7.1 The sub judice rule operates within a specific time period. Material published outside that time period will not attract liability for sub judice contempt, even if it is prejudicial.¹

7.2 In Australia, the sub judice rule restricts the publication of information relating to proceedings that are “current” or “pending”. So, for example, a publication that contains prejudicial information about a person will not attract liability for contempt, if proceedings involving that person are not yet pending (although a publication in this situation may attract liability on another legal ground, for example, defamation).

7.3 By limiting the operation of the sub judice rule to a specific time period, the law seeks to confine the restrictions placed on freedom of discussion. If there were no such time limit, the media could never be certain that a publication would not attract liability for contempt in the future if, after issuing a publication, proceedings were commenced which dealt with the people or events described in the publication.²

7.4 There are two main issues that arise when considering the time limits for liability. The first is whether the law needs to be clarified as to when exactly proceedings are “pending” or “current”. The second is whether the law should be reformed to fix earlier or later starting and end points for the sub judice period than currently exist.

7.5 A third issue in respect of time limits is the practical difficulties the media may face on a day-to-day basis in ascertaining from the courts and the police whether a matter is current or pending. This issue is part of the larger question of whether it is possible, or desirable, to achieve a more co-ordinated approach between the media and those involved in the court system to prevent breaches of the sub judice rule. The Commission raised this issue in Chapter 1.³

PROBLEMS IN IDENTIFYING WHEN PROCEEDINGS ARE “PENDING”

7.6 Legal proceedings are said to be pending if they have been commenced and have not yet been completed, that is, if the processes of the law have been set in motion and a court has become “seised” of the matter.⁴ Arguably, it is not always easy to ascertain when proceedings may be regarded to have commenced so as to be “pending” and therefore attract the operation of the sub judice rule. In this discussion, the Commission considers the meaning of the term “pending” in the context, first, of publications relating to criminal proceedings, and secondly, publications relating to civil proceedings.

Publications relating to criminal proceedings

7.7 In relation to criminal proceedings, it has been said that the sub judice period commences from the time of the procedure prescribed by law for bringing an accused person to trial.⁵ Curial procedures, not merely police activity, must have been commenced.⁶ For example, proceedings will not be pending simply because police have identified a person as a suspect, or have questioned a suspect, with no further action being taken.

7.8 It is now clear that if a person has been arrested with or without a warrant and charged, or simply arrested with a view to being charged, proceedings against that person are considered “pending” so as to attract the operation of the sub judice rule to any publication relating to the matter.⁷ The basis for determining that an arrest falls within the sub judice period is that it is made for the purpose of bringing a person into the criminal justice system, and carries with it certain legal obligations on the part of the police to bring the arrested person before a court within a specified time frame. In this way, a person comes within the processes and protection of the court on arrest, and the court becomes “seised” of the matter, so as to trigger the operation of the sub judice rule.

7.9 In the same way, it might be argued that the issue of a summons to appear comes within the meaning of “proceedings pending” for the purposes of the time limits on liability for sub judice contempt. A summons to appear is another way of bringing a person before a court to answer a criminal charge or charges, as an alternative to arresting that person. The same basis as for arrest may therefore be relied on to argue that a summons to appear comes within the sub judice time period, in so far as a summons is issued as a means of initiating the criminal process against a person, at which point a court becomes seised of the matter in question.⁸

7.10 It is less certain whether steps which may occur before the arrest of a person, or the issue of a summons to appear, are considered to be part of “proceedings pending” so as to trigger the application of the sub judice rule. Specifically, it is unclear whether the issue of a warrant for arrest, the laying of an information or making of a complaint, and extradition proceedings come within the meaning of “proceedings pending”, or fall outside the time period for liability for sub judice contempt.

Warrant for arrest

7.11 The courts have not given much consideration to the question of whether the issue of a warrant for arrest comes within the sub judice period. It was noted in a couple of Australian cases that an arrest by the police marks the commencement of proceedings, and therefore the commencement of the sub judice period.⁹ Those comments could be seen to suggest that a warrant for arrest, occurring before an arrest takes place, would not be sufficient to trigger the operation of the sub judice rule. If this were the case, the media would be free to publish information at the time of the issue of a warrant without regard to whether the publication had a tendency to prejudice the matter to which the warrant for arrest related. However, since the facts in both cases involved an arrest, without a warrant for arrest being first issued, it is questionable whether the courts’ comments in regard to the commencement of proceedings at the time of arrest are relevant to cases where a warrant for arrest is issued before an arrest is made.

7.12 It was suggested in an old English case¹⁰ that, at common law, the sub judice period does commence with the issue of a warrant for arrest, with the result that any comments made after the issue of a warrant for arrest which have a tendency to prejudice the administration of justice would constitute contempt. It was argued in the case that the issue of a warrant for arrest is a judicial act, involving the exercise of judicial discretion, and is therefore the first step in the criminal process. Arguably, however, some additional basis would be needed for regarding a warrant for arrest as coming within the meaning of “pending proceedings” other than that it involves a judicial act. If that were the only basis for determining that an act falls within the sub judice period, then, for example, the issue of a warrant to search a person’s premises could also be regarded as triggering the application of the sub judice rule. Yet these steps, while involving an exercise of judicial discretion, can hardly be seen as initiating the criminal process against a particular individual for the alleged commission of a criminal offence.

Laying of an information or making of a complaint

7.13 The laying of an information or making of a complaint before a Justice occurs as the step before the issue of a summons to appear or the issue of a warrant for arrest.¹¹ Legislation in New South Wales provides that an information is taken to be laid if a person is charged and given a copy of the charge sheet, and subsequently released on bail.¹² In general, a prosecution for an indictable offence is commenced by the laying of an information, which vests the Local Court with jurisdiction to proceed to a committal hearing. However, there is also provision for the Attorney General or the Director of Public Prosecutions to commence a prosecution for an indictable offence by filing an indictment in the Supreme or District Court without an information having been laid and, consequently, without the requirement for a committal hearing.¹³ This is commonly referred to as an “ex officio indictment”.

7.14 To the Commission’s knowledge, the courts have not considered the question of whether the laying of an information, making of a complaint, or filing of an ex officio indictment come within the meaning of “proceedings pending”. On one view, these procedures represent the initial act that brings a particular matter to the attention of a court, and in that way sets the criminal process in motion against a particular person. In that sense, it could be argued that they should come within the sub judice period. Moreover, the fact that an information is taken to be laid if a person is charged and given a copy of the charge sheet may be considered to support the argument that the laying of an information forms part of “proceedings pending”. The courts have previously held that charging a person comes within the sub judice period.¹⁴

Extradition and return to jurisdiction

7.15 It is arguably unclear whether extradition proceedings come within the sub judice period or whether the media may publish information at this stage without attracting liability for contempt.

7.16 If a person is not within the jurisdiction of the courts in which the person has been accused of an offence, then that person will need to be brought into the jurisdiction to face trial.

