14.1 This chapter examines the issue of compensation for loss suffered as a result of a contemptuous publication. Specifically, this chapter considers whether it is desirable to order the media to pay for the costs of a trial which is aborted because of a contemptuous publication, and, if so, how a power to order costs should be formulated. As part of this discussion, the provisions of the Costs in Criminal Cases Amendment Bill 1997 (NSW)1 (“the Bill”) are analysed.
EXISTING POWERS TO ORDER COMPENSATION
14.2 It is doubtful whether the courts in New South Wales currently have any power to order payment of compensation for the costs of legal proceedings which are discontinued because of a contemptuous publication.
14.3 There has been some suggestion in the past that a civil cause of action is available at common law to recover damages for loss occasioned by a trial which is discontinued as a result of a contemptuous publication.2 However, the issue has never been finally resolved, and there does not appear to have been any recent attempt to bring an action in this situation.3
14.4 It is possible that a Federal court has statutory power to order payment of compensation (or “reparation”, as it is termed in the Federal legislation), for a contemptuous publication which affects proceedings before a Federal court, as opposed to a State court. This power is derived from s 21B of the Crimes Act 1914 (Cth). Section 21B provides, among other things, that a person who is convicted of an offence against a law of the Commonwealth may be ordered by the court:
14.5 It was suggested in one case that s 21B may possibly be relied on to order payment of reparation in respect of a contempt relating to a Federal court, but that it did not provide a State court with the power to make such an order, even if the State court were exercising Federal jurisdiction.4 It is unlikely that a contempt prejudicing Federal proceedings being tried in a State court would be an “offence against a law of the Commonwealth”, as the relevant contempt principles are State laws.5
14.6 It is arguable that the Victims Compensation Act 1996 (NSW) (“Victims Compensation Act”) may provide a statutory source for ordering those convicted of contempt to pay compensation. Section 77B of the Victims Compensation Act states, among other things, that if a person is convicted of an offence, the court may direct that a specified sum be paid out of the property of the offender to an “aggrieved person”. An “aggrieved person” is defined in s 77A to include a person “who has sustained loss through or by reason of” the offence for which the offender is convicted. It is not clear whether “loss” could be interpreted to cover pecuniary loss suffered by reason of a trial which is aborted because of a contemptuous publication. Although the statutory scheme for compensation established by the Victims Compensation Act is for victims of violence, the alternative scheme which the Victims Compensation Act establishes, under which a court may order the person it finds guilty of a crime to pay compensation to any victim of the crime, is not limited to crimes of violence.6 As far as the Commission is aware, however, this legislative provision has never been relied on to ground a claim for compensation for the costs of an aborted trial following a conviction for sub judice contempt.
OVERVIEW OF THE COSTS IN CRIMINAL CASES AMENDMENT BILL 1997
14.7 In light of the apparent lack of existing powers to order compensation in sub judice contempt cases, the Bill was introduced with the aim of empowering courts to require media proprietors and other persons in charge of a media business to pay compensation for the costs of a criminal trial.7 Under the framework provided by the Bill, there are three conditions which must be met before an order for compensation may be made. First, legal proceedings must have been discontinued solely or mainly because they were affected by a publication by the media. Secondly, the legal proceedings affected must have been criminal proceedings before a jury. Thirdly, a charge of contempt must have been proven against the media proprietor or other person in charge of the media business, although it is not necessary that that person actually be convicted of contempt.8
14.8 Publications which could attract a costs order under the Bill are confined to a “printed publication circulated to the public”, or a “radio, television or other electronic broadcast to the public”. An order to pay costs may be made against the proprietor or other person (or corporation)9 in charge of the business or other undertaking responsible for the printed publication or broadcast.
14.9 The Bill vests the power to order payment of costs in the Supreme Court (“the Court”). The Court has a discretion whether or not to make an order. The costs that may be recovered under the Bill consist of the legal costs of the parties to the discontinued proceedings, the costs to the State in the provision of legal services to the accused, the costs to the State in respect of the conduct of proceedings (including the salaries of judicial officers and other court officers and staff, fees paid to legal practitioners and jurors, and expenses paid to witnesses and jurors), and costs of any other class prescribed by regulation.10 It is questionable whether the “legal costs” of the parties and the provision of “legal services” to the accused include disbursements, such as payment to expert witnesses and the cost of transcripts.11
14.10 The Bill provides that an order by the Court to pay costs may be made only on application by the Attorney General. Any such order must be made in favour of the Attorney General, for the benefit of the persons specified in the application. Such persons could be the accused in the discontinued proceedings, the State, and/or any other person, or a person within a class, prescribed by regulation. The Attorney General may provide the Court with a certificate setting out the relevant costs as they apply to each person. However, if it decides to make an order for payment of costs, the Court may order payment of an amount that is less than or equal to (but not more than) the amount specified in the certificate. The Attorney General must distribute any costs recovered on an application to the persons and in the amounts specified in the Court’s order.
14.11 Under the Bill, proceedings to determine an application for costs against a person or organisation may be made any time after proceedings have commenced for contempt against that person or organisation, but must be made within three years from the conclusion of those contempt proceedings. Proceedings to determine an application for costs are civil. Any order made by the Court on an application is enforceable as a civil debt. Failure to comply with a costs order does not itself constitute contempt of court.
14.12 As noted in Chapter 1, the introduction of the Bill caused some controversy, and was strongly condemned by representatives of the media. The arguments in favour of a power to order compensation and the arguments against such a power are outlined below. Criticisms of the Bill itself are also examined in this chapter.
JUSTIFICATIONS FOR A POWER TO ORDER COMPENSATION
14.13 The primary purpose of the Bill was to introduce a scheme for compensating those who suffer loss as a result of a contemptuous publication, in the specific context of a criminal trial which is aborted because of media publicity. As the Minister for Police stated when introducing the Bill in Parliament:
Why should the community have to bear the economic losses which have been caused by the contemptuous actions of the media? The introduction of a scheme to recover costs from contemnors will make it easier for innocent parties to recoup their losses and – by sending a message to the hip pocket of potential media contemnors – hopefully encourage more responsible media reporting.12
14.14 The notion of ordering offenders to make reparation to those who have suffered loss as a result of their criminal conduct is not unprecedented. Indeed, there is arguably a general trend in the criminal justice system toward recognising loss suffered by victims and making offenders accountable in a practical way for the consequences of their actions. This trend is reflected in the various legislative provisions which now exist to order compensation and restitution by offenders to their victims, such as the provision for the restitution of stolen or embezzled property,13 or the provisions in the Victims Compensation Act and the Crimes Act 1914 (Cth) for the payment of compensation by an offender to his or her victim, as discussed in paragraphs 14.4-14.6 above.14
14.15 Reparation is properly viewed as something which is ancillary to sentencing, and which does not form part of the sentence itself.15 Whereas the focus of sentencing is on the offender, with its aims (among others) to punish and deter, the focus of reparation is on the victims of crime, and providing them with a means of obtaining some practical relief for their loss, which relief is not generally provided by the sentencing process.
