Thursday, 2 August 2012

Suppression Orders and the higher Courts

My firm acts for a reasonably high-profile murder case where our client is alleged to have murdered another person. The details of the case are fascinating in their own right, but an interesting issue about Suppression Orders was raised recently.

Background:
Firstly, police sought a Suppression Order shortly after our client was arrested under s69A of the Evidence Act 1929 (SA). That Order was made by a Magistrate in the Magistrates Court.

The matter progressed (painfully slowly), and included a Rule 20 application for a Preliminary Examination of a police witness. After over a year in the Magistrates Court, the matter was committed to the District Court of South Australia for arraignment.

After the first two arraignments, our client noticed that his name was appearing in the list, un-suppressed. He also heard that his photo, which had been suppressed along with his name, had appeared in a local newspaper.

The Law:
The legislation setting out the procedure on a Suppression Order is the Evidence Act 1929 (SA), relevantly S69A, AB, AC and s69B.

Close perusal of that legislation gives this summary.
  • A Suppression Order can be made in any Court.
  • A copy of that Order must be sent to every 'Authorised Media Representative'
  • The Order becomes liable for review (relevantly)  "on the completion or termination of a preliminary examination;"
  • When a Suppression Order becomes liable for review, the Court that made the Order must conduct a review as soon as possible.
  • Nearly anyone (prosecutor, defendant, witnesses, media) are entitled to be heard on that review.
That is pretty much it. The rest of the legislation deals with appeals and breaches, which aren't relevant here.

So when a matter is committed for arraignment/trial, it appears that all preliminary examination is completed. Thus the Magistrate should have conducted a review on that occasion, which he didn't. 

When the matter comes to the District or Supreme Court, the Order is still in force. Or is it?

I queried why my client's name was un-redacted in the list, and was told that "The Order lapses when it is committed in a higher Court." I queried that, and no one was able to tell me where that was written in the legislation. Counsel came in two flavours; some said that it lapsed, and some said that it didn't. 

I took this matter to the registry, and was told that the Suppression Order only applied to proceedings in the Court where it was issued, IE in this case in the Magistrates Court. Again, they were unable to tell me where this was based in statute. 

Today, I spoke to a representative of the registry, who told me exactly what the process was for Suppression Orders in the District Court, and seemed to think that the lack of a review meant that it automatically lapsed. 

Um...

After I began raising a fuss about all this (our client is quite sensitive), we were contacted by the clerk to the Magistrate who made the initial Order. She said "I have been asked to contact you both, regarding the matter of *name. The court is obliged to review the suppression order placed on this file on *date. It seems that the court has overlooked doing so in the past."

I think we may have stirred up a can of worms. I think the Magistrates Court has not been reviewing ANY of their Suppression Orders, and I think that they have been unofficially lapsing contrary to the Act. In any event, I think that people are beginning to look at the issue now, and will hopefully get back to me with an answer before the trial is resolved.

Upshot:
This raises a final issue. The Registrar is obliged to keep a record of all Suppression Orders, and to publish that record to Authorised Media Representatives. If the Registrar unlawfully publishes that a Suppression Order has been lifted, and a Media Representative unlawfully publishes something about that person, are they liable for the offence? 

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