7.17 The procedures for bringing a person into New South Wales to stand trial will depend on whether the fugitive is, at the time, located within another Australian jurisdiction, within the jurisdiction of New Zealand, or within the jurisdiction of another part of the world. In all three of these situations, a warrant must be issued for the arrest of the accused person.¹⁵

7.18 The return of a person to New South Wales who is located within Australia is governed by the Service and Execution of Process Act 1992 (Cth). After the issue of a warrant the person may be arrested by an officer of the police force of the State in which the person is found, or the Sheriff or Sheriff’s officers of that State or a member of the Australian Federal Police.¹⁶ After the person is apprehended, he or she is brought before a magistrate in that state.¹⁷ The magistrate may order that the person be remanded on bail on the condition that the person appear at a particular time and place in the state of New South Wales. Alternatively the person may be taken into custody, or may be released if the magistrate is satisfied that the warrant is invalid, or the matter may be adjourned for up to five days.¹⁸

7.19 If the fugitive is, at the time the warrant is issued, situated outside Australia, the procedure required to secure the person’s return to Australia is largely governed by the law of that other country, which may be affected by treaty arrangements with Australia.¹⁹ Australia and New Zealand have special arrangements with regard to the return of fugitives. The arrangements consist of what is known as “the backing of warrants”. The procedure requires that a warrant issued in Australia be endorsed by a New Zealand District Court Judge prior to the arrest of the fugitive.²⁰ Requests to other foreign jurisdictions for the extradition of a person accused of an offence in Australia must be made by the Commonwealth Attorney General.²¹ What is required in a particular application will depend upon treaty arrangements and the domestic law of the surrendering country. For this reason, the time it will take to return an accused person to Australia is essentially indeterminate.

7.20 To the Commission’s knowledge, the courts have not considered the issue of whether proceedings to return a person to New South Wales come within the sub judice period. The question would probably be determined according to whether it could be said that, at the time of extradition, a New South Wales court had become “seised” of the matter. Since a warrant for arrest is invariably issued to initiate extradition proceedings, it may ultimately depend on whether the issue of a warrant for arrest is to be regarded at common law as bringing a matter into the sub judice period.

7.21 In England, the issue of extradition proceedings in the context of the sub judice period was considered in 1910 in the case of R v Clarke; Ex parte Crippen.²² That case involved the publication of contemptuous material after a warrant had been issued for the arrest of the accused, the accused had been arrested in Canada, and had already been brought before a judge in Quebec to instigate proceedings to have him remitted to London for trial. At the time of publication, the Canadian judge had not yet disposed of the case. Justices Darling and Pickford of the King’s Bench Division limited their consideration of the commencement of the sub judice period to the circumstances of the particular case. Justice Darling stated that the fact that the accused was actually in custody on warrant and actually brought before the court in Canada²³ meant that proceedings were “pending”. Justice Pickford, on the other hand, emphasised the fact that the accused had been arrested, asserting “[i]t does not seem to matter in the least that that arrest was in Canada, and that the accused was at that time in prison in Canada”.²⁴ Lord Justice Coleridge reached his decision on the sole fact that a warrant had been issued. He declared:²⁵

But after an information has been laid before the magistrate and he has issued a warrant, in my opinion, at any rate, all comments after that, tending to prejudice the administration of justice, are in the nature of contempt.

Publications relating to civil proceedings

7.23 Civil proceedings are pending once the initiating process to bring a civil action has been set in motion, for example, by the issue of a writ or statement of claim.²⁶ It is not necessary that the matter actually be set down for trial in order for the sub judice period to begin.

FIXING AN APPROPRIATE STARTING POINT FOR SUB JUDICE CONTEMPT

Publications relating to criminal proceedings

7.24 There is clearly a need for clarification as to the time at which criminal proceedings are pending for the purposes of the law of sub judice contempt. Law reform bodies in the past have come to the same view, and have recommended the introduction of legislation to spell out precisely when liability for sub judice contempt begins.²⁷

7.25 Clarification requires consideration of what is an appropriate starting point for the sub judice period. As with all aspects of liability for sub judice contempt, it is necessary, in determining what is appropriate, to weigh up considerations of freedom of discussion and protection of the administration of justice. An earlier starting point will potentially mean greater restrictions on freedom of discussion, or at least, restrictions for a longer period of time. At the same time, a later starting point may give rise to serious prejudice to a particular case through media publicity which is not restrained by the sub judice rule.

“Imminent” proceedings

7.26 In determining what is an appropriate starting point for sub judice contempt, the Commission takes the tentative view that the sub judice period should not begin as early as when proceedings are “imminent”. In England and Wales, the common law appears to allow for liability for sub judice contempt to begin when legal proceedings are imminent.²⁸ While it is not always clear what is meant by “imminent”, the term fixes an earlier starting point than one that begins when proceedings are pending. “Imminent” proceedings would seem to cover acts occurring before the legal process has formally been set in motion, such as, for example, police questioning of a suspect. The English courts have justified the inclusion of imminent proceedings within the sub judice period on the basis that media publicity at that stage may cause just as serious a degree of prejudice to a case as publicity at the time when proceedings are pending or current.²⁹

7.27 It is possible that, particularly in sensational cases, media publicity occurring at a time when proceedings are imminent may cause serious prejudice to the administration of justice in any future trial. However, it seems likely that the risk of such prejudice would generally be less than the risk arising from publicity at a later stage, at a time which is closer to the time of the trial. Moreover, the uncertainty for the media in determining at what time proceedings may be considered “imminent” would arguably impose too severe a restriction on freedom of discussion, as they would be reluctant to report on police activities if it were thought that they may attract criminal liability for doing so. Other law reform bodies have similarly rejected “imminent proceedings” as an appropriate starting point for the sub judice period for the same reasons.³⁰

Recommendations of law reform bodies

7.28 On the basis, therefore, that the sub judice period should commence at a stage later than when proceedings are merely imminent, the question is when exactly should liability for sub judice contempt begin. Various law reform bodies have recommended different starting points.

7.29 The Phillimore Committee recommended that a publication attract liability for contempt if it creates a risk of serious prejudice to proceedings from the time when a person is charged or a summons is served.³¹ The Committee rejected the issue of a warrant for arrest or an actual arrest as appropriate starting points, on the basis that a warrant may be issued, and an arrest effected, in private, or without any general public announcement. It would therefore be difficult for the media to know with any certainty whether or not liability for sub judice contempt had begun. Moreover, if the issue of a warrant for arrest were sufficient to trigger the operation of the sub judice rule, the restrictions on the media could continue to apply for as long as the warrant remained active, if the person the subject of the warrant were never apprehended.

7.30 In their discussion paper of 1978, in response to the recommendations of the Phillimore Committee, the Lord Chancellor and Lord Advocate expressed reservations about this choice of starting point, commenting that there may be just as great a need to protect an accused person from prejudicial comment during the period immediately before that person is charged, when media and public interest in the crime is strong.³² The Contempt of Court Act 1981 (UK) subsequently adopted as the starting point for liability the time of arrest without warrant, or the issue of a warrant for arrest, or the issue of a summons to appear, or the service of a document specifying a charge.³³

7.31 The Canadian Law Reform Commission recommended that legislation fix as an appropriate starting point for liability in relation to criminal proceedings the time when an information is laid or an indictment preferred.³⁴

7.32 The Australian Law Reform Commission (“ALRC”) fixed as the appropriate starting point the time of the issue of a warrant for arrest, or the time of arrest without a warrant, or the time when charges are laid, whichever is the earliest.³⁵ It referred to the practical problem for the media in ascertaining when a warrant has been issued, or charges laid, or an arrest made, and noted that there would be greater certainty for the media if a formal public event, such as the appearance of an accused in court, were chosen as the starting point for liability. In the end, however, it took the view that an earlier starting point was preferable, on the basis that a case may receive its most intense and prejudicial media publicity at this time. Its recommendation for an earlier starting point was made in the context of its recommendation for a defence of innocent publication, which would provide the media with a ground of exoneration where they took all reasonable steps to ascertain whether any of the relevant events occurred. This defence would assist the media if they encountered difficulties in ascertaining whether, for example, a warrant for arrest had been issued so as to trigger the operation of the sub judice rule. The recommendation included a proviso that the sub judice period would cease to run twelve months after the issue of the warrant for arrest, if no arrest had yet been made.

