1.1 This Discussion Paper is concerned with aspects of the form of criminal liability known as contempt of court. It looks chiefly at the law of contempt by publication, or, more precisely, at one aspect of contempt by publication which is commonly referred to as “sub judice” contempt. It also discusses two topics closely associated with sub judice contempt: namely, the powers of courts to restrict the reporting of legal proceedings and the rules determining whether media representatives or other members of the public should be entitled to have access to documents involved in proceedings. The purpose of the Paper is to discuss problems in these areas of law and to make proposals for reform. The Commission will rely on these proposals as a basis for consultation with the public, before making any final recommendations for legislative change.

1.2 The law of sub judice contempt, and the restrictions that it imposes on the publication of information, have particular importance for the media who are most likely to be affected by these restrictions, and by any reforms made to this area of the law. Also particularly affected will be people involved as parties in legal proceedings, especially those standing trial for a criminal offence, who have a special interest in ensuring that their trial proceeds without the possibility of interference and prejudice from media publicity.

BACKGROUND TO THE COMMISSION’S INQUIRY

1.3 The Commission’s inquiry originated from the introduction into the New South Wales Parliament of the Costs in Criminal Cases Amendment Bill 1997 (“the Bill”).¹ It is important to outline the history of the Bill, and the controversy which followed its introduction, in order to understand the reasoning behind the structure and scope of this Discussion Paper.

1.4 The Bill was introduced into Parliament on 14 May 1997.² It provided for the payment of compensation by the media for the expenses incurred when a criminal jury trial has been discontinued because of concern that the jury may have been prejudiced by media publicity. An additional requirement under the Bill was that the relevant publicity must have been held to infringe the sub judice rule.

1.5 The issue of compensation by the media for the expense of an aborted trial had been previously debated in New South Wales.³ However, the introduction of the Bill was triggered by a specific case. That case concerned a well-known media personality, John Laws. Mr Laws had made a number of comments on radio about a criminal trial involving a man accused of murdering a young child. Mr Laws had referred to the accused as “absolute scum” and a murderer. The broadcast occurred on the second day of the accused’s trial before a Sydney jury. As a consequence of Mr Laws’ comments, the trial judge considered that it was necessary to stop the trial and discharge the jury.⁴ Subsequently, both Mr Laws and the radio station were found guilty of contempt and ordered to pay substantial fines.

1.6 The Bill provided for compensation to be paid by the media to the State and to the accused in a situation such as that which arose in Mr Laws’ case. That is, where a criminal trial had been discontinued because of media publicity, and a media organisation had been convicted of contempt as a result, the proprietors of the media organisation could be required to pay the costs of the trial. Potentially, these costs could be extremely high.⁵

1.7 The Bill sparked an outcry from representatives of the media, who denounced it as unfair and discriminatory.⁶ The Bill also brought to light a degree of dissatisfaction with the law of contempt generally. Most particularly, the media expressed dissatisfaction with the level of uncertainty in the operation of the law, and the consequences this may have for them in trying to avoid liability and, if the Bill were passed, avoid paying the costs of a criminal trial.

1.8 The media urged the Government to conduct further public consultation before proceeding with the Bill.⁷ Parliament took no further action in respect of the Bill in 1998, and it eventually lapsed when Parliament was prorogued in March 1999. In the meantime, the Attorney General, the Hon Jeff Shaw QC, MLC, requested on 14 July 1998, that the NSW Law Reform Commission conduct an inquiry into the law of contempt by publication, including the issue of recovering the costs of a criminal trial which has been discontinued because of a publication.

DEFINITION OF CONTEMPT BY PUBLICATION

The law of contempt generally

1.9 The law of contempt aims to prevent interference with the administration of justice. It regulates a range of human activities which pose a risk of such interference, such as misbehaviour in the courtroom, disobedience of court orders, and interaction by outsiders with parties and witnesses in court proceedings. Traditionally, the law of contempt is divided into “civil” and “criminal” contempt.⁸ Civil contempt is concerned with the enforcement of court orders and undertakings given to a court in civil proceedings. Criminal contempt is generally treated as a criminal offence, and attracts criminal sanctions, most typically the imposition of a fine or a term of imprisonment.⁹ It is concerned with maintaining the authority and integrity of the court as a matter of public interest, and covers a range of situations, such as misbehaviour in the courtroom, and the publication of material that tends to interfere with legal proceedings.

Meaning of “contempt by publication”

1.10 The law may prohibit publications if they fall into any one or more of the following five categories:

• they have a tendency to influence the conduct of particular pending legal proceedings, or prejudge the issues at stake in particular pending proceedings – those which breach the sub judice rule;
• they denigrate judges or courts so as to undermine public confidence in the administration of justice – those which “scandalise the court”;
• they reveal the deliberations of juries;
• they include reports of court proceedings in breach of a restriction on reporting; or
• they disclose information that has been restricted by an injunction and the person making the disclosure, though not bound by the injunction, knows the terms of the injunction and that the publication will frustrate its purpose.

