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Contempt and Open Justice
http://www.studentatlaw.com/articles/125/1/Contempt-and-Open-Justice/Page1.html
By Student at Law
Published on 21/06/2007
 
Contempt and Open Justice
INTRODUCTION
1. Categories of Contempt

Criminal Contempt
1.    Sub judice contempt - publication where matter is before the court
2.    Interference with the course of justice as a continuing process - when a particular matter is before the court and how media can go about reporting the matter.
3.    Improper behaviour in court - can be held in contempt for failing to answer questions about sources.
Civil Contempt
4.    Disobeying a court order or breaching an undertaking

2. Some preliminary issues
- Civil and criminal contempt

Witham v Holloway (1995) 183 CLR 525

Facts:  This is an appeal  from a unanimous decision of the court of appeal of the Supreme Court of NSW. Witham failed to comply with orders brought against him and others by John William Holloway as Commissioner for Consumer Affairs. The order was to restrain the appellant from carrying on any house removal business and also sought damages on behalf of persons who had suffered loss as a result of his business activities. When it appeared that he had no assets to satisfy the judgment debt, the respondent brought proceedings for contempt, alleging breach of the disclosure order and, also, the Mareva injunction.

Issues:W appealed to the High Court.
1. Whether it was a civil or criminal contempt?
2. What was the standard of proof for civil and criminal contempt?

Held: Brennan, Deane, Toohey & Gaudron (Joint Judgment): Because non-compliance wth court order it is civil contempt and the civil standard of proof applies being the balance of probabilities. High Court said that there is also a public interest in ensuring that orders are complied with. Thus, not only private interests are protected.

Distinction:

Civil v Criminal Contempt
-    Civil contempt serves a remedial/coercive purpose for private interests. It is supposed to serve a remedial purpose or to compel a party who is failing to comply with an order to comply with the order. Involves disobedience to a court order or breach of an undertaking in civil proceddings.
-    Criminal contempt protects public interest – it is interested in maintaining integrity in the administration of justice. It is punitive. Committed either when there is a contempt in the face of the court or there is an interference with the court of justice.
-    For criminal contempt of court – can go to gaol and be fined. Can be issued with public retraction/apology. Verdict against party is shown on their public record. Can be ordered to pay costs in contempt proceedings.
-    Civil and criminal contempt both result in punishment
-    Breach of a court order by a solicitor or by a liquidator is also a criminal contempt.
-    Remedies for civil or criminal contempt: fine or imprisonment. Imprisonment used to be a default setting.
-    All orders whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice.
-    Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.
-    Category 3 of categories of contempt (Disobeying a court order or breaching an undertaking) can become a criminal contempt.

- Standing: Who may institute proceedings for contempt?

Civil contempt: only a party to the proceedings has standing
Criminal contempt: prosecution may be brought by party with an interest in the proceedings, DPP, A-G, court of its own motion as well as a party to the proceedings.

Civil contempt also differs from criminal contempt:
•    Because only a party to the proceedings can bring proceedings for civil contempt, that party can waive the right to prosecute
•    This is not possible in criminal contempt proceedings. A party to the proceedings cannot waive the right, because the other interested parties, such as DPP, A-G or the court can still pursue the other party.

Witham v Holloway (1995): need to maintain the distinction between civil and criminal contempt because only parties to the proceedings can bring an action to a civil contempt but a large number of other persons may bring an action for criminal contempt

Standard of Proof:

•    Civil –        Balance of Probabilities
•    Criminal –  Beyond Reasonable Doubt

N.B Contempt of court is tried before a judge, and not a jury

- In respect of what kinds of proceedings can a publication amount to contempt?

Who may be responsible for contempt of court?
•    Proprietor, publisher, distributor, director of publication, owner, licensee of radio station, journalist himself/herself, editor of publication, a blogger (recent case)

Fundamental test (Mason J in Harkianakis v Skalkos (1997)): whether they can be said to bear the real responsibility of the contemptuous material complained of

Types of bodies to which proceedings can be made

•    Generally: a superior court of record has part of its inherent jurisdiction to punish for the whole gamut of contempt of court.
o    Local Courts Act 1992: s 27A and 27B states that if there is contempt of a local court, the court has to refer the matter to the Supreme Court of NSW for prosecution; the rules in relation to contempt of court apply to local courts but they cannot of their own motion punish for contempt of court. Must refer.
o    S 43 NSW Coroners Act: incorporates s 27A and B of LCA so that the whole gamut of contempt of court would apply to Coroners Courts but they cannot of their own volition prosecute for contempt of court. Refers jurisdiction to Supreme Court.
o    So - It is possible to bring in an inferiour court but must refer to the Supreme Crt.
•    Under enabling legislation: the power of the board, etc may specify the forms of conduct that can amount to contempt of court
o    NSW Administrative Decisions Tribunal Act (s 131): various categories of conduct are set out that amount to contempt of the tribunal
o    ASIC Act 2001:
•    s.66 - provisions set out what constitutes contempt whenconducting hearing
•    s.200 – contept issues in a takeover panel

Civil Aviation Authority v ABC (1995)

Facts: In June 1993 an aircraft crashed near Young, NSW. In the air crash a number of people were killed and injured, including school children. A coronial inquest was announced. In April 1994 radio national devoted an episode to air safety and regulation (before the inquiry had commenced).The report discussed the safety standards of the CAA and the national airlines. Journalists spoke to eye witnesses of the crash who were to give evidence at the inquiry. The report suggested that the CAA bore significant responsibility/liability for failing to have proper safety. (Cross-Reference – Subjudice Contempt)

Issue: (Standing)
1. ABC said that CAA was responsible for air navigation and safety regulation in Australia. It failed to have significant standing in the proceedings
2. ABC said that CAA was not a party with special interest to the coronial proceedings.

Found per Kirby J: there are no parties to a proceeding before a coroner; coronial proceedings are inquisitorial and not adversarial in nature. Tension between the fact that a coroner’s court is more like a superior court of record and the suggestion that a coroner’s court is more like a Royal Commission.  Kirby J suggested that there may be a difference between coroners and Royal Commissions  because criminal proceedings can come before a corner’s inquiry Considers whether CCs are more closely allied to the ordinary court system or to RCs; from this extract, there is insight into what may or may not constitute contempt of RCs As a general rule, it is possible for there to be contempt of a coroner’s report.

So who has standing before a coroner? Persons of interest whose interest may be affected.

Pre-judgment and RC’s: there can be no pre-judgment because it is an inquisitorial proceeding. Because there is no direct outcome of finding by the Royal Commissioner, there is no contempt of court by pre-judgment.

Other differences: CC deals with the administration of justice. It has a set number of coroners, in a particular location, has a coroner who is there for an entire term (year). RC is ad hoc. It is established for a specific subject matter.

3. The implied constitutional guarantee of free political communication and its impact on contempt

Nationwide News v Wills (1992)
Facts: In 1989 the Australian Newspaper published a feature piece called “Advance Australia Fascists.” NN were visited by the AFP. The words published were calculated to bring Australian industrial commission into disrepute. Under s 299 of the IRC Act there was an offence whereby one could be punished for publishing words that were calculated to bring the Commission into disrepute. Under the provisions that created other offences, they contained within them grounds of defence (reasonable excuse, fair comment etc). Within the terms of s 299 there were no defences. The Australian Federal Police argued that defences should be imputed into the statute.

High Court: in its terms, s 299 created an offence with no relevant defences; NN challenged the constitutional validity of the offence under s 299. Issue was whether this offence was a valiud offence and whether it was protected by the council and the arbitration power and whether it was protected by the constitution. In this case, the court accepted that s 299 was invalid; judges recognized that s 299 proscribed reporting which was true/fair/accurate/reasonable. Therefore, if in fact the report had evidence that the commissioners were corrupt, then the blanket ban would have prevented the publication of the truth and publication of fair and reasonable comment

Proper approach: determine whether the means of giving effect to the purpose (protecting integrity of Commission) was reasonably proportionate to the purpose itself (approach of all judges except Dawson J)

Dawson J: proper approach was the sufficient connection approach, but reached the same conclusion; a blanket ban on criticism of the IRC is not reasonably proportionate or has a sufficient connection with the purpose of protecting the administration of justice because this fails to give any recognition to the countervailing purpose of protecting the freedom of speech

Brennan CJ, Toohey and Deane JJ: based reasoning on implied freedom of political communication; even though the case applied at a Federal level there was no reason why it could not apply at a State level. Also (per Toohey and Deane JJ) it was implied that the implied freedom of communication applied to the exercise of power of all three arms of government

Mason: failed to strike a balance because failed to notice that there was a freedom of speech.

Brennan J (Nationwide News): no freestanding right of freedom of expression in Australia; there is important value but there is little direct protection at the common law or by statute. To the extent that there is freedom of expression it is embodied in the implied freedom of political communication. This is a negative right; prevents the legislature or executive from acting in a way that encroaches upon freedom of expression as it relates to communication
•    Query: how far reaching are the implied freedoms of communications as relating to contempt of court

Conclusion: Judges concluded that the defence as drafted was broader than contempt of court. H.C. struck down s 299. All judges except Dawson approached the question of constitutional validity.

John Fairfax Publications v Doe (1995)
Facts: Doe was suspected by the AFP of drug smuggling.The AFP obtained the right to tap D’s telephone to gain information about his activity.It collected 8000 hours of conversation between D and friends. It emerged that D also ran a race fixing syndicate
A new line of inquiry opened – there were speeches made to Parliament that there needed to be an inquiry into race fixing. Transcripts from the tapes were about to land on pages of the SMH. D found out about the transcripts and obtained an injunction to prevent Fairfax from publishing. F appealed.

Argued: D argued that F would infringe s 63 of the Telecommunications Interception Act (Cth) (1979) where it was an offence to publish material obtained lawfully pursuant to a phone-tapping order. F argued that s 63 was constitutionally invalid because it infringed the implied freedom of communication and that the whole body of law relating to contempt needed to be reconsidered as a result of the implied freedom of political communication . (Given that s 63 did not relate to political matters, it was unlikely that it would be considered constitutionally invalid.)

Held: the recognition of an implied freedom of communication is not inconsistent with the contempt of court; in a given case, however, it may be that the implied freedom of communication may have an application. Stated that the common law principles ‘are themselves the result of a balance of competing interests; the public interest in freedom of expression and the public interest in the administration of justice’.

“It would be unthinkable if the beneficial development of the implied constitutional right to free communication upon certain matters integral to the political system established by the Constitution were seen…as a vehicle for destroying the essential power and duty of the courts in this country to protect the fair trial rights of persons accused of crimes….it would be a complete misreading of the recent development of constitutional law in Australia to suggest that the implied constitutional right of free communication deprives courts….of the power, and…the duty, to protect an individual’s right to a fair trial where it is, as a matter of practical reality, under threat. Whatever limitations may be imposed by the constitutional development protective of free communication upon certain matters upon the law of contempt (eg in terms of the scandalising of the courts) I could not accept that the constitutional implied right has abolished the longstanding protection of fair trial from unlawful or unwarranted media or other intrusion. Fair trial is itself a basic right in Australia” 

- Confirms existence of subjudice contempt law in face of implied constitutional freedom of political communication.

Continued on page 2
Continued
(i) SUB JUDICE CONTEMPT

It must be shown, BEYOND REASONABLE DOUBT that the media defendant:
 
1. Contemnor intended to publish (assumed for media)
2. Published the material while proceedings were sub judice
civil: from filing of statement of claim
criminal: from issue of warrant/arrest until acquittal/expiration of time for
appeals to be lodged/all  appeals are over
•    James v Robinson pending once curial proceedings commenced
•    can publish prior convictions after sentenced although technically sub judice because judges (not a jury) of appellate courts assumed to be immune from prejudice  for sub judice purposes
3. Publication had/has a tendency (a real risk as distinct from a speculative possibility) to seriously interfere with the administration of justice in those same (sub judice) proceedings  -intention or objective test
4. If contempt made out ask if any counterveiling public interest.


1. THE PERIOD DURING WHICH MATTER REMAINS SUBJUDICE

Principle:  Arrest and charge rule for sub judice contempt - when proceeding is pending. (James v Robinson).
Ends: No longer sub judice when all avenues of appeal have been sought. (DPP v Wran)

James v Robinson (1963)
Facts: James was the editor of a newspaper  the “Sunday Times” which produced an account of two  killings by a “wild gunman” in Perth. The articles clearly identified Robinson as the gunmen. The newspaper published photos of the accused, and also gave interviews with eye witnesses in the Pine plantation area relating to the whereabouts of the suspect A week after publication, proceedings for sub judice contempt were brought against the newspaper.

Issue: When is a proceeding “pending”? It was intended that the Court had no jurisdiction to deal summarily with a contempt of the character alleged and, alternatively, that the publication of the reports in question did not amount to contempts since, in fact, no relevant proceedings were then pending before the court.

Held: Matter becomes sub judice at the moment of arrest and charge – this is the time from when the rules of sub judice run. So if somebody is being chased then it is not subjudice contempt as they are not under the protection of the law and their face can be published. The person aggrieved must be aggrieved in his capacity of a party to proceedings; therefore he must be a party at the time.

•    When do the relevant rules as to sub judice contempt begin? Is it at the time of arrest, or when the accused is brought before the court:

Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990)
Facts: Man accused of killing 2 women and a child. Police manhunt for suspect. To facilitate manhunt, there was a lot of publicity – cast in lurid and sensationalist terms, predicated on guilt of man being pursued. (Technically if someone has been arrested and charged the matter nevertheless is sub judice - such that a publication that inflicts with rights is held as contempt.) He was regarded as dangerous and photographs of him were published in newspapers and in television broadcasts. Mr Mason confessed to all the killings and was charged. Mr Mason was taken to the scenes of the crimes, and asked to point out various aspects. Police invited channel 9 and other media to film the process. Channel 9 reporter put together a report – gave reference to alleged confession of suspect. Mr Barrett overcame his concern about the possibility that the broadcast might involve contempt of court by deciding not to repeat in direct terms the police information that the suspect had confessed, but rather, to use the words “allegedly admitted.”