7.33 The Irish Law Reform Commission followed a similar approach and recommended that the sub judice restrictions commence in respect of publications concerning criminal proceedings when an arrest without a warrant is made, or a warrant for arrest is issued, or a summons to appear is issued, or an indictment or other document specifying the charge is served, or when an oral charge is made.³⁶

The Commission’s tentative view

7.34 Perhaps the Commission’s current view is that the starting point for the application of the sub judice contempt rule should be either from when the arrest of the accused takes place or when the charges are laid. The Commission is of the view that the starting point for liability for sub judice contempt should be from the time the criminal process is first set in motion against a person. Since the aim of sub judice contempt is to protect the administration of justice, it makes sense that liability should at least begin at that point. The time when an information is laid, or a complaint made, or when an ex officio indictment is filed, is the first time at which a matter comes to the attention of a court, and the formal procedures for bringing a person to answer to the court for the alleged criminal misconduct are first set in motion. Following the past reasoning of the courts, therefore, that would appear to be an appropriate starting point for liability for sub judice contempt. It is, moreover, a recognisable event which the media would be able to verify for purposes of deciding whether or not to publish the material concerning the particular event.

7.35 The same reasoning may be made concerning the time of the arrest and the issue of summons. The arrest carries with it legal obligations on the part of the police to bring the arrested person before the court so that a person would come within the processes and protection of the court.³⁷ A summons to appear is another way of bringing a person before a court to answer criminal charges, as an alternative to arresting that person. More importantly with respect to the time of arrest, this is usually the time at which the case may receive quite intense and possibly prejudicial publicity. The time of arrest is therefore, in the Commission’s view, an appropriate time when the media should take care that publicity surrounding the case should not create a substantial risk of prejudice to the proceedings. Because the arrest and issue of summons are, like the laying of charges, events capable of confirmation by the appropriate authorities, the media would be in a position to take reasonable steps to avoid such a risk of prejudice.

7.36 The Commission is, however, not inclined to extend the sub judice rule to a period earlier than either the time of arrest or the laying of charges. More specifically, it takes the position that the sub judice rule should not commence from the issue of a warrant for arrest nor from the time when proceedings may be said to be “imminent”. The main consideration for not using the issue of a warrant as a starting point for the sub judice rule is that there may be a significant time lapse between such issue and the actual arrest. Since the period between the arrest and the trial is generally also lengthy, any prejudicial publicity at the issue of the warrant will most probably have lost its capacity to cause substantial prejudice by the time of the commencement of the proceedings. The Commission concedes that the issue of a warrant for arrest may be a highly newsworthy event,³⁸ but the possibility that the warrant may not be executed immediately would create an undue restriction on the freedom of the media to report on the events. If a wanted person, for example, was never found, the media would continue to be restricted with regard to what could be published for as long as the warrant existed. In any case, if the warrant were executed, the arrest would surely generate as much, if not more, publicity than the arrest and would certainly carry more risk of prejudice by virtue of its greater proximity to the trial.

7.37 The Commission also considers that the sub judice rule should not commence from the time the proceedings are “imminent”. The exceptional power of judges to punish for contempt, which allows a court to try the case without jury and impose penal sanctions, is aimed at empowering judges to protect the proceedings over which a court has control to ensure a fair trial for the accused. Where the proceedings have not reached the point where the courts have control over the proceedings, such as when the proceedings are merely “imminent”, such an extraordinary power should be available only where it is shown to be absolutely necessary. While it is possible that media publicity occurring at a time when proceedings are “imminent” may cause serious prejudice to the administration of justice in any future trial, it seems likely that the risk of such prejudice would generally be less than the risk arising from publicity at a later stage, such as at the time of arrest or some other time closer to the time of the trial. More importantly, there is a lack of certainty as to the meaning of “imminent”. Commenting on this issue, Borrie and Lowe stated:³⁹

‘Imminence’ is an elusive concept, and while it would seem clearly to cover cases where ‘a man is helping police with their inquiries’, or the situation in Beaverbrook Newspapers where the publication appeared while the police were surrounding a suspect’s house, it appears to go beyond that. Are proceedings ‘imminent’ when there is a massive manhunt in operation for a named man? The answer might well depend on how quickly the suspect is arrested after the publication.

7.39 The Commission considers it necessary to clarify by legislation the starting point for the sub judice period where the accused is not in New South Wales. The main factor to be looked at is how quickly the case is likely to come before the New South Wales courts. The Commission is of the tentative view that where the accused is not in New South Wales, but is in another Australian jurisdiction, criminal proceedings should be treated as pending from the time of the arrest of the accused in the other jurisdiction. However, where the accused is overseas, the Commission proposes that the criminal proceedings be treated as pending from the making of the order for the extradition of the accused. The Commission considers that arrest overseas should not make proceedings pending because overseas extradition proceedings can be said generally to take longer than interstate extradition. By the time the trial commences in New South Wales, the publicity would have been spent. An alternative starting point for cases involving overseas extradition is the time when the substantive extradition trial commences. However, the time frame for this would vary from country to country and there would be difficulty in defining it in legislation. The issue of the extradition order is a more verifiable event for the media than the commencement of the extradition proceedings in the relevant country. It is also closer in time to when the case would be taken up in New South Wales so that any publicity surrounding the issue of the extradition order would have a greater impact than that made at a prior time.

PROPOSAL 11

Legislation should provide that the sub judice rule applies to a publication only if the proceedings are pending at the time of the publication.

Criminal proceedings become pending from the occurrence of any of these initial steps of the proceedings: (a) arrest without warrant; (b) the issue of a summons to appear; or (c) the laying of the charge, including the laying of the information, the making of a complaint or the filing of an ex officio indictment.

PROPOSAL 12

Legislation should provide that: (a) where the accused is not in New South Wales but is in another Australian jurisdiction, criminal proceedings become pending from the arrest of the accused in the other jurisdiction; and (b) where the accused is overseas, the criminal proceedings become pending from the making of the order for the extradition of the accused.

7.40 As with publications relating to criminal proceedings, law reform bodies have on previous occasions recommended the introduction of legislation to spell out precisely when liability for sub judice contempt begins for publications relating to civil proceedings.

7.41 The Phillimore Committee in the United Kingdom recommended⁴² that the sub judice restrictions for publications concerning civil proceedings should begin to apply only from the date of setting down for trial. That was seen as the latest convenient and ascertainable date. The Committee took the view that, since civil proceedings are usually heard by judges sitting without a jury, the protection of the administration of justice does not demand an earlier starting point. The Committee considered fixing an earlier starting point in relation to civil proceedings to be heard by a jury, but rejected this approach. The recommendation of the Phillimore Committee was subsequently adopted in s 12 of the Contempt of Court Act 1981 (UK).

7.42 Both the Irish Law Reform Commission⁴³ and the Canadian Law Reform Commission⁴⁴ recommended following the approach taken in s 12 of the Contempt of Court Act 1981 (UK).

7.43 The ALRC recommended that the restrictions on publications relating to civil proceedings begin when it is known that a trial will take place before a jury, and pre-trial proceedings have reached the stage where the case is genuinely ready to proceed and is only waiting for an appointed day of commencement to arrive, or for its turn in a court list.⁴⁵ It considered the recommendation of the Phillimore Committee, but took the view that the time of fixing of a date for hearing may sometimes be too early since, in Australia, cases are often set down for trial comparatively early.

