Australian Broadcasting Corporation v L & Tudor-Stack [2005] NTCA 7

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Australian Broadcasting Corporation v L & Tudor-Stack [2005] NTCA 7

 

PARTIES: AUSTRALIAN BROADCASTING CORPORATION

v

L

and

TUDOR-STACK, Paul Francis

TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: AP 4 of 2005 (20424339)

DELIVERED: 18 November 2005

HEARING DATE: 17 August 2005

JUDGMENT OF: MARTIN (BR) CJ, RILEY and SOUTHWOOD JJ

CATCHWORDS:

PRACTICE AND PROCEDURE – SUPPRESSION ORDER – APPEAL

Two separate criminal prosecutions – first proceedings before Court of Summary Jurisdiction – order prohibiting publication of the respondent’s name in the first proceedings in anticipation of the second proceedings – Evidence Act (NT) s 57 – power conferred by s 57 rests in the court before which proceedings are brought – in determining whether to make a suppression order the inquiry is not confined to particular proceedings before the court.

Evidence Act (NT), s 57; Criminal Code (NT); Justices Act (NT);
Supreme Court Act (NT)

Advertiser Newspapers Ltd v Bunting & Ors [2000] SASC 458 at [19], applied.
Attorney-General v Leveller Magazine Ltd [1979] AC 440, applied
Australian Broadcasting Commission v Parish (1980) 29 ALR 228, applied.
Australian Conservation Foundation Inc v The Commonwealth (1980) 149 CLR 493, applied.
Re Applications by the Chief Commissioner of Police (2004) 9 VR 275, applied.
Cain v Glass (No 2) (1985) 3 NSWLR 230, applied.
Cheatley v The Queen (1972) 127 CLR 291, applied.
Ex parte Farren; Re Austin (1960) 77 WN (NSW) 734, cited.
G v The Queen (1984) 35 SASR 349 at 351, applied.
Holland v Sammon (1972) 4 SASR 1, cited.
John Fairfax & Sons v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465 at 477, cited.
John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales & Ors [2004] NSWCA 324 at [18]; (2004) 61 NSWLR 344 at 352, cited.
Murphy v R (1989) 167 CLR 94, cited.
Nine Network Australia Pty Ltd v McGregor & Ors (2004) 183 FLR 44 at [52], applied.
R v Glennon [2001] VSCA 17 at [67]; (2001) 7 VR 631 at 660; cited.
Scott v Scott [1913] AC 417, applied.
The Queen v Tait and Bartley (1979) 24 ALR 473, applied.

Jacob “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23

REPRESENTATION:

Counsel:
Appellant: R. Whitington QC
First Respondent: J. Lawrence
Second Respondent: N. Crafti

Solicitors:
Appellant: Clayton Utz
First Respondent: Priestleys
Second Respondent Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: ril0525
Number of pages: 38

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Australian Broadcasting Corporation v L & Tudor-Stack [2005] NTCA 7
No AP 4 of 2005 (20424339)

BETWEEN:

AUSTRALIAN BROADCASTING CORPORATION
Appellant

AND:

L
First Respondent

AND:

PAUL FRANCIS TUDOR-STACK
Second Respondent

CORAM: MARTIN (BR) CJ, RILEY and SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 18 November 2005)

Martin (BR) CJ:

[1] The facts are set out in the judgments of Riley J and Southwood J. I agree that the appeal should be allowed.

[2] The suppression order put in place in the child pornography proceedings by Mr Cavanagh SM was not required for the purposes of the proceedings before his Honour. It was designed to secure the interests of the administration of justice in connection with the separate sexual assault proceedings. It was in these circumstances that Mr Loadman SM lifted the order of Mr Cavanagh SM on the basis that s 57 of the Evidence Act did not authorise the making of the order. Mr Loadman SM was in error.

[3] By virtue of s 57(1)(a), a court is confined to making an order of suppression in the proceedings before the court. However, the power to make such an order is not limited by considerations of the interests of the administration of justice only in respect of the proceedings before the court. The power extends to securing the interests of the administration of justice in connection with proceedings other than those before the court. If in the child pornography proceedings it was desirable to make a suppression order because it was in the interests of the administration of justice in connection with the sexual assault proceedings, the court possessed the power to make the suppression order pursuant to s 57(1)(b).

[4] I also agree that on the appeal from the decision of Mr Loadman SM, the learned judge erred in purporting to exercise the original jurisdiction of the Supreme Court in making an order pursuant to s 57. As I have said, the power contained in s 57 is confined to the making of orders in the proceedings before the court. In purporting to exercise the original jurisdiction of the Supreme Court, his Honour was not making a suppression order in the proceedings before his Honour. The order was made in respect of the child pornography proceedings before the Court of Summary Jurisdiction. If the judge had allowed the appeal, he would have been acting on appeal in the child pornography proceedings and the powers contained in s 57 would have been applicable.

[5] In my opinion, while the appeal from the decision of the judge should be allowed, it is pointless to remit the matter back to his Honour.

[6] The appellant is a well known Territorian. In the proceedings under consideration, he is charged with possession of child pornography. In addition, he is charged in separate proceedings on information with a number of sexual assault offences. There is no doubt that if the media are free to publish the appellant’s name in connection with the child pornography charges, the fact of those charges and the appellant’s name will receive prominent and extensive publicity of a nature highly prejudicial to the appellant in the context of the charges on information.

[7] The view of the judge on appeal is summarised in the following passage [16]:

“There is no doubt that there is very considerable public disapprobation attached to those who engage in the possession of child pornography. It is my observation that the media take every opportunity to publicise such cases from the moment a charge is laid until the proceedings are finally determined. Because the plaintiff is an extremely prominent person, there is a very high risk that most, if not all, of the potential jury panel is likely to be aware of the existence of such a charge at the time the plaintiff faces trial on the indictable offences, assuming of course that he is committed for trial. Furthermore as Mr Carey for the complainant/informant submitted, no matter how much time may pass it is extremely unlikely that the publication of this material will be forgotten by the time of the plaintiff’s trial. Clearly such material would be inadmissible in evidence at the plaintiff’s trial. Even if the complainant matter were to proceed to conviction, the fact of the conviction would also be inadmissible at the plaintiff’s trial.”