14.16 If sub judice contempt is to be treated as a criminal offence, or as imposing criminal liability, then there is justification for providing a means for those who suffer loss as a result of that contempt to recover compensation for their loss. While there may not be a direct “victim” of a contempt in the same way as there is a victim of, for example, an assault or a theft, there are often people who suffer financial loss following a contemptuous publication. The clearest example of this is the situation dealt with by the Bill, where a criminal trial must be discontinued because of media publicity, and the parties in the trial suffer the wasted expense of an aborted trial, as well as, potentially, the additional expense of a new trial. It may be questioned why, in this situation, the parties should not be compensated by the offender, consistent with the general trend of compensating victims of crime.
14.17 The expense incurred by aborting a trial is usually substantial. The daily cost of running a case in court is high. Appendix B sets out estimates of the cost of running a criminal jury trial in the District and Supreme Courts (since these are the types of proceedings most likely to be aborted as a result of media publicity). Based on these estimates, the cost of running a criminal jury trial in the Supreme Court is approximately $6,011 per day, and in the District Court it is approximately $4,526 per day. These figures include the cost of salaries for judicial officers and other court staff (as apportioned for a daily figure), but exclude the cost of legal representation and other services such as the Police and Corrective Services (where the accused is in custody). The Public Defenders’ costs are estimated to be $845 per day. The cost of legal representation for a legally aided accused is estimated at $3,420 per day in the Supreme Court and $2,268 per day in the District Court.16 The costs borne by an accused who is not legally funded could well be higher than these figures.
14.18 It has been suggested that it is becoming an increasingly common problem that trials are aborted because of media publicity, therefore warranting the introduction of a means to recover the considerable wasted expense.17 However, that suggestion has been strongly disputed by others, particularly by the media.
14.19 As noted above, while sentencing aims at deterrence, compensation is designed to remedy losses. However, having said that, there is an element of deterrence in the existence of a power in the courts to order compensation. This is relevant in the context of trying to ensure that the expeditious finalisation of a trial is not jeopardised by contemptuous publications. If a trial is aborted, there is the risk that witnesses may not be able to be found at a later date, including an accused’s exculpatory witnesses. There is also the possibility that clear recollections of events will deteriorate. As well, the public interest in the due administration of justice is frustrated.
ARGUMENTS AGAINST A POWER TO ORDER COMPENSATION
14.20 The Commission has received a number of submissions addressing the issue of compensation for the cost of an aborted trial following a contemptuous publication. The majority of these submissions were made on behalf of media groups, and expressed strong opposition to the introduction of a power to order compensation. They focused particularly on the provisions of the Bill. The principal arguments against a power to order compensation, as articulated in the submissions, are summarised below.
Double punishment
14.21 The usual sanction imposed by the sentencing court for sub judice contempt is a fine, for which there is no statutory limit and which can be substantial.18 It was submitted that to order media organisations to pay for the cost of an aborted trial, in addition to paying what could well be a large fine, would be to punish the offender twice for the same offence.19 The financial burden placed on the organisation as a result could be enormous.
14.22 The concern regarding double punishment is heightened in light of the particular framework for ordering compensation established by the Bill. The Bill allows for an application for compensation for costs to be made separately from, and potentially three years after, proceedings to determine liability and penalty for contempt.20 Consequently, at the sentencing stage, when determining the appropriate sanction to impose, or, in most cases, the appropriate amount for a fine, the court will not necessarily be in a position to take into account the fact that the media organisation will also be ordered to pay for the cost of an aborted trial. Moreover, the fact that the publication has caused a trial to be aborted may be considered by the sentencing court as an aggravating factor which increases the amount of the fine to be imposed.21
14.23 While the Bill provides that the Court, when making an order for compensation, may order payment of an amount of money which is less than that specified in the application by the Attorney General, the Bill does not expressly set out factors for the Court to consider in determining the appropriate amount to order. This contrasts with the approach taken towards ordering compensation in the Victims Compensation Act22 and the Crimes Act 1914 (Cth),23 both of which set out factors for the court to consider in determining the sum of compensation to be paid.
14.24 It was submitted that a further consequence of punishing the media twice for a contempt was that the State would recover twice over the amount of money lost from an aborted trial.24 The money from a fine would pass into Consolidated Revenue for the State, and most of the money obtained from an order to pay compensation for an aborted trial would also pass to the State. The State would therefore be in a position to profit unfairly from the large financial burden imposed on the media. It was argued that if there is concern to reimburse the State and individuals for the expenses of an aborted trial, then the money levied from a fine should be able to be applied to compensate individuals who have been financially disadvantaged as a result of media publicity.
14.25 To some extent, the argument about “double punishment” misconceives the different purposes served by the imposition of a fine and an order for compensation. A fine is imposed as part of the sentencing process whereas compensation is an order which is ancillary to sentencing. The focus of sentencing is on the offender, with its aim being to punish the offender for breaking the law by, in this context, the imposition of a financial sanction. The focus of compensation is on those who have suffered loss as a result of another’s criminal conduct, with its aim being to provide a means of recovery for that loss. Punishment and compensation are not mutually exclusive: a person convicted of, for example, theft, does not generally escape sentencing even if that person has restored the stolen property to its owner. Furthermore, while it is true that money raised from a fine will go to the State, that does not mean that that money will be applied to reimburse those State bodies that have suffered direct financial loss from an aborted trial.
14.26 However, there is also merit in the argument that the framework provided by the Bill may give rise to an unfair outcome. The fact that the Bill allows for sentencing and determination of an application for compensation to occur at separate times may make it difficult for the sentencing court to take into account a compensation order as a factor mitigating penalty, whereas, in the Commission’s view, this factor should be relevant to determining an appropriate fine. The Commission acknowledges that there is a risk that if the court considers the possibility of a compensation order as a mitigating factor, thus reducing the fine, and no application for compensation is subsequently made, the offender is unfairly released from paying the full penalty.
14.27 Conversely, if legislation is enacted giving the Court the power to order compensation, it is the Commission’s tentative view that the Court should be able to take into account the amount of any fine imposed on the offender by the sentencing court. Although the Bill appears to provide the court with a discretion to order a sum which is less than the amount specified in the application for compensation, the proposed legislation does not spell out that the court may, or should, take into account the penalty imposed on the offender.
14.28 While these measures would alleviate the risk of the Bill both appearing to impose, and in reality imposing, “double punishment”, the Commission appreciates the concerns expressed and welcomes further submissions.