The Commission’s tentative view

7.44 In determining the starting point of the sub judice period for civil proceedings, a distinction should be made between prejudice to the parties, on the one hand, and prejudice to the jury and witnesses, on the other. With respect to prejudice to the jury and witnesses, the Commission is of the view that the protection of the administration of justice does not demand that the sub judice rule should start from the time of the commencement of the civil proceedings or earlier (for example, when they are only “imminent”). It agrees with the observations made by the ALRC that the restrictions imposed by contempt law on publications relating to civil jury trials should be less stringent than those imposed in criminal proceedings because the liberty of the subject is not involved, the strong presumption of innocence in favour of the accused is not present and the law of evidence does not shield from the civil jury the same broad range of allegations that are treated as inadmissible in a criminal trial on the ground that they are likely to be more prejudicial than probative.⁴⁶ Moreover, the Commission is concerned that an action may be commenced, for example by way of a writ, for the purpose of commencing the sub judice rule and therefore “gagging” the media as regards the case.

7.45 Consequently, the Commission agrees with the recommendation of the Phillimore Committee that the basic starting point of the sub judice rule for civil proceedings should be the time of the setting down of the matter for hearing. In contrast to the time of the commencement of the proceedings, the time of the setting down of the matter for hearing is close enough to the trial for publicity about the proceedings to have a potentially prejudicial effect. The Commission also prefers this starting point because:

• it creates certainty for the media, as the setting of a hearing date can easily be verified with the courts;
• it shortens the sub judice period and therefore shifts the balance in favour of freedom of speech; and
• it prevents the tactic of commencing proceedings for the purpose of stifling media comment on the matter, since if proceedings are maintained until this relatively late stage of the pre-trial phase, it is unlikely that they are being maintained just for this purpose.

7.47 Defamation proceedings merit different treatment. The Commission is of the view that the restrictions imposed by the sub judice rule out of concern to prevent a jury being influenced should not apply in cases where the jury is to be empanelled under s 7A of the Defamation Act 1974 (NSW). In defamation proceedings instituted after 1 January 1995, s 7A has greatly restricted the role of juries. The court first determines whether the matter is reasonably capable of carrying the imputation(s) pleaded by the plaintiff and whether any or all of such imputations are reasonably capable of being defamatory of the plaintiff. Only if the court makes positive findings on those issues will a jury be empanelled to determine whether the matter complained of carries any imputation pleaded, and if it does, whether the imputation is defamatory of the plaintiff. More significantly, the jury also does not determine whether any defence raised by the defendant has been established nor does it determine the damages that should be awarded or any issues of fact relating to the determination of that amount. Hence, juries in defamation proceedings now do not decide issues about the truth of the imputation in question, or its fairness as a comment, or other similar matters on which they may be swayed by publicity that is prejudicial to either party. Instead, the jury considers only the nature and meaning of the published matter, having regard to the circumstances in which it was published. In doing this, it takes no account of the actual or deserved reputation or credibility of any of the parties.

7.48 In the previous chapter, the Commission expressed the view that the law should provide some protection against pressure by a publication on parties in civil proceedings, including for example, pressure for a litigant to discontinue or settle the proceedings. Although the Commission has not made a proposal for legislation on this issue, it has outlined a number of possible reform options and invited submissions on a number of issues.⁵⁰ Subject to the outcome of the consultations on these issues and to the final recommendation of the Commission on the application of the sub judice contempt rule to publications that affect parties to civil proceedings, the Commission considers it necessary to clarify the starting point for the sub judice period in this context. It takes the position that in the case of a publication which tends to impose improper pressure on parties to civil proceedings, the proceedings should be treated as pending from the issue of a writ or summons. The time of the setting down of the matter for hearing is too late because the pressure on a party may occur from the time when the proceedings are commenced. Pressure on parties by the media may occur during the pre-trial negotiations, and the law should accord to the parties some degree of protection during this period. On the other hand, the Commission is of the view that the sub judice period should only start when the proceedings are commenced, not when they are merely “imminent”. As discussed above, “imminence” is an uncertain concept, which is difficult to define.

PROPOSAL 13

Legislation should provide that in the case of a publication which tends to impose improper pressure on parties to civil proceedings, the proceedings become pending from the issue of a writ or summons. In the case of other forms of publications relating to civil proceedings, the proceedings should become pending from the time the matter is set down for hearing. This is subject to two provisos, both of which relate only to the restrictions on publication which the sub judice principle imposes out of concern to prevent influence on a jury. First, these restrictions should apply only from the time when it is known that a jury will be used in the proceedings. Secondly, they should not apply in cases where the jury is to be empanelled under s 7A of the Defamation Act 1974 (NSW).

Publications relating to criminal proceedings

7.49 At the moment in New South Wales, the sub judice restrictions on publications relating to criminal proceedings continue till the time for lodging an appeal has expired, or a judgment on appeal has been handed down.⁵¹ That period covers the time after a jury reaches its verdict and before the judge sentences the accused (if convicted), after sentence has been passed and before a notice of appeal has been or should be lodged, during appellate proceedings, and the time before and during any retrial which is ordered on appeal.

7.50 In this section, the Commission considers whether it is appropriate or desirable to follow the existing approach at common law or whether it is preferable to fix an earlier time as the end point for liability for sub judice contempt.

Operation of sub judice restrictions at the sentencing stage

7.51 Once a person is convicted of, or pleads guilty to, a criminal offence, he or she is sentenced by a judicial officer. In theory, the sub judice restrictions apply at this stage to the publication of information about the case. Given the general assumption underlying the law of sub judice contempt that a judicial officer is not susceptible to influence by media publicity, it could be suggested that to apply the restrictions of the sub judice rule to the sentencing stage is an unnecessary and unjustifiable infringement on freedom of discussion. Arguably, liability for sub judice contempt should not extend to publications occurring at the sentencing stage of a matter. Instead, the media should be free at that time to publish any information about the case without risk of breaching the sub judice rule.

7.52 Despite this argument, the ALRC took the view⁵² that a narrow form of the sub judice restrictions should apply to the sentencing stage of the criminal process. It conceded that, on the whole, judicial officers are not considered to be vulnerable to influence by publicity. However, the court referred to the high degree of judicial discretion involved in sentencing, which made the determination of a sentence particularly susceptible to influence, or at least susceptible to the appearance of influence by media publicity. On this basis, it recommended that legislation prohibit the publication of an opinion about the sentence to be passed on any specific convicted offender, from the time of the laying of a charge to the final disposition of the proceeding, or while an appeal against sentence was pending. This prohibition is much narrower than the general sub judice restrictions imposed by the common law and those recommended by the ALRC in respect of publications occurring before or during a criminal trial. It would allow the media to publish, for example, details of an accused’s criminal history at the time of sentencing, without attracting liability, provided this did not amount to an opinion about the sentence to be passed. However, it still extends the operation of the sub judice rule, in some form, over the sentencing period, on the basis of preventing prejudice to the administration of justice in the sentencing process.

7.53 The Phillimore Committee in the United Kingdom also recommended that the sub judice period continue until sentence is passed, in order to avoid “the creation of a prejudicial atmosphere” and to give protection to any witnesses as to character who might be called by either side.⁵³ That recommendation was subsequently enacted into legislation.⁵⁴ Unlike the ALRC, the Phillimore Committee did not recommend a different form of sub judice restriction to apply at the sentencing stage than at the trial stage of criminal proceedings. The Irish Law Reform Commission also recommended the inclusion of the sentencing stage within the sub judice period,⁵⁵ as did the Canadian Law Reform Commission.⁵⁶

Operation of sub judice restrictions during appeals

7.54 Once a person has been convicted and sentenced for a criminal offence, certain avenues of appeal are available to that person and to the prosecution to appeal against the conviction and/or sentence.