THE COMMISSION’S FOCUS ON “SUB JUDICE” CONTEMPT

1.12 This Discussion Paper is primarily concerned with the first aspect of contempt by publication outlined above, that is, the restrictions imposed on publications that have a tendency to influence the conduct of particular legal proceedings or that prejudge the issues at stake in those proceedings. This aspect of the law of contempt by publication is commonly referred to as the “sub judice” rule. The phrase “sub judice” means “under or before a judge or court”. The effect of the sub judice rule is to prohibit the publication of certain information about a case which is currently being heard or is pending hearing in a court, including a coroner’s court.¹¹

1.13 A typical example of a publication which may be prohibited by the law of contempt is a newspaper article revealing the criminal record of a person who is currently standing trial for a criminal offence. If a person or organisation publishes such information, that person or organisation is likely to breach the sub judice rule and so be found guilty of contempt (referred to in this Paper as “sub judice contempt”).

1.14 The Commission proposes to confine its review primarily to sub judice contempt for the following reasons. As mentioned, our inquiry originated from the controversy arising from the Costs in Criminal Cases Amendment Bill 1997. That Bill was concerned with the recovery of the costs of a criminal trial which is discontinued because of media publicity. A criminal trial may be discontinued because of media publicity on the basis that the publicity has prejudiced the jury, or possibly witnesses, to such an extent that the trial will not be fair. Publicity which has this effect generally falls into the category of sub judice contempt.

1.15 As noted in para 1.7, media response to the Bill also disclosed dissatisfaction with the law of sub judice contempt generally. In order to address the issues arising from the Bill fully, therefore, it is desirable first to examine the general law and procedures governing liability for sub judice contempt, on which the application of the Bill, if enacted, would depend. Since a primary purpose of referring a review of contempt law to the Commission was to examine and consult on the Bill and the issue of compensation by the media, the Commission considers it appropriate to confine its review to those matters which will have a direct impact on the question of compensation. Those matters relate to the operation of the sub judice rule.

1.16 As an ancillary matter, this Paper also considers aspects of the reporting of court proceedings, in particular, the power to impose suppression orders to restrict the reporting of proceedings, and the right of access to documents. As these issues relate to the principle of open access to justice, a discussion of sub judice contempt therefore also entails consideration of that principle and matters affecting it.

OUTLINE OF THE OPERATION OF SUB JUDICE CONTEMPT

Aims and assumptions of sub judice contempt

1.17 The aim of the sub judice rule is to prevent publication of material which may cause prejudice to particular proceedings. The rule assumes that participants in legal proceedings, especially jurors and also, potentially, witnesses, are susceptible to influence by certain types of media publicity. If exposed to such publicity, participants will be hindered from properly carrying out their roles in the proceedings, such as reaching an unbiased verdict based on the evidence presented in court. The sub judice rule therefore prohibits the media from publishing certain types of information about a case, so as to ensure that participants are not improperly influenced and that the case is decided on the evidence presented in court, rather than on facts, opinions, and suppositions offered by people outside the courtroom.

1.18 Arguably, the law of sub judice contempt has special importance in protecting juries in criminal trials from the possibility of influence. In this context, with its focus on the presumption of innocence and requirement of proof of guilt beyond reasonable doubt, it is particularly important to prevent jurors from encountering prejudicial material that is inadmissible (that is, it cannot be used) as evidence in court, such as material relating to the accused’s prior convictions or alleged confessions of guilt.

1.19 The assumptions on which the sub judice rule is based remain largely untested by any empirical evidence, at least in Australia. Indeed, it seems very difficult, if not impossible, to provide any categorical proof of the extent, if any, to which a jury in a particular case may be prejudiced by media publicity. Until very recently, Australian courts have appeared reluctant to consider empirical data as a basis for reaching decisions about liability for contempt, preferring instead to justify their assumptions about the susceptibility of jurors and witnesses by reference to common human experience.¹²

Competing public interests

1.20 Because it imposes restraints on the publication of information, the sub judice rule may be seen to limit both access to information about matters coming before the courts and freedom of discussion in our society. The courts justify these limitations on the basis that the public interest in protecting the proper administration of justice, particularly in criminal cases, should generally outweigh the public interest in access to information and freedom of speech. Critics of the sub judice rule have sometimes questioned the balance which is struck between the competing public interests. The Commission examines these criticisms fully in Chapter 2.