Unnecessary legislation
14.29 It was submitted that the incidence of trials which are aborted because of media publicity is very low and that it is therefore not warranted to introduce a scheme to recover costs, and certainly not one as draconian as that provided for in the Bill.25
14.30 It is true that the incidence of aborted trials due to contemptuous media publications is not high.26 However, the fact that a legislative power may only rarely need to be invoked does not in itself provide good reason why the power should not exist at all. As pointed out above, the losses arising from an aborted trial can be enormous. If it is ultimately concluded that it is proper for the offending media organisation, or individual, to bear the losses resulting from its contempt, then a power to order compensation should be available, regardless of the rarity of its exercise.
Deterrence
14.31 It was submitted that, if the main purpose of introducing a costs power is to deter the media from publishing material which might be contemptuous, then the existing unlimited powers to punish for contempt by way of a fine and/or imprisonment are sufficient to meet this purpose.27
14.32 The Commission does not agree that the main purpose of introducing a costs power is to deter the publishing of contemptuous material. The purpose of imposing a penalty on the offender in contempt proceedings is to punish. The objectives of punishment are traditionally stated as being retribution, deterrence, rehabilitation and incapacitation.28 To this list, the Commission would add denunciation. But these objectives do not include reparation. An order to pay compensation is an order requiring the offender to indemnify the “victim” (which in this case includes, or may be confined to, the State) for the injury caused as a result of the offender’s conduct.29 Hence, the sentencing of an offender and the imposition of an order for compensation fulfil two separate objectives, the former including the element of deterrence and the latter, principally, making reparation.
No element of fault
14.33 It was submitted that it is unfair to impose an order to pay compensation for an offence which requires no element of blameworthiness on the part of the offender.30
14.34 As discussed in Chapter 5, it is not necessary to prove any element of intent or fault in order to establish liability for contempt. Consequently, a media organisation could potentially be ordered to pay a very substantial amount of money as compensation for an aborted trial after committing a contempt which it did not intend to commit and, in some circumstances, could not reasonably have been expected to avoid. Of particular concern was the situation of live broadcasts, such as radio broadcasts.31 It was submitted that radio news services are often syndicated throughout New South Wales and other states, so that a regional broadcaster has no control over the content of a national news program prepared by a program supplier which is broadcast live. Nevertheless, a broadcaster in this situation could face an order to pay a large financial sum by way of compensation if it broadcast contemptuous material causing a trial to be aborted, even if it was not in a position to prevent the broadcast.
14.35 It could be argued that the potential for unfairness is increased by the framework for compensation envisaged by the Bill, which provides that an order for costs may be made in respect of a person against whom a charge of contempt is “found proven”.32 An order may therefore be made where there is no conviction for contempt, provided that the charge of contempt is proven. This would cover the situation where, for example, the court finds that, technically, a charge of contempt against a person is proven, but, in its discretion, determines not to convict that person of contempt because the contempt was unintended or was understandable in the circumstances. According to the Bill, a person in this situation could still be subject to an order to pay the costs of an aborted trial, even though the court finds that he or she should not, in the circumstances, be convicted of contempt.
14.36 The primary justification for introducing a power to order compensation in respect of contempt is that sub judice contempt imposes criminal liability for which, consistent with the general trend in the criminal justice system, it is appropriate to compensate its victims. That argument is weakened, however, by the fact that, in several respects, sub judice contempt operates inconsistently with general principles of criminal law. One of the most significant inconsistencies is that it requires no form of fault as an element of liability. As argued in Chapter 5, the Commission considers that unfairness can arise from the absence of any requirement for fault. That unfairness is increased if compensation is ordered based on the current principles of liability. However, the Commission has made proposals to introduce an element of fault into liability for sub judice contempt.
14.37 The Commission proposes that a defence to a charge of sub judice contempt should be available on the basis that the person or organisation charged with the contempt did not know a fact which was the cause of the publication being in breach of the sub judice rule, and took all reasonable steps to ascertain any such facts.33 Moreover, it proposes a defence if the accused can show that (a) it had no control of the content of the offending material and: (i) at the time of the publication, it did not know (having taken all reasonable care) that it contained such matter and had no reason to suspect that it was likely to do so, or (ii) it became aware of such material before publication and on becoming so aware, took such steps as were reasonably available to them to endeavour to prevent the material from being published.34 If liability were formulated according to these proposals, then the assertion of unfairness in respect of a power to order compensation would be significantly diminished.
14.38 Potential for unfairness would be further diminished if the Bill is amended so that the power to order compensation arises only when there has been a conviction for contempt. This is discussed in paragraph 14.44 below.
Exercise of the discretion to abort a trial
14.39 Several submissions expressed concern that the decision to abort a trial, on which an order for compensation would depend, is ultimately a matter for the discretion of the individual trial judge.35 There is generally no avenue for questioning the appropriateness of that decision (as opposed to the decision not to abort a trial). The divergence between cases in which a trial is aborted because of a publication and cases in which no liability for contempt is found, or vice versa, may suggest some inconsistency in judges’ approaches to determining the risk of prejudice to a jury as a result of media publicity.
14.40 It was also submitted that judges in general appear to have little faith in the ability of juries to understand and follow proper instruction, and that, if the courts were given the power to order payment from the media for the costs of an aborted trial, trial judges would be more willing to abort trials in the knowledge that it could be the media, and not the State, that would be required to pay for the expense.
14.41 Although there is good reason to approach the exercise of a discretion which may give rise to a liability for costs with caution, in this case, there are a number of factors which arguably allay the concerns raised in submissions. First, while it is true that it is ultimately a matter for the trial judge whether or not to abort a jury trial, there are established principles which guide the exercise of that discretion.36 The trial judge should only discharge the jury if she or he considers it necessary to do so in the interests of ensuring a fair trial. The courts have noted that jurors are capable of putting publicity out of their minds and of adjudicating fairly and impartially, and that trial judges should not be encouraged to discharge juries merely because some prejudicial material has been published, if appropriate directions can cure any possible prejudice.
14.42 The possibility that the costs of an aborted trial will be recovered from a media organisation is not a factor which can properly be taken into account in the exercise of the discretion to discharge. At any rate, the trial judge should realise that he or she is not in a position to speculate as to whether or not the Attorney General is likely to prosecute for sub judice contempt and to apply for an order for compensation.
14.43 Secondly, the Commission is not aware of any evidence to support the perception that judges mistrust the capabilities of juries, nor any real basis for such a view. It seems to be an overly cynical concern that judges would base a decision to abort a trial principally on pecuniary issues. Trial judges would almost certainly have in mind other serious effects of an aborted trial pertaining to hardship and inconvenience to the defendant and witnesses, the eroding of memories, possible loss of evidence, difficulty finding witnesses at a later stage and frustration of the public interest in speedy justice.