[8] The judge concluded that in the interests of justice it was desirable to make the order of suppression because there was “a realistic possibility of prejudice to the accused’s ability to receive a fair trial in relation to the sexual offences” unless the suppression order was made. It was in view of these findings that the judge purported to exercise the original jurisdiction of the court in making the order pursuant to s 57. As a consequence his Honour did not consider and determine and appeal. Plainly, if his Honour had determined the appeal, he would have allowed the appeal.

[9] In addition, in my opinion the appellant has made out a compelling case for suppression of his name in connection with the child pornography proceedings. The sexual assault charges will eventually be heard by a jury. It is obviously desirable in the interests of the administration of justice in those proceedings that the appellant’s name be suppressed in connection with the child pornography proceedings. To permit publication of the appellant’s name in connection with the child pornography proceedings would be to create a real risk of unfair prejudice to the appellant in the sexual assault proceedings before the jury.

[10] For these reasons, I would allow the appeal and make the orders set out in the judgment of Southwood J. As Southwood J has pointed out the effect of the orders is to leave in force the order of Mr Cavanagh SM.
Riley J:

[11] The respondent, who is a well known resident of the Northern Territory, is facing two separate criminal prosecutions. The first is a charge of possession of child pornography commenced by summons on complaint dated 7 December 2004 on file 20424339 (the child pornography proceedings). The alleged offending is said to have taken place in June 2004. The second is a series of allegations of sexual assault upon males charged on information dated 24 January 2005 on file 20428520 (the sexual assault proceedings). The offending is alleged to have taken place between 1970 and 1988. The sexual assault proceedings are to be pursued by way of committal hearing regarding the various indictable offences.

[12] On 11 January 2005, in the child pornography proceedings, the first respondent was granted an order by Mr Cavanagh SM in the Court of Summary Jurisdiction prohibiting the publication of his name. The order was made pursuant to s 57 of the Evidence Act. It was made before the sexual assault proceedings had been commenced but in anticipation of them and on the basis that the order was in the interests of justice.

[13] On 19 January 2005 the Australian Broadcasting Commission, the appellant in these proceedings, filed an application in the child pornography proceedings seeking an order that the order made by Mr Cavanagh SM be “lifted or varied”. The learned magistrate was out of the jurisdiction and the matter came on for hearing before Mr Loadman SM. On 25 January 2005 Mr Loadman SM noted that he was not hearing an appeal from Mr Cavanagh SM but that he was hearing the application de novo. He then made an order “lifting” the suppression order previously made but he directed that his order be stayed until 3 February 2005 to permit the parties to commence review proceedings in the Supreme Court.

[14] On 24 January 2005 an information for the indictable offences referred to as the sexual assault proceedings was filed. Mr Loadman SM was aware of those proceedings when he delivered his decision on 25 January 2005. In making his orders Mr Loadman SM concluded that the power to make an order under s 57 of the Evidence Act was confined to providing protection in relation to proceedings then before the Court of Summary Jurisdiction and not in relation to anticipated proceedings. He concluded that he was precluded from making the suppression order as requested. Further, he held that there was no implied power for the Court of Summary Jurisdiction to make such an order.

[15] On 1 February 2005 the first respondent commenced proceedings in the Supreme Court by originating motion seeking an order in the nature of certiorari quashing the determination of Mr Loadman SM or, in the alternative, seeking a fresh order from the Supreme Court forbidding until further order the publication of his name as the defendant in the child pornography proceedings. On the same day the first respondent also filed a notice of appeal in the Supreme Court seeking to set aside the order made by Mr Loadman SM on 25 January 2005.

[16] The originating motion and the appeal were both heard before the Supreme Court on 3 February 2005. At that time the court had before it the following applications:

(a) The appeal under the Justices Act from the order of Mr Loadman SM; and

(b) an originating motion seeking:

(i) an order in the nature of certiorari quashing the order of Mr Loadman SM; alternatively

(ii) an order pursuant to the inherent jurisdiction of the Supreme Court forbidding, until further order, the publication of the name of the first respondent as the defendant in the child pornography proceedings; alternatively

(iii) an order to the effect described by s 57(b)(ii) of the Evidence Act (this latter being sought by amendment to the originating motion made during the hearing).

[17] The learned trial judge chose to make an order pursuant to s 57 of the Evidence Act forbidding the publication of the first respondent’s name as the defendant in the child pornography proceedings in the Court of Summary Jurisdiction until further order. In so doing he exercised the original jurisdiction of the Supreme Court. Having made the order he determined that it was not necessary to consider the appeal or the application for certiorari and he therefore dismissed the appeal and refused the application.

[18] The basis upon which the order was made was expressed by his Honour to be:

“In all the circumstances I am satisfied that there is a realistic possibility of prejudice to the accused’s ability to receive a fair trial in relation to the sexual offences unless a suppression order is made forbidding publication of his name as the defendant in the complaint proceedings and that, therefore, in the interests of justice, it is desirable that the plaintiff’s name as the defendant in those proceedings be suppressed.”

[19] In so concluding the learned judge noted that the applicant is well known in the community and the likelihood of the material being forgotten “is of a different order, particularly in a small community like Darwin and particularly where the material is of a kind many in the community are likely to regard with considerable repugnance”.

