be considered in a vacuum divorced from the broader circumstance in which she finds herself. Any assessment of hardship at this point in time must be considered in the context of and against the background of the hardship that has already been experienced by Ms Zai as a consequence of the impact of the offences committed against her.
I find that Ms Zai will suffer undue hardship in the event that a suppression order is not made.
The public interest in open justice
That is not, however the end of the matter. There remains the question of whether that undue hardship outweighs the public interest in open justice such that it amounts to “special circumstances” warranting a suppression order.[5] That public interest and the consequential right of the news media to publish information related to court proceedings has been declared by Parliament to be a matter of substantial weight. It is not enough for me to be persuaded that undue hardship will occur if a suppression order is not made. I must be further satisfied that undue hardship is entitled to greater weight than the public interest. There will be varying degrees and types of undue hardship that must be taken into account when deciding whether the undue hardship is to be given greater weight than the public interest.
[5] Evidence Act1929 (SA) s 69A(2)(a)(b).
In explaining how this balancing exercise is to be undertaken in Packer v Police Doyle CJ made the following observation:[6]
This consideration of public interest involves qualitative and quantitative considerations. They are very much a matter of impression. It is not easy to explain to another how one has made a decision under such a provision.
[6] [2007] SASC 98 at [30].
There are a number of relevant factors that together create a compelling case in favour of giving greater weight to the undue hardship that would be experienced by Ms Zai over the public interest in publication.
These are the nature of offences and the extent of the undue hardship that Ms Zai will experience if the suppression order is not made. Further, it is still open for the media to publish the details of the offending, the relationship between Ms Zai and her family, their religion and the progress of the proceedings even with a suppression order in place. The public interest in open justice is in a large part satisfied by the publication of that information.
In all of the circumstances I find it is appropriate to make an order for suppression.
I commend the sensitive and socially responsible approach that the media has taken on this application.
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