14.44 Thirdly, the discharge of a jury would not automatically trigger a power to order costs. The power to order costs would arise only where, on the present formulation in the Bill, a charge of contempt has been proven, or, if the Commission’s proposal is accepted, there is a conviction for contempt. Moreover, if it is concluded that a decision to abort a trial should not be admissible evidence in the contempt hearing, this would place further distance between the decision to abort and the proof of, or conviction for, contempt.
14.45 Fourthly, it will not be enough that the prejudicial effect of media publicity is one of a number of reasons for discharging the jury. It will have to be the sole or main reason (if the Bill as presently drafted is passed) or the sole reason (if this is thought to be a better test).
Restriction on freedom of discussion
14.46 It was submitted that a power to order compensation for the cost of an aborted trial would represent a significant restriction on freedom of discussion.37 The amount of money involved is potentially so substantial as to discourage the media from reporting at all on criminal proceedings for fear of attracting such an order. This would, it was argued, produce a “chilling effect” on media coverage of legal proceedings, and would significantly obstruct access by the public to information about the courts. In this way, freedom of discussion about our legal system would be greatly inhibited, which in turn would be detrimental to the efficient working of our democratic society. Furthermore, a costs power could have particularly harsh consequences on small, regional media groups, and may have the potential of putting such groups out of business. This would have the undesirable effect of limiting the diversity of media publications and, consequently, narrowing access by the public to information about the courts and court proceedings.
14.47 The law on sub judice contempt inherently involves a balancing exercise between the right to a fair trial and the right to freedom of discussion. This is examined in detail in Chapter 2. In the Commission’s view, the Bill, as currently formulated, does represent a potentially significant intrusion on freedom of discussion, to the extent that it provides for the possible imposition of an extremely large financial burden on media proprietors. However, that does not mean that a scheme for compensation, formulated in different terms, could not be more successful in achieving a proper balance between the rights to a fair trial and freedom of discussion, by ensuring that the impact of a compensation order on freedom of discussion is not excessive. For example, there could be a statutory cap on the total amount of money that may be ordered by way of compensation, and/or legislation could expressly provide that the court ordering compensation take into account the financial resources of the defendant. The Commission invites submissions on these possible measures.
14.48 Other measures that would alleviate restrictions on freedom of speech, and which the Commission proposes, are to require the court to consider the amount of any fine which has been imposed by the sentencing court, to introduce an element of fault into liability for sub judice contempt38 and to reformulate the test for liability from one of “tendency” to prejudice to one of “substantial risk” of prejudice.39
Inconsistency with other jurisdictions
14.49 It may also be argued that if a power to order compensation were introduced in New South Wales, it would serve only to place New South Wales at odds with the approach taken in other Australian jurisdictions and, indeed, in the rest of the common law world, while doing nothing to clarify the anomalies surrounding the law of sub judice contempt.
14.50 It is true that, with one exception, no other common law jurisdiction provides for a power to order compensation for the cost of a trial which is aborted because of a contemptuous publication. As is the position in New South Wales, courts in other jurisdictions may take into account the fact that a trial has been aborted as an aggravating factor in sentencing the offender for sub judice contempt.40 However, considerations to that effect occur as part of the sentencing process, which, as noted, is different and serves a different purpose from a process to compensate those who suffer loss as a result of the contempt.
14.51 In Pennsylvania, in the United States of America, legislation appears to provide for a civil action for damages to be brought against a person responsible for a publication that tends to bias the public or participants in proceedings in respect of those proceedings.41 However, this legislative provision has not been interpreted by the courts as creating a statutory cause of action. Instead, it is considered simply to permit recourse to any cause of action which may exist at common law, which is probably none.42
Recommendations of law reform bodies
14.52 The American Bar Association considered the issue of compensation for contempt in 1966 and recommended that an accused person be entitled to reimbursement for additional legal fees and other expenses where a mistrial or a change of venue has been granted or a conviction set aside because of a contemptuous statement.43 It made this recommendation on the basis that it was only just that the person responsible for the additional expenses be required to reimburse the accused. However, instead of a scheme for compensation or a civil cause of action, it recommended that a court imposing a fine for contempt be authorised to order that all or part of the proceeds of the fine be applied to reimburse the accused.
14.53 The Australian Law Reform Commission considered the issue of compensation for loss arising from a contemptuous publication.44 It supported the notion of providing a means to compensate parties in a criminal jury trial where the jury is discharged because of the publication. However, it emphasised that any power to order compensation in these circumstances should be carefully defined and limited to cases where there has been an actual conviction for contempt, and the publication in question was the cause of discharge of the relevant jury. It considered that a court making an order for compensation should be able to order an amount that is just and equitable, without necessarily constituting the full amount of costs incurred by the discharge of the jury.45
14.54 The introduction of a compensatory remedy for contempt was also considered by the Attorneys General of New South Wales, Queensland and Victoria in 199046 and, subsequently, by the Commonwealth government.47 The Attorneys General discussed the possibility of creating a civil cause of action by way of a tort for damages to apply to the situation where criminal proceedings are aborted or delayed because of a prejudicial publication. The Commonwealth government discussed the option of a civil remedy as well as the option of a compensatory order as an adjunct to criminal proceedings, as suggested by the Australian Law Reform Commission. While no final conclusion or recommendation was made by either the State or Commonwealth governments, the question of compensation was given serious consideration.
14.55 While it is true that no common law jurisdiction has a power to order compensation for sub judice contempt in the circumstances provided for in the Bill, it is an issue which has been debated in Australia and overseas for some time. Law reform bodies and governments have shown support for the notion of introducing a statutory power, in various forms, to require payment of compensation for wasted expenses resulting from a contemptuous publication.
THE COMMISSION’S VIEW
14.56 At present, the Commission is inclined to support, in principle, enactment of a power to order costs where a trial is discontinued because of a contemptuous publication or broadcast. However, as set out above, there are a number of arguments against such a power which require careful consideration, and on which the Commission invites further submissions.
14.57 If a power to order costs were enacted, it would be essential to carefully define its scope and application. The Commission’s present view is that the formulation of the power in the Bill is not satisfactorily drafted so as to ensure that it does not pose an unjustifiable intrusion on freedom of discussion, nor give rise to injustice. Criticisms of the Bill itself, as opposed to the notion of a compensatory power in principle, are discussed below.
CRITICISMS OF THE BILL
14.58 A number of submissions objecting to the introduction of the Bill in actual fact relate to the way in which the power is presently formulated in the Bill rather than being arguments against a power to order compensation in principle.