Liability for sub judice contempt

1.21 In Australia, liability for sub judice contempt is governed by the common law, rather than by legislation. At common law, a person or organisation will breach the sub judice rule and so be liable for contempt if the following conditions are met:

• material is “published”;
• the publication has a real and definite tendency, as a matter of practical reality, to interfere with the due administration of justice in specific legal proceedings,¹³ or the publication prejudges the issues to be decided in those proceedings;¹⁴
• the person or organisation charged with contempt is responsible for the publication;
• at the time of publication, the relevant legal proceedings were current or pending;¹⁵
• the severity of possible prejudice to the administration of justice is not outweighed by the public interest in freedom of discussion of matters of public importance which form the subject of the publication; and
• the publication is not a fair and accurate report of proceedings in open court.

Procedure for hearing a charge of contempt

1.23 In New South Wales, proceedings for sub judice contempt are heard by a single judge of the Common Law Division of the Supreme Court.¹⁶ Contempt prosecutions are commenced by way of summons, and are generally brought by the Attorney General. In theory, however, prosecutions may be brought by any person, or at least any person or organisation with a special interest or personal stake in the proceedings allegedly affected by media publicity.

1.24 Although sub judice contempt is generally regarded as a criminal offence, many aspects of the procedure for hearing a contempt charge follow the rules of civil procedure, subject to certain evidentiary and procedural safeguards belonging to the criminal jurisdiction, such as the requirement to prove liability beyond reasonable doubt, with the burden of proof resting on the prosecution. Perhaps unusually for a criminal prosecution where imprisonment is a possible sanction following conviction, contempt prosecutions are heard by judge alone, without a jury, and evidence in support of the charge of contempt is usually given by affidavit.

1.25 The procedures for hearing a contempt charge are discussed in more detail in Chapters 10 and 11.

Sanctions

1.26 A court may impose a term of imprisonment or a fine, or both, for sub judice contempt. A fine is the most common sanction. There are no maximum limits set on the amount of the fine which may be imposed. A person may also be imprisoned for sub judice contempt, although this is extremely rare. There is no maximum term of imprisonment to which a person may be sentenced. At present, there does not appear to be any means by which a person or organisation may be ordered to pay compensation for expenses incurred as a result of media publicity.

1.27 The range of sanctions available for sub judice contempt and proposals for reform are dealt with in Chapters 10 and 11. The issue of compensation for expenses, with specific reference to the provisions of the Costs in Criminal Cases Bill 1997, is discussed in Chapter 14.

PREVIOUS REVIEWS OF THE LAW OF CONTEMPT BY PUBLICATION

1.28 Dissatisfaction with the law of contempt by publication is not new. In the last three decades, there have been several reviews of contempt law in various common law jurisdictions. These reviews have all recommended the retention of the sub judice rule, in some form, while at the same time recommending substantial reform. To date, only the United Kingdom has implemented legislative change.¹⁷

1.29 A summary of the major reviews of contempt law is set out below. The Commission looks in more detail at specific recommendations of each review as they relate to issues for discussion in this Paper.

United Kingdom

1.30 The first major review of contempt law was commenced in the United Kingdom in 1971. A committee was appointed, commonly referred to as the “Phillimore Committee”, to consider whether any changes were required to the law relating to contempt. Unlike Australia, there was legislation in force at that time which made some provision for the law of contempt of court.¹⁸

1.31 The Phillimore Committee made its final recommendations for reform in 1974.¹⁹ An official response by the Lord Chancellor to these recommendations was presented to Parliament in 1978.²⁰ The recommendations of the Phillimore Committee aimed broadly at achieving greater clarity and certainty in the law of contempt, particularly in respect of those parts affecting the media.²¹ In relation to sub judice contempt, the recommendations sought to clarify and limit the scope of liability so as to ensure greater freedom of discussion for the media.²²

1.32 The Legislature did not act on the recommendations of the Phillimore Committee until 1980, when the Contempt of Court Bill was introduced into Parliament.²³ The introduction of the Bill followed a controversial ruling by the European Court of Human Rights in a case known as the Sunday Times case.²⁴ The European Court found that, in the particular circumstances of the Sunday Times case, the English law of sub judice contempt had violated the right to freedom of discussion as enshrined in Article 10 of the European Convention on Human Rights.

1.33 In response to the European Court’s ruling, the Bill was said to clarify the law, implement the recommendations of the Phillimore Committee, harmonise the law of the United Kingdom with the ruling of the European Court of Human Rights, and adopt a liberalising approach to publication by the media by limiting the scope of the restrictions imposed by the law.²⁵ The Bill was enacted on 27 July 1981.

Canada

1.34 In Canada, a review of the law of contempt of court was commenced by the (then) Canadian Law Reform Commission in 1977 and completed in 1982.²⁶ That Commission favoured the approach of codifying the law of contempt, with the aim of achieving a greater degree of precision and certainty.