[20] The appellant appealed from that decision on the grounds that the learned trial judge:

(a) erred in the interpretation and application of s 57 of the Evidence Act (NT) to the proceeding before him, in that the order being an order prohibiting the publication of the name of a party to a proceeding not before, and which will not come before, the Supreme Court of the Northern Territory;

(b) erred in not holding that the original jurisdiction of the court to make an order prohibiting the publication of the name of the plaintiff as the defendant to matter number 20424339 in the Court of Summary Jurisdiction (the child pornography proceedings) rested solely on the powers in the inherent jurisdiction in the court and not on s 57 of the Act;

(c) erred in not holding that the test for an order prohibiting the publication of the name of a party to a proceeding in the court’s inherent jurisdiction is that the order prohibiting the publication of the name of a party to the proceeding must be necessary for the administration of justice.
Section 57 of the Evidence Act

[21] The relevant parts of s 57(1)(a) and (b) are in the following terms:

“(1) Where it appears to any Court –

(a) that the publication of any evidence given or used or intended to be given or used, in any proceeding before the Court, is likely to offend against public decency; or

(b) that, for the furtherance of, or otherwise in the interests of, the administration of justice, it is desirable to prohibit the publication of the name of any party or intended party to, or witness or intended witness in, such proceeding, the Court may, either before or during the course of the proceeding or thereafter, make an order–

(i) …..

(ii) …..

(iii) forbidding the publication of the name of any such party or witness.”

(Emphasis added)

[22] The words “such proceeding” in s 57(1)(b) are a reference back to “any proceeding before the Court” in s 57(1)(a). For an order to be made under s 57 prohibiting the publication of the name of a party or witness to a particular proceeding that proceeding must be before the court that is called upon to make the order. If, as is anticipated by s 57(1)(b) of the Act, the application is made “before” the proceedings are commenced, it must be made to the court in which the proceedings are to be commenced.

[23] The order forbidding publication of the name of a party or witness to a proceeding may be made where it is desirable to do so “for the furtherance of, or otherwise in the interests of, the administration of justice”. It is to be noted that the expression “the administration of justice” is not qualified by reference to the particular proceedings then before the court and that expression is to be given its widest meaning. The scope of the expression “the interests of the administration of justice” was described by King CJ in G v The Queen (1984) 35 SASR 349 at 351 in the following terms:

“The width of this expression requires no emphasis. It comprehends every aspect of the administration of justice and is obviously intended to confer on the courts the widest of discretions. The phrase is apt to encompass, in addition to wider considerations pertaining to the administration of justice, many situations which are more suitably considered under the ground of undue prejudice or undue hardship.”

This passage was cited with approval by the Full Court of the Supreme Court of the Northern Territory in Nine Network Australia Pty Ltd v McGregor & Ors (2004) 183 FLR 44. In determining whether the making of such an order is in the interests of the administration of justice the consideration of the court is not confined to the particular proceedings then before the court or to the interests of the parties or witnesses in that proceeding.

The appeal

[24] In making the suppression order the learned trial judge purported to exercise the original jurisdiction of the court under s 57 of the Evidence Act. He determined that there was a “realistic possibility of prejudice to the accused’s ability to receive a fair trial” in relation to the sexual assault proceedings unless a suppression order was made forbidding the publication of the first respondent’s name as defendant in the child pornography proceedings.

[25] In relying on s 57 of the Act his Honour proceeded in error. Section 57 did not have application in the circumstances then before the Supreme Court. The child pornography proceedings were not before the Supreme Court nor were they proceedings that would come before that court. They were proceedings commenced by summons on complaint and were to be heard and resolved in the Court of Summary Jurisdiction. This being so, the requirement of s 57(1)(b) that the proceeding be

“before the Court” which was empowered to make the order was not satisfied. Section 57(1)(b) did not permit the Supreme Court to make the order which it purported to make. The section does not confer a supervisory jurisdiction over courts within the Northern Territory, that is a function of the inherent power of the court. The ability to make an order under s 57 is confined to the circumstances in which the statutory power to make the order is granted and, in the circumstances of the present matter, the Supreme Court did not have that statutory power.

[26] The appeal must be allowed.

[27] In the circumstances of this matter, the power conferred by s 57 of the Act rested in the Court of Summary Jurisdiction being the court before which the child pornography proceedings were brought or were to be brought. In determining whether to make a suppression order the Court of Summary Jurisdiction is required by the terms of the section to proceed by reference to whether it was desirable to do so for the furtherance of, or otherwise in the interests of, justice. Contrary to the findings of Mr Loadman SM the inquiry as to desirability was not confined to the particular proceedings then before the Court of Summary Jurisdiction. Rather it embraced “every aspect of the administration of justice” including matters such as the sexual assault proceedings which, as the court was then aware, had commenced. The learned magistrate was in error in concluding that s 57 of the Evidence Act did not have application to the circumstances of the matter as they were before him. He erred in not considering the application of the provisions of the section.

[28] The appeal against the decision of Mr Loadman SM was not considered by the learned judge, however had it been considered, it is clear that the appeal would have to be allowed. I would allow this appeal and, further, order that the appeal from Mr Loadman SM be allowed with the consequence that the application to lift the suppression order is dismissed. The suppression order made by Mr Cavanagh SM would therefore continue.

The test to be applied

[29] In light of the conclusion I have reached, it is unnecessary to address the third ground of appeal, namely whether or not the test to be applied in the exercise of the inherent power of the court to make a suppression order of the kind sought here is where it is “really necessary” to secure the proper administration of justice: John Fairfax & Sons v Police Tribunal of New South Wales & Anor (1986) 5 NSWLR 465 per McHugh JA at 477. However it is appropriate to say something regarding the application of s 57 of the Evidence Act.

[30] The Court of Summary Jurisdiction does not exercise any inherent power but, rather, exercises the power contained in s 57 of the Evidence Act. That involves a consideration of whether, for the furtherance of, or otherwise in the interests of, the administration of justice, it is “desirable” to prohibit the publication of the name of any party or intended party or witness to the proceeding.

