Wickers v Director of Public Prosecutions (SA) - [2018] SASCFC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
WICKERS v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2018] SASCFC 126
Reasons for Decision of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)
5 December 2018
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - SUPPRESSION ORDERS
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS
Appeal against a decision of the District Court revoking the suppression orders that had previously prohibited from publication information which would tend to identify the appellant.
In 2018 the appellant was convicted of three counts of indecent assault and one count of unlawful sexual intercourse. The offending took place between 1992 and 1997. The victims of the offending attended the school where the appellant taught.
During sentencing submissions, the Director applied for a revocation of the suppression orders related to the appellant. The appellant submitted that his children would suffer undue hardship if he was to be identified.
On the hearing of the appeal, the Court dismissed the appeal and upheld the decision in the District Court revoking all suppression orders related to the appellant.
Held, per Kourakis CJ (Vanstone and Stanley JJ agreeing):
1. The risk to the proper administration of justice was not sufficient to displace the open-court principle and the primary considerations prescribed by s 69A(2) of the Evidence Act 1929 (SA) in circumstances where he had been convicted of the offences.
2. The Court would, in considering the discretion afresh, have revoked the suppression orders.
Criminal Law Consolidation Act 1935 (SA) s 49(3), s 56; Evidence Act 1929 (SA) s 69, s 69A, s 69AB, s 69AC(2)(e), s 69B, s 71A; Defamation Act 2005 (SA) s 27, referred to.
G v The Queen (1984) 35 SASR 349; Packer v Police (2007) 247 LSJS 410, applied.

WICKERS v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2018] SASCFC 126
Full Court: Kourakis CJ, Vanstone and Stanley JJ

KOURAKIS CJ: On 13 September 2018 the appellant was convicted of multiple sexual offences against children, following a trial by judge alone in the District Court. The appellant has lodged an appeal against his convictions in which he seeks an order for a retrial. On 29 May 2017 a Magistrate granted a suppression order prohibiting from publication information which would directly or indirectly identify the defendant or any school at which he taught. The order was expressed to operate until further order. On 1 August 2017, on the appellant’s arraignment in the District Court, a judge made a suppression order ‘over the names or identities of the defendant’s children until further order’. I will refer to the last of the orders as ‘the suppression order’. The submissions before that Judge show that it was assumed that any order made by the Judge would revoke and replace the order made in the Magistrates Court.[1] The practical effect of the suppression order was to prohibit the public identification of the appellant. On 19 October 2018, in the course of sentencing submissions the trial Judge revoked all existing suppression orders on the file. The appellant has appealed to this Court against that revocation on the grounds that the publication of his name (which his children share) in the proceedings, which is now permissible, would prejudice his retrial if the convictions were quashed and a retrial ordered, and would subject his children to undue harm. On 31 October 2018, this Court dismissed the appeal. The Court now publishes its reasons for doing so.
[1] The record of outcome of that hearing did not expressly revoke the Magistrates Court order and it remained on the register of suppression orders. The records of the District Court and the register have since been corrected to show that the order made in the Magistrates Court was revoked.
The trial
In a pre-trial ruling, the Judge held that the evidence with respect to each separate complainant in relation to the counts of indecent assault were cross‑admissible because of what the Judge described as ‘similarity of account’.[2] I take that to mean that it was improbable that the victims would, independently of each other, have concocted such similar accounts of the appellant’s offending. The Judge did not admit the evidence for propensity purposes. The prosecution did not submit that the evidence on the unlawful sexual intercourse charge was admissible in relation to any of the counts of indecent assault. Nor was it submitted that the evidence on the charged indecent assaults was admissible on the count of unlawful sexual intercourse.
[2] R v W, TJ [2018] SADC 97 at [25].
The appellant was convicted of the following offences:
Count 1:Indecently assaulting AA by kissing her on the lips between May and September 1992;[3]
Count 2:Unlawful sexual intercourse with AA between May 1992 and September 1992;[4]
Count 3:Indecently assaulting GG by touching her chest between May 1993 and August 1993;[5]
Count 5:Indecently assaulting BB by kissing her on the lips and kissing her between 15 August 1995 and 1 October 1995;[6] and
Count 6:Indecently assaulting SS between August 1995 and October 1995 by kissing her lips.[7]
[3] Contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA).
[4] Contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA).
[5] Contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA).
[6] Ibid.
[7] Ibid.
On count 4, which alleged that the appellant had indecently kissed GG between May and August 1993, the Judge accepted that GG was an honest witness but entertained a reasonable doubt on which, of two possible occasions, the offence was committed. The Judge therefore found that there was a reasonable doubt on the charged offence as particularised.