Losses not referable to the offence
14.59 It was argued that certain costs involved in hearing a criminal trial, such as salaries for judicial officers and other court staff, cannot really be regarded as wasted costs where that trial is aborted, since they are costs which the State is obliged to pay in any event.48 They do not therefore represent a loss referable to any particular trial for which compensation should be granted.
14.60 As it is presently drafted, the Bill allows for the costs which can be ordered to include the cost of remuneration of judicial and other officers and other staff. The Commission appreciates the concern expressed in the above argument. It could be counter-argued that the judicial and other court staff could have been employed on hearing another case if it were not for the time wasted by the necessity to abort the trial. However, that does not get away from the fact that the salaries are an ongoing State expense, regardless of the particular case being heard.
14.61 The Commission is inclined to the view that, rather than not enacting a power to order compensation at all, the legislation could restrict compensation to expenses directly referable to the trial in question. It is a common function of a court making an order for damages or compensation to assess the nature and amount of loss and damage arising directly from the defendant’s conduct and for which the defendant should be liable. The Court, in ordering a media organisation to pay the costs of an aborted trial, would be exercising the same function it is called on to exercise in most litigation coming before it, making assessments as to what is the actual loss arising from the contempt and what is a fair and proper amount for which the offender should be liable.
Discrimination against the media
14.62 It was submitted that a power to order the media to pay the costs of an aborted trial in terms provided for in the Bill is discriminatory.49 It singles out the media when there are others who also commit contempt by publication. In some instances, it is those others who are primarily responsible for the contempt, and the media unintentionally also attracts liability by publishing the contemptuous statements of those others.
14.63 For example, a politician may utter contemptuous statements in a media interview which is broadcast live, and the media organisation broadcasting the interview may not be able to prevent the broadcast of those statements. The effect of a power such as that provided for in the Bill is that the politician would escape an order to pay the costs of a trial which is aborted because of his or her statements, but the media organisation that broadcast those statements may be ordered to pay.
14.64 It was suggested that the underlying assumption in singling out the media to pay compensation is that the media consist of large, profit-making organisations with more than enough money to meet the substantial costs of an aborted trial. This assumption, it is argued, is inaccurate, and is an improper basis on which to single out the media to pay such costs.
14.65 It was proposed in one submission that the application of the Bill should not be confined to the media.50 Instead, any power to order compensation for the costs of an aborted trial should apply to any individual or organisation found liable for sub judice contempt. The Commission is inclined to agree that it is unfair to make the media the sole targets of an order to pay compensation and has tentatively concluded that any legislation which establishes a scheme for compensation should apply to any individual or organisation found guilty of sub judice contempt if that contempt necessitates the discontinuance of the trial.
Other issues raised in submissions
14.66 One submission objected to the Bill’s provision that a certificate from the Attorney General would be conclusive evidence of the costs of the aborted trial.51 Although it could be argued that this is an efficient way of providing the court with information about the costs, the Commission recognises that the qualifier “conclusive” may be cause for concern. The Commission is of the provisional view that the party against whom a costs order is to be made should be able to challenge the accuracy of the contents of the certificate. The procedure for doing so may be similar to lodging an application to have a Bill of Costs taxed, or it may be preferable to have the certificate examined by the Auditor General. The Commission would welcome submissions on the practical administration of a challenge to an Attorney General’s certificate.
14.67 It was also submitted that the definition of “publication” in the Bill may not cover cable television transmission or transmission to subscribers to diffusions services, since these services use a transmission path provided by material substances. It may be preferable to retain the same definition of publication that is used to impose liability for contempt.
14.68 In relation to the law of contempt, “publication” has not been clearly defined at common law and yet no real controversy or uncertainty appears to have so far arisen as a result. As outlined in Chapter 3, the Commission cannot at this stage see any advantage in introducing a legislative definition of the term “publication”, with the inflexibility and ambiguity in interpretation which this is likely to bring, on which to test sub judice liability. If liability for a costs order is to arise because a “publication” which has been proved to be contemptuous, or, on the Commission’s proposal, for which there has been a conviction for contempt, necessitated discharging the jury, it should not be necessary to give a descriptive definition of “publication” in the compensation legislation. Nothing more is achieved but, on the contrary, it introduces ambiguity and possible conflict with the law of contempt. The Commission proposes that reference in the Bill to “printed publication” and “radio, television or other electronic broadcast” be omitted and that “publication” for the purposes of the legislation simply be defined to mean a “publication in respect of which a conviction for contempt has been entered”.
14.69 It was submitted that the reference in s 7 to the discontinuance of criminal proceedings was insufficiently clear because it is arguable that “criminal proceedings” remain extant notwithstanding that a jury may be discharged.52 This submission pointed out that “in some cases a proposed hearing date must be vacated in advance because of prejudicial publicity, or a trial may be adjourned prior to the jury being empanelled”. The suggestion is made that the legislation clarify the definition of “discontinued” and the Commission invites submissions on this point.
FORMULATION OF A POWER TO ORDER COMPENSATION
14.70 In the following paragraphs, the Commission has identified some considerations in relation to formulating a power to order compensation that require further thought. There are also, in addition to criticisms raised in submissions, some areas which are not, in the Commission’s view, satisfactorily drafted in the Bill.
Criminal compensation scheme or civil action in tort?
14.71 Clause 14(2) of the Bill provides that “proceedings for the hearing and determination of the application [for costs] are in the nature of civil proceedings, whether they form part of the proceedings at which a person is tried for contempt or not”. This is not, of course, the same as providing for a separate action in tort. Rather, the Bill contemplates a scheme for compensation as an adjunct to a criminal offence.
14.72 The main advantage of enabling an action in tort to be brought for compensation is that the availability of the remedy would not depend on a prosecution being brought for contempt or on a conviction for contempt. However, as noted above, one of the criticisms of the Bill is that, by providing that an order for costs may be made where there is proof of contempt, but not necessarily a conviction, there is the potential for unfairness. The Commission is proposing that an order for costs should not be made unless there has been a conviction for contempt.
14.73 Allowing for a civil action to be brought for compensation has other significant disadvantages. As it would involve proceedings which are separate from a criminal prosecution for contempt, it would become possible for one court to find that a contempt has not been proven beyond a reasonable doubt (the criminal burden of proof), but in the civil action, a contempt may be found on the balance of probabilities. Aside from this inconsistency, it is arguably undesirable that a tendency to, or risk of, prejudice could be found proven merely on a balance of probabilities as this would impact upon freedom of discussion.
14.74 At this stage, the Commission is of the view that a power to order costs should not be formulated in terms of a tort. The Commission proposes no change to the Bill in this regard.
When should the Supreme Court have power to order compensation?