[31] In the course of his reasons the learned judge noted that the process involves weighing in the balance considerations favouring publication: Nine Network Australia Pty Ltd v McGregor & Ors (supra at par 52). Obviously care needs to be taken in determining the extent of any anticipated threat to the capacity of the court to deliver a fair trial and, in this regard, careful attention must be given to the ability of the trial judge to avoid prejudice by the provision of appropriate directions to the jury. It is necessary to give weight to the integrity of the system of trial by jury and to the effect of instructions provided by the trial judge to the jury: Murphy v R (1989) 167 CLR 94. As was observed by Winneke P and Ormiston JA in R v Glennon (2001) 7 VR 631 at 660 [67]:

“Our criminal justice system is not so fragile that it cannot give a fair trial to those in respect of whom such publicity exists. The system relies upon its flexible procedures to ensure that the trial remains fair notwithstanding the existence of adverse publicity; namely proper empanelling procedures and, more importantly, the giving by the trial judge of full directions, with the authority of his or her office, instructing the jury that their part is an intellectual one, to be discharged free from emotion or prejudice, and only in accordance with the evidence legitimately before them, and not on the basis of extraneous material.”

[32] The principle of open justice, which requires that the public be informed through fair and accurate media reporting, remains a significant matter to be considered: John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales & Ors (2004) 61 NSWLR 344 at 352 [18] per Spigelman CJ. However the most fundamental principle is the requirement that the accused receive a fair trial. This involves a balancing of the prospective prejudice to the proper administration of justice with considerations favouring publication. The appropriate test to be applied in relation to s 58 of the Evidence Act was considered by the Full Court in Nine Network Australia Pty Ltd v McGregor & Ors (supra) where the court approved the test stated by Martin J in Advertiser Newspapers Ltd v Bunting & Ors [2000] SASC 458 at par 19 where his Honour observed that: “Once the court is satisfied that there is a realistic possibility of creating the relevant risk, … a court should not hesitate to use the power of suppression”. This was also the test adopted by the trial judge in relation to s 57 and, in my opinion, correctly so.
Southwood J:

Introduction

[33] The Australian Broadcasting Corporation (the appellant) seeks to set aside an order of the Supreme Court made on 11 February 2005 suppressing the publication of the first respondent’s name as the defendant to a complaint filed in the Court of Summary Jurisdiction. The complaint alleges that the first respondent who is a well known resident of the Northern Territory possessed child pornography.

[34] The first respondent seeks to set aside that part of the decision of the Supreme Court made on 11 February 2005 that dismissed his appeal from an order of the Court of Summary Jurisdiction made on 25 January 2005. The first respondent also seeks to set aside the decision of the Court of Summary Jurisdiction made on 25 January 2005, that had the effect of terminating an earlier order of the Court of Summary Jurisdiction that had suppressed the publication of his name as the defendant to the child pornography proceeding until further order.

The appeal

[35] The appeal was commenced by a notice of appeal filed on 11 March 2005. The appellant argues that the order the Supreme Court made pursuant to s 57 of the Evidence Act on 11 February 2005 was invalid. The argument of the appellant is based on four grounds. First, the Supreme Court erred in the interpretation and application of s 57 of the Evidence Act (NT) because the Supreme Court made an order suppressing the publication of the name of a party to a proceeding not before the Supreme Court but before the Court of Summary Jurisdiction. Secondly, the Supreme Court erred in failing to hold that the original jurisdiction of the Supreme Court to make an order suppressing the publication of the name of the first respondent as the defendant to the child pornography proceeding in the Court of Summary Jurisdiction rested solely on the inherent jurisdiction of the Supreme Court and not on s 57 of the Evidence Act. Thirdly, the Supreme Court erred in failing to hold that the test for an order sought in the Supreme Court’s inherent jurisdiction suppressing the publication of the name of a party to a proceeding is that the order must be necessary for the administration of justice. Fourthly, the Supreme Court erred by finding that the risk of prejudice to the first respondent in a trial of the sexual offences that may result from the publication of his name could not be avoided by giving appropriate directions to the jury.

The cross-appeal

[36] The first respondent’s cross-appeal was commenced by notice of cross-appeal dated 17 August 2005. There being no objection to a cross-appeal by the appellant, the first respondent was granted leave to cross-appeal on 17 August 2005. There are three grounds of cross-appeal. First, the Supreme Court erred in not quashing the order of the Court of Summary Jurisdiction made on 25 January 2005. Secondly, the Supreme Court erred in not finding that the Court of Summary Jurisdiction erred on 25 January 2005 when it lifted the suppression order made on 11 January 2005. Thirdly, the Supreme Court erred by not making an order in its inherent jurisdiction suppressing the publication of the name of the first respondent as a defendant to the child pornography proceeding in the Court of Summary Jurisdiction.

The issues in the appeal and cross-appeal

[37] There are two principal questions in the appeal and cross-appeal. First, did the Supreme Court in its original jurisdiction have power to make an order pursuant to s 57 of the Evidence Act suppressing the publication of the first respondent’s name as the defendant in the child pornography proceeding in the Court of Summary Jurisdiction until further order? Secondly, if the Supreme Court does not have such power, did the Court of Summary Jurisdiction have power to make an order pursuant to s 57 of the Evidence Act suppressing the publication of the first respondent’s name as the defendant in the child pornography proceeding in the Court of Summary Jurisdiction until further order?

[38] There are two ancillary questions in the appeal. First, what onus must a party discharge before a party can obtain a suppression order pursuant to s 57 of the Evidence Act? Secondly, could the risk of prejudice that the first respondent may suffer at a trial of the alleged sexual offences against him, if his name is published as the defendant to the child pornography proceeding, be avoided by the appropriate jury direction?