Issues:
(1st) Footage: Channel 9 argued that matter was not sub judice because the suspect wasn’t brought before a court and therefore wasn’t under the protection of the court.

Held: Rejected, subjudice contempt found: from time of arrest, person has certain rights under protection of the court, can apply to police for bail etc. certain protections. Once arrested over course of weekend, there was obligation on police to present the suspect to court as soon as practicable which was Monday morning. Court said that the footage interfered with the administration of justice. It was grossly offensive to display in the media the accused person showing the police around at the scene of the crime.

(2nd) Confessional Evidence:Whether reference to confessional evidence is sub judice contempt? (Argument raised by Barrett and Ch 9 was that there was no affirmative statement that there was a confession)

Held: Prima-facie it is subjudice contempt to publicise that guilty of a offence. To report that accused confessed would prejudice a fair trial in the future. Court found that the reference to “allegedly” does not reduce any risk of prejudice to the accused.
NB: There can be much extensive prejudicial publicity up until person is charged but as soon as arrested and charged the tenor changes.

•    Can also have sub judice contempt of civil proceedings (negotiation):

Attorney-General v Times Newspapers Ltd [1974]
Facts: Distillers Co was sued by victims of drug thalidomide. D was in process of negotiating settlements. TN threatened to publish subsequent negative pieces – to make D make a settlement on terms advantageous to the victims.
Held: Clearly possible to be sub judice matter when the matter was not actively litigated. Terms of settlement still had to come before a court.Proceedings against D were still sub judice despite being a negotiation.

•    Subjudice Contempt ends when all avenues of appeal have been exercised.

DPP v Wran (1986)
Facts: Wran was at Sydney town hall and gave remarks about the decision of jury and the outcome of a retrial and innocence of Murphy.
Held: Guilty of contempt of court. A matter remains sub judice where appellant court sets aside jury verdict at first instance and orders a retrial.

2. WHAT DOES “SUB-JUDICE” MEAN? WHAT ARE THE ELEMENTS OF SUB-JUDICE CONTEMPT IN THE MEDIA CONTEXT?

‘sub judice’ = ‘before judges’

•    Windeyer J in James v Robinson (1963): the threshold question is ‘when in fact is a proceeding before a court’? If the matter is not before a court, then a journalist cannot fall foul of sub judice contempt
•    Also ask whether has tendency to interfere with the administration of justice:

Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 per Wilson J: ‘there is no doubt as to the basic circumstance upon which the jurisdiction of a superior court to punish for contempt of court is founded. It is a jurisdiction to be exercised with caution and only if it made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice. The impugned material must exhibit a real and definite tendency to prejudice or embarrass pending proceedings’

The BLF Case
Mason J  - a matter of sub judice from moment where person is arrested and charged and where all avenues for appeal are exhausted – more readily made out where a matter is before a jury.

3. THE INTERESTS PROTECTED BY THE SUB JUDICE RULE, AND SOME EXAMPLES OF HOW COURTS APPLY IT

•    Publishment of prior convictions contempt of court because has tendency to prejudice trial of accused.

Attorney-General v Willessee [1980]
Facts: Peter Schneidas in gaol and obtained access to hammer, with which he killed guard, Mewburn. When M was killed, prisoners were in lockdown, food rations, and no medical access. W was able to get an interview with the prisoners in regars to the lockdown and a number of other issues. One of the issues that arose was that the prisoners were unhappy about the lockdown situation. The program dealt with firstly, the concern of residents who lived near the prison and that this led some of them to shout obsenities. Secondly it revealed the prisoner’s attitude to their confinement by televising a statement by one of them. The prisoner apologized for the obscene language and
spoke about S being a “murderer.” This was deleted as thought to be SJC. However the interview left in a reference in regards to prisoner talking about S’s 2 previous convictions for assaulting officers. W produced show and sold it to channel 7, who was also prosecuted.

Argument by defendant: because the purpose of the broadcast was not the crime committed by Schneidas, the reference to the killing was ‘fortuitous’; however, the court found that it is irrelevant whether the publisher was dealing with another event or issue and to publish matter which has a ‘real and definite tendency to prejudice or embarrass pending criminal proceedings is contempt’.

Held: Concluded that is was SJC because to publicize an accused person’s previous convictions is a prima-facie contempt of court. Any prior conviction is contemptuous because interferes with jurors decision.  Willesee’s broadcast of prior convistion had a real and definite tendency to prejudice or embarrass pending criminal proceedings.
Moffatt P: took an absolute view, does not relate it to the public interest.
Mahoney J: took a more flexible view and was willing to admit there may be circumstances where someone could disclose an accused’s previous convictions without it amounting to sub judice contempt.

What is the public interest? Here W and respondents claimed that the public interest that they were promoting was the public interest in prisons in NSW – Moffatt P said that this was too broad . Courts invariably favour narrow construction of what constitutes public interest

Incidental or Fortuitous: Moffatt P said that cannot argue that there is an incidental or fortuitous risk of prejudice because should distinguish between Bread Manufacturers (civil proceedings) and this case (criminal proceedings). Alternatively,Mahoney J did not accept this and said that it depends on the circumstances of the case

How relevant is the fact that other media outlets published exactly the same information?? : Hopes J – the fact that other people have published the same material is not relevant upon the respondent’s guilt or innocence. It can be relevant when considering the penalty though. All found guilty of contempt and fined $2000 each and the other one $1000.

•    Test for Subjudice Contempt an objective test – factors relevant include:

DPP v Wran (1986)
Facts: Wran was at Sydney town hall and gave remarks about the decision of jury and the outcome of a retrial and innocence of Murphy.

Found: no intention to interfere with the administration of justice is needed to constitute contempt; the test is an objective one where the question is:

‘Whether the publication had a tendency as a matter of practical reality to interfere with the projected trial upon indictment of the accused; it would have such a tendency if the minds of the future jurors might have been influenced by what was published.’

The question must be determined in the light of the nature of the material published and the surrounding circumstances. The test for determining the meaning of the words alleged to constitute contempt is the effect on an ordinary reasonable member of the community.

Factors Include:
•    Look at the substance of the words. In this case look at the statements of innocence and whether ornot they constitute SJC?
•    Look at the time between publication and the time of retrial – whether delay etc
•    Effect of statements by other people as to the guilt or innocence of Mr Justice Murphy and the effect on the finding on Mr Wran
•    Need substantial risk – more than trivial. Has to be serious risk.
•    Whether the public interest in the administration of justice balanced in the BM principle is relevant. Because the statement goes to the central issue of guilt of innocence, it is of no great help to the case.

Held:  A publication may constitute contempt where upon an appeal a new trial is ordered, even though there has been no indictment and the new trial has not commenced.
Concluded here that there was a tendency to interfere with the administration of justice for following reasons and imposed fine of $35000:

Reckless indifference: Wran intended to make the comments. i.e. voluntary conduct on his part. Therefore he had intended to influence jurors. Intention can be satisfied by intention or by reckless indifference.

Republication: W voluntarily spoke to members of the media. If you speak to member of the media as an ordinary person, it is not unforeseeable that the comments that you make to the journalist may be published.Wran was a former premier, his comments were therefore newswrithy and likely to be published. Wran knew that it was a natural and probable consequence for his comments to be published

Incidental or Fortuitiuos: Wran unable to argue that any incidental or forutious because he was prejudging an issue at any subsequent jury trial.

Significance of comment: Given W’s prominence and association with M, it had greater significance than other comments made W also admitted in Willessee program that he had done nothing wrong – so to aggravate the offence.

Continued on page 3
Continued
•    Substantial risk of interference based on looking at a number of factors.

Hinch v Attorney-General (Victoria) (1987)
Facts: H became interested in charges brought against Father Glennon, a catholic priest– who had been accused of molesting children in 1970s and 1980s. G was charged with several counts of indecent assault and the child molestation is ongoing concern of H.
H made a broadcast about the arrest and charge . Made subsequent broadcasts dealing with father Glennon working in a catholic church. Contempt proceedings brought against H. Broadcasts discussed the prior convictions and charges of B. Also the suggestion that B was guilty (assertions of guilt)

Held: Found that the Full Court had been correct in finding that the broadcasts constituted a substantial risk of serious interference with the fairness of the trial

Noted comment from BLF that a broadcast would only have a ‘transient impact only on the mind of the listener’ and because the listener is ‘continuously bombarded with a never-ending kaleidoscope of sensational and scandalous items of news’ the individual’s recollection of each and every item is ephemeral but found, however, that there was a strong likelihood that any juror at G’s trial who heard one of the broadcasts would be likely to have a recollection of the substance of it and be prejudiced against G.

Mason CJ: expresses view that what we have in relation to sub judice contempt are not diff sets of rules for civil and crim contempt. One fundamental principle: one set of rules to be applied flexible. In criminal proceedings because you have a right to a fair trial the public interest more often will yield to public interest in protecting right to fair trial.

Wilson J: ‘the decision whether to punish conduct alleged to constitute a contempt of court must depend, in the last resort ,on the intention of the person charged and the nature and extent of the interference with the fair conduct of the legal proceeding.’ Also found that the disclosures were not an incidental but not intended by-product of a discussion of a matter of public interest and that the pending proceedings were central to the discussion. Found that the seriousness of the interference outweighed any public interest in the matter.

If we have one principle which we apply flexibly, range of factors may or may not be relevant:
•    Does the publication relate to the central issue of proceedings or relate to something incidental or fortuitous?
•    Look at the extent of the nature and the extent of the publication – the more sensationalist the more likely to be sub judice contempt, the more dispassionate the less likely. The more wider the circulation the more likely to be sub-judice contempt
•    Period of time between publication and time of trial.
•    Is it before a judge or a jury?
•    Certain types of conduct such as disclosure of prior convictions and assertions of guilt more likely to be sub judice contempt
•    Nature of publication – newspaper, radio, television?
•    What stage are the proceedings at? At time of arrest and charge, at time of acquittal, and beginning of proceeding?
•    Who is the audience of the publication?
•    Wilson J – Likely durability of publication
•    Nature of media and publication: Mason and Wilson say that newspapers have greater impact than television and radio. But television involves verbal and visual images and is therefore a more arresting form of media.
•    Over a period of time, any risk of consuming information through television will decline. However, because television is so arresting, at the time of proceeding, all the prejudice and information that was perceived during time of watching the television will be revived.
•    NB. No empirical research on above observations – all assertions

Conceptualising the role of the public interest in freedom of speech within contempt law: Can the public interest in the administration of justice be over-ridden by other public interests?

Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242 (the Bread Manufacturer’s Principle): ‘the case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations’, namely, the ‘discussion of public affairs and the denunciation of public abuses’.

•    In the Bread Manufacturer’s case: the ‘Truth’ newspaper was charged with contempt in publishing a series of articles denouncing the Bread Manufacturer’s company for price-fixing and various other criminal activities.
o    Jordan CJ: found the newspaper not in contempt because the role of the public interest in freedom of speech sometimes may override that of the public interest in the administration of justice (commonly known as the Bread Manufacturer’s Principle)
o    Also found that where the party alleged to be in contempt was ignorant of the litigation at the time of the publication and had no reason to suppose that litigation existed or was then pending then that negatives the requirement of intention to interfere with the administration of justice

Ex parte Bread Manufacturers Ltd (1937)   - Leading Case
Facts: Truth Newspaper from 1936 started publishing articles about Bread Manufacturers and the prices of bread. At the time if you wanted to be a baker you had to join the Bread Manufacturers company. The articles published denounced the master bakers for an alleged combination to keep bread prices at a high level, and for allegedly bringing pressure to bear upon non members of the combine to prevent them from underselling. Articles were exposing the corruption of bread racketeers etc. Proceedings commenced in civil jurisdiction in Sep 1936 in Supreme Court of NSW in respect to a letter for libel.  None of the articles after the proceeding had been commenced referred to the litigation in question. But BM argued that the Truth newspaper were guilty of sub judice contempt. Editor of T gave affidavit that he was unaware of the proceedings which were on foot in Supreme Court of NSW.

Held (Jordan J): It is a well established general rule that any publication which has a tendency to interfere with the administration of justice by preventing the fair trial of any proceeding in a Court of Justice is a contempt of court if it is shown bewond reasonable doubt, that such interference was either intended or likely.

Reference to incidental but not intended by-product – the fortuitous risk of prejudice. In this case, any risk of prejudice to the BM as a litigant was an incidental or fortuitous by-product of the publications engaged in by Truth Newspaper. This is because:
A) the editor was unaware of the litigation which BM was party in
B)  series of articles pre-dated the instigation of civil proceedings in the Supreme Court
C) they were civil proceedings, not criminal proceedings.

The notion of the balancing of interests:
The public interest in maintaining the administration of justice. Also the interest of ensuring the right of an accused to enjoy a fair trial.
VS
The broader public interest in freedom of expression and freedom of press. Therefore the public interests of admin of justice and accused’s rights are not absolute interests.

3 categories of contempt of court:
1. attempting to interfere with proper administration of justice (generally)
2. attempting to interfere with proper administration of justice in particular case
3. if not attempting to interfere with justice generally or in a particular case – “tendency” or likelihood of interference
State of Victoria v The Australian Building Construction Employees and Builders Labourers Federation (The BLF Case) (1982)
Facts: a Royal Commission was established into the conduct of the BLF, which was charged with investigating whether the BLF had engaged in criminal offences against federal or state laws. The evidence brought before the RC formed the basis for an application made by 3 liberal state governments to the Federal Court of Australia lodged in 1981. The government sought deregistration of the BLF as a trade union. The BLF then put an application in the deregistration proceedings claiming that the continued hearings of the Royal Commission amounted to a contempt of the Federal Court.