1.35 Following the recommendations of the Canadian Law Reform Commission, a Bill was introduced into the Canadian Parliament in 1984. The Bill was intended to codify the law of contempt and incorporate provisions dealing with contempt into the Canadian Criminal Code²⁷ but lapsed when the Federal government lost office in the same year. No further legislative action has since been taken in respect of the Canadian Law Reform Commission’s recommendations.²⁸

Australia

1.36 In 1977, a South Australian committee made recommendations for reforming sub judice contempt law, as part of a broad review of the criminal law of South Australia.²⁹ The committee largely endorsed the recommendations of the Phillimore Committee in the United Kingdom. The committee’s recommendations have not been implemented.

1.37 In 1985-1986, the New South Wales Law Reform Commission considered aspects of the law of sub judice contempt in its review of the jury in criminal trials.³⁰

1.38 The Australian Law Reform Commission commenced a major review of the law of contempt in 1983 and published its final recommendations for reform in 1987.³¹ In respect of sub judice contempt, the Commission recommended codification of this area of the law, with an emphasis on achieving greater precision and certainty, and restricting the scope of liability to take into account the importance of freedom of discussion.

1.39 In 1987, the Victorian Law Reform Commission reviewed the recommendations of the Australian Law Reform Commission and largely agreed with their approach to sub judice contempt, although they had some reservations about the availability of a public interest defence.³²

1.40 The Federal Attorney General’s Department subsequently released a discussion paper and a position paper on the Australian Law Reform Commission’s report on contempt.³³ The purpose of the papers was to consider the recommendations of the Australian Law Reform Commission and invite submissions from the public, in order to develop legislative proposals for implementation by the Commonwealth.

1.41 At the same time as the Federal government was consulting with the public, the recommendations of the Australian Law Reform Commission were referred for consideration to the Standing Committee of Attorneys General in 1991, with a view to achieving uniform legislation throughout Australia. If uniformity for all of contempt law was not considered to be feasible, it was suggested that uniform legislation in the area of contempt by publication would be particularly desirable, since without uniformity, the media would be forced to follow the law of the most restrictive jurisdiction when transmitting across state borders.³⁴

1.42 In 1993, a draft bill, entitled the Crimes (Protection of the Administration of Justice) Amendment Bill 1993 (Cth) was prepared and circulated for comment. It was never introduced into Parliament.

Ireland

1.43 The Irish Law Reform Commission commenced a review of the law of contempt in 1989. Its final recommendations for reform were published in 1994.³⁵ In respect of sub judice contempt, it drew to a significant extent on the recommendations of the Australian Law Reform Commission, as well as the Phillimore Committee. It emphasised the need in a democratic society for keeping the public fully informed of court proceedings, and subjecting those proceedings to open and reasoned analysis and discussion. It noted that these interests may be undermined by an unduly restrictive approach to the sub judice rule.

THE COMMISSION’S APPROACH TO REFORM

1.44 The Commission’s aim is to achieve clarity and precision in the operation of the law on sub judice contempt, with only such restrictions on freedom of discussion as are necessary. In the pursuit of this objective, one possible approach is to codify the law and procedure on sub judice contempt. The main advantages of codification are easier access to, and greater clarity of, the law because all the rules and procedures would be found in one piece of legislation. This was the approach supported by the Australian Law Reform Commission.

1.45 This Discussion Paper does not support codification. Unlike the Australian Law Reform Commission’s report, which examined the law of contempt in its entirety, this review is narrower in scope, being limited to sub judice contempt. To codify only one aspect of contempt and to leave the rest to the common law may lead to confusion and uncertainty for legal and media practitioners. This has been the experience in the United Kingdom where the Contempt of Court Act 1981 (UK) purports among other things to codify the law of sub judice contempt but allows the rest of contempt to subsist chiefly in the form of common law principles. The Commission will accordingly propose legislation to cover some gaps and to clarify uncertainties in the law on sub judice contempt, while allowing the common law to develop.

1.46 The Commission is mindful that any legislative change in New South Wales on sub judice contempt would result in different rules compared to those found in other Australian states and territories, as well as to those which apply at the federal level. This could present practical difficulties for the media, especially those that publish in several states and territories. They would also have to contend with two sets of contempt laws depending on whether the proceedings are to be heard in a State or a federal court. Such a situation could increase confusion and uncertainty for the media. However, although the Commission considers that a uniform law on sub judice contempt is highly desirable, it is for the governments of the Commonwealth, States and territories to decide whether they want to take a coordinated approach to the reform of this area of law.³⁶

IMPROVING THE RELATIONSHIP BETWEEN THE COURTS AND THE MEDIA

1.47 It was suggested to the Commission that part of the problem for the media in complying with the sub judice rule and other restrictions on reporting arises from a lack of effective communication and cooperation between the courts and the media.³⁷ This concern forms part of a larger discussion about the relationship between the courts and the media.