[39] In my opinion both the appeal and cross-appeal should be allowed. The Supreme Court, in its original jurisdiction, did not have the power to make the order that is the subject of the appeal. An order pursuant to s 57 of the Evidence Act could only be made by the Court of Summary Jurisdiction in this instance as the suppression order relates to the name of a party to a proceeding before the Court of Summary Jurisdiction, namely the child pornography proceeding. The first respondent discharged the onus that he bore pursuant to s 57 of the Evidence Act and the risk of prejudice to a fair trial that he will suffer, should he be committed to stand trial for the sexual offences with which he is charged, may not be overcome by appropriate directions to the jury.

[40] It is strictly unnecessary to determine whether the Supreme Court in its inherent jurisdiction could or should have made an order forbidding the publication of the first respondent’s name as the defendant in the child pornography proceeding in the Court of Summary Jurisdiction until further order.

Background

[41] The first respondent is facing two criminal prosecutions. First, he is charged by complaint dated 7 December 2004 with possessing child pornography on 17 June 2004 contrary to s 125B(1)(a) of the Criminal Code (NT). The charge of possessing child pornography is the subject matter of proceeding No 20424339 in the Court of Summary Jurisdiction (the child pornography proceeding). The matter is proceeding by way of summons on complaint. Secondly, he is charged on information for an indictable offence dated 24 January 2005 with 21 counts of sexual offences contrary to the Criminal Code (NT). The sexual offences were allegedly committed about 30 years ago. The 21 counts of sexual offences are the subject matter of proceeding No 20428520 in the Court of Summary Jurisdiction (the proceeding for the sexual offences). That matter is proceeding by way of committal on information for an indictable offence dated 24 January 2005.

[42] On 11 January 2005 the first respondent made an application in the child pornography proceeding for an order pursuant to s 57 of the Evidence Act suppressing the publication of his name as the defendant in that proceeding. The application was heard by Cavanagh SM. The suppression order was not required for the purposes of the child pornography proceeding. The ground for making the application was that the suppression order was in the interests and furtherance of the administration of justice in connection with a separate investigation that the police were conducting into various complaints that the first respondent had committed sexual offences and any charges that may be heard in court should the matters subject to investigation proceed to trial. It was said that the publication of the first respondent’s name as the defendant to the child pornography proceeding would potentially bring inadmissible, highly prejudicial and irrelevant material to the notice of prospective jurors who might be called upon to sit in a trial of the sexual offences with which the first respondent is charged in the Supreme Court.

[43] No proceeding on information for an indictable offence for the sexual offences alleged against the first respondent had been commenced in the Court of Summary Jurisdiction at the time Cavanagh SM heard the application for an order suppressing the publication of the first respondent’s name as a defendant in the child pornography proceeding. However, the first respondent’s application for a suppression order was made in anticipation of such proceedings. The information for an indictable offence charging the first respondent with the sexual offences was filed in the Court of Summary Jurisdiction on 24 January 2005.

[44] Cavanagh SM granted the application made by the first respondent. He made an order pursuant to s 57 of the Evidence Act suppressing the publication of the name of the first respondent as the defendant in the child pornography proceeding and any details likely to lead to his identification as the person subject to the charge of possessing child pornography until further order. The order was an interlocutory order. It did not finally resolve an issue between the parties.

[45] On 19 January 2005 the appellant filed an application in the child pornography proceeding seeking an order that the order made by Cavanagh SM on 11 January 2005 suppressing the publication of the first respondent’s name as a defendant in the child pornography proceeding be lifted or varied. The application was made on a printed form made available by the Court of Summary Jurisdiction. The precise origins of the printed court form are unknown. It is not a form that is prescribed by the Justices Act, Justices Regulations or any practice direction of the Court of Summary Jurisdiction.

[46] No challenge was made to the locus standi of the appellant to make such an application in the Court of Summary Jurisdiction. Nor was the appellant’s standing to make such an application challenged in either the Supreme Court or the Court of Appeal. There is little doubt that the appellant had standing to make such an application: Cheatley v The Queen (1972) 127 CLR 291; Australian Conservation Foundation Inc v The Commonwealth (1980) 149 CLR 493; John Fairfax and Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465. Being a national broadcaster the appellant was directly affected by the suppression order made by Cavanagh SM on 11 January 2005. It is also a fundamental principle of the common law that the administration of justice must take place in an open court and ordinarily nothing should be done to discourage the making of a fair and accurate report of the proceedings in a court.

[47] As Cavanagh SM was out of the jurisdiction, the appellant’s application was heard by Loadman SM. No issue arises in this regard. The order made by Cavanagh SM was an interlocutory order that could be terminated by further order of the Court of Summary Jurisdiction. Section 45 of the Justices Act provides that it shall not be necessary for any justice who acts before or after the hearing to be the justice by whom the case is heard. Cavanagh SM did not become the sole magistrate seized of the conduct of the child pornography proceeding as a result of the order that he made on 11 January 2005.

[48] On 25 January 2005 Loadman SM made an order lifting the suppression order made by Cavanagh SM on 11 January 2005. The order was stayed until 3 February 2005 to permit the parties to commence review proceedings in the Supreme Court.

[49] On 1 February 2005 the first respondent and the second respondent filed an originating motion in the Supreme Court seeking an order in the nature of certiorari quashing the determination of the Court of Summary Jurisdiction made on 25 January 2005 lifting the order of Cavanagh SM or, in the alternative, an order in the inherent jurisdiction of the Supreme Court forbidding until further order the publication of the name of the first respondent as a defendant to the child pornography proceeding in the Court of Summary Jurisdiction, and any details likely to lead to his identification as the person subject to the charge of possessing child pornography. Two grounds were relied upon in support of the orders sought. First, the learned magistrate mistakenly denied the existence of jurisdiction in holding that the Court of Summary Jurisdiction could not make a suppression order because the administration of justice with which the order was concerned did not relate to a proceeding before the Court of Summary Jurisdiction. Secondly, the learned magistrate mistakenly misapprehended the limits of the Court of Summary Jurisdiction’s powers in holding that the Court of Summary Jurisdiction could not make the suppression order.