In his Honour’s reasons for verdict, the Judge recorded that, despite the joinder of the counts and his pre-trial ruling, he did not have regard to the ‘similarity of account’ evidence:
[306]In the final analysis, overall, the direct evidence in this matter has proven so clear and compelling it has been unnecessary to have regard to the evidence in relation to the allegations comprising 1, 3, 4, 5 and 6 which the prosecution led as ‘similarity of account’ evidence in support of its case concerning those charges. Whilst the court ruled that evidence admissible prior to trial, the court has not placed that evidence into the scales against the accused.
The course adopted by the Judge is an unusual one. A trier of fact is bound to have regard to all of the evidence which has been properly admitted. In this case, the evidence was circumstantially relevant because, if collusion could be excluded, it was improbable that four secondary students would independently concoct allegations of broadly similar indecent offending against the same teacher in four different years between 1992 and 1997. It was probably open to the Judge to observe that the evidence, other than the ‘similarity of account’ evidence, in itself, proved the offences beyond reasonable doubt, but there would be very little reason to make an aside of that kind. Be that as it may, the error was favourable to the appellant.
The appellant has appealed against his convictions on the grounds that:
·The trial miscarried as a result of the joinder of the counts relating to different complainants;
·The Judge failed to resolve ‘crucial issues of fact which facts were intermediate facts that operated as indispensable links in the chain of reasoning towards inferences of guilt’;
·The Judge failed to properly have regard to the inconsistencies in the complaint evidence of the complainants;
·The Judge gave excessive weight to the demeanour of the complainants;
·The Judge erred in rejecting the evidence of the accused on the ground of his demeanour;
·The Judge did not give adequate weight to the defence case; and
·The Judge’s reasons are inadequate.
It was in the course of sentencing submissions that the prosecutor requested that the Judge revoke the suppression orders on the file. The prosecutor’s submission was supported by submissions from a representative of the Channel 10 network (Channel 10), Ms Somers. The application to revoke the suppression orders was opposed by the appellant on the grounds of undue hardship to his children and the risk of prejudice to the proper administration of justice, in the event that his appeal were to be successful and a retrial ordered.
The Judge’s reasons for revoking the suppression order were as follows:
In all the circumstances, in my view, taking into account all the submissions, the important principles articulated in the Evidence Act and the authorities, undue hardship as explained by Doyle CJ in Packer v The Police is not established such as to justify the continuation of any suppression order in this case. Accordingly, the suppression order is revoked and I will hear from counsel whether that should occur immediately or whether the order should be stayed pending the filed appeal coming before the Supreme Court, or pending any appeal against this order.
The appeal
On the appeal, the Director accepted that the Judge did not address the second of the appellant’s grounds for opposing the revocation of the existing suppression orders. The concession was rightly made. The Judge’s reference in that passage to taking into account ‘all the submissions’ must mean the submissions on the question of undue hardship, because that is the only ground on which his Honour expressed a conclusion. Even if the reference was to refer to submissions on the prejudice ground, the Judge did not expressly state his conclusion that such prejudice as there may be did not warrant a continuation of the suppression orders, or give reasons for that conclusion.
An error of law having been established, it fell to this Court to consider the proper exercise of the discretion afresh. The Court heard submission from the Director, the appellant and Ms Somers.
The Court also gave permission to Ms B, the victim in count 5, to be heard. Ms B had not made a submission before the Judge but explained to this Court that she had not been informed of her right to do so. The Court accepted Ms B’s explanation and allowed Ms B to make a submission pursuant to s 69AC(2)(e) of the Evidence Act 1929 (SA) (the Act). Ms B’s submission emphasised the importance to her, as a victim, that the appellant’s conviction be publicly known. There is no private interest or right in the publication of court proceedings, but Ms B’s submission reflects an element of the public interest which I will discuss below.
On the hearing of the appeal, the appellant made an application to adduce, by way of evidence, a report of a clinical psychologist on the nature of harm that children may suffer as a result of ‘cyber bullying’. The report mentions, what may be accepted as a notorious fact, that there has been a proliferation of social media, or ‘cyber’, bullying. The report also refers to serious psychological harm, requiring professional counselling and treatment, which may be caused to children living with the embarrassment and shame of being the children of a sexual offender. The report discusses these issues in the most general of ways. The report does not provide any relevant information on these matters beyond that of which the Court is aware by reason of its institutional judicial experience.
The report does not provide any information about, or expert opinion on, the appellant’s children at all.