1.48 The courts and the media have certain expectations of each other. For example, the courts expect that the media will report court proceedings accurately, will comply with court orders that restrict the publication of certain information, will summarise the effects of their judgments accurately and in a balanced manner, and will not disrupt court proceedings or the general administration of court business. The media, on the other hand, expect the courts’ cooperation in obtaining quick access to information about current cases which may be particularly newsworthy. They may also expect the courts’ assistance in understanding and complying with court orders and other legal requirements placed on them. The relationship between the courts and the media may be strained if these expectations are not properly or regularly fulfilled.

1.49 Obviously, a good relationship between the courts and the media gives rise to benefits that go beyond the area of contempt law. However, good communication and cooperation between the media and the courts can also be important in preventing breaches of the sub judice rule and other restrictions designed to avoid prejudice to particular court proceedings. For example, as noted in Chapter 10, the media may face difficulties in complying with orders restricting the publication of court proceedings if they are unable to ascertain whether such an order has been made and, if so, the terms of the order. Similarly, as noted in Chapter 7, it may be difficult for the media to discover whether particular proceedings are “current” or “pending” in order to determine whether they are or are not permitted to publish certain material in accordance with the sub judice rule. It is in the interest of the courts, and the general public, that the media are able to obtain quick access to this type of information in order to minimise the possibility of prejudice to the administration of justice.

Media liaison positions

1.50 In New South Wales, media liaison positions have been created in the Supreme Court, the Office of the Director of Public Prosecutions, and the Police Service. These positions are a source of information for the media about court proceedings and potentially provide a channel for effective communication and a cooperative relationship between the courts and the media.

1.51 Public information officer, NSW Supreme Court.³⁸ The public information officer of the New South Wales Supreme Court is the media’s first port of call for information and assistance relating to matters in the Supreme Court. For example, she can answer queries from the media as to whether proceedings are current or pending in the court, or she may assist the media in understanding the practical effect of court judgments and court orders. She also speaks at media seminars from time to time to provide the media with general information about her role and functions. In addition, she is able to assist the media in obtaining information about the District and Local Courts. She can, for instance, answer queries as to whether proceedings are current or pending in the District Court and several Local Courts. She also handles media requests for access to court files (except Local Court files), and initial requests for access to transcripts.

1.52 At present, there does not appear to be an established procedure in any of the courts to notify the public information officer of matters of concern for the media, such as the terms of suppression orders. It is a matter for the individual judicial officer to inform the public information officer of anything he or she considers to be of importance or of interest to the media. Sometimes, for example, a judicial officer may provide the public information officer with a summary of a judgment which is particularly newsworthy, or may speak with the officer about the effects of the judgment. Sometimes a judicial officer presiding over a matter that he or she considers will be of special interest to the media may suggest that a notice be prepared and distributed to the media detailing what may and may not be reported about the matter. The public information officer will then answer queries from the media about the notice.

1.53 A judicial officer may also notify the public information officer of the terms of a particular suppression order and the public information officer will then inform major media outlets of these terms. Whether this occurs or not is really a matter for the judicial officer in each case. However, a trial of a suppression order notification system is currently under way in the Supreme Court. As part of the trial, the judicial officer involved informs the public information officer of the terms of a suppression order, and the public information officer advises media organisations of those terms, on the same day as the order is made. Further consultation between the media and the public information officer needs to take place as part of the trial before a permanent system for notifying the media is established.

1.54 Media relations officer, NSW Office of the Director of Public Prosecutions.³⁹ The Office of the Director of Public Prosecutions employs a consultant to work on media liaison for the Office and for the Police Integrity Commission. Any inquiry from the media to either of these bodies should therefore go to the media relations officer. He can, for example, answer enquiries from the media about the details of certain charges. It is also part of his role to arrange media interviews with the Director of Public Prosecutions.

1.55 NSW Police Media Unit. The New South Wales Police Service has a media policy⁴⁰ which sets out general principles and protocols for police interaction with the media. The policy emphasises the importance of an open and cooperative relationship between the police and the media. The Police Media Unit is established as the point of contact for all major media outlets in New South Wales with the police. The media policy requires police commanders to notify the Media Unit of any police matter of significant media interest and to provide a full briefing of the matter to the Unit.

1.56 The Police Media Unit may provide certain information to the media about police investigations, such as whether a person has been charged with an offence, or the general nature of a crime and other “bare facts” such as the general location and time of the incident. The media may also obtain such information by direct communication with police officers involved in the particular investigation. According to the media policy, information should not generally be given by the police that a person has been arrested unless that person has also been charged.