7.55 A person convicted on indictment and sentenced in the District or Supreme Courts may appeal to the Court of Criminal Appeal against the conviction on a question of law, or, with the court’s leave, on a question of fact or of fact and law, or, with the court’s leave, against the sentence imposed.⁵⁷ On hearing such an appeal, the court may set aside the verdict of the jury on the ground that it is unreasonable, or cannot be supported by the evidence, or that the trial court made a wrong decision in law, or that there was a miscarriage of justice.⁵⁸ The Director of Public Prosecutions, or the Attorney General, also has a right to appeal to the Court of Criminal Appeal against the sentence imposed, and the court may in its discretion vary the sentence and impose a sentence which it considers to be proper.⁵⁹

7.56 A person convicted by the Supreme Court in its summary jurisdiction may appeal to the Court of Criminal Appeal against the conviction and sentence imposed, and any such appeal is by way of a rehearing of the evidence.⁶⁰

7.57 A person convicted and sentenced by a magistrate may appeal to the District Court against the conviction and/or sentence.⁶¹ Such an appeal is by way of a rehearing of the evidence. The District Court will usually rely solely on the transcripts of evidence heard before the magistrate in the Local Court, although it is possible, with the court’s leave, to admit new evidence on the appeal, and, in certain circumstances, the court may call a witness to give evidence in person in the hearing of the appeal.⁶² As well, the Director of Public Prosecutions may, in certain circumstances, appeal to the District Court against the sentence imposed by a magistrate.⁶³ A person convicted in the Local Court may also now appeal to the Supreme Court on a question of law, or on the ground that the conviction or sentence cannot be supported having regard to the evidence, or, with the court’s leave, on a question of mixed law and fact.⁶⁴

7.58 Appeals lie from the state Supreme Court to the High Court only on the grant by the High Court of special leave to appeal.⁶⁵

7.59 There are three grounds for arguing in favour of the operation of the sub judice rule during appellate proceedings. The first is the risk of influence of media publicity on appellate judges, and on other potential participants in the proceedings. The second is the risk of influence on any future jury if the appellate court orders a retrial. The last ground is the risk that a party may be deterred from exercising his or her right to appeal because of pressure from media publicity.

7.60 Arguably, the first ground is not a particularly sound justification for restricting public discussion, at least in light of the general view that judicial officers are not susceptible to influence by media publicity. It was argued by the ALRC⁶⁶ that there is even less scope for influence on judicial officers in appellate proceedings than at trial because most of the matters to be determined on appeal involve considerations of questions of law, rather than questions of fact. There are grounds of appeal to the Court of Criminal Appeal which require the court to review the evidence as a whole, but these provide fairly limited scope to overturn the decision of the jury or of the trial judge, requiring the court to be satisfied that the verdict was unreasonable, or not supported by the evidence, or that there was a miscarriage of justice. The court cannot simply overturn the decision at trial if it favours another interpretation of the facts. There is perhaps greater scope for the exercise of judicial discretion in appeals heard by the District Court from the Local Court, in so far as these appeals are by way of a rehearing. It is worth noting that the Phillimore Committee recommended that the sub judice rule should apply from the moment an appeal is set down, where that appeal involves a complete rehearing, with witnesses.⁶⁷

7.61 It is also possible that appeals heard by the District Court will involve new evidence, and that witnesses may be called in person to give evidence. It is therefore necessary to consider, in relation to appeals to the District Court, the possibility of influence by media publicity not only on the judicial officer hearing the appeal, but also on any witness who may be called to give evidence. However, witnesses are rarely called to give evidence in person in such proceedings.

7.62 It may be argued that the hearing of an appeal against sentence involves a higher degree of judicial discretion than is generally involved in hearing an appeal against conviction, and for that reason there is a greater need to protect judicial officers against influence by media publicity in appeals against sentence. The ALRC took the view that judicial officers should be protected from media influence when sentencing or hearing an appeal on sentence.⁶⁸

7.63 The second ground for arguing in favour of the operation of sub judice restrictions during appeal proceedings is the risk of prejudice from media publicity to participants in a retrial, if a retrial is ordered by the appellate court. In particular, it could be argued that if the law permits the media to publish material about a case during an appeal, there is a risk that a future jury sitting in the retrial of the case may be prejudiced by that publicity.

7.64 The ALRC took the view that the risk of prejudice to any future retrial was not sufficient justification for restricting the publication of information during appeal proceedings.⁶⁹ It came to this conclusion on the basis, first, that retrials are rarely ordered by appellate courts, and secondly, that there is generally a delay between the order for a retrial and the commencement of the retrial, with the result that any potential for prejudice is likely to be significantly diminished with the passage of time.

7.65 On the other hand, the Canadian Law Reform Commission appeared to favour extending the operation of the sub judice rule till completion of any hearing on appeal, in case a retrial were ordered by the appellate court. It did not, however, make any clear recommendation to this effect.⁷⁰

7.66 Neither the Irish Law Reform Commission nor the Phillimore Committee expressly considered the possibility of retrials when recommending that the sub judice period not operate during appellate proceedings.⁷¹ However, it is worth noting that the Contempt of Court Act 1981 (UK) does not follow the recommendation of the Phillimore Committee, and instead provides in s 15 that the sub judice restrictions apply during appeal proceedings.

7.67 The third suggested ground for restricting publications during appeal proceedings is the possibility that unfavourable media publicity will deter parties from exercising their right to appeal.

7.68 This argument was considered by the Phillimore Committee in the United Kingdom,⁷² but was ultimately rejected as a ground for applying the sub judice rule to this period. The Phillimore Committee concluded that there was no evidence of any case in which a party had been shown to have been deterred from appealing because of media publicity.

Operation of sub judice restrictions after sentence and before appeal

7.69 It is also necessary to consider whether the sub judice restrictions should apply in the period after sentence has been passed but before it is known whether or not an appeal will be made or leave to appeal sought. In New South Wales, the accused and the prosecution generally have 28 days from the time of such conviction or sentence in which to lodge a notice of appeal to the Court of Criminal Appeal⁷³ or to the District Court.⁷⁴ Similarly, there is a 28 day time limit for filing an application for special leave to appeal to the High Court.⁷⁵

7.70 The ALRC⁷⁶ did not recommend including within the sub judice period the time after sentence and before an appeal is lodged (or time to appeal has expired), except in relation to publications that express an opinion on sentence. This approach was rejected by the Federal government in its 1992 position paper on the recommendations of the ALRC.⁷⁷ The government proposed instead that the sub judice restrictions on publications relating to criminal proceedings continue to apply after sentence and before appeal. The basis for this proposal was to protect from possible prejudice any future jury sitting in a retrial.

7.71 In the United Kingdom, the Contempt of Court Act 1981, which does restrict the publication of information during appellate proceedings, does not include within the sub judice period the time after sentence has been passed and before it is known whether an appeal will be made. The sub judice restrictions are only revived once notice of appeal, or an application for leave to appeal, is made.⁷⁸

The Commission’s tentative views

7.72 The end point of the sub judice period should be fixed, in the Commission’s view, at the conclusion of the trial or hearing at first instance, which is usually when the jury has given its verdict or when the proceedings are terminated by other means. The sub judice rule should not continue to apply beyond this point except: (a) in a limited way until a sentence has been imposed; and (b) when a re-trial is ordered. The risk of prejudice to the proceedings, especially to the jury, ceases when the office of the jury becomes functus officio. At that stage the restrictions on freedom of speech imposed by the sub judice rule become unnecessary. It is, however, important to consider the positions (a) where an appeal is pending or still possible, and (b) at the sentencing stage.