An appeal pursuant to s 69B of the Act is an appeal by way of rehearing on the material before the Judge, but subject to a discretion on the part of the appeal court to adduce further evidence. It can be accepted that, on an appeal by way of rehearing, if a vitiating error is established a more liberal approach may be taken to the admission of further evidence on the merits, or otherwise, of affirming or setting aside the order appealed against.
However, in this instance the report tendered could not, by reason of its generality, provide any assistance to the Court in exercising its discretion. Moreover, no explanation was proffered by counsel for not providing the report or similar material to the Judge. The Court therefore refused permission to adduce the proposed further evidence.
The open-court principle
From the earliest times, judicial and quasi-judicial proceedings have been held in public. Indeed, in ancient times it was common for trials to be held in public places and for citizens to be duty bound to attend as jurors. Early English juries were comprised of members of the community who acted as both witnesses and arbiters of fact.
The transparent and accountable administration of justice is an integral aspect of the rule of law. Members of a society governed by laws are entitled to know how they are administered and naturally expect to see that the laws which constrain them are appropriately enforced against others. I refer to that expectation as the ‘open-court principle’.
The public purpose served by the open-court principle explains why the legislature and the common law are cautious about any derogation from it. It also shows that the public interest it serves is not an idle or commercial interest but the interest in the proper administration of justice.
The open-court principle is reflected in s 27 of the Defamation Act 2005 (SA) (the Defamation Act) which provides a defence to actions in defamation for fair reports of, amongst other proceedings, the public proceedings of courts. The defence is the statutory expression of the common law defence, which in turn is an aspect of the common law principle that justice must be seen to be done. The primacy of the open‑court principle explains the carefully limited circumstances, prescribed by the Act, in which suppression orders can be made.
Section 71A(1) of the Act prohibits publication, before committal for trial by the Magistrates Court of a defendant charged with a sexual offence, of:
·any evidence given in the committal proceedings;
·any report on such proceedings; and
·any evidence in related proceedings against the defendant, unless the defendant consents to that publication.
Section 71A(2) prohibits the publication of any information by which the identity of a person who has been charged with a sexual offence might be revealed or inferred unless the defendant consents. However, a court retains a discretionary power to make a publication order allowing the dissemination of evidence or information from which the identity of a defendant might be revealed if the court is satisfied that the publication will assist in the investigation of an offence or is otherwise in the public interest.
Section 71A of the Act reflects concern for those who may be wrongly accused of sexual offending because of the public opprobrium which attaches to offences of that kind. Accordingly, there is a statutory suppression of the identity of persons charged with those offences until a judicial determination is made that there is sufficient evidence to put them on trial. For similar reasons, s 71B of the Act requires publishers, who report on the trial of a person, to report the result of the trial if that person is not convicted, giving it a prominence reasonably proportionate to the reports of the trial.
Section 71A(4) precludes the publication of any information by which the identity of an alleged victim of a sexual offence is revealed, or might reasonably be inferred, unless the Judge authorises or the alleged victim consents to that publication. That restriction manifests the strong community concern for victims and the effects on them of the wide dissemination of information about sexual offending against them.
Section 69 of the Act provides that a court may close its doors to the public if it is desirable in the interests of the administration of justice, or in order to prevent hardship or embarrassment to any person, to do so. Section 69(1a) provides that a court must do so in order to protect victims of sexual offending:
69—Order for clearing court
…
(1a)Where the alleged victim of a sexual offence is a child and is to give evidence (including evidence admitted in the form of an audio visual record) in proceedings related to the offence, an order must be made under subsection (1) requiring all persons except—
(a)     those whose presence is required for the purposes of the proceedings; and
(b)     a person who is present at the request or with the consent of the child to provide emotional support for the child; and
(c)     any other person who, in the opinion of the court, should be allowed to be present,
to absent themselves from the place in which the court is being held while the child is giving evidence.
The wider publication of court proceedings is controlled by s 69A of the Act, which provides:
69A—Suppression orders
(1)Where a court is satisfied that a suppression order should be made—
(a)     to prevent prejudice to the 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
(iii)to a child,
the court may, subject to this section, make such an order.
(2)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 the order in the particular case.
…
An expression of the legislature’s concern about the potential effect of those provisions on the open‑court principle can be seen in s 69(8) of the Act, which requires the Registrar of a court making an order to maintain copies of the orders and to report the making of the order to the Attorney-General.
