William Henry Hann v Gary Dean Ankor No. SCGRG 96/1194 Judgment No. 5766 Number of Pages 4 Evidence Suppression Order

[1996] SASC 5766

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Evidence - suppression order - held that a magistrate correctly, although for reasons different from those expressed by him, refused an order suppressing publication of the address of the appellant, who was the defendant to multiple charges of fraudulent conversion involving in excess of $500,000 - observations as to the nature and scope of a suppression order under the Evidence Act 1929 - there was no jurisdiction to order suppression of an address only, as opposed to suppression of an address as an incidence of an order suppressing the name of a party or witness. Evidence Act 1929ss58 and 29a, referred to.

HRNG ADELAIDE, 19 August 1966 #DATE 19:8:1996

Counsel for appellant:     Mr T Bailey

Solicitors for appellant:    Trevor Bailey

Counsel for respondent:     Mr R Perotta

Solicitors for respondent: DPP (Cwlth)

ORDER
Appeal dismissed.

JUDGE1 PERRY J
1. The appellant is charged in the Magistrates Court sitting at Adelaide on an information dated 7 April 1996 with a number of counts of fraudulent conversion contrary to s184 of the Criminal LawConsolidation Act.

2. When he appeared in court on 27 May 1996 in response to the charges, counsel on his behalf, Mr T. Bailey, who was also counsel on the hearing of the appeal to this court, appeared on the appellant's behalf. He applied for a suppression order pursuant to s69a(1)(b)(ii) of the Evidence Act 1929, in particular an order suppressing from publication the appellantÕs address or any material tending to identify his address.

3. Importantly, the appellant did not seek an order preventing publication of his name, or the name of any witness or potential witness.

4. Counsel for the respondent, who was the informant in the court below, neither opposed nor supported the application. But a number of representatives of the media were present, and they were heard in opposition to the application. The application was refused and the appeal to this Court is against that refusal.

5. In the meantime, interim orders were made by the learned special magistrate and later by a judge of this Court suppressing from publication the appellant's address, or any material tending to identify that address.

6. Subsequent to the date upon which the information was filed with respect to which the order of refusal now under appeal was made, a further information was filed alleging additional counts of fraudulent conversion. The total involved in both informations is now of the order of $600,000.

7. The grounds upon which the order was sought by the appellant was that the making of the order was necessary in order to prevent undue hardship to a potential witness, namely, his wife. It was in that context that the learned special magistrate addressed two questions: (a) whether he was satisfied that publication of the appellant's residential address would cause undue hardship to his wife, Mrs Hann, in her capacity as a potential witness in the proceedings; and (b) if he was so satisfied, whether it would be proper to make the order sought, having regard to the balance which he perceived should be struck between the public interest in the publication of the information, and any hardship which might occur to Mrs Hann.

8. It appears that the appellant voluntarily returned from the Philippines before he was charged, and that his return generated a good deal of publicity in the media. Members of the public had approached him and made threats to him. Because his wife resides with him, he feared that her safety could be put in jeopardy as well.

9. I must say that, on the material which was before the learned special magistrate, the evidence as to these matters was, to say the least, thin.

10. At all events, the learned special magistrate indicated that he was not satisfied that publication of the residential address of the appellant would cause undue hardship to Mrs Hann in her capacity as a potential witness and, accordingly, refused to accede to the application to make the order.

11. To an affidavit filed by the appellant in this Court, there is exhibited what is said to have been a threatening note subsequently left in the appellant's letterbox. No objection was taken to me having access to that item of evidence. But in my opinion, it does not take the matter any further.

12. Mr Perrotta, counsel for the respondent, while taking what he described as a "neutral position", nonetheless drew attention to an argument which, if it is sustained, would put the appellant out of court.

13. He drew attention to the definition of "suppression" order in s68 of the Evidence Act. That definition reads:
    "Suppression order means an order -
    (a) forbidding the publication of specified evidence or of
    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."

14. S69a provides:
    "69a(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 a crime; or
     (ii) to a witness or potential witness in civil or
     criminal proceedings who is not a party to those
     proceedings,the court may, subject to this section, make
     such an order."

15. I do not set out the remaining sub-sections which appear in s69a, as although they are relevant to the exercise of the discretion, they are not pertinent to the point now under consideration.

16. When one has regard to the definition of "suppression order" it is limited to an order forbidding the publication of the name of a party or witness, or of a person "alluded to in the course of proceedings before the court". Even if the reference to witness in the definition of "suppression order" must be regarded as extended by the reference in s69a(1) (b)(ii) to a "potential witness", the fact remains that a suppression order means only an order forbidding the publication of a name, together, of course, with "any other material tending to identify any such person".

17. Here there was no application to suppress a name, only an address. Despite the arguments advanced by Mr Bailey who has said everything which could be said in favour of the appeal, it seems to me that the appellant cannot surmount that difficulty. It appears to me that there is no jurisdiction under s68 or s69a of the Evidence Act to make an order suppressing publication of an address only, whether of a witness, potential witness, or a party.

18. While one sees occasionally orders suppressing publication of the address of a party or witness, in my experience, such orders have always been ancillary, or incidental, to orders suppressing the publication of a name, and must be regarded as coming within the scope of the words "any other material tending to identify any such person".

19. When confronted with the difficulty posed by those considerations, Mr Bailey indicated that an appropriate response to the appeal would be to prohibit publication of the name of the appellant and then of the address, so as to achieve the result which was sought to be achieved in the court below.

20. In my opinion, it would not be proper to accede to that request. The name of the appellant has been afforded much publicity already in the media and it would not be a proper exercise of the discretion under the Evidence Act to attempt, at this stage, to prohibit further publication of his name.

21. Furthermore, even if the matter was to be approached in the manner in which the learned special magistrate reasoned, namely, by addressing the question whether or not the material before him would justify the conclusion that undue hardship would be suffered by the appellant's wife in her capacity as potential witness, in my opinion, the appeal should still be dismissed.

22. There was no sufficient material before the court to suggest that hardship to Mrs Hann, in the relevant sense, let alone "undue hardship", would be suffered by her by reason of the publication of the address of her husband, or of his name and address.

23. But for the reasons which I have indicated, it seems to me that the appeal must be dismissed on a more fundamental ground, namely, the proper ambit and content of a suppression order of the kind identified in the Evidence Act.

24. The appeal is dismissed. Consistently with that decision, the interim orders previously made for suppression of the appellant's address pending the hearing of the appeal must be discharged and I so order.