The Victorian model

1.57 In Victoria, formal procedures have existed for some time to assist in achieving a cooperative relationship between the courts and the media. The Victorian model has been suggested as a good lead for New South Wales to follow in developing protocols for effective communication.⁴¹

1.58 A Courts Media Information Officer liaises with the media on behalf of all Victorian courts. Much of the emphasis of this position is on taking preventative measures to ensure problems in court reporting by the media do not arise. As such, the Courts Media Information Officer offers practical assistance to members of the media in understanding the legal requirements of court reporting. This is done in a number of ways, such as offering regular seminars with the media on court reporting and ways of avoiding liability for contempt, and providing detailed written guidelines on court reporting for journalists.⁴² These guidelines “Covering the courts – a basic guide for journalists” are available on the Victorian Supreme Court’s internet site.⁴³

1.59 A great deal of the officer’s day-to-day work consists of notifying the media of suppression orders or other orders affecting publication. Notice of these orders to the officer (usually conveyed to her by the judges’ associates and court clerks) has become a matter of routine.⁴⁴ She sends these orders by facsimile to media organisations and their lawyers.⁴⁵ She also liaises with judicial officers to ensure that the terms of suppression orders are as clear and precise as possible, in order to assist the media in complying with them.⁴⁶

1.60 In addition, a Courts Media Committee was established by the Chief Justice of the Victorian Supreme Court in 1993 and continues to meet. Its membership currently comprises the courts media information officer, judicial officers from the Supreme, County and Local Courts, the Director of Public Prosecutions, solicitors from private practice working in the area of media law, and journalists. The Committee meets on a needs basis to discuss issues of concern to the courts and the media, and to formulate means of addressing these concerns. For example, the Committee has developed guidelines on media access to court briefs and protocols for filming of judicial officers.⁴⁷

1.61 It has been suggested that the Courts Media Committee has been very successful in maintaining a harmonious relationship between the media and the courts, and that both the work of the Committee and the media information officer has resulted in significant community benefits. Specifically, it is claimed that the community is better informed about the work of the courts, and that a significant amount of the public’s money is saved by reducing the incidence of trials aborted because of media reporting.⁴⁸

Invitation to comment

1.62 At present in New South Wales, there appear to be a number of innovations under way to develop a more cooperative relationship between the courts and the media. There is certainly great potential for both the courts and the media to make use of the various media liaison positions to achieve such a relationship. There are, however, several factors which may stand in the way of more effective communication. For example, there is no one person or unit with exhaustive access to information about the District and Local Courts. This may make it difficult for the media to obtain information about proceedings and orders in those courts. Moreover, there is not at present an established protocol or routine procedure for judicial officers to communicate with the public relations officer on matters such as the existence and terms of suppression orders. This means that the public relations officer is not necessarily able to provide the media with an exhaustive list of suppression orders that are active. Lastly, there is no organised forum for discussion among the media, the courts and lawyers. The Victorian experience suggests that such a forum is very useful in developing protocols and practices as a means of achieving a harmonious relationship between the courts and the media.

1.63 The Commission considers that the issue of the relationship between the courts and the media is a very important part of the discussion on reforming the law on sub judice contempt and ensuring compliance with the sub judice rule. At this stage, however, the Commission has sought simply to provide an outline of the current practices that exist in New South Wales, in order to invite comment from the public. As part of the consultation process after the release of this Paper, the Commission will be consulting extensively with representatives of the media, the courts, and others involved in the justice system to discuss ways of improving communication between the courts and the media, specifically in relation to encouraging compliance with the sub judice rule and minimising the risk of prejudice to court proceedings from media publications. The Commission also invites submissions on this issue.

THE STRUCTURE OF THIS PAPER

1.64 This Paper is divided into three parts. Part One deals with the principles governing liability for sub judice contempt.

• Chapter 2 addresses the fundamental question of whether the sub judice principle should be abolished or retained.
• Chapter 3 discusses persons and material attracting liability for sub judice contempt, that is, the issues of responsibility and the meaning of “publication”.
• Chapter 4 discusses the test for determining whether a publication is prejudicial so as to infringe the sub judice rule. In the majority of Australian cases, that test is formulated in terms of a “tendency” to prejudice.
• Chapter 5 discusses the relevance of fault to liability for sub judice contempt.
• Chapter 6 discusses the application of the sub judice rule to publications concerning civil proceedings, including discussion of the prejudgment principle.
• Chapter 7 discusses the time limits for liability for sub judice contempt.
• Chapters 8 and 9 discuss the grounds of exoneration that may excuse a person from liability for sub judice contempt. Chapter 8 considers the public interest principle as well as a proposal to introduce a separate “public safety” defence. Chapter 9 considers the fair and accurate reporting principle.

• Chapter 10 discusses the use of suppression orders as a form of restriction to the principle of open justice. These orders are examined in the context of various other restraints courts may impose to conceal information concerning judicial proceedings from the public.
• Chapter 11 discusses access to and reporting on the content of court documents, an important corollary to the open justice principle.