[50] On 1 February 2005 pursuant to s 163 Justices Act, the first respondent also filed a notice of appeal in the Supreme Court seeking to set aside the order made by the Court of Summary Jurisdiction on 25 January 2005. Two grounds of appeal were pleaded in the notice of appeal. First, the learned magistrate erred in holding that the Court of Summary Jurisdiction could not make a suppression order because the administration of justice with which the order was concerned did not relate to a proceeding before the Court of Summary Jurisdiction. Secondly, the learned magistrate erred in not continuing the suppression order in circumstances where the publication of the first respondent’s name in connection with the matter on complaint was necessary in the interests of the administration of justice in order to prevent undue prejudice to the fair trial of the first respondent for the sexual offences.

[51] Both the proceeding commenced by originating motion and the appeal from the order of the Court of Summary Jurisdiction were heard by the Supreme Court on 3 February 2005. Rather than considering either the appeal or the motion for certiorari, the Supreme Court exercising its original jurisdiction chose to make an order pursuant to s 57 of the Evidence Act suppressing the publication of the first respondent’s name as the defendant in the child pornography proceeding in the Court of Summary Jurisdiction until further order.

Section 57 Evidence Act

[52] Section 57 of the Evidence Act provides as follows:

“57. Prohibition of the publication of evidence and of names of parties and witnesses

(1) Where it appears to any Court –

(a) that the publication of any evidence given or used or intended to be given or used, in any proceeding before the Court, is likely to offend against public decency; or

(b) that, for the furtherance of, or otherwise in the interests of, the administration of justice, it is desirable to prohibit the publication of the name of any party or intended party to, or witness or intended witness in, such proceeding, the Court may, either before or during the course of the proceeding or thereafter, make an order –

(i) directing that the persons specified (by name or otherwise) by the Court, or that all persons, except the persons so specified, shall absent themselves from the place wherein the Court is being held while the evidence is being given;

(ii) forbidding the publication of the evidence, or any specified part thereof, or of any report or account of the evidence, or any specified part thereof, either absolutely or subject to such conditions, or in such terms or form, or in such manner, or to such extent, as the Court approves; or

(iii) forbidding the publication of the name of any such party or witness.

(2) Where the Court makes an order under subsection (1)(iii), the publication of any reference or allusion to any party or witness, the name of whom is by the order forbidden to be published, shall, if the reference or allusion is, in the opinion of the Court hearing the complaint for the alleged offence, intended or is sufficient to disclose the identity of the party or witness, be deemed to be a publication of the name of the party or witness.

(3) When the Court makes an order under subsection (1)(ii) or (iii), forbidding the publication of any evidence or any report or account of any evidence, or the publication of any name, the Court shall report the fact to the Director of Public Prosecutions, and shall embody in its report a statement of –

(a) the evidence or name, as the case may be, by the order forbidden to be published; and

(b) the circumstances in which the order was made.”

[53] So far as is relevant to this appeal the section provides that:

“Where it appears to any court that, for the furtherance of, or otherwise in the interests of, the administration of justice, it is desirable to prohibit the publication of the name of any party to, such proceeding (any proceeding before the Court), the Court may, either before or during the course of the proceeding or thereafter, make an order forbidding the publication of the name of any such party.”

[54] The exercise of the power granted to a court to prohibit the publication of the name of a party to any proceeding before the court is constrained by four things:

1. The only court that may make the order prohibiting the publication of the name of the party to any proceeding before a court is the court in which the party is named as a party in a proceeding before the court.

2. The name of the party that may be forbidden from publication by a court is the name of a party to a proceeding before the court.

3. The purpose of making the order forbidding the publication of the name of a party to a proceeding before the court must be that it is desirable to prohibit the publication of the name of the party in the furtherance of, or otherwise in the interests of, the administration of justice in the Northern Territory.

4. The power must be exercised judicially.

[55] The words, “such proceeding”, in s 57(1)(b) of the Evidence Act mean “any proceeding before the court” in which the party is named as a party to the proceeding. The phrase, “such proceeding”, in s 57(1)(b) refers back to the phrase, “any proceeding before the court” in s 57(1)(a) of the Evidence Act. “Such proceeding” means of the kind under consideration and the proceeding under consideration in s 57 is any proceeding before the court in which the party is named as a party to the proceeding.

[56] The meaning to be given to the words, “the administration of justice” is not constrained by the phrase, “such proceeding”. The phrase only amplifies the words, “the name of any party or intended party to, or witness or intended witness in”, that immediately precede the phrase. The phrase only identifies and amplifies the class of party or witness whose name may be subject to an order by the court forbidding the publication of the name of a party or a witness. The phrase does not amplify or restrict the meaning of the “administration of justice”.

[57] There is no requirement in s 57 of the Evidence Act that an order suppressing the publication of the name of a party in any proceeding before the court can only be made for the purpose of the administration of justice in the proceeding before the court in which the party is named as a party. Nor is the exercise of the power granted to a court by s 57 of the Evidence Act confined to the administration of justice in the court which makes the order forbidding publication of the name of a party to a proceeding. As King CJ said in G v The Queen (1984) 35 SASR 349 at 351 in relation to the expression, “the interests of the administration of justice”:

“The width of this expression requires no emphasis. It comprehends every aspect of the administration of justice and is obviously intended to confer on the courts the widest of discretions. The phrase is apt to encompass, in addition to wider considerations pertaining to the administration of justice, many situations which are more suitably considered under the ground of undue prejudice or undue hardship.”

