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'Mail' wins court challenge
NIGEL HUNT
November 26, 2006 12:15am
THE Supreme Court has overturned a suppression order preventing
publication of the fact a Hells Angels bikie has been charged with
disobeying a summons to attend a secret Australian Crime Commission
coercive hearing in Adelaide.
Justice Bruce Debelle has ruled publication of the charge is in the
public interest and might also act as a deterrent to others "minded"
not to comply with such summonses.
In the Supreme Court on Friday, Justice Debelle also overturned a
suppression order preventing publication of details of an attempt by
the Sunday Mail to lift the suppression order in Adelaide
Magistrates Court.
The suppression of the relatively rare charge was applied when the
man, who cannot be identified under provisions in the ACC Act, first
appeared in Adelaide Magistrates Court on November 10.
Earlier that day, he was arrested at Adelaide Airport by ACC and
Operation Avatar anti-bikie detectives.
At the request of his lawyer, David Edwardson, Magistrate Michael
Ward suppressed details of the charge, anything that would identify
the man and his reasons for granting the orders.
On November 17, the Sunday Mail applied to Mr Ward to vary that
suppression order to allow publication of only the details of the
charge.
In that hearing, Tom Martin, representing the Sunday Mail, told the
court there were no legal grounds supporting suppression of the
charge and argued that publication was in the public interest.
Mr Edwardson vigorously opposed varying the order and asked that the
application to vary it also be suppressed. Mr Ward refused to vary
his order and then suppressed the fact the application had been
made.
"There is no public interest in allowing anyone to publish the fact
that an unknown person is charged with disobeying such a summons,"
Mr Ward said when refusing the application.
The Sunday Mail immediately appealed against Mr Ward's decision to
the Supreme Court. After hearing an hour of submissions from lawyer
Grant McAvaney, acting for the Sunday Mail, and Craig Caldicott,
acting for the charged man, Justice Debelle allowed the appeal.
Lifting the two suppression orders, Justice Debelle said Mr Ward had
"erred" by not varying the original suppression order when the
Sunday Mail sought to do so on November 17.
He said Mr Ward's reliance on the secrecy provisions of the ACC Act
was "misplaced" and that he had also "erred" in concluding there was
no public interest in allowing publication of the charge.
"The question whether persons are complying with a summons for
examination issued by the ACC and, if not, are answerable for any
failure to do so are matters which directly concern the proper
investigation of serious crime and the capacity of prosecuting
authorities successfully to prosecute those who engage in serious
crime," Justice Debelle said.
"The public has a proper and legitimate interest in knowing whether
those who fail to comply with a summons to attend for examination
are answerable for their conduct. In addition, publication might
have the deterrent effect already mentioned.
"The fact that a report does not name an alleged offender might make
the report less newsworthy but, at the same time, it informs the
public that those who do not comply with a summons are being
prosecuted."
The man is the fourth Hells Angels member facing court action over
refusing to attend or answer questions at an ACC hearing. Last
month, three Hells Angels members were ordered to stand trial on
charges of refusing to answer questions and failing to attend when
summonsed.
Court documents reveal ACC investigators wanted to question the
bikies over their suspected involvement or knowledge of criminal
activities allegedly involving Hells Angels members.
The ACC uses the coercive hearings in major investigations into
organised crime, with those summonsed compelled to answer questions
or risk breaching the ACC Act – which carries a penalty of up to
five years' jail.
http://www.news.com.au/adelaidenow/story/0,22606,20822133-2682,00.html
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