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Where am I now? Lawlink > Law Reform Commission > Publications > Discussion Paper 43 Summary (2000) - Contempt by publication
Discussion Paper 43 Summary (2000) - Contempt by publication TABLE OF CONTENTS 2 Should the Sub Judice Rule be Retained? 3 Publication and Responsibility 5 Fault 6 Publications Relating to Civil Proceedings 8 Publications in the Public Interest 9 Fair and Accurate Reporting Principle 11 Access to and Reporting on Court Documents 14 Payment for Costs of Aborted Trials Appendix A : List of Proposals Appendix B : Costs in Criminal Cases Amendment Bill 1997 (NSW) Appendix C : Participants On 14 July 1998, the Attorney General, the Honourable Jeff Shaw QC MLC, asked the Law Reform Commission to inquire into, and report on, whether the law and procedures relating to contempt by publication are adequate and appropriate including whether, and in what circumstances, a person against whom a charge of contempt is found proven should be liable to pay, in addition to any criminal penalty, the costs (of the government and of the parties) of a criminal trial aborted as a result of the contempt. The Commission invites submissions on the issues relevant to this review, including but not limited to the issues raised in this Discussion Paper. All submissions and enquiries should be directed to: Mr Peter Hennessy, Executive Director NSW Law Reform Commission postal addresses GPO Box 5199, Sydney NSW 1044 or DX 1227 Sydney street address Level 17, 8-12 Chifley Square, Sydney NSW email nsw_lrc@agd.nsw.gov.au telephone (02) 9228 8230 facsimile (02) 9228 8225 tty (02) 9228 7676 [Current contact details for the Law Reform Commission] There is no special form required for submissions. If it is inconvenient or impractical to make a written submission you may telephone the Commission and either direct your comments to a Legal Officer over the telephone, or else arrange to make your submission in person. The closing date for submissions is 30 November 2000. Use of submissions and confidentiality If you would like your submission to be treated as confidential, please indicate this in your submission. Submissions made to the Commission may be used in two ways:
INTRODUCTION [1] On 14 July 1998, the Attorney General asked the Law Reform Commission to undertake a review of the law of contempt by publication and of the issue of recovering the costs of a criminal trial which has been discontinued because of a contemptuous publication. The terms of reference for this review are set out on page 4. [2] Discussion Paper 43 contains a number of proposals for reform. The proposals do not represent the Commission’s final conclusions. They are intended to attract comment from interested groups and members of the public. All views and comments will be considered by the Commission before finalising recommendations for reform to the Attorney General. [3] Discussion Paper 43, more than 500 pages long, contains a detailed consideration of the arguments for and against reform of various aspects of sub judice contempt in New South Wales. This paper is a summary of the Discussion Paper. The Commission’s proposals are reproduced in Appendix A of this summary. Costs in Criminal Cases Amendment Bill 1997 [4] The Commission’s inquiry originated from the introduction into the New South Wales Parliament of the Costs in Criminal Cases Amendment Bill 1997 (“the Bill”) on 14 May 1997. The Bill would have given the Supreme Court power to make an order for costs against a publisher or broadcaster of material in contempt of any court hearing a criminal trial before a jury, if the publication or broadcast resulted in the trial being discontinued. [5] Some representatives of the media criticised the Bill as being, among other things, “discriminatory”. The debate surrounding the Bill also brought to light some dissatisfaction with the law of contempt generally. The media urged the Government to conduct further public consultation before proceeding with the Bill and it eventually lapsed when Parliament was prorogued in March 1999. Overview [6] The Discussion Paper is principally concerned with one aspect of contempt by publication, namely, “sub judice” contempt. The sub judice rule restricts the publication of material that has a tendency to influence the conduct of particular legal proceedings or that prejudge the issues at stake in those proceedings. [7] Although the catalyst for this review was the introduction, and subsequent criticism, of the Bill, it became apparent that the general law and procedures governing liability for sub judice contempt needed to be re-examined. Consequently, the Discussion Paper is a comprehensive examination and evaluation of all aspects of sub judice contempt. [8] The Discussion Paper also examines two closely related issues, namely: the powers of courts to restrict the reporting of legal proceedings; and the rules determining whether media representatives or other members of the public should be entitled to have access to documents involved in proceedings. Other reviews [9] In the last three decades, there have been several reviews of contempt law in various common law jurisdictions. These include reviews by the Phillimore Committee in the United Kingdom, the Canadian Law Reform Commission, the Irish Law Reform Commission, the Australian Law Reform Commission (“ALRC”) and the Criminal Law and Penal Methods Reform Committee of South Australia. In addition, the New South Wales Law Reform Commission has previously considered aspects of the law of sub judice contempt in its review of the jury in criminal trials. The recommendations of these reviews are examined throughout the Discussion Paper. These reviews have all recommended retaining some form of sub judice