[58] A court is authorised in accordance with s 57 of the Evidence Act to uphold, protect and fulfil the judicial function by ensuring that justice is administered, both in the particular case and as a continuing process, according to law and in an effective manner: Jacob, “The Inherent Jurisdiction of the Court”, (1970) 23 Current Legal Problems 23 at 27 – 28; John Fairfax and Sons v Police Tribunal of New South Wales (1986) (supra) at 476.

[59] Such a construction of s 57 of the Evidence Act is consistent with the purpose of the Evidence Act which is concerned with the fair and just use of information or evidence in a proceeding in a court and about a proceeding in a court. The court that is intended to control the use of information is the court in which the relevant proceeding will be, is being, or has been pursued. It is also consistent with what the Court of Appeal said in Nine Network Pty Ltd v McGregor (2004) 183 FLR 44 at par [39].

[60] Nor is there a requirement that s 57 of the Evidence Act be read down and confined to the administration of justice of the particular proceeding in which an application for a suppression order is made because the grant of power extends to statutory courts of limited jurisdiction which do not ordinarily have a supervisory jurisdiction of any kind: s 4 of the Evidence Act. The words of the section are not so constrained and the grant of power affected by s 57 is contained in the Evidence Act, not the Justices Act. The Evidence Act applies in the Supreme Court which does have a supervisory jurisdiction. The grant of power is limited to the suppression of the publication of the name of a party, a witness or particular evidence in the court which makes the order.

[61] The Evidence Act is of course concerned with the administration of justice in the Northern Territory.
The order of the Supreme Court was invalid

[62] It follows that the Supreme Court erred in making a suppression order pursuant to s 57 of the Evidence Act as the first respondent was not named as a party to any proceeding before the Supreme Court or that would come before the Supreme Court. The first respondent is named as the defendant in the child pornography proceeding in the Court of Summary Jurisdiction and only the Court of Summary Jurisdiction may make an order pursuant to s 57 of the Evidence Act forbidding the publication of the first respondent’s name as the defendant in the child pornography proceeding.

[63] The Supreme Court did not have the power under s 57 of the Evidence Act to make the order that it did. In so doing the Supreme Court erred in the interpretation and application of s 57 of the Act to the proceeding before the court.
The decision of the Court of Summary Jurisdiction was invalid

[64] It also follows that Loadman SM erred on 25 January 2005 in lifting the order of Cavanagh SM on the basis that the Court of Summary Jurisdiction lacked the power to make such an order. The Court of Summary Jurisdiction has the power pursuant to s 57 of the Evidence Act to suppress the publication of the first respondent’s name as the defendant in the child pornography proceeding in the Court of Summary Jurisdiction until further order. The exercise of that power is not constrained by the fact that the reason for its exercise is to ensure that the first respondent has a fair trial in a separate proceeding that it is anticipated will be heard in the Supreme Court.

The administration of justice

[65] Before a court may make an order pursuant to s 57 of the Evidence Act suppressing the publication of the name of a party to a proceeding before the court, the court must be satisfied that it is desirable to suppress the publication of the party’s name, either for the furtherance of the administration of justice or otherwise in the interests of the administration of justice. The test to be applied is whether there is a realistic possibility of the publication creating a risk that the trial of the party in any proceeding in any court in the Northern Territory would be unfair or of the party suffering undue prejudice or undue hardship in the party’s defence or in the conduct of his cause in any proceeding in any court in the Northern Territory: Advertiser Newspapers Ltd v Bunting & Ors [2000] SASC 458 at par [19]; BCC 200008107 (unreported). It is prejudicial to the administration of justice to create a risk of jeopardising a fair trial. The proper administration of justice is concerned with ensuring, as far as possible, that an accused receives a fair trial.

[66] The administration of justice extends at the very least to the preparation for trial or committal and to all matters of procedure. It extends to the anticipated future trial of a separate proceeding in another court of the Northern Territory: John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at 353 par [23].

[67] Further, as Mildren J stated in the court below, there can be no doubt that where the principle of a fair trial is threatened by the principle of open justice, the principle of a fair trial must prevail. As Viscount Haldane LC said in Scott v Scott [1913] AC 417 at 437, “the chief object of courts of justice must be to secure that justice is done”.

[68] I agree with what Martin J, as he then was, said in Advertiser Newspapers Limited v Bunting and Ors [2000] (supra) par [19]; about provisions similar to s 57 of the Evidence Act, namely that they require the court to, “engage in a balancing exercise between the prejudice to the proper administration of justice and the considerations favouring publication. This process necessarily involves the court in a consideration of the nature and extent of the prejudice to the proper administration of justice that might occur if an order for suppression was not made. For example, in the context of a risk to the fairness of a trial by publication of material that might be held inadmissible, the nature of that material will provide a guide to the court as to whether there is a realistic possibility of a risk being created. It will also assist the court in determining the degree of risk that might be occasioned to the fairness of the trial. In this process, it will be appropriate for the court to have regard to the measures available to a trial court to remove and ameliorate any prejudice that has been caused by publication. However, particularly at the stage of a preliminary hearing, once the court is satisfied that there is a realistic possibility of creating the relevant risk, in my opinion a court should not hesitate to use the power of suppression. In these circumstances, it will be an exceptional case in which the risk can confidently be assessed as minimal and a view reached that the prejudice to the proper administration of justice should not be accorded greater weight than the considerations favouring publication.”

[69] Although s 57 of the Evidence Act does not have, as does s 69A of the South Australian provision, a statutory requirement that the courts weigh in the balance considerations favouring publication, those are obviously very relevant considerations which must be taken into account in this jurisdiction.