7.73 The Commission is of the view that the sub judice rule should not apply during any appellate proceedings determined by judges without a jury. The Commission considers that judges, because of their training, skills and experience, are less susceptible to the risk of influence by publicity about pending appeal cases. The generally legal nature of the issues in appeal proceedings also makes the decision-making process by the judges less vulnerable to influence. The Commission sees no ground for establishing restrictions on publications solely out of concern for influence on the judge, whether he or she is presiding at first instance or on appeal. The only exception to this is with respect to sentencing, which is discussed in paragraphs 7.75-7.77 below. Furthermore, although the Commission acknowledges the possibility that publicity may deter the accused from lodging an appeal, the Commission is not concerned to restrict comment on this ground in the absence of convincing evidence of cases in which parties have been deterred from appealing due to prejudicial publicity. Finally, the possibility of a re-trial is not, in the Commission’s view, sufficient basis to extend the sub judice rule during the appeal proceedings. Re-trials are rarely ordered by appellate courts.⁷⁹ Moreover, comment made during the appeal proceedings is not likely to influence the jury in a re-trial because the publication would have been published a considerable time before the re-trial, with the result that any potential for prejudice is likely to be significantly diminished with the passage of time. However, if the appeal results in an order for re-trial, the law of contempt must begin to operate again because the new trial will involve a jury and witnesses who will need to be shielded from prejudicial publicity. The sub judice period for the re-trial terminates when the case is finally disposed of, such as when the jury makes its verdict.

7.74 It follows from the discussion above that, subject to an exception relating to sentencing, the sub judice rule should not apply during the period between the verdict and the commencement of appeal proceedings. The rationale for maintaining the sub judice rule during this period at common law is the possibility of an appeal being lodged and subsequently a re-trial being ordered. The uncertainty as to whether an appeal might be lodged, the infrequency of re-trials being ordered as a result of appeals and the remote likelihood that material published before appeal may cause prejudice if a re-trial were ordered do not justify the extension of the sub judice rule during the period in question. The Commission proposes that legislation expressly state this position for clarity and certainty.

7.75 The sentencing stage may be distinguished from the appeal proceedings and, as such, merits different treatment under the sub judice rule. Unlike the highly legalistic nature of appeal proceedings, the determination of a sentence involves a strong discretionary element. It involves factual issues concerning not just the convict but also the victim, and in many cases, the community at large as well. It has been observed that while judges should be regarded as less susceptible to influence, a media campaign about the merits of a particular sentence may exert some influence, conscious or otherwise, on judicial officers passing sentence.⁸⁰ The Commission, while maintaining the view that judges are generally immune to media influence even in sentencing, is concerned that media comment about the sentencing of particular proceedings may “embarrass”⁸¹ the sentencing judge. If, for example, a judge imposed a sentence for which the media were clamouring, there may well be a perception that he or she had been influenced by the media publicity. The Commission considers it important to maintain public confidence and respect for the independence, authority and fairness of the judiciary. Public confidence in the administration of justice may be eroded if there isa serious risk that courts appear not to be free from any extraneous influence in making decisions.⁸² The Commission notes with approval the following passage from a New Zealand decision:⁸³

The Court must not only be free – but must appear to be free – from any extraneous influence. The appearance of freedom from any such influence is just as important as the reality. Public confidence must necessarily be shaken if there is the least ground for any suspicion of outside interference in the administration of justice. Any publication therefore that states or implies that the sentences imposed by the Court are, or may be, affected by popular clamour, newspaper suggestion, or any other outside influence is, in my opinion, calculated to prejudice the due administration of justice … If the Court imposed the [sentence demanded by media,] it might well be assumed by the readers of the paper that the Court had been influenced by the newspaper’s demands. If, on the other hand, a lesser sentence were imposed, the article was calculated in anticipation to arouse resentment against the court.

7.77 While the Commission considers that the broad sub judice rule should no longer apply at the sentencing stage, we propose a narrow application of the sub judice rule: namely, that legislation be adopted prohibiting the publication of an opinion about the sentence to be passed on any specific convicted offender, from the time of the laying of a charge to the final disposition of the proceeding, or while an appeal against sentence was pending.⁸⁵ This prohibition is narrower than the general sub judice restrictions imposed by the common law as it restricts publicity concerning the sentencing only. It would allow the media to publish, for example, details of an accused’s criminal history at the time of sentencing, without attracting liability, provided this did not amount to an opinion about the sentence to be passed. The restriction would also be subject to the defences available in the proposed legislation or at common law, such as the fair and accurate reporting and the public interest defences. Hence for example, a media organisation which publishes comment on the sentencing of an accused convicted of an offence involving illegal drugs, which was made in good faith in the course of a continuing public discussion on sentencing offences involving illegal drugs, may invoke the proposed public interest defence,⁸⁶ if it can prove the discussion would have been significantly impaired if the comment had not been published at the time when it was published. And of course a fair and accurate reporting of legal proceedings in which this issue was canvassed would attract the protection afforded by the fair and accurate report principle.

PROPOSAL 14

Legislation should provide that criminal trial proceedings cease to be “pending” for the purposes of the sub judice rule: (a) by acquittal; (b) by any other verdict, finding, order or decision which puts an end to the proceedings; (c) by discontinuance of the proceedings or by operation of law. However, legislation should provide that publications expressing opinions as to the sentence to be passed on any specific convicted offender, whether at first instance or on appeal, shall be prohibited, subject to any defence which is available in the legislation or at common law, such as the public interest defence and the fair and accurate reporting defence.

PROPOSAL 15

Legislation should expressly provide that, subject to the proposed prohibition on publications concerning sentencing, criminal proceedings continue to be not pending for purposes of the sub judice rule: (a) during the period after the verdict (including after the sentence is handed down by the sentencing court) and before appeal proceedings are commenced; and (b) if an appeal is lodged, while the case is pending appeal.

PROPOSAL 16

Legislation should provide that criminal proceedings which have been the subject of appeal proceedings become pending again for the purposes of the sub judice rule only if an order for a new trial is made and only from the date the order is made.

7.78 By contrast with criminal proceedings, it has been suggested⁸⁷ that civil proceedings are pending only until the time when a judgment at first instance is delivered, rather than when the time to appeal against that judgment has expired.

7.79 It is also possible that the sub judice restrictions will cease to apply to publications concerning civil proceedings that have “lapsed” or that are not being actively pursued by the parties to the proceedings. It was suggested in an English case⁸⁸ that the mere issue of a writ may not be enough to keep the sub judice restrictions active, if no further action is taken to have the matter proceed in court, or if there is a long delay in proceeding with the matter in court. However, given the lengthy negotiations which are often involved in trying to settle civil claims out of court, it is questionable what delay would be considered long enough to establish that a matter had lapsed or was not being actively pursued for the purpose of the sub judice rule.

7.80 The Phillimore Committee in the United Kingdom recommended that sub judice restrictions for publications relating to civil proceedings should cease to apply at the conclusion of the trial or hearing at first instance,⁸⁹ and this is the situation under the Contempt of Court Act 1981 (UK). The Act provides for the sub judice restrictions to recommence upon application for leave to appeal, or notice of such application, or notice of appeal or other originating process, and end when the appeal is disposed of, abandoned, discontinued, or withdrawn.⁹⁰

7.81 The ALRC recommended⁹¹ that the sub judice restrictions for publications relating to civil proceedings should relate only to cases tried by jury and should come to an end when the civil jury’s verdict has been delivered.