rule, though substantial reforms have also been recommended. To date, only the United Kingdom has implemented legislative change, embodied in the Contempt of Court Act 1981 (UK). Outline of Discussion Paper 43 [10] Discussion Paper 43 has fourteen chapters, divided into three parts. Part 1, comprising Chapters 1-9, deals with the principles governing liability for sub judice contempt. Part 2, comprising Chapters 10 and 11, deals with reporting legal proceedings and access to, and reporting of, the contents of court documents in the context of the open justice principle. Part 3, comprising Chapters 12-14, deals with the procedure for prosecuting an alleged sub judice contempt, and the sanctions and remedies available, together with the power to order compensation. Discussion Paper Chapter 2 SHOULD THE SUB JUDICE RULE BE RETAINED? [11] Before embarking on a detailed analysis of the law of sub judice contempt, the Commission considered it necessary to re-examine whether or not the sub judice rule should be retained at all. To answer this involves a consideration of the competing public interests in freedom of speech and a fair trial. [12] Sub judice contempt assumes that if jurors and witnesses are exposed to media material about a trial that is not part of the evidence presented, tested and argued in court, they may be hindered from reaching an impartial and proper verdict. This premise itself assumes that prejudice induced by media reporting may not be neutralised by the evidence in court, and by judicial warnings and directions. Chapter 2 of the Discussion Paper evaluates the soundness of these assumptions. It asks whether the operation of the rule is so integral to the proper administration of justice as to justify the restrictions it places on free speech. In weighing up each side of the debate, the Commission has proceeded on the basis that due process of law should take precedence over freedom of speech, but that a proper balance needs to be found between the two competing interests. [13] The Commission’s provisional conclusion is that it is necessary for the proper administration of justice to retain the sub judice rule, subject to the reforms proposed in the Discussion Paper. These reforms should take effect by way of statutory modification of specific aspects of the current common law rules, rather than by wholesale codification of the law of sub judice contempt. Discussion Paper Chapter 3 PUBLICATION AND RESPONSIBILITY [14] Chapter 3 of the Discussion Paper considers the basis of liability for editors and media proprietors. It also looks at the circumstances in which reporters, those broadcasting programs under licence, distributors, vendors and members of the public should be held responsible for their role in the production and distribution of contemptuous publications. Publication [15] A legislative definition of “publication”. Although “publication” has not been clearly defined at common law in the context of sub judice contempt, no real controversy or uncertainty appears to have so far arisen. Where legislation has defined “publication” (Contempt of Court Act 1981 (UK)), the definition has been criticised as being unclear. At this stage, the Commission cannot see any advantage in introducing a legislative definition of the term “publication”, with the inflexibility and the difficulties of interpretation which this is likely to bring. [16] Place of publication. If material published in New South Wales has been transmitted there from another jurisdiction (which is becoming an increasingly common occurrence), the common law treats that as a publication in New South Wales. The Commission supports this approach and makes no proposals for change. However, if material is prejudicial to proceedings in New South Wales, a New South Wales court may not have jurisdiction to punish a contemnor who resides, or carries on business, solely in another jurisdiction. It may be more likely that a prosecution would be brought against a New South Wales distributor, if there is one. [17] Time of publication. It is important to determine when material is published in order to establish whether publication took place within the time period in which liability for contempt may arise. In general, a publication will only constitute a contempt under the sub judice rule if it relates to legal proceedings which are current or pending (see Discussion Paper, Chapter 7). Publication of material is taken to occur at the time when it was first published. Thereafter, every distribution or broadcast of material, including republication of material, is treated as a separate act of publication, occurring at the time of the relevant distribution or broadcast. The Commission believes these principles to be appropriate and does not propose any change. Responsibility [18] Responsibility of media proprietors and editors for publication. The common law usually holds media proprietors and editors “responsible” for a publication, even if they have no knowledge of the contents of the publication. The basis of liability is that they have overall control of its contents. In Chapter 5, the Commission proposes that persons in a position to exercise editorial control in relation to publications, including media proprietors and editors, be held liable for contempt unless they can show that they did not know a fact that caused the publication to breach the sub judice rule and, before publication was made, they took all reasonable steps to ascertain any such fact (Proposal 7). [19] Responsibility of reporters for publication. The common law in relation to responsibility for publication is sufficiently broad to include individual reporters, but at the same time protects reporters who have no involvement in the publishing process. The Commission favours