• Chapter 12 discusses matters relating to the procedure for hearing a contempt prosecution, including who may prosecute, whether the summary procedure should be retained, and which court should hear the trial and the appeal proceedings.
• Chapter 13 discusses issues concerning penalties, such as whether there should be upper limits for fines and imprisonment imposed on persons convicted of contempt, and whether other forms of sanctions should be available in contempt cases. The chapter also looks at other remedies, such as injunctions.
• Chapter 14 deals with the issue of ordering the media to pay compensation for expenses incurred as a result of a contemptuous publication, with specific reference to the provisions of the Costs in Criminal Cases Amendment Bill 1997.

1.67 In this Discussion Paper, the Commission has formulated a number of proposals for reform to the law on sub judice contempt. These proposals are based on tentative views about aspects of the law that the Commission considers are in need of reform or clarification. The proposals do not, however, represent our final conclusions. They are intended to attract comment from interested groups and members of the public. The Commission welcomes submissions on the proposals and will be consulting with groups in the community following the release of this Paper. All views and comments will be considered by the Commission before finalising recommendations for reform to the Attorney General.

1. Appendix A.

2. See New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 14 May 1997 at 8571.

3. See United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 at 346-347 (Samuels J); Attorneys General of New South Wales, Queensland and Victoria, Reform of Defamation Law (Discussion Paper, 1990) at para 12. See para 14.3.

4. See R v Connolly (NSW, Supreme Court, No 70036/95, Simpson J, 27 February 1996, unreported).

5. The costs would consist largely of the legal costs of both the accused and the State, and the salaries of the judge and court staff involved in the conduct of the trial. For an estimate of the costs of a day in court, see Appendix B.

6. See, for example, Editorial, “Review necessary on contempt” The Australian (18 September 1997) at 12; A Bowne, “New verdict on contempt law” The Australian Financial Review (3 April 1998) at 24; E Whitton, “Time for justices to gavel themselves: should judges be held in contempt?” The Australian (3 December 1998) at 13; A Hubble, “Air of expectation” The Daily Telegraph (4 December 1997) at 40; R Ackland, “Contempt bill puts noose on free speech” The Sydney Morning Herald (19 September 1997) at 21.

7. See, for example, Federation of Australian Commercial Television Stations, Submission 1 at para 2; J Walker, Submission (enclosing submission to the Attorney General) at 2; R Coleman, Submission (enclosing submission to the Attorney General) at 6; SBS Corporation, Submission (enclosing submission to the Attorney General) at 3.

8. See generally, C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 2-11; G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, 1996) at 3-4; Laws of Australia (Law Book Company, Sydney, 1998) title 10.11, ch 2 at para 4 and 8-11; D Butler and S Rodrick, Australian Media Law (LBC Information Services, Sydney, 1999) at para 5.10-5.15. The High Court has criticised the distinction between criminal and civil contempt on the basis that it is arbitrary and illusory, but the distinction still operates: see Witham v Holloway (1995) 183 CLR 525 at 534 (Brennan, Deane, Toohey and Gaudron JJ).

9. See Chapter 13.

10. This term was used by the ALRC to describe these areas of contempt law: see Australian Law Reform Commission, Contempt (Report 35, 1987), especially ch 5. See also, Laws of Australia (Law Book Company, Sydney, 1998) title 10.11, ch 2 at para 42.

11. Civil Aviation Authority v Australian Broadcasting Corp (1995) 39 NSWLR 540.

12. See Attorney General (NSW) v John Fairfax Publications Pty Limited [1999] NSWSC 318 at para 33.

13. An alternative formulation of this principle is in terms of “substantial risk of serious prejudice”: see para 4.10-4.12.

14. The status of the prejudgment principle as an independent principle of liability is, at least in Australia, doubtful: see para 6.37-6.40, 6.45-6.47.

15. This requirement may not necessarily apply to cases of “intentional” contempt: see para 7.85.

16. Proceedings for sub judice contempt were, until recently, heard by the Court of Appeal: see para 12.47.

17. Contempt of Court Act 1981 (UK).

18. See Administration of Justice Act 1960 (UK).

19. See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974). There had been a number of reports dealing with aspects of contempt law in Great Britain before the Phillimore report. See, for example, Justice (British Section of the International Commission of Jurists), Contempt of Court (Report, Stevens & Sons, London, 1959); United Kingdom, Home Office and Scottish Home and Health Department, Report of the Interdepartmental Committee on the Law of Contempt As It Affects Tribunals of Inquiry (HMSO, London, Cmnd 4078, 1969).

