•    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 However if the order was made improperly with jurisdiction it must be followed until it is repealed.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.