retention of the common law. However, it sees merit in the approach of holding liable only those who are in positions of control over the operation of a media organisation and the material that it publishes. The Commission invites submissions on which is the preferable approach. [20] Responsibility of channels broadcasting programs under licence. As with editors, a channel broadcasting a program under “licence” from a principal broadcasting station is held responsible for a contemptuous publication, whether or not the channel has knowledge of the contents of the program and even though it may have received the program on instantaneous transmission from the station. The Commission considers that a broadcaster should be responsible for a publication if it has control over the content of programs it receives from another organisation. If it has no such control, the Commission proposes a defence which will exonerate the broadcaster if it can show that at the time of the publication, it did not know (having taken reasonable care) that the program contained contemptuous material (Proposal 8). [21] Responsibility of distributors. It is possible that distributors of printed material may, at common law, be held responsible for a prejudicial publication, even though they have no knowledge of the contents of the material which they are distributing. The Commission, however, proposes a defence for distributors who can show that they did not know, having taken reasonable care, that the publication they distributed contained contemptuous material (Proposal 8). [22] Responsibility of vendors. Vendors of printed material, such as newsagents or street sellers, are at the lower end of the distribution network. The Commission’s provisional view is that a vendor would act reasonably in assuming that others higher up in the chain of distribution have taken care to avoid dissemination of prejudicial material. In relying on the Commission’s proposed defence of innocent publication (see Discussion Paper, Chapter 5), the defendant would need to prove that he or she took reasonable care. The standard of reasonable care expected of a vendor would not be as high as that expected of large-scale distributors. [23] Responsibility of private individuals. Any individual who speaks to the media about a matter relating to specific court proceedings may be liable for contempt. A media organisation that publishes prejudicial statements made by a private individual may also be found liable for contempt. The Commission has no firm view on whether or not private individuals should be responsible for contemptuous statements made to the media. On the one hand, there is merit in retaining the flexibility of the common law approach and allowing for private individuals to be liable for sub judice contempt. On the other hand, it is arguable that the focus of allocating responsibility for contemptuous statements should be on the degree of control that the person or organisation in question exercises over the published material and whether that person or organisation is in a position to implement systems to check that prejudicial material is not published. [24] The Commission’s tentative view. At present, the Commission is inclined towards retaining the common law on determining responsibility for the publication of contemptuous material. However, Proposal 2 is put forward as an alternative to the common law approach in order to invite comment on whether this approach is more appropriate. Discussion Paper Chapter 4 PREJUDICIAL PUBLICATIONS [25] Chapter 4 reviews the test for liability for sub judice contempt. It also deals with the issue of whether particular categories of publications should be specified that may give rise to liability. Test for liability [26] Current test for liability. To constitute contempt, a publication must be shown to have a real and definite tendency, as a matter of practical reality, to prejudice or “embarrass” (see paragraph 35 below) particular legal proceedings. Liability therefore depends on the potential effect of a publication on legal proceedings, rather than any actual effect it may have had. [27] Criticisms of the tendency test. There are two principal grounds for criticism: (1) the test is imprecise; and (2) it is too broad. In relation to the first criticism, sub judice contempt attracts criminal sanctions, potentially the imposition of a term of imprisonment. The principles of liability governing this offence, as with all criminal offences, should therefore be defined with sufficient precision and clarity to allow members of the public to know what conduct will expose them to liability. Secondly, it is argued that the current test sets too low a threshold for liability, thereby intruding unjustifiably on freedom of discussion. Publications may be prohibited which have a tendency to prejudice but which do not in fact pose any serious risk to the administration of justice. [28] “Substantial risk” as an alternative formulation of the test. An alternative approach is to base liability on a publication having a substantial risk of serious interference with particular legal proceedings. This has been proposed by former Chief Justice Mason of the High Court and a number of other judges. It has been adopted in legislation in the United Kingdom and appears to be favoured by New Zealand and Canadian courts. The ALRC, the Phillimore Committee in Great Britain, and the Irish Law Reform Commission all recommended a test for liability formulated in terms of risk, as opposed to tendency. It is argued that this test more appropriately balances the competing interests in free speech and the proper administration of justice. [29] Formulating liability in terms of actual prejudice. It has been suggested that the principle of