Deane J (FFC): it was possible there was a contempt of the FC if the RC continued to have hearings in public; the 3 reasons for potential contempt were that continued public hearings could turn the public against the BLF as a litigant; continued public hearings could dissuade people from coming forward as witnesses to RC or court proceedings; and possibility of subconscious pressure brought on judges of the FC if the hearings continued in public. Was willing to find a potential contempt of court, to protect this he ordered that the proceedings for the RC continue in private. Neither party was happy so they appealed to High Court

Held: High Court found that there was no sub judice contempt here. In this case, there was an apprehended contempt of court. Remedies sought here was injunction for ongoing contempt of court.

Murphy J : said that it was unconstitutional to establish RC into determining the guilt/innocence of person/corporation. However, there were 2 HC decisions finding this unconstitutional, which Murphy J failed to address.

Stephen J: (dissent) As a matter of principle there would seem to be no reason why what occurs in the course of proceedings in public of a commission should be inherently incapable of giving rise to a contempt of court.

Aiken J: fed court did not have power to determine what they did

Gibbs: Possible for RC to to held in contempt. Prima facie contempt of court if interference of administration of justice. The continued hearing could amount to contempt of court. Gibbs J was not satisfied though that there was a real risk of substantial interference because RC dealt with larger issues than the Fed Court; RC began before the fed court proceedings and was likely to continue long after the end of the fed court proceedings;RC was not concerned with the deregistration of the BLF where the Fed Court was concerned with this.  Therefore the RC could not be said to pre-judge the issue.

Mason: emhasised the importance of public hearings. Took issue with the irregular decision of Deane that the RC be conducted in private. It is not possible for the RC to be doing justice if it is done in private. Federal Court was correct in finding that there was no evidence to support an inference that either of the Commissions was established for the purpose of interfering with the administration of justice. Debatable that would have counterveiling impact on witnesses

Deane J: acknowledged that there was a legitimiate public interst in the subject matter of the inquiry, that publicity given to the proceedings would be likely to lead to new witnesses coming forward and new material being disclosed and that the public interest would be advanced by the two governments obtaining the report of the commissioner.
However,  he believed this public interst had a counterveiling impact on witnesses and they would not come forward.

Notion of subconscious pressure on judges: if RC continued to sit in public then the judges hearing the deregistration proceedings might be subconsciously persuaded.
•    1st school (dispassionate and detached): Mason said that judges are trained from the time they are at law school to only look at admissible evidence and to exclude inadmissible evidence. Less likely to succumb to pressure unlike jurors
2nd school: Recognition that judges are people too, with the passions and prejudices of normal people. Mason J said that Deane found that the continued hearing of RC would bring subconscious pressure to bear on judges. Mason foun that Deane J had failed to turn his mind to the proper principle. Deane had failed to consider whether there would be substantial risk of interference with the administration of justice. Because of this, the exercise of Deane J’s exercise failed.

4.  BUILDING A CONCEPTUAL FRAMEWORK OF SUB JUDICE CONTEMPT

PUBLICATIONS THAT MAY IMPAIR/PREJUDICE/BIAS THE COURT:

Courts look to the inherent nature or tendency of a publication, not its effect in the specific circumstances
o    Tendency is established objectively, by reference to the nature of the material published and to the circumstances and probabilities existing at the time of publication

N.B Different rules apply depending on whether trial by judge or jury. If not sure if jury will hear, more likely to be contempt because test operated at time publication occurs when there WOULD be a real and definite tendency to influence trial.

Some examples of prejudicial publication include:
•    statements as to the guilt or innocence of the accused;
•    statements criticising or disparaging the accused;
•    statements creating sympathy for the accused or a victim;
•    the publication of confessions;
•    (contested category): “pre-judgment” contempt where there is likely to be no prejudice to a particular, pending proceeding, but future litigants may be deterred
•    bribe/suborn witness is contempt of court – common. law crime

•    Sub judice contempt more likely to occure when trial by jury not judge – judges can make detached analysis.

State of Victoria v The Australian Building Construction Employees and Builders Labourers Federation (the BLF Case) (1982)

Facts: See Above
Held: In this case, found that the test to be applied is one laying emphasis on the need to establish a substantial risk of serious injustice as an essential qualification of obtaining relief. Found there to be no substantial risk of serious injustice. Shows that courts are reluctant to find contempt regardless of the impact on the public mind (jurors are members of the public) so need very extreme publication to improperly influence a judge & media has more latitude.

Stated that in media publications, ‘the paramount public interest is that of maintaining the administration of justice free from prejudice and interference. The countervailing public interest – freedom of discussion – is exclusively related to the guilt or innocence of the accused; the issue to be determined at the trial. In this situation freedom of discussion has no independent value and is therefore readily subordinated to the public interest in the administration of justice. Consequently the test to be applied is whether the publication has a tendency to interfere with the administration of justice.’

Gibbs J: “no judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a judge”

•    Material published between conviction and sentence: Different considerations apply when there is a judge sitting alone, and when there is a jury. Subjudice contempt more readily made out before a jury.

R v Herald and Weekly Times Pty Ltd [2006]
Facts: Mr Sharp reported that his wife and daughter were missing to VIC police.
Then changed story and told police that wife had left because she was pregnant with another man’s child and she had come and taken the daughter. Mr Sharp had in fact shot his wife and daughter with a spear gun and disposed of their bodies. In late May 2004, at time when the disappearance of his wife and daughter was attracting media interest, he allowed himself to be interviwed on television. He pleaded with his wife to make contact with the police, or meid, or the family. Police found the gun and bodies and Mr S confessed to Vic SC and pleaded guilty. The hearing was adjourned so that could have sentencing submissions. The Sunday Herald then published editorial urging court to give S sentence of life imprisonment without parole. Judge referred article to the Registrar to see if editor of newspaper should be charged with contempt.

Held (Harper J): An editorial published between conviction and sentence, in which the mitigating circumstances were ignored and the severest possible sentence stridently demanded, might well amount to a very serious contempt. However, court held that a sentencing judge would not be influenced by editorial. No serious intervention in administration of justice. Beyond reasonable doubt it was found not to be subjudice contempt.

“Although his honour held that, as read by most people, each headline would be seen as a recommendation or direction to the judge, it nevertheless did not follow, in his opinion, that there was a serious risk that the court would appear not to have been free from outside influence: a fortiori when that risk had to be established beyond reasonable doubt.”

R v Hanson; R v Ettridge [2003]
Facts: Hanson convicted of fraud for registration of One Nation on the basis of false representation of no of electors, 3 yrs sentence, politicians came out and said sympathetic things. There were comments made by various members of the government that were held in contempt by the court.
Found: publications that influence/impair administration of justice can occur when case is before a jury or judge but have different outcomes. Found that the comments demonstrated a lack of understanding of the Rule of Law and that the statements could reasonably be seen as an attempt to influence the judicial appellate process and to interfere with the independence of the judiciary

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Continued
PUBLICATIONS THAT MAY IMPROPERLY INFLUENCE THE EVIDENCE OF ACTUAL OR POTENTIAL WITNESSES:

The BLF Case: Gibbs CJ and Mason J addressed the issue as to whether witnesses who were not called before the inquiry might be influenced as to what they should say in evidence before the court by the publicity given to the inquiry. Found that the risk of this occurring is a mere matter of speculation and not a matter of genuine interference. Also, the fact that the inquiry and the proceedings were directed to different issues and therefore the inquiry cannot pre-judge the merits of the proceedings in the FC or made the vehicle for criticism of the Federal Government or its officers.

Referred to the Bread Manufacturers principle and found that in balancing the competing interests the resulting principle requires that the court be satisfied that there is a real risk that the material alleged to be a contempt will interfere with the administration of justice in pending proceedings before it can hold that a contempt has been committed or is threatened

Fundamental test (see Hinch v A-G (Victoria)): ‘There is no doubt as to the basic circumstance upon which the jurisdiction of a superior court to punish for contempt of court is founded. It is a jurisdiction to be exercised with caution and only if it made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice. The impugned material must exhibit a real and definitive tendency to prejudice or embarrass pending proceedings’

PUBLICATIONS THAT MAY IMPROPERLY INFLUENCE A PARTY’S CONDUCT IN THE PROCEEDINGS:

See: DPP v Wran (1986) 7 NSWLR 616; Hinch v Attorney-General (Victoria) (1987) 164 CLR 15
•    Position after Hinch: there is a principle that needs to be applied depending on the circumstances of the case and informed by a wide variety of factors

Attorney-General v Willessee [1980] 2 NSWLR 143
Facts: W conducted an interview with one of the internees at the prison. During the course of the interview, the prisoner made a number of comments that formed the basis of a prosecution of W for contempt.

Found: prima facie the publication of a person’s previous convictions is a contempt of court; potential jurors are finding out something they would not ordinarily have been told in the course of a jury trial, which has the tendency to interfere with the administration of justice

President Moffatt: took an absolute view; there is a bright-line rule that the disclosures of previous convictions are sub judice contempt. W and respondents claimed that the public interest they were protecting/promoting was the public interest in the administration of prisons in NSW, which was rejected as being too broad.

2nd point: considered that one cannot, in the circumstances, argue that there is an incidental or fortuitous risk of prejudice because there should be a distinction between BM, which dealt with civil proceedings, and the instant case where there is an issue of criminal proceedings. Suggested that a different view needed to be adopted when dealing with civil or criminal proceedings and that they had to be dealt with differently

Marnie J: took a flexible view that there is no bright-line rule because there are circumstances in which a person could disclose a person’s previous convictions without it being sub judice contempt. E.g. imagine someone has been wrongfully convicted and are currently serving a sentence for the crime they didn’t commit. They find out that the person who really did commit the crime is being tried; and judge stated that it wouldn’t be sub judice contempt to draw attention to the crime that the person committed

2nd point: disagreed with Moffatt J and found that it depended on the circumstances of the case; stated that the BM principle is just a principle derived from a case and is not a statute. In this case, there is a willingness to indicate flexibility in the BM principle

Note: relevance of the fact that other media outlets published the same information; whether this is an issue going to relevance or penalty?

Hope J (Willessee): the fact that other people have published contemptuous material isn’t relevant to whether the present respondents are guilty of contempt of court. It can be taken into account when assessing penalty; simply because other outlets have published material doesn’t allow the respondents to exculpate themselves. With regards to the 2 previous convictions, the fact that there was media publicity at the time of the two previous convictions doesn’t assist the media outlets in relation to pending proceedings and the finding that they have committed a contempt of court in relation to pending proceedings

PRE- JUDGMENT CONTEMPT

Must the publication impair the administration of justice in a particular, pending proceedings, or is it enough for the publication if the publication usurps the court’s role and potentially has a long-term impact on the administration of justice?

*    Even if doesn’t influence other witnesses/trier it can be prejudgment contempt
*    prejudge final determination of guilt eg publish photo where ID in issue
*    prejudging issues in the trial embarrasses the court, objectionable trial by media

Attorney-General v Times Newspapers [1974] – leading English case
Facts:  Thalidomide case.  There were two problems with an attempt at settlement: 1. More proceedings were brought before the court & 2. One of the conditions involved all the claimants unanimously agreeing. It became clear that prospects of settlement were dimming. Times Newspapers then published article stating that there should be absolute liability to D and that D should fully compensate the victims. D complained to A-G arguing that the article was a contempt of court.  A-G refused to prosecute. After several months, editor of Times proposed to write a follow-up article. Editor of Times submitted article to solicitor to get clearance, so that it wouldn’t be contempt of court.

Grounds: prejudgment of the issue that was an issue of litigation (extent of liability) and also improper pressure being placed on distillers as a litigant.

Held: Lord Diplock :  General rule that it is not permissible to prejudge issues in pending cases.”
- Set out 3 propositions as to why prejudgment was offensive:
1. Persons should have unhindered access to courts to determine rights and liabilities
2. When individuals and entities approach courts they are entitled to courts that are free from bias and prejudice.
3. Where a litigant has invoked court’s authority to determine rights and liabilities, it should be for the court alone to determine the rights and liabilities and no other entity to usurp the judicial function.

- A distinction is to be drawn between private persuasion and public abuse - the former so long as it is unaccompanied by unlawful threats, is not, in my opinion, contempt of court; the latter is at least a technical contempt; and this is whether or not the abuse is likely to have any effect upon the condut of that particular litigation by the party publicly abused.

- In a case involving witnesses, jury or magistrate, other considerations are involved: their even fair and temperate criticism might be likely to affect the minds of some of them so as to involve contempt.

Lord Morris :accepted a blanket ban on all forms of prejudgment because it entails the media usurping the judicial function of the courts. Found there were a range of things that could have been discussed without involving sub judice contempt/prejudgment (amounts paid in settlement, critiques as to the settlement and urged law reform, critique of legal system that took too long, could have drawn attention to the financial plight of the victims, possible to make a ‘tempered, reasoned appeal to D’ to settle on more advantageous terms). In this case, because of what LM thought was the ‘intemperate nature’ of the article he was willing to find that there had been an unacceptable prejudgment of D’s rights and liabilities such that sub judice was made out

Lord Simon: It is a contempt to bribe a judge or a juryman or a witness or a party. It is even a contempt to privately threaten a judge or a juryman, or a witness or a party.

BUT: See BLF Case
•    Mason J – said that the Times Case did not represent the view in Australia. He said that for contempt to be proved there must be a serious grave injustice in the particular case.
•    Brennan J – appears to have accepted the general rule as propounded in Times as a way to protect unpopular people and their causes from calumny and pre-trial judgment in the media.