14.75 The Bill provides that the Court may make an order for costs where proceedings are discontinued “solely or mainly” because of a contemptuous publication or broadcast. The issue which arises is whether this is a reasonable test or whether, as some submission have argued, the test should be that the effect of the contemptuous publication was the sole reason for discontinuing the trial.
14.76 It could be counter-argued that a “sole reason” test is somewhat restrictive, considering that the decision to abort because of publicity must be made in the context of the general atmosphere of the trial. One possible resolution of this issue is to include in the legislation a provision that an order for costs be made for an amount that is just and equitable. This would give the Court the flexibility to order the contemnor to pay a reduced amount if there were factors in addition to the contemptuous publication or broadcast which caused the trial to be aborted. Admittedly, the practical reality may be that the weight to be given to various factors is difficult to determine, unless the trial judge has enunciated his or her reasons for deciding to discharge the jury. The Commission is inclined to the view that there should be a “just and equitable” qualification in the legislation, but invites further submissions on this issue.
14.77 As noted above, the Commission proposes that the power to order compensation should only arise where there has been a conviction for contempt.
14.78 The Bill only applies to the discontinuance of criminal proceedings before a jury. An issue which needs to be considered is whether application of the legislation should be widened to apply to circumstances where the commencement of a criminal trial is delayed because of publicity, where a change of venue is granted or where a conviction is subsequently overturned, and a retrial ordered, because of prejudicial reporting. It could be argued that there is no longer the necessary causation between the prejudicial reporting and the expenses incurred in appeal proceedings and a retrial, given the intervening “error” of the trial judge in not aborting the trial.
14.79 The Commission’s tentative view is that the compensatory power should not apply to civil jury proceedings.
Discretionary nature of the power
14.80 The Bill, in providing that the Court “may” make a costs order, formulates the power as a discretionary one. The Commission believes this to be desirable and does not propose any change to this. The issue which arises here is whether legislation should include guidelines as to the factors which ought to be taken into account in the exercise of the discretion to make a costs order. For example, it may be reasonable for the Court to be able to take into account a contemnor’s ability to pay, and the financial hardship which may result from a costs order. This would address the concerns of smaller media organisations whose viability may be threatened by an order against them. As well, in the absence of consideration of financial hardship, it may be thought unrealistic to extend the application of legislation to individuals who have limited ability to pay the costs of an aborted trial.
14.81 As discussed above, the Commission is proposing that one of the matters that the Court should be able to take into account is the amount of any fine ordered by the sentencing court to be paid by the contemnor.
Amount of compensation
14.82 The Bill gives the Court the discretion to order an amount less than or equal to the amount specified in the certificate tendered by the Attorney General, setting out the costs that relate to the discontinued proceedings.53 There is no discretion to order a greater amount nor what the Court might determine to be a “reasonable” amount. The question to consider is whether legislation should give the Court a discretion to order an amount that is “just and equitable in all the circumstances”. If so, as discussed above, the Commission invites submissions on whether legislation should include guidelines as to how the Court’s discretionary powers are to be exercised.54 The Commission proposes that the Court ought to be able to take into account any amount paid by the contemnor by way of a fine. Other factors which legislation could direct the Court to consider in determining what is just and equitable include the financial hardship that would arise from the imposition of an order for a certain amount and any reasons in addition to the contemptuous publication or broadcast for deciding to discontinue the trial. The Commission notes that both the Crimes Act 1914 (Cth) and the Victims Compensation Act include provisions setting out factors that the court must take into account in the exercise of its discretion.
Nature of losses
14.83 The Bill provides for compensation for economic loss but not for compensation for other types of losses, or even injuries, such as emotional and physical injury where the accused must spend longer time in prison waiting for a retrial. This gives rise to a question whether compensation should extend beyond the costs thrown away in discontinuing proceedings. Although it may be difficult to quantify losses for physical and emotional injury, the Victims Compensation Act provides a precedent which could be followed.
14.84 The Commission is inclined towards the view that the accused should be able to apply for compensation for any emotional or physical injury directly arising from the discontinuance of proceedings, such as distress resulting from extended custody or even from an assault which may take place in prison during the extended custodial period, providing the accused is ultimately acquitted or given a non-custodial sentence. If the accused is convicted and sentenced to a term of imprisonment, he or she is compensated by having the sentence reduced to take into account time already spent in custody pending the trial and retrial. The same legislative maximum amount for compensation for emotional and physical injury as is prescribed in the Victims Compensation Act should be prescribed in the Bill.
14.85 However, the Commission does not think it is appropriate to allow witnesses also to be able to claim compensation for any emotional distress caused by the discontinuance of a trial, such as having to wait a longer time to give evidence or having to give evidence for a second time.
Liability to pay compensation
14.86 Under the Bill, an order for costs may only be made against the proprietor or person in charge of a business or other undertaking responsible for the contemptuous publication or broadcast.55 The scheme therefore does not apply to individuals, including individual journalists or editors. As discussed in paragraphs 14.62-14.65, this has been criticised by media organisations as amounting to discrimination against them. The Commission has tentatively concluded that any legislation which establishes a scheme for compensation should apply to any individual or organisation found guilty of sub judice contempt if that contempt necessitates the discontinuance of the trial.
Timing of proceedings and standing
14.87 The Bill allows for the hearing of the costs application to occur separately from, and up to three years after the conclusion of, the hearing of the charge of contempt,56 but it also envisages that the costs application can form part of the contempt proceedings.57 The Commission considers that it is desirable to include this provision that the two proceedings can occur together. The advantage of hearing the contempt charge and the costs application at the same time is that the court imposing the penalty is in a position to take into account the application for compensation and the appropriate costs order, and thus the penalty and costs award can be made compatible. There is also the savings in costs from the one court hearing both proceedings. However, it is not essential that both should be heard together. The sentencing judge could receive evidence of the likelihood of there being a subsequent application for costs as a factor to take into account in determining the appropriate penalty.
14.88 The Commission is presently of the view that an individual, such as the accused in the substantive trial, should have standing to apply for compensation. The Commission presently sees no reason why the Attorney General should be able to take over the application, although he or she could receive notice and could seek to be joined as a co-claimant.58
PROPOSAL 31
The Costs in Criminal Cases Act 1967 (NSW) should be amended to enable the Supreme Court to make an order for costs against a publisher of material, in contempt of any court at which a criminal trial is held before a jury, if the publication causes the discontinuance of the trial.
PROPOSAL 32
The amending legislation should substantially be in the form set out in the Costs in Criminal Cases Amendment Bill 1997 (NSW) but with the following modifications:
(1) The application of the legislation should not be restricted to media organisations.
(2) An order for compensation should only be made where there has been a conviction for contempt.
(3) Reference in the Costs in Criminal Cases Amendment Bill 1997 to “printed publication” and “radio, television or other electronic broadcast” be omitted. “Publication” for the purposes of the legislation should be defined to mean a “publication in respect of which a conviction for contempt has been entered”.