liability for sub judice contempt should focus on whether prejudice to proceedings has actually occurred, rather than whether it may possibly occur. Otherwise, the scope of liability may be too broad. At this stage, the Commission does not agree with this approach. The principal aim of the law in this area is to prevent publications that may damage the administration of justice. It is insufficient only to punish publications causing actual damage. Furthermore, in cases of alleged influence on a jury, proof of actual damage would require a detailed investigation of the deliberations of the jury and the reactions of individual jurors to the publication. [30] The Commission’s tentative view. Because of the restrictions that the sub judice rule places on freedom of discussion, it is important that its scope is limited as much as possible. It should apply only where it is necessary to ensure that the proper administration of justice is not seriously compromised. It is also desirable that the test for liability be formulated in the most precise terms possible, in order that the media may know with a reasonable degree of certainty which publications will expose them to prosecution. “Substantial risk” is a more precise term than “tendency”, since it quantifies the degree of risk by use of the word “substantial”. The Commission also takes the tentative view that the test for liability should require a substantial risk of “prejudice”, rather than a risk of “serious prejudice”. Prejudice to the fairness of legal proceedings is, by its nature, serious. The adjective “serious” adds nothing in real terms to the test for liability. Proposal 3 reflects this view. Publications that may influence witnesses [31] The law restricts the publication of material if it is considered that it may deter a witness from coming forward to give evidence, or may influence the evidence that witness gives. However, Australian courts appear to have become increasingly reluctant to restrict the publication of information on the basis that it may influence a witness, placing greater faith in the honesty of witnesses and the power of cross-examination to expose prejudice and inconsistencies. [32] Arguments for and against restrictions on publications that may influence witnesses. On the one hand, there is arguably sufficient ground to fear that due process of the law may be compromised as a witness’s memory of events may be coloured by publicity or a potential witness may be deterred from giving evidence. On the other hand, it could be questioned why the law considers it necessary or desirable to prevent the risk of influence by one means, namely media publicity, while there are many other ways in which a witness, or potential witness, may be influenced. Secondly, the possibility of influence on a witness, whether by media publicity or other means, is a matter which may be fully explored and exposed through cross-examination in court. Thirdly, fears that potential witnesses will be deterred from giving evidence may be speculative and not sufficiently substantiated to warrant intruding on the right to freedom of discussion. [33] The Commission’s tentative view. The Commission’s tentative view is to retain the existing common law relating to influence on witnesses. While there is little empirical evidence either to support or to oppose the notion of influence on witnesses by media publicity, the Commission considers that there is sufficient reason for concern that a witness may be so influenced, at least in so far as his or her memory may be affected by media publicity. However, the Commission welcomes submissions on this issue. Judicial officers [34] Publications influencing judicial officers. Case-law suggests that the possibility of influence being exerted by publications on judicial officers is insufficient to amount to a “real and definite tendency” to cause prejudice. This is because judicial officers have training and experience in disregarding information that is not obtained by way of evidence admitted in court. Despite this, most law reform bodies have not altogether excluded the risk of influence on a judicial officer as a possible ground of liability for sub judice contempt. The justification for this is twofold: first, it is always possible that a judicial officer may be subconsciously influenced; and secondly, it is just as important to protect the public perception of judges’ impartiality as it is to protect against the risk of actual bias. However, the Commissioners, by majority, consider that concern about influence on a judicial officer is essentially speculative and support the general assumption that judicial officers are not susceptible to any significant degree to influence by media publicity. In the interests of minimising encroachment upon freedom of speech, a majority of the Commissioners take the view that the risk of influence on a judicial officer ought not to be a ground of liability for sub judice contempt. [35] Publications causing “embarrassment” to judicial officers. Different considerations apply to publications which may cause “embarrassment” to judicial officers, not because of the risk of influence but because of the need to protect the integrity of the justice system from the perception of improper pressure. The common law relating to liability for sub judice contempt because of “embarrassment” to judicial officers is by no means clear. But, at this stage, with one area of exception, the Commission makes no proposal to modify the law. The area of exception addresses the concern that media comment about the sentencing of an offender in criminal proceedings may “embarrass” the sentencing judge. The reasons for treating the sentencing process differently from other stages of legal proceedings relate to the strong