Civil Aviation Authority v ABC (1995)
Facts: Air crash at Young. Coronial inquest announced. Report included witnesses who were going to be part of the inquest CAA relied in part on the fact that ABC had pre-judged the issue that was going to be determined in the Coroners Court.

Held: No need for absolute prohibition for pre-judgment contempt. Pre-judgment in and of itself is not sufficient to establish sub judice contempt. It was predicated on two assumptions that were contestable:
1. media commentary is monolithic and uniform -not all media are unsympathetic.
2. the media in all cases has some level of power over the minds of consumers of media

Court rejected the pre-judgment principle and found it not to be essential to the protection of the capacity of courts to discharge their functions; had regard to the implied constitutional freedom of communication in Theophanous v Herald & Weekly Times and also the importance of public discussion of political and other affairs for the efficacy of a representative democracy and found that the suggested rule against pre-judgements should be rejected and constitutes an unjustifiable enlargement of the law of contempt. It is a right which must be balanced against other public interests, in particular prohibitions which are necessary for the proper functioning of an ordered society.

Kirby J :agreed that trial by media was offensive but it was better to use sub judice to prevent ill-informed journalism. A blanket ban on pre-judgment is not necessary. Puts too much liability on the media.
Sheller J:should not be a blanket ban on pre-judgment. Unwilling to find that all forms of pre-judgment were sub judice contempt

Principle: A general rule prohibiting public comment suggesting a conclusion to a case or pre-judging issues before a coroner, magistrate or judge is an unacceptable infringemtn on the freedom of expression.

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Continued
5. CONTEMPT THAT RELATES TO (i) WITNESSES AT, AND (ii) PARTIES TO, THE PENDING PROCEEDINGS.

(i) In what circumstances does influencing witnesses constitute sub judice contempt?

Some problems affecting witnesses include: Evidence may never be admitted ;witness may feel bound to adhere to any statements that they’ve made; memory; might never becross-examined; may distort the evidence because of issues with recollection.

Attorney-General (NSW) v Mirror Newspapers [1980]
Facts:  In 1979 there was a fire on a ghost train in Luna Park where several people were killed and a s a result a coronial inquest was opened. Evidence was going to be given by  a teenager that there was a fire on the train and he had warned the operator as to the knowledge of the existence of the fire. The attendant was going to be subpoened to give evidence at the inquest however a journalist found his address and asked some questions before he gave evidence at the inquest. This was the reproduced in the newspaper.

Issue:  Whether evidence to a coronial inquest amounts to sub judice contempt? Is there material risk of  substantial harm to the inquest?

Argument: The plaintiff contended that the publication in question was a contempt, because it was likely ortended, to interefere with the proper administration of justice in connection with either the proceedings before the coroner or “further proceedings subsequently arising from the subject matter” of those proceedings.

Held: Enforced a bright-line rule – any canvassing of witness’s evidence advance of the proceeding where they are expected to give evidence would be sub judice contempt. Supreme Court has power to punish contempt of the Coroner’s court. The publication had the tendency, as a matter of practical reality, to interefere with the due administration of justice because of its possible effect both on Mr Bessel and other witnesses.

However there was a defence : Publication of Said’s evidence NOT contempt because fair and accurate report of legal proceedings defence. (although may influence what Bissell may say).

Civil Aviation Authority v ABC (1995)
Found: a broadcast or publication will be contempt if there is a real and substantial risk of adversely influencing actual or potential witnesses. In this case, the fact that the reporter interviewed several potential witnesses, who gave a personal account of what they saw and experienced, made it difficult to prove that this would affect the evidence they would provide to the coroner. The eyewitnesses accounts were limited to the airplane crach. However, the court pointed out that the interviews given by Mr B and Mr N were different because they both discuss the conditions surrounding the aircraft accident, they were expert evidence already in evidence so unlikely to be distorted.

The court noted that the danger in presenting accounts of witnesses before a matter comes to hearing is that the memory of what in fact happened may become distorted; where witnesses may be more emphatic or deterrent in their evidence. The court distinguished the facts of Mirror Newspapers with this case and found that in this case there was no question of inconsistency in the accounts, and both individuals gave testimony in a considered manner from previously prepared notes that gave no reason to suggest that they would be driven to tamper with their written evidence in the inquest

The jurisdiction to defend the administration of justice is to be invoked only where there is a substantial risk that witnesses will either be deterred from giving evidence or that the truth or content of their evidence will, in some way, be interfered with. In this case, this had not been found to have been proven to the requisite standard.

•    Contrast with Mirror: lapse of 4 months between the broadcast and inquest compared to the inquest being in progress at the time in Mirror. Bissell’s statements went directly to matters he would have to give evidence about, whereas witnesses in CAA were merely giving a personal account of what they saw and experienced the night of the crash.
•    NSWCA took a less rigorous view: Did not accept Mirror Newspapers view that it was always sub judice contempt when canvassing of witnesses’ evidence prior to court proceeding. Must look at the quality of the evidence and what use the evidence would be put to.

(ii) In what circumstances does influencing parties constitute sub judice contempt?

Attorney-General v Times Newspapers [1974]
Facts: Case regarded a publication referring to the victims of Thalidomide. Held that as a general rule, where the only matter to be considered is pressure put on a litigant, fair and temperate criticism is legitimate, but anything which goes beyond that may involve contempt. However, in a case involving witnesses or a jury, even fair and temperate criticism might be likely to affect the minds of some of them so as to involve contempt. But it can be assumed that it would not affect the mind of a professional judge.

Held: The two questions to be asked are firstly, whether there was any contempt at all, and secondly, whether it was sufficiently serious to require, or justify the court in making an order against the respondent. Held that anything in the nature of prejudgment of a case or of specific issues in it is objectionable due to the fact that disrespect for the processes of law may follow as a result of people being led to think that ‘it is easy to find the truth’. Noted that a comment made under appeal is a different matter because of the fact that judges are not easily influenced.

Lord Reed: Should not be a blanket ban in applying pressure to litigant, that if you subject a litigant to fair and temporate criticism that maintains a balance on the freedom of speech and public administration. Fair and temporate criticism was acceptable – but if this is pursued for alternate motive then this would be sub judice contempt

Lord Diplock: One way you can distinguish between proper and improper is by drawing a distinction between private persuasion v public abuse. An act done in public is  prima facie sub judice contempt.

Lord Simon: Rejected distinction between public and private. The form of the interference should not be focused on whether it amounted to contempt but the fact of the interference itself and its impact on the public administration of justice. If motivated by genuine concern for interests of the litigant, then prima facie not sub judice contempt.
If person has same interests as litigant, this may be acceptable private pressure.

Lord Chelsey: there shouldn’t be an unnecessary encroachment of Freedom of expression.If made advice on facts and fairly stated and free then public interest of freedom of expression should prevail. In circumstances where criticisms are made in private as opposed to public, then this would be acceptable.

NB. In this case it was found that the pressure exceeded the bounds of proper pressure.

Harkianakis v Skalkos (1997)
Facts: H is a greek bishop who sued S for defamation. Issue was bout a costs order and H had the costs order paid out of the church trust fund. S launched an attack in the newspapaer and suggested that H was unfit for office by using the church trust fund.
Issue: Whether the conduct by S amounted to contempt of court by seeking to apply improper pressure on the bishop.
Questions to ask:
1. In making out sub judice contempt for influencing a party, is it necessary that the pressure in fact succeed? - No it is not a pre-requisite. We are dealing with a tendency.
2. Do we ask ourselves about the particular litigant in question or do we posit some hypothetical litigant? - Hypothetical. The ordinary reasonable litigant of normal fortitude. It is sufficient that the ordinary reasonable litigant would be pressured.

Held: (Mason P)
Principles: In Relation to contempt by improper pressure on a party
1.    This being an allegation of criminal contempt, the charge must be established beyond reasonable doubt.
2.    The claimant must demonstrate, to the criminal standard, that the publication had “as a matter of practical reality, a tendency to interfere with the course of justice in a particular case”: John Fairfax & Sons Pty Ltd v Mcrae (1955). In Hinch v A-g (1987), Deane J suggested a “clear tendency.” Wilson J spoke of a need to demonstrate a “real and definite tendency to prejudice or embarrass pending proceedings.” Mason CJ thought that a test of “substantial risk of serious interference” would best reconcile the conflicting demands for a free press and for a fair trial whilst conceding that it was synonymous or virtually synonymous with other authoritative formulations.
3.    Intention to interfere with due administration of justice is not necessary to constitute contempt. (DPP v Wran)
4.    Where however intent has been proved this has usually been sufficient to sustain a prosecution
5.    In judging the real tendency issue, the time relationship between publication and the “particular case” allegedly interfered with is usually significant. The reason is “that the question whether a publication constitutes a contempt of court is answered by reference to the reasonable probabilities existing at the time of publication, one of which is length of time before a relevant hearing might take place:” Hinch. However, delay between publiation and anticipated trial date of pending proceedings is not relevant to contempt by improper pressure on a litigant, because such pressure is capable of diverting the litigant at any stage in the proceedings.
6.    Successful interference with a party’s conduct of proceedings is not necessary for proof of liability for contempt by improper pressure.
7.    There is a question as to whether the tendency is to be measured against the capacity to withstand pressure of the particular litigant involved, or whether the court should have in contemplation some hypothetical litigant of “ordinary” fortitude who might be capable of influence by similar pressure applied in similar circums.
8.    In punishing certain types of interference with litigants, the law is concerned to distinguish between proper and improer pressure.

Balancing competing public interests Start from Bread Manufacturers principle which involves a balancing of competing public interesets, being the interests of a fair trial and the interest of free discussion concerning matters of public concern. The onus of displacing the Bread Manufacturers defence lies on the prosecution.The more intemperate the publications the more likely it will be SJC.

Were the publications applying pressure towards S as a litigant or were they freedom of expression?: In respect to the first 2 articles there was no contempt.
Mason P finds contempt in respect to the 3rd article as H is vilified as a litigant and it has a tendency to deter the claimant in his prosecuton of the main proceedings and to deter a person in the situation of the claimant from continuing to prosecute similar proceedings.

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Continued
6.  THE RELEVANCE OF INTENTION

•    If evidence before court is sufficient show intent to interfere generally or intent to interfere in a particular proceeding, this is sufficient to show sub judice contempt.

Attorney-General (NSW) v John Fairfax & Sons Ltd [1980]
Facts: The defendant John Fairfax & Sons Ltd is charged with contempt of court in publishing a story in “the Sun” which it is alleged was likely, or calculated, or had a tendency to interfer with the proper administration of justice in connection with a charge of murder against John Tun. Tun was a Father accused of murdering 9 month old son who was mongoloid. A journalist in the course of his inquiries was told by a police sergeant that Mr Tan had made an incriminating statement to a polic officer while being driven in a police vehicle. He also learnt that Mr Tan had been charged with murder. In the final editorial names were given and the confession was removed as it had not been given in open court yet. Subsequent articles reffered to Mr Tan by name and his occupation , where he lived etc.
Issue: Had contempt been made out?
Held: clearly, there was a sub judice contempt committed; the alleged confession was not mentioned in open court; the fact that the father had inadequately confessed had the power to sway witnesses because it went to the guilt or innocence of the accused.
The detailed circumstances of the alleged crime provided sufficient identification for anyone reading the report who later was concerned with proceedings resulting from the charge.

NSWCA turned to the issue of intention; in previous cases the principle was that the matter must be published with the intention of interfering with the due administration of justice in the particular case. Recklessness in regards to publication can be equated with intention and support a finding of sub judice contempt more regularly. In this case, the fact that the name of the accused and the child had been omitted did not diminish the seriousness of the contempt committed; found that the course that was taken by the newspaper was calculated to interfere with the proper administration of justice and was also done purposely or recklessly. The court imposed a $10,000 fine and the defendant to pay the plaintiff’s costs

“There is, however, another class of case where a publication will constitute contempt, even though the possibility of interference is remote or theoretical. These are cases where matter is published with the intention of interfering with the due administration of justice in the particular case. Thus a letter written to a judge trying a case, or a bribe offered to him, or an article published in a newspaper, will be contemptuous, if the act was done, or the publication made, with the intention of influencing the judge’s decision in proceedings, even though the possibility that he will be influenced is remote or theoretical.”

Harkianakis v Skalkos
Where intent has been proved this has usually been sufficient to sustain a prosecution

•    Conduct with an intention to prejudice the proper trial of a legal proceeding or the administration of justice, if established, will constitute contempt of court..

R v David Syme and Co Ltd [1982]
Facts: An article was published by the Age which referred to evidence that was submitted by Senior Counsel in open court. The article itself linked Gordon’s death with drug operations of which was was a subject of the trial. Investigative story on the drug trade, and an inset photograph of JG, at the death scene, blasted with a shot gun.
- suggested that death was drug-related murder.  No accused was in fact named, but Antonio and Salvatore Zampaglione and drug operation alleged by the Crown were described in sufficient detail that anyone following the trial, as were the jury, could be left in doubt as to the references made.  It was published during the trial. At the conclusion of the trial all the accused were convicted of offences and sentenced to varying terms of imprisonment..

Held (Marks J): : had to determine whether a contempt had been committed; started by stating that intention to interfere with the administration of justice is not an essential ingredient, but the absence or presence of intention, while not an element of contempt does go to the assessment of penalty. If there is a presence of intention it will go to increase the penalty and vice versa. Established there was a clear case of sub judice contempt and then decided what factors would mitigate and aggravate any penalty imposed for sub judice contempt. Publisher had to pay 70,000, D had to pay 5,000

Mitigating factors: The Age’s high reputation for respectable journalism; format was less dependent on sensationalism; was not tabloid newspaper ; no direct reference to trial and the langage did not reflect at all any aim to influence it; no actual or inferred intention to interefere with trial; the article was directed to a subject of public importance, namely the illegal drug trade in Australia, its consequences for drug users and its effect on the crime rate.Representatives of The Age were sincerely apologetic.