[70] In all the circumstances of this case there is a realistic possibility of prejudice to the first respondent’s ability to receive a fair trial in relation to the sexual offences with which he is charged unless a suppression order is made forbidding publication of his name as the defendant in the child pornography proceeding in the Court of Summary Jurisdiction. There is a real likelihood that publication of the first respondent’s name in connection with the charge of possessing child pornography will bring inadmissible, highly prejudicial and irrelevant material to the notice of prospective jurors many of whom may regard the material with considerable repugnance and are unlikely to forget it. As both the complaint of possessing child pornography and the counts of sexual offences pleaded in the information for an indictable offence involve children there is a realistic possibility in this case that the risk of prejudice may not be avoided by the appropriate jury direction.

[71] It is desirable in the interests of the administration of justice that the first respondent’s name as the defendant in the child pornography proceeding be suppressed.
The inherent jurisdiction of the Supreme Court

[72] Superior Courts of Record such as the Supreme Court have an inherent jurisdiction to make suppression orders forbidding the publication of the name of a party to a proceeding in either the superior court or an inferior court if such orders are in the interests of the administration of justice: John Fairfax & Sons v Police Tribunal of New South Wales (1986) (supra); Cain v Glass (No 2) (1985) 3 NSWLR 230; Scott v Scott [1913] AC 417; Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 457; The Queen v Tait and Bartley (1979) 24 ALR 473 at 479 and Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 255. As to the extent of the supervisory jurisdiction of a superior court of record see Holland v Sammon (1972) 4 SASR 1 at 3; Ex parte Farren; Re Austin (1960) 77 WN (NSW) 734 at 744 – 745.

[73] The test as to whether a suppression order forbidding the publication of the name of a party to a proceeding should be made in the inherent jurisdiction of the Supreme Court is a stricter test than that required by s 57 Evidence Act. It is whether such an order is reasonably necessary to secure the proper administration of justice: John Fairfax & Sons v Police Tribunal of New South Wales (supra) at 476 - 477; John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; Re Applications by the Chief Commissioner of Police (2004) 9 VR 275. The reason for this test is that “it is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public is an essential quality of an Australian court of justice”: John Fairfax Publications Pty Ltd v District Court of New South Wales supra at 352 per Spigelman CJ. However, courts will be less cautious about making a suppression order forbidding the publication of the name of a party where the purpose of the order is to ensure that an accused receives a fair trial: Re Applications by the Chief Commissioner of Police (supra) at par [30].

[74] In my opinion, were it necessary to decide the issue, for the reasons given in par [70] above the Supreme Court should have found that it was necessary in the interests of the administration of justice that the name of the first respondent as the defendant to the child pornography proceeding be suppressed until further order. In this case little practical difference arises as a result of the existence of the two tests as to whether a suppression order should be made.

Powers of the Court of Appeal on appeal

[75] Section 177(1) and s 177(2) of the Justices Act provide as follows:

(1) Every appeal shall be heard and determined by the Supreme Court in a summary way, and according to the rules of practice in force with reference to the proceedings of the Court in that behalf, and the Supreme Court shall have all the powers and duties, as to amendment and otherwise, of the Justices whose decision is appealed from.

(2) Upon the hearing of the appeal the Supreme Court may –

(a) adjourn the hearing from time to time;

(b) mitigate or increase any penalty, forfeiture, or sum;

(c) affirm, quash, or vary the conviction, order, or adjudication appealed from, or substitute or make any conviction, order, or adjudication which ought to have been made in the first instance; (emphasis added)

(d) remit the case for hearing or for further hearing before the Court of Summary Jurisdiction;

(e) make such further or other order as to costs or otherwise as it thinks fit; or

(f) notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

[76] Section 55(1) and s 55(2) of the Supreme Act provide as follows:

(1) Subject to any law in force in the Territory, the Court of Appeal –

(a) may exercise every power, jurisdiction and authority of the Court, whether at law or in equity or under any law in force in the Territory (emphasis added); and

(b) shall give such judgment as, in all the circum-stances, it thinks fit.

(2) Without limiting the effect of subsection (1), the Court of Appeal –

(a) may affirm, reverse or vary the judgment appealed from, in whole or in part;

(b) may set aside the judgment appealed from, in whole or in part, and substitute its own judgment or remit the proceeding to the Court constituted by the Judge who gave that judgment for further hearing and determination, subject to such directions as the Court of Appeal thinks fit;

(c) may set aside a verdict or finding of a jury in a civil proceeding, and enter a judgment notwithstanding any such verdict or finding;

(d) [Omitted]

(e) may grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; and

(f) may award execution from the Court or remit the proceeding to another court for the execution of the judgment of the Court of Appeal.”

[77] The effect of the above sections is that both the Supreme Court and the Court of Appeal in their appellate jurisdiction may make the order which Loadman SM should have made pursuant to s 57 of the Evidence Act. However, on this occasion all that is necessary is to set aside the order Loadman SM made on 25 January 2005 and to dismiss the application of the appellant filed in the Court of Summary Jurisdiction on 19 January 2005.

Orders

[78] For the reasons given I would allow both the appeal and the cross-appeal and I would make the following orders:

1. The order of the Supreme Court made on 11 February 2005 pursuant to s 57 of the Evidence Act suppressing the publication of the name of the first respondent as the defendant to proceeding No 20424339 in the Court of Summary Jurisdiction is set aside.

2. The order of the Supreme Court made on 11 February 2005 dismissing the first respondent’s appeal from the order of the Court of Summary Jurisdiction made on 25 January 2005 is set aside.

3. The order of the Court of Summary Jurisdiction made on 25 January 2005 granting the appellant’s application dated 19 January 2005 and lifting the order of Cavanagh SM made on 11 January 2005 is set aside.

4. The appellant’s application filed in the Court of Summary Jurisdiction on 19 January 2005 is dismissed.

[79] The parties should be heard as to costs.

[80] The effect of the above orders is that the order of Cavanagh SM made in proceeding No 20424339 in the Court of Summary Jurisdiction on 11 January 2005 remains in force.
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