discretionary element in determining a sentence. Proposal 14 suggests a limited application of sub judice liability to the sentencing process. It is proposed that legislation should prohibit publications expressing opinions as to the sentence to be passed on any specific convicted offender, whether at first instance or on appeal. Prescribing the types of publications to give rise to liability [36] Some previous reviews of contempt law have recommended that the law of sub judice contempt be clarified by prescribing in legislation the types of statement that may or will give rise to liability. The legislation could operate in one of two ways: either (1) a publication would only amount to a contempt if it included a statement that came within one of the categories listed in the legislation, and was also shown to have a substantial risk (or tendency) to prejudice proceedings; or (2) a publication would amount to contempt if it contained a statement that came within one of the categories listed in the legislation, regardless of the risk it posed to proceedings. [37] Advantages and disadvantages of prescribing categories of prejudicial statements. The main advantage of prescribing the types of statement that will, or may, give rise to liability is that it provides greater certainty and clarity for the media, especially if the second of the above alternatives were adopted. The significant disadvantages of following this approach are its inflexibility and the consequent restriction on freedom of discussion. There may be statements that fall within one or more of the prohibited categories, but which, in the circumstances of the particular case, do not pose any risk of prejudice to legal proceedings. Conversely, there is always the danger that legislation will omit from the list a category of publication later found to have the potential to cause prejudice to proceedings. [38] The Commission’s tentative view. The common law gives fairly clear guidelines as to the types of statements that will typically give rise to liability for sub judice contempt. To that extent, it is questionable whether the law is made any more certain by prescribing these statements in legislation, particularly if they are provided as an illustrative, rather than exhaustive, list. However, the Commission can see some merit in including in legislation, not as an exhaustive list but as illustration only, the types of statements that, if published, may give rise to liability. This may serve a useful purpose in educating members of the media, and in providing them with a quick reference point as to examples of the types of statements they should avoid publishing. The legal criteria of liability would continue to invoke some broad concept such as substantial risk of, or tendency to, prejudice. The Commission is interested in receiving submissions on this proposal. Proposal 4 includes the types of statements that are generally considered to have the potential to prejudice criminal proceedings. Admissibility and utility of expert evidence to prove tendency or substantial risk [39] The general approach taken by courts in New South Wales is to assess the tendency of a publication to prejudice proceedings according to the court’s impression and to make judicial inferences from “common experience”, rather than by reference to any expert evidence. Expert evidence to test whether a jury has already been tainted by publicity has been admitted in criminal proceedings. However, it is only very recently that expert evidence has been admitted to assist in determining whether a particular publication has the tendency to prejudice proceedings. The Commission can see no reason in terms of general principle why expert opinion should not be admissible on this issue. Certainly, the relevant provisions of the Evidence Act 1995 (NSW) appear sufficiently broad to admit expert evidence on this issue. Factors relevant to determining liability [40] At present, the courts may take into account a number of factors as relevant to determining the tendency of a publication to prejudice proceedings. However, the courts have not always been consistent or clear in their views of the factors that should be taken into account. Some of the relevant factors include: the delay between the time of publication and the time of commencement of the relevant proceedings; the medium of publication; and the public status of the person making the statement. Other factors are discussed in paragraphs 41-44. [41] Likelihood of the publication coming to the attention of participants in the proceedings. It has been held that liability for sub judice contempt does not require proof that the publication actually came to the attention of participants in the trial. This is because it is concerned with the possibility of prejudice rather than with actual prejudice. However, it has been argued that the qualification that the publication have a tendency “as a matter of practical reality” to cause prejudice requires the court to consider the objective likelihood, determined as at the time of publication, of participants encountering the publication in question. The Commission considers that it may be useful to include in the basic test for liability a separate requirement to consider the likelihood of contact by jurors or witnesses with the publication in question. This does not mean that liability for sub judice contempt would depend on proof of actual contact, but simply proof of a “substantial risk” of contact. According to Proposal 3, the court would be required to consider whether there was a substantial risk of contact with the publication in question and, if so, whether there was a substantial risk of prejudice arising from contact with that publication. A separate requirement for the court, in cases