Aggravating factors: The Age should have knowledge of the proceedings in question;
Constructive knowledge; there were junior journalists doing court rounds who could have told the senior journalists; prepared by senior journalists who should have known about contempt of court; the editor had sought legal advice in relation to contempt and defamation prior to the publication; no system of dealing with potentially contemptuous material. Gross negligence on part of The Age.

•    Proof Of intention goes to Penalty; Ignorance of Law not defence; Publication a probable consequence of making statements.

Attorney-General for NSW v Dean (1990)
Facts: dealt with the news conference given on Sunday afternoon in which police officer Dean claimed that Paul Mason had confessed. The A-G prosecuted Channel 9 and also Dean in respect of the news conference. The principle defence by Dean was that he had not intended to commit contempt or do anything vaguely contemptuous. However, proof intention only goes to penalty.

Held: the fact that any contempt was accidental did not mean that contempt had not occurred.  The opponent was a police officer sworn to uphold the law. His statement, although made honestly, were deliberate. They had the requisite tendency to affect the fair trial of Mr Mason by the test of “practical reality” which has been adopted and reaffirmed in Hinch.
“There is no doubt that a deliberate pre-trial statement by a police officer suggesting that a charged person is guilty of the charge is a serious contempt. It interferes in the real and apparent impartiality and independence of the judicial process which the law of contempt protects.”

Arguments:
1. Ignorrance of the law is not a defence.

2. Media should have edited: D submitted that he had fully expected the news outlets to edit him in such a way so that he would not commit contempt or that the media liaison would have stopped him. Held that in this case D could not rely on the news outlets from editing him in such a way to prevent D from committing contempt and the liaison was not obliged to stop D from committing contempt. NSWCA stated that it was the natural and probable consequence of making the remarks that they would be published and it was possible to hold D liable in respect of the remarks. The NSWCA imposed an adverse costs order as penalty; signifying that the contempt committed by D was less significant than that committed by Channel 9 in A-G v Channel Nine.

3. Republication: D said it would be unfair to hold him liable for the re-publication of the information to other media outlets - it was a probable consequence that the information would be re-published.

Mitigatin/Aggravating Factors:The court considered various circumstances such as good character to the public service, expression of regret, no possibility of repetition, no evidence that intended to interefere with trial, extremely tired at the time, aware of the encouragment by media to co-operate. Media should bear the responsibility because not conducted live.

7. PHOTOGRAPHS & IDENTITY

There are three reasons why the publications of photographs may interfere with the administration of justice:

1.    It may affect or confuse the recollection of potential witnesses on the identity and thus prejudice the defence
2.    It may prejudice the prosecution in its case by providing the defence the opportunity to discredit the evidence of the witnesses by suggesting that they have founded the whole of their identification of the accused on the photographs
3.    It may have the tendency to influence the minds of potential jurors by affording them an opportunity to speculate upon the character and personality of the accused.

Why does publishing a photograph become an issue? One of the particular problems about identification evidence is the difficulty that exists where a person, before performing an act of identificaion of an accused, has been shown a photo of the accused.
It is common practice for an accused person to have their heads covered by an article of clothing - It is common practice that people infer guilt in that they want their head to be covered but that is not the case. to protect the administration of justice, protect right to fair trial.

Where identity is not an issue:where defendant admits that they did the act.

•    Publication of Photo contempt if identity an issue at trial

A-G v Time Inc Magazine Co Pty Ltd (1994)
Facts: The A-G sought declarations that the opponents are guilty of contempt of court for publishing matter which was likely, or calculated, or had a tendency to interfere with the administration of justice in connection with the trial of Ivan Milat on seven charges of murder, one charge of armed robbery, and a number of charges relating to the unlawful possession of firearms. No witnesses had professed that they could identify. “Who Weekly” had a feature story on the backpacker killings accompanied by a photograph of Milat. Milat had never admitted his guilt.

Issue: Whether the photograph obtained from Milat’s brother gives rise to contempt?

Test: Whetehr the clear tendency of the publication was, as a matter of practical reality, to interefere with the due course of justice in the prosecution in question? The relevant time for the application is at the time of publication. It is for the claimant to establish beyond reasonable doubt, that the nature and circumstances of the publication were such that  it could be plainly discerned that there was a real or definite possibility that it may prejudice the administration of justice.

When can you use photograph evidence? At the point until it starts becoming sub judice.As at the date of publication, identity was not only an issue, but the central issue, in the case, and there was a realistic possibility that witnesses relevant to the issue might come forwaurd at some future time. Gleeson’s principle: should only publish where you know that a question of identification or identity is not likely to be raised. Gleeson says that it is better overall just not to publish any photographs or footage of accused persons

Held:In the circumstances that existed at the time of publication the clear tendency of the publicationwas, as a matter of practical reality, to interfere with the due administration of justice. Identity was the central issue to the case. Future witnesses may be contaminated by their having seen the photo before performing an act of identification.

•    Matter of “substantial public interest” outweighs detriment to plaintiff. Any remarks made are incidental and fortuitius.

Attorney-General (NSW) v John Fairfax Publications Pty ltd [1999]
Facts: In 1997 SMH published expose on heroin trade. It published photographs of a Mr Duong 5 months before his trial. The article suggested that Duong and an other were responsible for conducting heroin trade in Sydney and Parramatta. Instituted contempt proceedings against Fairfax and said that because articles suggested that uncle six was generally of a bad character and that he was guilty of drug offences, was central to the guilt or innocence.
Argument: It was submitted that they did no more then discuss a matter of great public concern. This was the discussion of public affairs and denunciation of public abuses actual or supposed referred to by Jordan CJ in Ex parte Bread Manufactures Ltd 
The defendant’s (Fairfax) principle submission was that there was a reasonable doubt whether any juror would remember the articles and connect them with  Duong in view of the facts that:
1. At the time of publication the trial was about 5 months away
2. Articles did not canvass subject matter of Duong’s trial or assert that he was guilty of those charges. The fact that he was facing the charges was referred to only in the final paragraph;
3. Mr D was not well-known at the time of publication
4. Publicity was not repeated
5. it was reasonable to suppose that the jurors would adhere to their oath and obey the directions of the trial judge to decide the case only on the evidence admitted at the trial.

Held (Barr J):.Consistent with principles of sub judice contempt, found a contempt of court. By canvassing issues relating to guilt or innocence of uncle six, and suggestion that he was a person of bad character, interfered with the trial and prejudiced him in trial.

However, Public Interest Defence:The ultimate practical question is whether it is reasonably open to say that the detriment to the trial is outweighed by the public interest in freedom of communication..The BM principle requires us to balance any potential interference with administration of justice with freedom of the press/expression. Here Judge found that there was a significant public interest issue regarding the drug trade. Injecting rooms in Kings Cross were in issue. On the proper characterization of the article, the issue was a broader public issue, it was not simply about D. It was clearly a well-researched article. It raised broad issues. The articles and the editorial dealt with matters of substantial public interest.The mention at the end of the article of uncle six’s charges were incidental and fortuitous; they weren’t intentional.

On balance, Fairfax should not be held culpable for contempt of court, because public interest in drug issues (freedom of expression/freedom of press) should prevail over the public interest in protecting administration of justice and fair trial.

•    No pre-ordained balance in favour of administration of justice.

Attorney-General for the State of NSW v X (2000)
Issue: Whether it was reasonably open to his honour to find that the detriment to the administration of justice was outweighed by the public interest in the freedom of communication of the material contained in the publication?

Held: Spiegelman & Priestley questioned whether balancing of competing interests under BM principle was a question of law and held that it wasn’t so could notintervene. As his honour indicated the overall purpose of the articles dealt with matters of substantial public interest.
Principle: There is no pre-determined balance in criminal trials in favour of the administration of justice – the nature of proceedings is merely a factor to be taken into account.

Mason (Dissent): Pre-ordained balance that always favours public interest in right to a fair trial.Where a publication is proven beyond reasonable doubt to have the requisite tendency to interfere with the fair trial of a pending criminal charge where the interference consists of implication or suggestion of guilt or the canvassing of matter directly related to the central issue of guilt, the Bread Manufacturer’s defence is not available.

Continued on page 7
Continued
8. WHAT CAN AND CANNOT BE PUBLISHED

- What can be published: the “bare facts”

What is meant by Bare Facts ?
“By “bare facts” we mean extrinsic ascertained facts to which any eyewitness could bear testimony, such as the finding of a body and its condition, the place in which is is found, the persons by whom it was found, the arrest of a person accused and so on.” A-G (NSW) v John Fairfax & Sons Ltd [1980]
•    The public is entitled to entertain a legitimate curiosity as it is lawful for any person to publish information as to the bare facts.
•    Alleged facts dependent on the testimony of a particular witness which may or may not be true, or which may or may not be admissible the lawfulness of the publication is conditional and depends on whether the publication is likely to interfere with a fair trial of the accused.

Leading HC authority:
Packer v Peacock (1912)
Facts: Peacock was a doctor who was approached by man who impregnated his gf Mary Davies. P approached Peacock and procured abortion for Davies. Peacock was arrested for the murder of Davies. Various newspaper publications released after accused was arrested for murder and before examination of witnesses. All gave the impression that the accused was guilty of the murder charge. Peacock instituted proceedings, said coverage had tendency to affect right to a fair trial.

Held: Contempt of court as the bare facts were not publiched and there are certain things which the media can report. Media have no special privileges, they simply have the rights of individuals.
Bare facts = Extrinsic ascertained facts to which any eye witness could bear testimony. Does not include matters in issue at trial or comment adverse to the accused. E.g. of bare facts - the finding of a body and its condition, the place in which it is found, the persons who found it, the arrest of a person accused, etc (Civil Aviation an example)

-What can be published: fair and accurate report of legal proceedings

•    Reports of judicial proceedings give effect to the public interest in freedom of communication and the concept of open justice.
•    On the other hand the publications of such reports may have the tendency to prejudice the same or other court proceedings and will only be protected from contempt if they satisfy certain conditions.

Conditions for fair and accurate report:
-    Must answer the description of a report. That is it must be confined to an account of the evidence and the submissions based on the evidence - Packer v Peacock
-    The published account must be fair and accurate – the test is that whether the report is one which a person of ordinary intelligence using reasonable care might reasonably regard as giving a fair summary of the proceedings. 
-    An unfair report is one which is partial or biased or which misrepresents the proceedings or which withholds material facts what would put a different complexion on the facts truly reported.
-    A statement made by witness outside of court which would have been ruled inadmissible in court cannot be regarded as a fair and accurate report.
-    Must be published in good faith without malice
-    Must not be published in contravention of court order or injunction.

R v Border Television Ltd (1978)
Facts: G pleaded guilty to four out of twenty charges, mostly dishonesty. Trial actually concerned only 12 charges. Journalist was in court, and the Journal published which counts she plead guilty to a day after trial began. Judge came to the conclustion that the Jury be discharged and the case started again because the reference to those other charges would indicate to the juror that there were other offences beyond those charged.

Held Parker CJ: If you publish material that is said in open court in absence of jury, then it is clearly a contempt notwithstanding that it was said in open court. Can only convey information that the jury is allowed to hear. The action of the newspapers themselves has been to publish material which ought not to have been published and the publication of which is prima-facie a contempt. It follows that journalists must not publish what has gone on in the jury’s absence.

R v Day and Thompson [1985]
Facts: The Truth published an article which referred to a trial of Mel David Brooks who was charged with trespass with intent to rape, rape and attempted rape. It was contended that the article was likely or calculated or had a tendency to prejudice the fair trial of Brooks and the due administration of justice. Voir dire held where defence sought and succeeded in excluding certain evidence obtained while accused was unlawfully held in custody.

Article published on the 6th day of the trial with the heading “Rape Facts Tossed Out”with the sub heading “The Great Evidence Debate”. The publisher and editor of the Truth had been warned by the police-media liaison that that mention of evidence which had been excluded at trial was capable of prejudicing a fair trial.

Held: Judge held that there was a clear contempt made out here, even though voir dire was conducted in open court, the fact that evidence had been excluded was something that the jurors did not need to know about Even reporting fact that evidence had been excluded had potential to affect the right of MB to a fair trial. The article was one that carried a real risk of interference with the course of the trial.

R v Scott [1972]
Facts: Girl claimed to be subject to rituals and sexual assault by man who pretended to be a medical doctor. Scott was the printer and published the story at the time the man was charged. Committed for trial a year prior to publication. DPP insitutted proceedings against printer and publisher of Truth and said that it would interfere with trial.
Defence:  Scott argued that the publication was a fair and accurate report of committal proceedings.

Held: Fairly clear contempt of court as needs to be fair (factual not commentary), needs to be balanced and substantially true. Concluded that the publishers must have known the publication of the article was an interference with the course of justice as it did have a real and substantial tendency to prejudice the trial.

What constitutes a fair and accurate report? It needs to be recognizable as a report, fair and blanced, timely, true and made in good faith.  If strictly factual account, it tells you where it happended and what was said.It is clear if it attempts to recount that which occurred in court without commentary. The article was not in the form of a report of proceedings. It only incidentally referred to judicial proceedings. Nowhere did it state that the purported statements by the girl done so in court under oath or that anything in the story happened at the committal hearing. Indeed as the committal was a year before the article, and the form of the article taken into account it is clear that this is not a report on judicial proceedings. Futhermore it was not made in good faith as the trial was pending in a fortnight. Not accurate as the article suggested that the man was being prosecuted on 4 charges. Trial was in fact onlt concerned with 2 charges. Adverse costs order and fine were imposed.