20. See United Kingdom, Lord Chancellor and Lord Advocate, Contempt of Court: A Discussion Paper (HMSO, London, Cmnd 7145, 1978). The Law Commission also considered the recommendations of the Phillimore Committee in the context of a reference on offences relating to interference with the course of justice. The Law Commission’s report, however, looks only incidentally at the law of contempt by publication, in so far as it overlaps with the offence of intent to pervert the course of justice: see England and Wales, Law Commission, Criminal Law: Offences Relating to Interference with the Course of Justice (Report 96, 1979).

21. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 5-11.

22. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 112-114.

23. See Great Britain, Parliamentary Debates (Hansard) House of Lords, 9 December 1980, vol 415, col 657 forward.

24. Sunday Times v United Kingdom (1979) 2 EHRR 245.

25. See G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, 1996) at 98-104.

26. See Canada, Law Reform Commission, Contempt of Court: Offences Against the Administration of Justice (Working Paper 20, 1977); Contempt of Court (Report 17, 1982).

27. Bill C-19 (1984). See also Editorial, “Contempt of Court” (1984) 26 Criminal Law Quarterly 257; L Fuerst, “Contempt of Court” (1984) 16 Ottawa Law Review 316.

28. Information supplied by the Law Commission of Canada (27 March 2000). The Bill was also strongly criticised by the Canadian Judicial Council. See Canadian Judicial Council, The Law of Contempt (Working Paper, 1986). The Council, which consists of 39 members, is chaired by the Chief Justice of Canada and includes judges of all courts whose members are appointed by the federal government. Its objects are to promote efficiency and uniformity and to improve the quality of judicial service in superior courts and in the Tax Court of Canada.

29. See South Australia, Criminal Law and Penal Methods Reform Committee of South Australia, The Substantive Criminal Law (Report 4, 1977) at para 3.9-3.12.

30. See New South Wales Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial (Discussion Paper 12, 1985) ch 7; (Report 48, 1986) ch 7.

31. See Australian Law Reform Commission, Contempt (Report 35, 1987). The Commission also published a series of consultative and research papers before reaching its final recommendations in Report 35. The most relevant to the law of contempt by publication are: Reform of Contempt Law (Issues Paper 14, 1984); Contempt and the Media (Discussion Paper 26, 1986); M Chesterman, Public Criticism of Judges (Australian Law Reform Commission, Reference on Contempt of Court, Tribunals and Commissions, Research Paper 5, 1984); A Riseley, Deliberate Interference with Parties to Proceedings (Australian Law Reform Commission, Reference on Contempt of Court, Tribunals and Commissions, Research Paper 3, 1986); I Freckelton, Prejudicial Publicity and the Courts (Australian Law Reform Commission, Reference on Contempt of Court, Tribunals and Commissions, Research Paper 4, 1986); M Keogh, Prejudicial Publicity: Some Case Studies and their Implications (Australian Law Reform Commission, Reference on Contempt of Court, Tribunals and Commissions, Research Paper 4A, 1987).

32. Law Reform Commission of Victoria, Comments on Australian Law Reform Commission Report on Contempt No 35 (unpublished, 1987).

33. Australian Attorney General’s Department, The Law of Contempt (A Discussion Paper on the Australian Law Reform Commission’s Report No 35, 1991); Australian Attorney General’s Department, The Law of Contempt (Position Paper, 1992).

34. Australian Attorney General’s Department, The Law of Contempt (Position Paper, 1992) at 1-2.

35. See Ireland, Law Reform Commission, Contempt of Court (Consultation Paper, 1991); (Report 47, 1994).

36. The Standing Committee of Attorneys General considered, during the early 1990s, a uniform law on contempt of court or partially uniform contempt laws dealing only with publication but it appears that there was little enthusiasm at that time for a common statutory approach by the States and Territories: see para 10.75.

37. Consultation held on 20 October 1998 at the Sydney office of the law firm Mallesons Stephen Jaques attended by representatives of the Seven Network, The Sydney Morning Herald, John Fairfax Pty Ltd, and Mallesons Stephen Jaques.

38. See K Ashbee, Consultation (21 July 1999).

39. See P Symonds, Consultation (telephone) (22 July 1999).

40. See NSW, Police Commissioner, Commissioner’s Instruction 52 (Media Policy).

41. Consultation held on 20 October 1998 at the Sydney office of the law firm Mallesons Stephen Jaques attended by representatives of the Seven Network, John Fairfax Pty Ltd, The Sydney Morning Herald, and Mallesons Stephen Jaques.

42. P Innes, Consultation (telephone) 21 July 1999.

43. See http://www.supremecourt.vic.gov.au.

44. P Innes, Consultation (telephone) 25 February 2000.

45. P Innes, Consultation (telephone) 25 February 2000.

46. P Innes, Consultation (telephone) 21 July 1999.

47. P Innes, Consultation (telephone) 21 July 1999.