(4) An order for compensation should be made only where a trial is discontinued “solely” because it has been affected by a contemptuous publication or broadcast.
(5) The Court should have a discretion to order an amount which is “just and equitable in all the circumstances”.
(6) The costs in respect of which an order may be made should exclude the cost to the State of the remuneration of judicial and other court staff and any other ongoing State expenses not directly referable to the aborted trial.
(7) The “legal costs” of the parties and the provision of “legal services” to the accused should include disbursements directly related to the aborted trial.
(8) In ordering a sum for compensation, the Court should be able to consider the amount of any fine ordered by the sentencing court to be paid by the contemnor.
(9) The accused should be able to apply for compensation for any emotional or physical injury directly arising from the discontinuance of proceedings. The same legislative maximum amount for compensation for emotional and physical injury as is prescribed in the Victims Compensation Act should be prescribed in the legislation.
(10) Where the Attorney General attaches or tenders a certificate setting out the costs that relate to the discontinued proceedings, the party against whom a costs order is to be made should be able to challenge the accuracy of the contents of the certificate.
PROPOSAL 33
In determining the amount of any fine to be imposed on a defendant found guilty of sub judice contempt, the sentencing court should be able to take into account, as a mitigating factor, the likelihood that an order for compensation will be made.
QUESTIONS FOR FURTHER DISCUSSION
Q14.1 Should legislation contain guidelines for the exercise of the Court’s discretion to make an order for costs?
Q14.2 If so, should guidelines include that the Court ought to take into account the contemnor’s ability to pay and whether there were any other factors leading to the decision to discharge the jury? What other guidelines should be included in the legislation.
FOOTNOTES
1. This Bill lapsed on 3 February 1999 when the Legislative Council was prorogued.
2. See United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 340-347 (Samuels J) (Clarke and Meagher JJ concurring). See also Astro Exito Navehacion SA v WT Hsu (The “Messiniaki Tolmi”) [1983] 1 QB 666 at 671, in which Justice Mustill noted that it is at least arguable that there exists a civil cause of action to recover damages for an act amounting to a contempt of court: see also Chapman v Honig [1963] 2 QB 502 at 519-520 (Pearson LJ). However, see the interpretation of Justice Mustill’s comments by Justice Samuels in United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 342. Justice Samuels concluded that these comments did no more than support the proposition that an act constituting a contempt may also amount to a tort or a breach of contract, in which case damages may be recoverable not for the loss occasioned by the contempt but by the damage sustained because of the tort or breach of contract. In an earlier English case, Weston v Courts Administrator of the Central Criminal Court [1976] 2 All ER 875, Lord Stephenson had commented at 883 that a contempt is not punishable by payment of costs. That case was not, however, concerned with contempt by publication.
3. In United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323, the NSW Court of Appeal acknowledged the possibility of a cause of action arising from loss sustained as a result of a trial aborted because of a contemptuous publication. The Court, however, refused to consider the merits of such a claim in the particular case before it until it was pleaded in a statement of claim. It directed the party seeking relief to proceed by way of statement of claim, since the party had not done so. The action does not appear to have been proceeded with following this judgment of the Court.
4. See United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 338-339 (Samuels J).
5. See Re Colina; Ex parte Torney (1999) 73 ALJR 1576.
6. See the objects of the Victims Compensation Act 1996 (NSW) as articulated in s 3; see Part 4 (Compensation Awarded by Court), especially Division 2 (Compensation for Loss).
7. See para 14.13.
8. See Costs in Criminal Cases Amendment Bill 1997 (NSW) Sch 1 cl 14(4).
9. Under s 21 of the Interpretation Act 1987 (NSW), reference in an Act to a “person” includes reference to a corporation (unless otherwise stated).
10. No regulation was drafted, or at least no draft regulation was made publicly available for discussion, prior to the Bill lapsing.
11. One submission pointed out that it is unclear whether s 8(c) would extend to the salaries and other expenses of police witnesses, and that, it being appropriate that these costs should be included, the legislation should be clear on their inclusion: New South Wales Crown Solicitor’s Office, Submission at 5.
12. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 15 May 1997 at 8571.
13. See Crimes Act 1900 (NSW) s 438.
14. Reparation may also be made by means of diversionary schemes which operate as alternatives to the traditional sentencing process, such as community-based victim/offender mediation, or as a condition to a police caution.
15. See Australian Law Reform Commission, Sentencing (Report 44, 1988) at para 142; Victoria, Law Reform Committee, Restitution for Victims of Crime: Final Report (PP 96, 1994) at xviii; New South Wales Law Reform Commission, Sentencing (Discussion Paper 33, 1996) at para 10.27-10.30, (Report 79, 1996) at para 13.2. See also Davies v Taylor (1996) 140 ALR 245.
16. The average length of a criminal trial in the District Court (State-wide) in 1998 was 5.3 days and in the Sydney region was 8.4: see NSW District Court, Annual Review 1998 at 4. In the Supreme Court no estimate of the average length of a criminal trial has been made.
17. See United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 347 (Samuels J); New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 15 May 1997 at 8572.
18. It was submitted that fines imposed in New South Wales for sub judice contempt tend to be much larger than those generally imposed in other Australian jurisdictions: R Williams, “Contempt of Court: Prejudicing the Administration of Justice [1995] Gazette of Law and Journalism (No 30) 2 at 4.
19. Federation of Australian Commercial Television Stations, Submission 1 at para 3.2; John Fairfax Publications Pty Limited and News Limited, Joint Submission to Attorney General at para 1.2; SBS Corporation, Submission at 2. See also M Chesterman, “Costly Terminations” [1997] Gazette of Law and Journalism (No 45) 5 at 6.
20. See Costs in Criminal Cases Amendment Bill 1997 (NSW) Sch 1 cl 9(2). It has been submitted that it would be preferable for an application for costs to be brought and dealt with at the same time as the penalty phase of the contempt proceedings: New South Wales Crown Solicitor’s Office, Submission at 6.
21. See Attorney General (NSW) v John Fairfax & Sons Ltd (NSW, Court of Appeal, No 371/87, 21 April 1988, unreported); R v Thompson [1989] WAR 219 at 225 (Wallace J); Director of Public Prosecutions (Cth) v United Telecasters Sydney (in liquidation) (1992) 7 BR 364; Attorney General (NSW) v Northern Star Ltd (NSW, Court of Appeal, No 40259/94, 14 October 1994, unreported). Contrast Hinch v Attorney General (Vic) [1987] VR 721 at 731 (Young CJ), at 748 (Kaye J).