Factores taken into account for penalty: Timing of publication was far from committal proceedings; Trial was adjourned – prosecution and defence costs; The lurid and sensationalist treatment of material; Even though no intention, the publisher and printer’s recklessness; The motive of profit; Prominence that story acquired on news stands etc;
An apology was only forthcoming from printer and publisher – only after court made finding of contempt

•    Reporting on offences done by persons on bail: On what circumstances can you report that person on bail for other charges?

Solicitor General v Wellington Newspapers Ltd [1995]
Facts: Police constable, Jimmy, was stabbed by screwdriver by John Gillies. G was on bail for a number of charges, common assault and other assaults of police officer at the time of the stabbing. When event occurred, in a matter of days G’s charge against other police officer was about to be prosecuted. Police distributed a photograph of G and let various newspaper outlets know about other charges of G. Photograph of G was distinctive. He had a large tattoo of a bulldog with “forever.”  Came to the attention of a number of newspaper and radio outlets. Newspapers published stories – Hawkesbury Tribune published a larger story about offending while on bail. Stories referred to G’s previous convictions, charges and included his photograph, and referred to him being on bail and assaulting police officer. Radio NZ (editorial staff) aware that issue relating to disclosure of G being on bail. Also realized issue regarding contempt of publishing info that he had previous offences. Sought legal advice. Didn’t broadcast contentious material, until there was a changeover of shifts, so next shift broadcasted contentious material.

Held: Radio NZ, even though they had published contemptuous material, they escaped the finding of contempt because of the fact that they had not broadcast it again, had taken reasonable steps to ascertain they would not be held in contempt. Case relates to the circumstances that it can be disclosed that someone is on bail

Starting point: if you disclose previous convictions this is clear sub judice contempt. The issue in this case is how to go about talking about the fact that someone is on bail. Publication depends on the circumstances;
1st category: a mere report that the offender was on bail with no reference to any previous offences creates a danger in itself. If it is said in open court that the conduct giving rise to the fresh charge was committed when the offender was on bail, then this may be reported depending on whether the charge is unrelated to the fresh charge. However, may need to protect position by stating that the person is on bail for something that was wholly unrelated.
2nd category: states that the accused was on bail and listed the charges of violence. Mores serious as it has real tendency to prejudice trial.
3rd category: reports that the accused was on bail, listed the charges and stated that police comments . Highly prejudicial.

- What can be published: fair and accurate reports of statements made in Parliament about pending proceedings

Fair and accurate report of proceedings in Parliament which are made in good faith is acceptable.

A-G v John Fairfax & Sons & Bacon (1985)
Facts: Wendy Bacon was a journalist working on the National Times newspaper.At that time Roger Rogerson was committed for trial for an attempt to bribe a police officer.
RR was a polic officer and accused of operating protection rackets and accepted payments from drug suppliers, accepted bribes, protected peadophiles, murdered Lanfranchi. Significant allegations of police corruption and Bacon wrote a large investigation piece and looked at the political impact of the corruption. RR was facing charge of attempted bribery. AG instituted proceedings against Bacon and Fairfax alleging that the article could interfere with the administration of justice on Roger’s pending trial. The reference to R’s trial only covered a small part and noted his charge but did not canvas whether guilty or innocent or the material of the charges.
Held: McHugh: found no contempt made out:
1.    discussion of upcoming trial of RR didn’t canvass issue of whether he was guilty of charge
2.    accepted that tenor of article suggested that RR was disreputable character, but all these allegations were on public record already. They were reported as allegations, not as statements of fact. Most people making allegations were prisoners and prostitutes and victims, people would take this into account
3.    it was possible for readers to form their own opinion

Concluded that no contempt was made out; one argument Fairfax was going to argue is that the public interest in police corruption generally should prevail against any danger of prejudice against R and the administration of justice more generally. Because of the fact that there was no contempt, it was unnecessary to consider this fact, but noted that in respect of statements made from the floor of the House, because they were quotes from Hansard and purported to be fair and accurate reports, they would clearly be protected comments and would not amount to a contempt of court.

- What can be published: Matter of overriding public interest

The Bread Manufacturers case and BLF Case are examples of what can be published as matters of overriding public interest. Essentially involves the balancing test for contempt in these cases and circumstances when the public interest free speech outweighs detriment to the accused.

- What cannot be published? Words directed at issues to be decided at trial (see DPP v Wran, A-G v Deane)

DPP v Wran (1986) 7 NSWLR 616: statements as to the innocence of the accused can equally fall within the scope of contempt as statements as to the guilt of the accused. The words spoken by W were ones that went directly to the issue to be determined by the jury of the new trial (the guilt or innocence of Mr Justice Murphy) and because the statements were made to radio journalists by a prominent government figure and therefore there was a great likelihood that the comments would be published, there was a strong possibility that the statements might interfere with the due administration of justice in the new trial

A-G v Dean (1990)
Facts: Statements made in conference by police officer that accused guilty.The statements were broadcasted across all the TV channels and reported in newspaper.
Held: There is no doubt that a deliberate pre trial statement by a police office suggesting guilt is a serious contempt. Statement suggesting a person’s guilt is a serious contempt
Impossible to say that he did not know that the information would be publicised where it was given in context of a press conference.

Mitigating factors: Good character; no evidence that detective intended to interfere with fair trial; he was tired, did not have time to reflect on answers and did not have experience in media conferences (unlike Wran), and relied on interviewer for guidance and thought that it would be edited. No penalty imposed.

Attorney-General (NSW) v Radio 2UE Sydney Lty Ltd and Laws
Facts: Michael Conelly was accused of murdering an infant named Arie, son of MC’s de facto. He was prosecuted for murder in SC. On first day of trial, MC suggested that he was willing to plead guilty to charge of manslaughter but not murder. Prosecution rejected plea. John Laws had read newspaper reports of proceedings of trial, on morning of 2nd day of trial made report during his “Scumbag session”:
“this fellow’s gotta go in the bad…MC is scum…he admitted killing a boy…plea bargaining…the child was found beaten so badly he died…how is that not murder?... Her name is…” Trial before Justice Simpson had to be aborted. A mistrial is declared.

Held: Broadcast was highly prejudicial. Given the size of his audience the publication had a real tendency to influence the minds of potential jurors. Imposed 250000 fine on 2UE and 50000 on Laws.
Meagher J (dissent): thought that Laws should go to gaol for a few months, should pay for costs of re-trial. He also opposed the $50,000 for 2 reasons; firstly that the amount would go nowhere near the costs the state would incur as a result of the aborted trial and also that $50,000 would be a ‘slap on the wrist’ for Laws.

2 important principles: following this prosecution, a bill was presented that sought to hold media companies liable for contempt as liable for costs of the trial that was aborted (one of the problems is that if there is a contemptuous publication that delays the trial necessarily incurs greater costs and it can be said that the contemptuous publication was the source of that). The bill was lapsed but query whether the Supreme Court Act has the power to make such an order irrespective of any statute. Also, the radio station had no system in place to guard against sub judice contempt

DPP v Francis (2006) SASC 211
Facts:  Francis committed sub judice contempt and interference with the administration of justice on a continuing process. He heard that a man had been arrested for child pornography but hadn’t been committed to trial yet. The man was charged with possession of child pornography in form of diaries he kept in which he had names of 10 year old girls. For a minor indictable offence – accused person may elect to proceed by trial by judge or trial by jury. At time of broadcast, that election had not been made. On broadcast F named the accused person, the charge, canvassed the evidence, suggested that magistrate was acting outrageously because he was entertaining notion that bail application may be accepted. Suggested that people should bash the magistrate, “if I was saddam Hussein I would blow his head off now.”
Issues:
1. format which exposes people to risk in the media is still used, even after Laws
2. nature of the charges brought against F – material gives rise to sub judice contempt; naming of person; naming of charges; trial by media; tendency to expose to hostility.
3. Publication gives rise to interference with administration of justice by scandalizing the court. Contempt by scandalizing the court. Does the publication reflect on the integrity of the court/judiciary as an institution. This case illustrates the bridge between sub judice contempt and scandalising the court
Held: Sentence expected to be passed soon.

Continued on page 8
Continued
(ii) INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE AS AN ONGOING PROCESS
1. SCANDALISING THE COURT

What interests does this category of contempt serve?

•    Scandalising the court is concerned with preserving public confidence in the administration of justice as a continuing process.
•    It is based on the notion that the authority of the courts and the law they administer must be maintained so that the public will have confidence in the courts, be willing to institute judicial proceedings and exhibit a general satisfaction with judicial determinations: (Gallagher v Durack)

What Constitutes Scandalising Contempt

•    Any act done or writing published calculated to bring the Court into contempt or to lower its authority is a contempt of court: R v Gray, R v Dunbabin; ex parte Williams
•    Not used for the protection of the judge’s personal reputation, only so far as to how it affects his ability to perform his duties as a member of the judiciary.
•    Must have an inherent tendency to impar or undermine public confidence in the administration of justice: AG (NSW) v Mundey
•    Whether the publication has the tendency is measured by its impact on a reasonable person. Bell v Stewart (1920) 28 CLR 419 at 425 or the ordinary reader: Dunbabin
•    When assessing the tendency of the publication courts have been known to consider the following factors:
o    Size and location of the readership – Mundey
o    Form of the publication and whether the maker of the statements was a well known and respected public figure, thereby lending credence to the allegations made in the publication – Gallagher v Durack
o    Unlike sub-judice contempt scandalising contempt can be committed at any time. It is not necessary that proceedings be pending.
o    It is only necessary to show that the contemnor intended to publish the material in question, it is not necessary to show that they intended to scandalise the court or lower its authority. – Mundey

R v Dunbabin; ex parte Williams (1935)
Facts: Litigant challenging constitutionality of the law in relation to broadcasting. Sun Newspaper published article critical of HC, suggested that the High Court in at least 2 named proceedings took an overly technical approach and was uncooperative. In this case, the claimant wasn’t party to any proceedings that the publisher of the Sun was also a party. The contempt committed was not that the editorial interfered with the administration of justice, but that the publication tended to bring the High Court into disrepute and as a consequence, undermined public confidence in the High Court as a judicial institution.
TheSun newspaper published an article which it was alleged:
1.    tended to prejudice the applicant in an appeal then pending before the high court
2.    constituted a serious attack on the court
3.    tended to scandalise the court and was an attempt to overawe or intimidate the court by insult and defamation and was calculated to deter actual and prospective litigants from complete reliance upon the courts administration of justice
4.    was specially calculated so to deter actual or prospective litigants who bring before the court any question of the constitutional validity of any commonwealth legislation.

Held : (Rich J) Any matter is a contempt which has the tendency to to deflect the Court from a strict and unhesitating application of bthe letter of the law or, in question of fact, from determining them exclusively by reference to the evidence. Equally scandalous are publications that tend to detract from the impartiality or integrity of the particular judge/court/court system generally. The purpose of the type of criminal offence is not to provide a private remedy; it is not a grievance system for judges but to maintain public confidence in the court system generally. If there is something that reflects adversely on the reputation of an individual judge, they can sue for defamation. Apply an ordinary reader test. Found obscure criticism to be contempt.

Starke J: Any act dones or writing publicised calculated to bring the court into contempt or to lower it’s authority is a contempt of court. The article clearly and beyond reasonable doubt is calculated to bring the Court into contempt and to lower its authority.

Attorney-General (NSW) v Mundey [1972]
Facts: Philips and Pringle, an employee and the president of a trade union were charged with malicious injury to property. They had damaged a set of goal posts in protest against an invitation to the South African Ruby Union to play in Australia at a time when the apartheid policies were still active. On the day of sentencing several hundred members of the union was present at the court house. The Defendants were fined and placed on a 3 year $1000 good behaviour bond. Mundy the secretary of the union was in court when the sentence was pronounced. Outside the court house he gave the press an impromptu interview, only 1.5 mins were broadcast out of 6 mins. He made the following allegations:
1.    the trial and sentences were a miscarriage of justice and the counsel was restrained from giving important material
2.    the judge was a racist and demonstrated the extent to which racism is ingrained within Australian society.
3.    the spontaneous action of workers walking off jobs and the fact that the union was calling a national strike had made the racist judge change his mind about sending the Defendants to jail.

Held:
Seems to be 2 qualifications:
•    Criticism will constitute contempt if it is merely scurrilous abuse. It should be very strong.
•    May constitute contempt if it “excites misgivings as to the integrity, proprietary and impartiality brought to the exercise of the judicial office.

Hope J: reviewed relevant principles from Dunbabin and principle of freedom of expression and examined the 3 grounds. The 2nd was the allegation that the judge was racist. In this case, he stated that in the larger context this may be an observation that may be agreed with or not, it was one that M was entitled. Because he explained what he meant, he was unwilling to find that it reflected upon the integrity of the trial judge and was scandalous of the court. He found that the comment was one as to Australian society in general. People are allowed to have freedom of expression as long as does not detract from the authority of the court.

The 3rd ground was dealt with differently; the suggestion was that in this case the trial judge, rather than being appropriate and applying relevant sentencing principles, had been affected by the setting of the court. This had the tendency to undermine confidence in the court and amounted to scandalising the court.  it inferred that the judge had decided to send the Defendants to jail but had changed his mind because he was overawed by the actions of the workers. This constituted a contempt of court as it tended to induce a lack of confidence in the ordered and fearless administration of justice.

Penalty: in this case, the NSWCA was told that the ABC had not been prosecuted, neither had Channel 9 nor 10. The ABC was the most likely media outlet to be prosecuted, but from the bar table they were told that the government, through the Governor, would pardon the ABC. The A-G chose to prosecute M alone and was instructed that the government would pardon the ABC and so there was clearly some level of government interference. He took this into account; noted that M didn’t seek out the media, they sought him, also noted that M’s comments were more expansive than those comments as reported and he had in fact explained his position and due to the editing his comments were made to seem more contemptuous than they in fact were. Because of all this, the court made a declaration that M had committed contempt and ordered him to pay the costs of the contempt proceedings

Gallagher v Durack (1983)
Facts: G  was a senior official with the Labourer’s Association and Keeley J founf him in contempt of court and sentenced him to 28 days in prison. After a successful appeal from an earlier conviction Norm Gallager, then federal secretary of the Australian building construction Employees’ and Builders’, Labours’ Federation made the folowwing comment outside the Federation quarter: “I’m very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs…… I believe that that has been the main reason for the court changing its mind.”