Section 69AB(1) of the Act also recognises the importance of minimising the suppression of information about judicial proceedings by providing for their review:
(i)on the completion or termination of committal proceedings;
(ii)on the withdrawal of a charge after the completion of committal proceedings;
(iii)on the acquittal of the defendant;
(iv)when an appeal against conviction or sentence has been determined or all rights to appeal against conviction or sentence have been exhausted or expired;
(v)on the defendant being declared under Part 8A of the Criminal Law Consolidation Act 1935 to be liable to supervision;
(vi)in any other case—when the proceedings are otherwise concluded or terminated,
(and, if more than 1 such occasion for review occurs in the course of the same proceedings, the order becomes liable to review on each such occasion).
Discussion
It is important to state at the outset that the appellant has not contended that there is a real risk that the mainstream media will directly identify his children. There is no material before the Court to suggest that there is any such a risk, and Ms Somers, the representative of Channel 10, expressly disavowed any such intention. Rather, the appellant contended that on the publication of his name his children might be identified on social media exchanges, and that odium directed at him may also attach to his children.

Of the two grounds prescribed by s 69A of the Act for making a suppression order, it is the first which provides the strongest justification for limiting the open‑court principle. The open-court principle, which is calculated to promote the administration of justice generally, may have to give way if the wide publication of material will undermine the administration of justice in a particular case. It is not surprising, therefore, that suppression orders are most commonly made to prevent prejudice to the administration of justice. For example they may be made to suppress material which might not be admitted at trial. The identity of an accused charged with a number of unconnected offences might also be suppressed so that the prejudice engendered by the multiplicity of charges does not improperly influence the jury.
The first of the grounds on which the appellant appeals against the revocation of suppression order is that publication of the fact of the appellant’s convictions against all four victims may prejudice his trial if the appeal is successful and there is a separate trial for each of his victims. An application on a similar ground made before any trial of the charges will generally have substantial merit. However, the balance of competing considerations changes significantly after conviction, for several reasons.
First, a conviction is not an interim determination by a court which is only confirmed if there is no successful appeal. The conviction is a final order. Publication to the community that there has been a conviction for a crime committed against a member of the community is important for the maintenance of confidence in the effectiveness of the criminal law.
Secondly, it is in the nature of an appeal and an order for retrial that some time will elapse after the appeal is determined but before the retrial has commenced. If an appeal is allowed in circumstances in which there may be publication of evidence which will not ultimately be admitted at the retrial, the court of appeal is in a position to make a suppression order so that there is a period between the time when the appeal is allowed and the retrial in which there is no publicity. The risk to the proper administration of justice is thereby substantially diminished.
Thirdly, it is also relevant to consider the prospects of success on appeal. The application for permission to appeal against his convictions had not yet been determined when this Court dismissed his appeal against the revocation. This Court proceeded on the premise that the grounds of appeal as to the wrongful admission of the evidence were at least arguable. However, the appellant’s prospects of success on the ground which contends that the evidence was not cross‑admissible are not strong. There is strong authority favouring the cross-admissibility of evidence in cases such as this.
The risk to the proper administration of justice, on which the appellant relied, was not sufficient to displace the open‑court principle and the primary considerations prescribed by s 69A(2) of the Act in circumstances where he had been convicted of the offences.
On the question of undue hardship, no evidence was presented about the particular position of the appellant’s children. As I have earlier observed, no report was provided on their psychological condition.
In G v The Queen, King CJ made the following observations on what may constitute undue hardship:[8]
The use of the adjective ‘undue’ to qualify ‘hardship’ in the section, indicates something more than that ordinary degree of hardship is required. … Moreover, it seems to me that the circumstances must be very rare in which hardship in the form of distress or physical or mental harm to others could be shown to be the likely result of publication of an accused person’s name … Cases must be rare in which the added factor of media publicity would cause significantly additional stress or physical or mental harm.
[8] (1984) 35 SASR 349 at 352.
In Packer v Police, Doyle CJ defined ‘undue’ as ‘unwarranted, excessive or too great’.[9] However, his Honour also observed that in cases claiming undue hardship to family members of the accused:[10]
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.
[9] (2007) 247 LSJS 410 at [22].
[10] (2007) 247 LSJS 410 at [25].
It can be accepted that family members will find it difficult and embarrassing to deal with any publicity in a case such as this. However, that is a difficulty commonly faced by the children of offenders.
It would subvert the open-court principle if there were to be a general rule that the names of convicted sex offenders could not be published because of the difficulty their children faced. The appellant did not establish that revocation of the suppression orders would cause his children undue hardship.
For the above reasons, this Court would, in considering the discretion afresh, have revoked the suppression orders.
The appeal was therefore dismissed.
VANSTONE J: I agree.
STANLEY J: I agree.