7.82 The Irish Law Reform Commission took the view that the sub judice restrictions should not apply to civil appellate proceedings.⁹²

7.83 The Canadian Law Reform Commission, in its Working Paper, expressed the view that the sub judice restrictions should apply until the time of the final judgment in a civil matter (rather than the judgment at first instance) is handed down. That is, it would apply to appeal proceedings.⁹³ However, in the Report, it was recommended that the sub judice restrictions apply until the matter is “adjudicated” and the trial is terminated.⁹⁴ It is not clear whether “adjudicated” means the judgment at first instance, or the judgment on appeal.

The Commission’s tentative view

7.84 The Commission is of the tentative view that the sub judice restrictions for publications relating to civil proceedings should come to an end when the hearing at first instance comes to an end. In the ordinary course of events, the proceedings will be disposed of when judgment is entered. However, the proceedings may be terminated by other means, such as discontinuance. The provisions of the Contempt of Court Act 1981 (UK)⁹⁵ which set the basic end point of the strict liability rule for civil proceedings when the proceedings are disposed of or discontinued or abandoned or withdrawn presents a good model as it provides certainty as to when the rule ceases to operate. However, the Commission’s view departs from the English Act in proposing that the sub judice rule should not apply after the conclusion of the hearing at first instance, for example during the appeal proceedings. As with criminal cases, the risks of prejudice during appeal proceedings are minimal and do not warrant the extension of the sub judice rule beyond the hearing at first instance. The only time when the sub judice rule may re-commence is if a re-trial is ordered. If this occurs, the sub judice restrictions should operate again for that period (and cease when the re-trial is concluded).

PROPOSAL 17

Legislation should provide that civil proceedings cease to become pending for purposes of the sub judice rule when the proceedings are disposed of or abandoned or discontinued or withdrawn. The proceedings should become pending again only when and from the time a re-trial is ordered.

7.85 It is worth noting the distinction which is sometimes made at common law between the time limits that apply to an unintended contempt and those relating to an intentional contempt. It has been suggested that, where a publisher intends to prejudice the administration of justice in respect of a particular case, he or she may be liable for sub judice contempt even if legal proceedings relating to that case are not yet pending or imminent.⁹⁶

The Commission’s tentative view

7.86 In Chapter 5, the Commission proposes to abolish the common law category of intentional sub judice contempt and instead proposes the adoption of legislation that would make it clear that mere intent to interfere with the administration of justice does not constitute sub judice contempt, in the absence of a publication which creates a substantial risk of prejudice to the administration of justice. Consequently, publication which creates a substantial risk of prejudice will be prohibited, regardless of the presence or absence of intent to cause prejudice. The aim is to apply the same criteria of liability in both situations. In like manner, the Commission is of the view that, in the absence of any sound policy reasons for a contrary position, the same time limits for liability for sub judice contempt should apply whether or not there was an actual intention to interfere with the administration of justice.

PROPOSAL 18

Legislation should provide that the same time limits for liability for sub judice contempt apply whether or not there was an actual intention to interfere with the administration of justice.

1. It is possible, though not clear, that the general time limits for sub judice contempt do not apply to situations where it is alleged that the publisher actually intended to prejudice proceedings: See Attorney General v News Group Newspapers Ltd [1988] 2 All ER 906.

2. See James v Robinson (1963) 109 CLR 593 at 607 (Kitto, Taylor, Menzies and Owen JJ).

3. See para 1.48-1.64.

4. See James v Robinson (1963) 109 CLR 593; Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.

5. Packer v Peacock (1912) 13 CLR 577 at 586.

6. James v Robinson (1963) 109 CLR 593 at 615-616 (Windeyer J). See also The Prothonotary v Collins (1985) 2 NSWLR 549 at 567 (McHugh JA); Watson v Attorney General (NSW) (1987) 8 NSWLR 685 at 700; X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 at 605 (Mahoney JA); Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 375; R v Rogerson (1992) 174 CLR 268 at 276 (Mason CJ).

7. James v Robinson (1963) 109 CLR 593; Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.

8. To the Commission’s knowledge, the courts have not considered the question of whether proceedings are pending on the issue of a summons to appear. The court did refer in Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 374-375 to the fact that there are various methods by which the criminal process may be initiated in New South Wales, so as to come within the sub judice period. The court referred to the methods discussed in the judgment of Gleeson CJ in R v Hull (1989) 16 NSWLR 385 at 390 as the methods by which the criminal process may be initiated. That judgment refers to the issue of a summons to appear as one method of initiating criminal proceedings in New South Wales. It may be argued from that reference that the courts would be likely to consider the issue of a summons to appear as coming within the sub judice period.

9. James v Robinson (1963) 109 CLR 593 at 615-616 (Windeyer J); Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 369 at 374-375.

10. See R v Clarke; Ex parte Crippen (1910) 103 LT 636 at 641 (Coleridge LJ, in obiter).

11. See Justices Act 1902 (NSW) s 21-24 (for indictable offences), s 59, 60 (for summary offences).

12. See Justices Act 1902 (NSW) s 22A, 52A.

13. See Criminal Procedure Act 1986 (NSW) s 4(2).

14. James v Robinson (1963) 109 CLR 593 at 615 (Windeyer J); Packer v Peacock (1912) 13 CLR 577 at 586.

15. See the Service and Execution of Process Act 1992 (Cth) s 82 with respect to extradition among the Australian States. See the Extradition Act 1999 (NZ) s 41 for extradition between Australia and New Zealand. With respect to extradition between Australia and other countries, the requirements will be provided for in the treaty between Australia and the other country, but the general procedure is that a warrant is to be issued prior to application for extradition: Information provided by the Australian Attorney General’s Department.

16. Services and Execution of Process Act 1992 (Cth) s 82(3).

17. Services and Execution of Process Act 1992 (Cth) s 83.

18. Services and Execution of Process Act 1992 (Cth) s 83.

19. E P Aughterson, Extradition: Australian Law and Procedure (Law Book Company, Sydney, 1995) at 247-248.

20. Extradition Act 1999 (NZ) s 40, 41.

21. Extradition Act 1988 (Cth) s 40.

22. [1908-1910] All ER 915.

23. [1908-1910] All ER 915 at 919.

24. [1908-1910] All ER 915 at 920.

25. [1908-1910] All ER 915 at 921.

26. James v Robinson (1963) 109 CLR 595 at 615 (Windeyer J); see also Dunn v Bevan [1922] 1 Ch 276 at 284 (Sargant J); Re Crown Bank (1890) 44 Ch D 649 at 651 (North J).

27. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 304-306; Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) recommendation 21; Canada, Law Reform Commission, Contempt of Court (Report 17, 1982) at 28-29; United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 115-123.

28. See, for example, R v Odham’s Press Ltd; Ex parte Attorney General [1957] 1 QB 73; R v Savundranayagan [1968] 3 All ER 439; Attorney General v Times Newspaper Ltd [1974] AC 273 at 301 (Lord Reid); Attorney General v Leveller Magazine Ltd [1979] AC 440 at 449 (Diplock LJ).

29. See Justice Wills in R v Parke [1903] 2 KB 432 at 437: “It is possible very effectually to poison the fountain of justice before it begins to flow.”

30. See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 117; Australian Law Reform Commission, Contempt (Report 35, 1987) at para 306; Canada, Law Reform Commission, Contempt of Court: Offences Against the Administration of Justice (Working Paper 20, 1977) at 44-45; (Report 17, 1982) at 29-30. But see the Irish Law Reform Commission’s views supporting the extension of the sub judice period to proceedings that are imminent, but only where the publisher is aware of facts which, to the publisher’s knowledge, render the publication virtually certain to cause serious prejudice to a person whose imminent involvement in criminal (or civil) proceedings is virtually certain: Ireland, Law Reform Commission, Contempt of Court (Consultation Paper, 1991) at 320-321; (Report 47, 1994) at para 6.11-6.13.