Prior to the interview he had distributed to those present copies of a resolution passed by the Federation which contained in part: “the decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives is the key to the reversal of the decision to jail Norm Gallagher.”
Fresh contempt proceedings were issued. Contempt was found, G appealed all the way to HC.
Held: Majority reinforced principles set out in Dunbabin and test of Rich J.The Federal court held that the statement was a contempt of court and sentenced him to 3 months jail. This was upheld by the High Court. In considering whether the statement was calculated to lower the authority of the court the High Court held that he was known to the Australian public, as well as being a union leader. This may mean that some members of the public will more readily accept the assertions as true. Especially as it is known that sometimes employers and governments have been pressured by trade unions.

Need to balance two interests:
1. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the adminiatration of justice, even if the comment is outspoken, mistaken or wrong-headed.
2. The other principle is that “it is necessary for the purpose of maintaing public confidence in the administration of law that there shall be certain an immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority:” Per Dixon J Dunbabin

Murphy (dissent): held that the principles espoused in R v Dunbabin placed an undue limitation on freedom of expression and advocated the adoption of American decisions which require a clear and present danger to judicial administration.

‘Bully Barrister Fined for Cretin Comment’: Declared that magistrate was a cretin .In this case, Chesterman J entertained the notion that the barrister should be jailed, but accepted a fine of $40,000 taking into account the fact that Mr. L only earned $30,000 a year as a QC.

The corresponding obligation of the court in conducting trials:

Principle: Courts should conduct themselves in a way that is impartial

Damjanovic v Sharpe Hume & Co [2001]
Facts: D was self-reprsenmted litigant. Asked to have a person to assist him with proceedings. She wasn’t a lawyer. Trial judge at district court was not helpful to the self-represented litigant. In fact was interefering with trial being hostile and cut off relevant lines of inquiry. One of the grounds of appeal was that the judge had conducted the proceedings by themselves.
Held: The NSWCA, in setting aside the judgement and ordering a retrial, reinforced the vital nature that trial judges, not only demand respect but in the way in which they conduct their courts, earn that respect. Stated that it is important that parties have a fair hearing and feel they have received a fair hearing. Reinforced the fact that courts can ensure that their integrity and reputation for impartiality is maintained by conducting courts fairly and openly and with as much justice as is possible to the parties (actual as well as the perception of justice) Must be patient when there are self-representing litigants. It is not only via contempt proceedings that court can be scandalized. Courts should maintain their reputation by operating fairly.

Defence of Fair Comment

•    Not every publication will constitute scandalizing court

R v Nicholls (1911)
Facts:  N was the editor of the Hobart Mercury, which published article critical of Higgins J “ A Modest Judge” suggesting that he was politically subservient and biased. It critised his impartiality and proceedings where Higgins rebuked people for speaking ill of govt.
Issue: Whetehr publication in question was a contempt? If so was there a defence?
Held: Technically any publication which has tendency to lower integrity of court or judge is scandalizing the court and contempt.In joint judgment this was rejected – it was too wide. They said there must be some latitude for freedom of expression for free comment. Because courts are public institutions, it must be expected that they will be subject to fair criticism, as long as it based on facts, and made in good faith.Court found that the criticism was not contemptuous as it amounted to a fair comment

•    In Nationwide News Pty Ltd v Wills (at 67-68): Deane and Toohey JJ indicate that justification and fair comment may be relevant defences to contempt.

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Facts: Case involved a section of the Industrial Relations Act 1988 (Cth) which made it an offence to use words calculated to bring the Australian Industrial Relations commission into disrepute. It was contested that the section infringed the implied freedom of political discussion and was therefore beyond the legislative power of the Commonwealth.
Held: It was legitimate and justifiable in the public interest to impose some legislative control on the kind of attacks that could be made on the commission, or its members which would be calculated to bring the commission, or its members into unwarranted disrepute. The objection is that it was not confined to attacks which were unfounded and illegitimate but prohibited all criticism whether or not it was true and fair.

Some members of the court contrasted the legislation with the common law offence of scandalising the court, where it was claimed that the defences of truth and fair comment are available. – Deane and Toohey (67-68) also Mason CJ (32-33) and Dawson (90)
2. REVEALING JURY DELIBERATIONS

•    This area is problematic because there is common law authority and statutory defences.
-Common Law

•    At common law the duty to keep jury deliberations secret is a convention or rule of conduct not a rule of law. Nevertheless they duty has been described as a solemn obligation of secrecy.
•    TEST: Disclosure of jury deliberation may but is not necessarily contemptuous. Each disclosure must be judged in the light of all the circumstances in which the publication complained of took place and there must be special circumstances calling for condemnation. AG v New Statesmen
•    It is likely that special circumstances calling for condemnation would be held to exist if a publication was made for the purpose of attacking a juror or if a juror was paid for their account. Such a publication would tend to deter people from acting as jurors or from performing their duties properly and thus constitute an interference with the administration of justice.

Attorney-General v New Statesman [1981]

Facts: Prosecution of Thorpe, leader of liberal party in 1970s in England. Conspired to have his homosexual lover killed because he threatened to go public. The hitman, Mr Newton goes down for murder, goes to press and suggests a conspiracy. Thorpe and other functioneers of the liberal party are then prosecuted for murder. Editor of New Statesman magazines had journalists follow the trial and the jury acquitted all of the politicians and it only took them 52 hrs to deliberate. Editor formed the view that the jury raised more questions than answers.

One of jurors came forward voluntarily and disclosed to journalists what had occurred in jury room – jury was concerned that there was uncorroborated evidence by tabloid newspapers; the Crown had chosen to only proceed with the murder charges, despite not pursuing lesser charges. New Statesman then published article which revealed jury deliberations. The article disclosed the  juror’s account of significant parts of a jury’s deliberations and others for conspiracy to murder.

Argued: The AG argued that the article involved an interference with the administration of justice as a continuing process for the reason that the disclosure of what occurred in the jury room had a tendency to imperil the finality of jury verdicts and thereby diminish public confidence in the general correctness and propriety of such verdicts and would affect adversely the attitude of future jurymen and the quality of their deliberations.

Issue: Did it constitute contempt of court?

Held: It was found that there were no special circumstances (e.g. undermining finality of judgment, etc) which warrant finding of contempt. Essence of publication in question was simply the fact of disclosure. Nothing more prejudicial arising then that.  The juror gave an unsolicited interview, without reward. The editor of the magazine also published the article in an honest belief that that nothing but good would result from the publication. Also, the deliberations were revealed to inform jurors of what to expect when summoned for jury service, not to scandalise the court and was a piece of investigative journalism published in a reputable magazine.

Factors in reaching conclusion: One off attempt; Reputable journalist; Clear matter of public interest; Editor had honest belief in importance of publication; No interference with trial of T; No undermining of finality of verdict; Simply a justifiable raising of concern of various issues.

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•    Intent to elicit comment from jurors amounts to contempt.

Solicitor-General v Radio New Zealand [1994]
Facts: T was tried and convicted of murdering 2 swedish tourists, at time of conviction the bodies had not been found. Following the bodies being discovered Radio NZ decided to make theor own investigation and rang each juror asking them about the discovery of the bodies and whether that changed their mind as to the guilt of T. T was in middle of appeal at the time. 8 of the 9 jurors were contacted.  8 of the jurors expressed outrage. One juror did not and said that she felt guilty that she had made the wrong decision. Radio NZ used material acquired from jurors for a broadcast which had an audience of 670 000 people. Contempt proceedings were initiated.
Issue: Whether or not disclosing jury deliberations amounted to contempt of court?

Held: Not every approach to a juror is a case of contempt. however in this case it was done so with the intent to elicit comment about the verdicts, and jurors’ views on the discovery of new evidence. The approach to jurors was systematic showing a determination to obtain publishable material.  Found to be an aggrerious form of contempt. There was a clear  intention to broadcast the material. There was an overwhelmingly corrosive tendency to undermine the administration of justice. The nature of the publication would make jurors not want to be jurors.Broadcasts were repeated more than once.

Issues raised in revealing jurors identity: There was an open breach of the secrecy of the jury room, making it plain to future jurors in a highly public way that jury service was not necessarily anonymous.  The statutory protection of names, addresses and telephone numbers was also an exceptional one. Need for candour- if people knew that deliberations were to be criticized or used by media this would inhibit them. Dimunition of quality of justice.

Factors used to determine  contempt: contents of the statements published;the timing of the publication; size of the audience; what is likely nature and duration of the statements being made

This case was distinguished from A-G v New Statesman as the revelations did not raise any legitimate matters of public concern and achieved no more than the titillation of the listening public. Thus contempt of court made out.

- Statute – Jury Act 1977 (NSW)

68 Disclosure etc of identity or address of juror
(1) A person shall not, except in accordance with this Act, wilfully publish any material, broadcast any matter or otherwise disclose any information which is likely to lead to the identification of a juror or former juror in a particular trial or inquest.
Penalty: In the case of a corporation, $250,000; in any other case, 2 years imprisonment or 50 penalty units (or both).
(2) Subsection (1) does not apply to the identification of a former juror with the consent of the former juror.
(3) A reference in this section to the identification of a juror or former juror includes a reference to the disclosure of the address of the juror or former juror.
(4) Subsection (1) does not apply to the disclosure of information by the sheriff to any of the following bodies or persons for the purposes of an investigation or prosecution of a contempt of court or an offence relating to a juror or a jury:
(a) a court,
(b) the New South Wales Crime Commission,
(c) the Independent Commission Against Corruption,
(d) the Police Integrity Commission,
(e) the Australian Crime Commission,
(f) the Director of Public Prosecutions,
(g) the Police Service,
(h) the Australian Federal Police.
(5) Subsection (1) does not apply to the disclosure of information by the sheriff to a person in accordance with an authority granted by the Attorney General for the conduct of a research project into matters relating to juries or jurors.
(6) In this section: "court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions
•    It is an offence to willfully publish anything to identify a juror or former juror. (1)
•    It is not an offence if the juror consents. (2)
•    Disclsure of address encompasses identification. (3)
•    Exception (4) & (5)

68A Soliciting information from or harassing jurors or former jurors
(1) A person must not solicit information from, or harass, a juror or former juror for the purpose of obtaining information about:
(a) the deliberations of a jury, or
(b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in a trial or coronial inquest.
Maximum penalty on indictment: imprisonment for 7 years.
(2) The deliberations of a jury include statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations.
(3) Subsection (1) does not prohibit a person from soliciting information from a juror or former juror in accordance with an authority granted by the Attorney General for the conduct of a research project into matters relating to juries or jury service.
(4) Subsection (1) does not prohibit any of the following bodies or persons from soliciting information from a juror or former juror for the purposes of an investigation or prosecution of a contempt of court or an offence relating to a juror or a jury:
(a) a court,
(b) the New South Wales Crime Commission,
(c) the Independent Commission Against Corruption,
(d) the Police Integrity Commission,
(e) the Australian Crime Commission,
(f) the Director of Public Prosecutions,
(g) the Police Service,
(h) the Australian Federal Police.
(4A) Subsection (1) does not prohibit a juror from soliciting information from another member of the jury during a trial or coronial inquest.
(5) In this section: "court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
-    s 68A – creates an offence of soliciting information from or harassing juror for purposes of obtaining infor about deliberations of jurors.
-    What is meant by deliberation of jury (2)
-    Needs to be read in conjunction with s 68A(2) and s 68A(5)
-    Exceptions (3) & (4)

68B Disclosure of information by jurors etc
(1) A juror must not, except with the consent of or at the request of the judge or coroner, wilfully disclose to any person during the trial or coronial inquest information about:
(a) the deliberations of the jury, or
(b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in the trial or coronial inquest.
Maximum penalty: 20 penalty units.
(2) A person (including a juror or former juror) must not, for a fee, gain or reward, disclose or offer to disclose to any person information about:
(a) the deliberations of a jury, or
(b) how a juror, or a jury, formed any opinion or conclusion in relation to an issue arising in a trial or coronial inquest.
Maximum penalty: 50 penalty units.
(3) The deliberations of a jury include statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations.
(4) Subsection (1) does not prohibit a juror from disclosing information to another member of the jury during a trial or coronial inquest.
-    S 68B(1) while trial is on foot it is an offence on part of jurors to disclose anything.
-    S 68B(2) – juror or former jury cannot disclose for fee, gain or reward
-    S 68B(3) – what constitutes deliberation of a jury.

How do the common law principles interact with the statutory provisions?

•    Whether the common law supplements or coexists with the Jury act - this has not been the subject of authority.

 R v Laws [2000]
Facts: Murder trial where 2 men are acquitted of murdering a third man. The jury took a very long time to deliberate. One juror, Mrs Hansen, was convinced that the 2 men had been guilty but her will was overborn in the jury. H went to whitepages and called deceased’s mother, and apologized and disclosed in detail what had happened in the jury room. The mother rang Daily Telegraph which published story. A mututal friend of Hansen and Mrs Laws said for John to ring H. John’s producers telephoned Mrs H and got her approval to appear on air.  L then asked a series of questions about the jury deliberations. Charged under s 68A(1) – attempting to solicit info from a former juror.  

