PROPOSAL 1
Liability for sub judice contempt should be retained.
PROPOSAL 2
A person or organisation should be liable as a principal for the publication of material if that person or organisation was in a position to:
- authorise the publication of the material;
- exercise a significant degree of control over the contents of the publication or that part in which the prejudicial material is contained; and
- supervise a system for ensuring that material was not published that would constitute a contempt of court.
PROPOSAL 3
A publication should constitute a contempt if it creates a substantial risk, according to the circumstances at the time of publication, that:
(a) members, or potential members, of a jury (other than a jury empanelled under s 7A of the Defamation Act 1974 (NSW)), or a witness or witnesses, or potential witness or witnesses, in legal proceedings could:
(b) by virtue of those facts, the fairness of the proceedings would be prejudiced.
PROPOSAL 4
Legislation should set out the following as an illustrative list of statements that may constitute sub judice contempt if they also comply with the requirements set out in Proposal 3:
- A statement that suggests, or from which it could reasonably be inferred, that the accused has a previous criminal conviction, has been previously charged for committing an offence and/or previously acquitted, or been otherwise involved in other criminal activity;
- A statement that suggests, or from which it could reasonably be inferred, that the accused has confessed to committing the crime in question;
- A statement that suggests, or from which it could reasonably be inferred, that the accused is guilty or innocent of the crime for which he or she is charged, or that the jury should convict or acquit the accused;
- A statement that could reasonably be regarded to incite sympathy or antipathy for the accused and/or to disparage the prosecution, or to make favourable or unfavourable references to the character or credibility of the accused or of a witness;
- A photograph, sketch or other likeness of the accused, or a physical description of the accused.
The legislation should make it clear that this list is not exhaustive and that a statement may amount to a contempt even though it does not fall within one of the categories listed above.
PROPOSAL 5
The fact that a trial judge has decided to dismiss, or has decided not to dismiss, a jury in a criminal trial following the publication of material concerning that trial should be admissible in the contempt proceedings as relevant to the issue of liability for sub judice contempt in respect of that publication. It should not, however, be determinative of the question of liability.
PROPOSAL 6
Legislation should provide that a publication is not incapable of constituting a contempt by reason only that a previous publication has already given rise to a substantial risk of prejudice to the fairness of legal proceedings.
PROPOSAL 7
Legislation should provide that it is a defence to a charge of sub judice contempt, proven on the balance of probabilities, that the person or organisation charged with contempt:
- did not know a fact that caused the publication to breach the sub judice rule; and
- before the publication was made, took all reasonable steps to ascertain any fact that would cause the publication to breach the sub judice rule.
PROPOSAL 8
Legislation should provide that it is a defence to a charge of sub judice contempt if the accused can show, on the balance of probabilities:
(a) that it, as well as any person for whose conduct in the matter it is responsible, had no control of the content of the publication which contains the offending material; and
(b) either:
(i) at the time of the publication, they 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) they 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.
PROPOSAL 9
Legislation should make it clear that mere intent to interfere with the administration of judice does not constitute sub judice contempt, in the absence of a publication that creates a substantial risk of prejudice to the administration of justice.
PROPOSAL 10
Legislation should make it clear that liability for sub judice contempt cannot be founded simply on the basis that a publication prejudges issues at stake in proceedings.
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.
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).
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.
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.
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.
PROPOSAL 19
Legislation should provide for a defence to a charge of sub judice contempt on the basis that:
- the publication the subject of the charge was made in good faith in the course of a continuing public discussion of a matter of public affairs (other than the trial itself), or otherwise of general public interest and importance; and
- the discussion would have been significantly impaired if the statement creating a substantial risk of prejudice to the relevant trial had not been published at the time when it was published.
The defendant should bear the burden of proof and the standard of proof should be on the balance of probabilities.
PROPOSAL 20
Legislation should provide for a defence to a charge of sub judice contempt on the basis that the publication the subject of the charge was reasonably necessary or desirable to facilitate the arrest of a person, to protect the safety of a person or of the public, or to facilitate investigations into an alleged criminal offence. The burden of proving this should be on the defendant in contempt proceedings, to prove on the balance of probabilities.
PROPOSAL 21
Section 578 of the Crimes Act 1900 (NSW) should be repealed.
A new provision should be introduced in the Evidence Act 1995 (NSW) which provides that any court, in any proceedings, has the power to suppress the publication of reports of any part of the proceedings (including documentary material), where such publication would create a substantial risk of prejudice to the administration of justice, either generally, or in relation to specific proceedings (including the proceedings in which the order is made). The power should apply in both civil and criminal proceedings and should extend to suppression of publication of evidence as well as material which would lead to the identification of parties and witnesses involved in proceedings before the court. As is presently the case under s 578 of the Crimes Act 1900 (NSW), breach of an order should constitute a criminal offence. The new section should not replace the common law or existing statutory powers to restrict publication of court proceedings (other than s 578).
The legislation should also expressly provide that the media, together with others with a special interest in the matter, have standing to be heard by the court before the making of a suppression order, or to apply to the court for the variation or revocation of such an order. Any person or organisation heard by the court in relation to an order made, or not made, under the section should have a right of appeal against the court’s decision. Persons or organisations that did not appear before the court in relation to the making of an order should only be able to appeal by leave of the appellate court. An appeal against a decision made under the section should be heard by the court which hears appeals against the final judgment of the court deciding the suppression order matter.
PROPOSAL 22
Legislation should provide for a general right of access to any document that is:
- admitted into evidence in proceedings in open court;
- read out, or read out as to the relevant part, in open court; or
- a pleading relied on in a proceeding in open court.
That right of access should be subject to any lawful order of the court restricting access to documents. The word “document” should be given the same meaning as provided for in the Dictionary to the Evidence Act 1995 (NSW).
PROPOSAL 23
Legislation should provide for a general right to publish the contents of, or a fair and accurate summary of the contents of, a document referred to in Proposal 22. That right should be subject to any lawful order of the court prohibiting the publication of proceedings. The word “document” should have the same meaning as provided for in the Dictionary to the Evidence Act 1995 (NSW).
PROPOSAL 24
The Supreme Court Rules 1970 (NSW) Part 55 rule 11 should be amended to require that a private individual who applies to the court to commence proceedings for criminal contempt shall, prior to such application, notify the Attorney General and the parties to the proceedings (if any) allegedly involved.
PROPOSAL 25
The hearing and decision of an appeal from a conviction for criminal contempt should be assigned to the Court of Criminal Appeal.
PROPOSAL 26
The Attorney General should create and maintain a registry of court outcomes of criminal contempt proceedings. The information in the registry should be used only for sentencing purposes.
PROPOSAL 27
Legislation should provide appropriate upper limits on prison sentences and fines which may be imposed on persons convicted of criminal contempt.
PROPOSAL 28
Legislation should expressly provide that the various alternatives to and methods of serving a custodial sentence, including community service orders, good behaviour bonds, dismissal of charges and conditional discharge of the offender, deferral of sentencing, suspended sentences, periodic detention orders, home detention orders and parole, are available in criminal contempt proceedings.
PROPOSAL 29
Legislation should provide that a private individual who intends to apply for an injunction to stop an apprehended criminal contempt shall, prior to such application, notify the Attorney General and the parties to the proceedings (if any) allegedly involved.
PROPOSAL 30
Legislation should provide that the Director of Public Prosecutions may apply for an injunction to restrain the publication of material relating to criminal proceedings which would be in breach of the sub judice principle or which would be a repetition of such breach.
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.