31. See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 123.

32. See United Kingdom, Lord Chancellor and Lord Advocate, Contempt of Court (Discussion Paper, HMSO, London, Cmnd 7145, 1978) at para 14.

33. See Contempt of Court Act 1981 (UK) s 2(3), 2(4), Sch 1 (note that slightly different provisions apply to Scotland, as set out in Schedule 1, to take account of the different criminal procedures which apply there). See also United Kingdom, Parliamentary Debates (Hansard) House of Commons, 2 March 1981 at 76-77; House of Lords, 7 May 1980 at 1728-1738; House of Lords, 20 January 1981 at 392-403.

34. See Canada, Law Reform Commission, Contempt of Court (Working Paper 20, 1977) at 43-44; (Report 17, 1982) at 29, 55-56.

35. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 297, 304-308.

36. See Irish Law Reform Commission, Contempt of Court (Report 47, 1994) recommendation 21.

37. In concluding that the rule of contempt begins to operate from the time of arrest, the New South Wales Court of Appeal observed: “That was the time of initiation of criminal proceedings against [the accused]. That was when the criminal law was set in motion. From that time there was an obligation to bring him before a court as soon as reasonably practical. From that time he was … “under the care and protection of the court”. The processes and procedures of the criminal justice system, with all the safeguards they carry with them, applied to [the accused] and for his benefit, and … publications with tendency to reduce those processes, procedures and safeguards to impotence are liable to attract punishment as being in contempt of court”: Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 378.

38. See the observations in Australian Law Reform Commission, Contempt (Report 35, 1987) at para 307.

39. G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, London, Butterworths, 1996) at 245-246.

40. [1968] 3 All ER 339 at 441 (Salmon LJ) who stated that at the time of the television interview of Savundranayagan whose conviction it was being argued had been prejudiced by the interview, “it surely must have been obvious to everyone that he was about to be arrested and tried on charges of fraud” (emphasis supplied).

41. G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 245.

42. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 127.

43. Ireland, Law Reform Commission, Contempt of Court (Consultation Paper, 1991) at 321; (Report 47, 1994) at 37.

44. Canada, Law Reform Commission, Contempt of Court (Working Paper 20, 1977) at 45; (Report 17, 1982) at 31, 54.

45. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 339.

46. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 337.

47. See Supreme Court Rules 1970 (NSW) Pt 5 r 4A.

48. But not later than 14 days after the date for hearing stated in the summons: Supreme Court Rules 1970 (NSW) Pt 34 r 3(1)(b)(ii).

49. See, for example, Supreme Court Act 1970 (NSW) s 87.

50. See para 6.30-6.36.

51. Attorney General v Mundey [1972] 2 NSWLR 887 at 901 (Hope JA); Kerr v O’Sullivan [1955] SASR 204; R v Duffy; Ex parte Nash [1960] 2 QB 188.

52. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 384, Appendix A (Administration of Justice (Protection) Bill 1987 (Cth) cl 19).

53. See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 132.

54. See Contempt of Court Act 1981 (UK) s 2(3), 2(4), Sch 1.

55. See Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) recommendation 21.

56. See Canada, Law Reform Commission, Contempt of Court (Working Paper 20, 1977) at 43-44; (Report 17, 1982) at 54, 56.

57. See Criminal Appeal Act 1912 (NSW) s 5(1).

58. See Criminal Appeal Act 1912 (NSW) s 6(1).

59. See Criminal Appeal Act 1912 (NSW) s 5D(1).

60. See Criminal Appeal Act 1912 (NSW) s 5AA.

61. See Justices Act 1902 (NSW) s 120(1).

62. See Justices Act 1902 (NSW) s 132, 133.

63. See Justices Act 1902 (NSW) s 133F.

64. See Justices Act 1902 (NSW) s 104(1).

65. See Judiciary Act 1903 (Cth) s 35.

66. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 383.

67. See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 132.

68. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 384.

69. The Australian Law Reform Commission’s discussion on this point included consideration of the period between the jury handing down a verdict and the time for lodging an appeal. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 309-310.

70. See Canada, Law Reform Commission, Contempt of Court (Working Paper 20, 1977) at 44; (Report 17, 1982) at 54-56.

71. See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London Cmnd 5794, 1974) at para 132; Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.14.

72. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 132.

73. See Criminal Appeal Act 1912 (NSW) s 10(1). The Court may extend the time within which notice of appeal, or notice of an application for leave to appeal, is required to be given: s 10(2).

74. See Justices Act 1902 (NSW) s 122(1), 133G(1). The District Court may grant leave to appeal outside the 28 day limit, but an application for leave to appeal out of time must be made within three months after conviction or sentence: s 124(1).

75. See High Court Rules 1952 (Cth) O 69A r 3(1).

76. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 309-310.

77. Australian Attorney General’s Department, The Law of Contempt (Position Paper, 1992) at 5.

78. See Contempt of Court Act 1981 (UK) s 15.

79. The number of re-trials ordered by the Supreme Court from 1996 to 1999 is as follows: 1996 - 2; 1997 - 3; 1998 - 4; 1999 - 1: Information supplied by J Highet, Policy and Research Officer, Supreme Court (NSW) (22 February 2000).

80. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 384.

81. See para 4.53-4.55 for a discussion on “embarrassment” of a court.

82. See R v The Herald & Weekly Times Ltd [1999] VSC 432; R v The Herald & Weekly Times Ltd (No 2) [2000] VSC 35.

83. Attorney General v Tonks [1939] NZLR 533 at 537 (Myers CJ).

84. See Ex parte Attorney General; Re Truth & Sportsman Ltd [1961] SR (NSW) 484 at 496 (Street CJ, Owen and Herron JJ).

85. In this the Commission is adopting the recommendation of the Australian Law Reform Commission.

86. See Proposal 19.

87. Ex parte Dawson; Re Consolidated Press Ltd [1961] SR (NSW) 573 at 573-574 (Street CJ). However, Justice Owen, in the same case, stated that he expressed no opinion as to whether civil proceedings were still pending before the time for appeal had expired: [1961] SR (NSW) 573 at 575. It was held in two older English cases that the sub judice period in respect of publications concerning civil proceedings ends after judgment at first instance is delivered: see Metzler v Gounod (1874) 30 LT 264; Dallas v Ledger (1888) 4 TLR 432.

88. See Attorney General v Times Newspapers Ltd [1973] QB 710 at 740 (Denning LJ). But see the decision of the House of Lords on appeal in that case, in which it was held that, on the facts of the particular case, a twelve year delay was not sufficient basis on which to conclude that the matter had lapsed: Attorney General v Times Newspapers Ltd [1974] AC 273 at 311 (Diplock LJ), at 301 (Reid LJ), at 306 (Morris LJ), at 317 (Simon LJ), at 324 (Cross LJ).

89. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at 55.

90. Contempt of Court Act 1981 (UK) Sch 1[12], 1[15]. See observations in C J Miller, Contempt of Court (2nd edition, Clarendon Press, Oxford, 1989) at 186 about doubts as to whether these provisions apply to civil appellate proceedings.

91. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 339.

92. Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.14.

93. Canada, Law Reform Commission, Contempt of Court (Working Paper 20, 1977) at 45.

94. Canada, Law Reform Commission, Contempt of Court (Report 17, 1982) at 31, 54, 56.

95. Contempt of Court Act 1981 (UK) Sch 1[12], 1[15].