22. Section 73.
23. Section 16A.
24. Federation of Australian Commercial Television Stations, Submission 1 at para 3.2; SBS Corporation, Submission at 2.
25. Australian Broadcasting Corporation, Submission to the Attorney General (20 September 1997) at 1; Federation of Australian Commercial Television Stations, Submission 1 at para 4.2; John Fairfax Publications Pty Limited and News Limited, Joint Submission to Attorney General at para 1; SBS Corporation, Submission at 1.
26. Professor Chesterman has examined the criminal cases in Australia since 1980 in which the jury has been discharged because of prejudicial publications and/or the publishers have been found guilty of contempt. He identified 21 such cases, of which 11 were “convergence cases”, that is, both the jury was discharged and there was a conviction for contempt: M Chesterman, “Media Prejudice During a Criminal Jury Trial: Stop the Trial, Fine the Media, or Why Not Both?” (1999) 1 University of Technology Sydney Law Review 71 at 72-73. The Director of Public Prosecutions has advised the Commission that in the two year period between November 1996 and November 1998, three trials prosecuted by the DPP were aborted. The Supreme Court has a record of two further trials which were aborted because of prejudicial publications. In the following recent contempt proceedings, the related criminal trials were aborted as a result of prejudicial publications: Attorney General (NSW) v John Fairfax & Sons Limited (NSW, Court of Appeal, No 371/87, 21 April 1988, unreported); Director of Public Prosecutions (Cth) v United Telecasters Sydney (in liquidation) (1992) 7 BR 364; Attorney General (NSW) v Northern Star Ltd (NSW, Court of Appeal, No 40259/94, 14 October 1994, unreported); Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, No 40236/96, 11 March 1998, unreported); Attorney General (NSW) v Television and Telecasters (Sydney) Pty Ltd (NSW, Supreme Court, No 11752/97, 10 September 1998, unreported).
27. SBS Corporation, Submission at 2.
28. See New South Wales Law Reform Commission, Sentencing (Discussion Paper 33, 1996) at para 3.2.
29. See New South Wales Law Reform Commission, Sentencing (Discussion Paper 33, 1996) at para 3.21.
30. Australian Broadcasting Corporation, Submission to the Attorney General (20 September 1997) at 1; David Syme & Company Limited, Submission at para 9; Federation of Australian Commercial Television Stations, Submission 1 at para 4.2; John Fairfax Publications Pty Limited and News Limited, Joint Submission to Attorney General at para 5; SBS Corporation, Submission at 2; S Walker, Submission at para 2.
31. See, however, Proposal 8 and accompanying discussion.
32. See proposed s 7(2)(a) in the Costs in Criminal Cases Amendment Bill 1997 (NSW) Sch 1[6].
33. See Proposal 7 and accompanying discussion.
34. See Proposal 8 and accompanying discussion.
35. Australian Broadcasting Corporation, Submission to the Attorney General (20 September 1997) at 1; John Fairfax Publications Pty Limited and News Corporation, Joint Submission to Attorney General at para 2.6; SBS Corporation, Submission at 2.
36. The courts have emphasised that the decision to discharge a jury because of media publicity is one for the trial judge to make, taking into account the atmosphere of the trial and the nature and extent of the publicity. See R v George (1987) 9 NSWLR 527 at 532-534 (Street CJ) (Yeldham and Finlay JJ concurring); R v Smith [1982] 2 NSWLR 608.
37. Australian Broadcasting Corporation, Submission to the Attorney General (20 September 1997) at 1; David Syme & Company Limited, Submission at para 9; Federation of Australian Commercial Television Stations, Submission 1 at para 4.2; John Fairfax Publications Pty Limited and News Limited, Joint Submission to Attorney General at para 5; SBS Corporation, Submission at 2; S Walker, Submission at para 2.
38. See Chapter 5.
39. See Chapter 4.
40. In a number of cases in Canada, it has been noted that a person or organisation convicted of sub judice contempt can be made to pay part of the costs thrown away because of the contempt, whether they be costs arising from an aborted trial, or, for example, the costs involved in adjourning proceedings to reduce the potential prejudice from a contemptuous publication. However, it is clear that repayment for those costs is made by way of the imposition of a fine, as a sanction, rather than through an order for compensation: see R v Chek TV Ltd (1987) 30 BCLR (2d) 36; R v Societe de Publication Merlin Ltee (1978) 43 CCC (2d) 557 at 564 (Mayrand J).
41. 42 Pa Stat Ann s 4135. See generally H C Griffin, “Notes: Prejudicial Publicity: Search for a Civil Remedy” (1967) 42 Notre Dame Lawyer 943, especially at 953.
42. Larsen v Philadelphia Newspapers Inc 543 A 2d 1181 (1988) at 1190-1191 (Popovich J) (Kelly J concurrring).
43. American Bar Association, Advisory Committee on Fair Trial and Free Press, Standards Relating to Fair Trial and Free Press (American Bar Association Project on Minimum Standards for Criminal Justice, 1966) at 154-155.
44. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 485.
45. The Australian Law Reform Commission did not ultimately consider it necessary to recommend the introduction of a statutory provision to give effect to this proposal. It took the view that an order for compensation (or reparation) could be made under the existing s 21B of the Crimes Act 1914 (Cth) if, as it recommended, contempt by publication in respect of Federal Court proceedings were recast as a series of offences against a Commonwealth statute.
46. See Attorneys General of New South Wales, Queensland and Victoria, Reform of Defamation Law (Discussion Paper, 1990).
47. Australia, Attorney General’s Department, The Law of Contempt (A Discussion Paper on the Australian Law Reform Commission’s Report No 35, 1991) at para 81.
48. Federation of Australian Commercial Television Stations, Submission 1 at para 3.1.
49. Australian Broadcasting Corporation, Submission to the Attorney General (20 September 1997) at 1; David Syme & Company Limited, Submission at para 6; Federation of Australian Commercial Television Stations, Submission 1 at para 4.1; John Fairfax Publications Pty Limited and News Limited, Joint Submission to Attorney General at para 1.3; SBS Corporation, Submission at 1; S Walker, Submission at para 1.
50. S Walker, Submission at para 1.
51. SBS Corporation, Submission at 2; See Costs in Criminal Cases Amendment Bill 1997 (NSW) s 10(3).
52. New South Wales Crown Solicitor’s Office, Submission at 4.
53. Section 11(3).
54. This approach is supported by the New South Wales Crown Solictor’s Office: New South Wales Crown Solicitor’s Office, Submission at 6.
55. Section 7(2).
56. Section 9(2).
57. Section 14(2).
58. One submission considered that, as contempt proceedings are brought in the name of the State of New south Wales, it may be appropriate for the State to be the moving party in an application for costs: New South Wales Crown Solicitor’s Office, Submission at 5.