Held: (Wood J)Found Laws guilty of contempt. Original penalty for breach of s.68A is 7 years imprisonment. However, sentenced Laws to 15 month imprisonment, suspended to good behaviour bond

Factors considered in Sentencing:
1.    Laws argued that the penalty should be minimised however the judge held
    ignorance of the law is no excuse.
2.    Laws said he was motivated by a genuine concern for H.But crux of interview
was not H’s welfare, but what happened in the jury room. Wood suggested that it
should have been conducted off air not on radio
3.    Laws has poor track record for contempt of court
4.    Laws was a high profile person; ought to have known that this was wrong
5.    Size of his audience

3. BREACHING OR UNDERMINING COURT ORDERS OF SECRECY

•    If you do not have actual or constructive notice of injunction then you cannot interfere with court orders of secrecy.

Attorney-General v Times Newspapers [1992] (Spycatcher Case)
Facts: MI5 operative had stories and decided to write memoirs (Spycatcher). Atempted to have it published in the UK & Australia. A-G instituted proceedings in High Court of Justice for breach of confidence and Breach of Official Secrets Act. An interlocutory injunction  was set against him. As a protective mechanism, English A-G also instituted proceedings in SC of NSW. The Guardian and the Observer began reporting proceedings
and traversed material which was discussed in open court. A-G instituted contempt proceedings against Guardian and Observer. Further newspapers also reproduce material of Right’s allegation.
Issue: Is it contempt of court by non-party publisher to publish material which had the publisher been subject to injunction have been a contempt of court? No. injunction only binds parties to the proceedings.
Appeal to HOL: (In the meantime a book is published in the US)
Issue: if a publisher is not subject to injunction can the publisher publish material that is subject to the injunction?? If a third party, by their conduct has knowingly impeded or interfered with the administration of justice by the court then they cannot publish (Lord Brandon) Main issue is preserving the administration of justice - so the fact that injunction only binds the parties bound by the injunction doesn’t preserve administration of justice.

Question is whether there was actual or constructive notice? If they have no actual or reasonable means the publication might not have a tendency to interfere with the administration of justice.

Held: Not in breach of injunction against the Guardian and the Observer.It is irrelevant if the third party is aiding and abetting the parties to the injunction or whether they are acting of their own accord. Knowledge is the key component.Interference with the administration of justice is not defined but it was held that where the act in question destroys the subject matter of the action in whole or part before the trial of the action the purpose of the trial will be wholly or partly nullified.

•    Knowledge of concealment amounts to contempt especially in blackmail as it would deter people from coming forward.

R v Socialist Workers Printers and Publishers [1975]
Facts:  Prosecution on foot for blackmail. Two victims of the blackmail Mr Y & Mr Z gave evidence at trial on the condition of anonymity. The  proceedings occurred before a jury and  towards the end of trial, the Socialist Worker’s editor published a work entitled “Why oh Lord Y” which disclosed the name and address of Y & Z. Crown proceeded against Socialist Workers.
Issue: Whether or not it was an interference with the administration of justice by breaching or underminging a court order of secrecy?
Held:Court proceeded on basis that there was interference with administration of justice as an ongoing process because of breach of secrecy.Contempt had been made out – order had been made to protect the identity of the persons. The court order put ppl on notice in the court room. If blackmail victims had been named, blackmailers would get away with their crime. In the published article Mr Foot showed that he knew that the concealment of the witnesses’ was being done with the approval of the judge. Publication of name and identity had tendency to undermine administration of justice.

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•    No contempt if evidence submitted in open court and not suppressed.

Attorney-General v Leveller Magazine [1979]
Facts:  Commital proceedings before a magistrate. Defendant accused of breaching the Official Secrets Act. One of the witnesses was an army colonel and was to be referred to as Colonel B.  In cross examination it was disclosed that he was in a particular regiment and housed in a particular place, and that identity of person could be established from a particular magazine. This was not objected by counsel nor suppressed. The Leveller magazine then published an article with the identity of Colonel B.
Issue: Whether contempt of court?
Held: Primafacie it is contempt of court because the colonel is identified however the evidence was admitted in open court which would allow anyone to find out identity of Colonel. If court wanted to guard the identity of a person, they should ensure that the evidence is not disclosed in open court, there should have been a suppression or even a direction. No contempt found.

Attorney-General (NSW) v Mayas Pty Ltd (1988) – question of notice
Facts: A reporter went to a local court where there was a prosecution for a sexual offence before a magistrate. Before the reporter arrived, magistrate ordered that disclosure of offender was prohibited, non-publication order. Reporter referred to complainant by name in her report. When the newspaper published its report, it was not aware that the order that had been made.
Issue: Whether contempt of court had been committed because there was breach of an order of secrecy?
Held: Contempt found
Mahoney JA: It is not necessary in this case to consider whether the order was made in excess of the lower courts inherent jurisdiction. The media still has to abide by order even though invalidly made. The kind of contempt which is in question is the interference with the administration of justice in the particular case. While in some situations a reporter may be required to make inquiries in relation to criminal cases this is not one of them. The defendant did not know of the order, nor did they wilfully turn a blind eye to the issue.
McHugh J : The law imposes no special duty on the media to ascertain whether a non publication order is in existence. In cases where the order is made with out authority, the order is invalid and need not be obeyed. However if the order was made improperly with jurisdiction it must be followed until it is repealed. Breaching the order in this case is still contempt . Person has to have actual knowledge or reasonable grounds to suspect that the order was made.The employee of M could have approached court order to find out that suppression order had been made.

(iii)  IMPROPER CONDUCT IN COURT

Major area: refusing to disclose conduct under oath.

•    A witness at a trial is required to answer questions what would provide relevant and admissible to the court. A witness who refuses to do so without a lawful excuse is guilty of disobedience contempt. It is a lawful excuse to refuse to answer a question if it involved the disclosure of confidences in one of the classes of privilege recognised by the law.
•    This obligation can cause dilemmas for journalists who are not part of a class of privilege protected by the law.
•    When faced with a perceived conflict between their duty under the law and their duty to abide by any undertakings to their informants to maintain silence, journalists must discharge their duty to the law as the public interest in all evidence being placed before the court outweighs any interest in journalists maintaining confidences. McGuiness v AG of VIC

•    Refusal to answer question amounts to contempt

McGuiness v AG of VIC (19409) 63 CLR 73
Facts: Allegations of bribery made by McGuiness and the Royal Commission conducted an inquiry into them. Mc Guiness was a witness in the in the trial and refused to answer a question which inquired after the source of the information upon which the article was based.

Held: Journalists do not have a special privilege against disclosure of sources. Also recognised that as a matter of practice, plaintiffs in defamation trials cannot obtain discovery of a newspaper’s sources. However, the issue here was the refusal to answer the question and distinct from the discovery process. Hence, contempt made out.

“For it is said that newspapers will not be able to discover the truth and publish it unless when the courts of justice in their turn want the truth pressmen in who it has been confided are privileged to withhold it. It is easy to unde understand that editors and other journalists would find it some help in their search for news if they were able to assure those in possession of information that they could secretly impart it without fear that courts of law would be able to discover its source. Privilege from disclosure in courts of justice is exceptional and depends upon only the strongest considerations of public policy. The paramount principle of public policy is that the truth should always be accessible to the established courts of the country” - per Latham CJ.

“… an inflexible rule was established that no obligation of honour, no duties of non disclosure arising from the nature of a pursuit of calling could stand in the way of the imperative necessity of revealing the truth in the witness box. Claims have been made from tiem to time for the protection of confidences to trustees, agents, bankers and clerks among others and they have all been rejected” - per Dixon J

•    Deliberately not remembering amounts to contempt.

Keeley v The Honourable Mr Justice Brooking (1979) 143 CLR 162
Facts: Keeley was a witness in the trial and the answers he gave in relation questions of bribery and solicitation of bribery was evasive. K argued no finding of contempt because he had given evidence but couldn’t remember anything. (In other words deliberately forgot.)

Found:It is possible to implicitly refuse to answer questions. In this case, by pleading ignorance, the cumulative effect was to indicate that he was in substance refusing to answer questions and therefore the effect was to obstruct the administration of justice. Journalists cannot avoid disclosure of a source by pleading they ‘do not know’ because the court will assess whether they are, in substance, obstructing justice. The court warned that care needs to be taken in finding guilt when someone pleads ignorance repeatedly (if someone appears to be making a genuine attempt to provide evidence then that will go to the suggestion that they are not obstructing justice).

Potential overlap between contempt and perjury:
•    In Keeley, his conduct could be both a contempt of court (obstruction of justice) and also perjury (false evidence)
•    In prosecuting for contempt and perjury, would prosecute for contempt first (because contempt is dealt with summarily and it is easier to prosecute for this)

(iv) DISOBEYING COURT ORDERS

Civil contempt: The 4th category (disobeying court orders) is a civil contempt (from Witham v Holloway): can only be brought by parties to a proceeding and a party to a proceeding can also waive breach of that order. Also, note that a civil contempt (breach or non-compliance) can transform itself from a civil contempt to a criminal contempt if the breach is wilful, deliberate and contumacious.

Elements:
•    A court order must be clear and unambiguous to be effective
•    Civil contempt is only transmutable to criminal contempt if it is contumacious
•    It is irrelevant if the court orders are breached by others. Those named must abide by the court order.

•    Following case sets out the requirements of clear and unambigiuos court order and that Civil contempt is only transmutable to criminal contempt if it is contumacious

ACP v Morgan (1965) 112 CLR 483
Facts: M was a pollster who did research as to the likely outcome of an election. ACP got notice of this and published this information, after which M instated copyright infringement proceedings. ACP settled these proceedings and as part of them gave an undertaking not to use any of M’s research in the future. In 1961, after the election, M did research as to this, and ACP then again published information taken from this. M then institutes breach of copyright proceedings in the Supreme Court of NSW and seeks an interlocutory injunction to restrain ACP from using any of the material in which it owns copyright. In 1963, the injunction proceedings hadn’t been resolved, and again ACP uses information from M. In the proceedings, M applies to the judge for a finding that ACP has committed a contempt of court. The judge imposes a ₤1,500 fine on ACP, who then appeals to the High Court.

Issues:
1st issue is the way in which the initial judge dealt with the proceedings; the problem was that the contempt was made in respect of an interlocutory order which was to restrain ACP from using M’s research pending the outcome of copyright proceedings. The contempt proceedings and the copyright infringement proceedings dealt with identical issues and dealing with contempt proceedings in essence pre judged the copyright infringement proceedings.
2nd issue: was problematic because the judge made an order that ACP not use any material in which the copyright was owned by M, but the problem with expressing the order in this way was that it was ambiguous and vague.
3rd issue: was whether there was a civil or criminal contempt committed; the use of the allegedly copyright material was wilful and deliberate but the High Court found that it was not contumacious.

Held: A court order must be clear and unambiguous to be effective (i.e. through ordinary rules of construction). The court order was ineffective here as Morgan had no copyright over the material and it was not clear what the order restricted. It is desirable that contempt proceedings only be commenced after the finalisation of matters of the initial proceedings. Civil contempt is only transmutable to criminal contempt if it is contumacious.

•    Intention to breach court order, recklessness is enough to make it contumacious
McNair Anderson v Hinch [1985] VR 309
Facts: M was a company who bought TV ratings reports where one of the terms was that the information was confidential. H procured one of the reports and then broadcasted the reports. Brooking J issued an injunction against H from disclosing the material in the future. Subsequently, other radio stations published material based on M’s ratings reports; after this, H decided to commence broadcasting this material himself thinking that if other people could then he could as well. H didn’t apply to the court to have the injunction varied or discharged. M then sought to prosecute H for contempt; one issue was whether this was civil or criminal

Found: The injunction had to be in clear and unambiguous terms to be effective. In this case it stated “broadcasting any of the information contained in the plaintiffs’ weekly television ratings reports”. It was sufficiently clear and Hinch was aware that he was not to publish the information.

It was irrelevant that the information had already been disclosed by other papers as the injunction was specifically against Hinch. Honest belief would not absolve Hinch from contempt and in this case, he was found to be recklessly indifferent to the court order. Civil contempt transmuted to criminal contempt as it was contumacious

Attorney General v Times Newspapers [1992] 1 AC 191 – third party breach

Held:
-    A person aiding and abetting the performance of an act against a court order with knowledge of the existing court order is liable for contempt
-    It is civil contempt for a party who is named in a court order to do act in breach of the order. It is a strict liability in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited.
-    Distinguish this against criminal contempt by a third party where an intention to interfere with the administration of justice is also required.

Janelle Patton Article – Subjudice Contempt Practice Question

- What gives rise to a sub judice contempt?

Photo
•    Clearly SJC as it raises issues of guilt and identification:
o    (A-G (NSW) v Time Inc Magazine Pty Ltd – Gleeson J – best to avoid photographs all together.
•    The handcuffs – shows that he is a violent man; pre-judges and canvasses issues that he is guilty.
•    No argument on intention, operating clearly in the realm of tendency.
•    Pre-judgment and canvassing issues on guilt:
o    A-g v Times & CAA v ABC

Text of the article:
(1)    What in the article will avoid contempt of court?
The Telegraph would say that it was a fair and accurate report of the court proceedings (committal proceedings): R v Scott
o    From a fair reading of this, is this a report? Or does it give weight to some issues more than others.
o    Is it clearly identifiable as a report?
o    Are things attributed/referable to what was said in open court?
o    Is it fair?
o    Is the report a balanced account of what happened in court?
o    Is it accurate and substantially true?
o    Is it made in good faith?
o    Is there extraneous material which deprives the publication of entitlement to be a fair and accurate report of the committal proceedings.
(2)    If SJC is made out then you have to question whether there is a counterveiling public interest
a.    Public interest – Bread Manufacturers Case; A-G v Fairfax; A-G v X
b.    Difficult to use X because unlike that case this case learly deals with one specific interest not a wide range of matters.
c.    Then consider BM and whether or not that applies: right to a fair trial.