involving pre-trial publications, to consider the risk of recall is included in Proposal 3. [42] Relevance of the trial being aborted. The fact that a trial has, or has not, been aborted because a trial judge considers that a publication concerning the trial is so prejudicial as to make the trial unfair, is not treated as determinative of liability for sub judice contempt. It is, however, considered relevant to the penalty to be imposed following a contempt conviction. This is, in the Commission’s view, the proper approach. Nonetheless, the questions arise whether evidence of the fact that a jury has or has not been discharged should be admissible at all in the contempt proceedings, and, if so, what weight that evidence should carry. On balance, the Commission is inclined towards the view that evidence as to whether or not the jury was discharged should be treated as relevant to the issue of liability for contempt and the appropriate penalty. However, although being able to rely on the fact of discharge of the jury, the prosecution would still need to prove that the publication creates a substantial risk of prejudice in order to succeed in the contempt proceedings. The findings relating to the discharge of the jury in the discontinued criminal proceedings could not be admissible to prove the sub judice contempt. [43] Relevance of pre-existing publicity. The prevailing view of the courts appears to be that a previous publication can only be relied on as a factor lessening the tendency of a current publication to prejudice a trial if the previous publication did not itself breach the sub judice rule. The Commission proposes that legislation should provide that publicity about legal proceedings may be contemptuous regardless of whether there has already been contemptuous publicity. Evidence of pre-existing publicity should not be treated as a factor that reduces the risk of a publication to cause prejudice. There may be circumstances where a news item is so dramatic that a further publication causes prejudicial effects to continue or to revive, where the effect of the original publication may otherwise have been reduced by the passage of time. It is also reasonable that the law should not withdraw its protection from accused persons who have been subjected to widespread adverse publicity, simply on the assumption that further adverse publicity would not make any difference to the hostile public feeling already generated. [44] Relevance of remedial measures to liability for contempt. The term “remedial measures” refers to measures which are intended to minimise the possible prejudicial effect of media publicity on legal proceedings. Examples are: discontinuing a trial; changing the venue; or giving directions to the jury to disregard publicity. Unlike the approach taken in the United States and, recently, in Canada, Australian courts at present do not generally take into account as a relevant factor in contempt proceedings the fact that remedial measures were available, or even used, in the prejudiced proceedings. At most, it has been held that judicial warnings to the jury to ignore prejudicial publications can be effective in overcoming or minimising the effect of media publicity, and that fact can be given weight in the contempt trial in determining the tendency of a publication to prejudice proceedings. The issue arises as to whether the availability of other remedial measures should also be given weight in the contempt trial. On the one hand, this would maximise the scope for free speech. On the other hand, it may encourage greater reliance on remedial measures. This may mean greater expense to both the State and the accused, as well as greater delays in finalising criminal trials, and the possibility of inconvenience, emotional upset, and hardship to the parties, witnesses, and even jurors. On balance, the Commission does not consider that the common law should be changed. Discussion Paper Chapter 5 FAULT The relevance of fault to liability [45] In order to establish liability for sub judice contempt, it is only necessary to prove intention to publish the material in question and that the publication had a tendency to interfere with the administration of justice. A publisher may be guilty of contempt even without knowing that there are proceedings current or pending that may be prejudiced by the publication and even if precautions to exclude prejudicial material have been taken. There are, however, some suggestions that an intention, or lack of intention, to interfere with proceedings may be relevant to the question of liability, although how and to what extent has not been clearly defined. [46] Criticisms of the current approach. There is some uncertainty surrounding whether sub judice contempt is an offence of absolute liability or strict liability.1 The law in this area needs clarifying. If the current approach in common law contempt is in fact to impose absolute liability, it is contrary to the general trend of the criminal law. The criminal law generally requires some form of intention before imposing liability, or, at the least, imposes strict liability rather than absolute liability for offences which are more than merely regulatory offences. Furthermore, absolute liability can operate unfairly against a publisher who has made an unintended and reasonable mistake. It can also be argued that it infringes too greatly on freedom of discussion. [47] Justifications for the current approach. It is argued that the imposition of absolute liability is necessary to prevent interference with the proper administration of justice. The risk of interference is just as real whether it is brought about intentionally or unintentionally by the publisher. By imposing absolute liability, the law of sub judice contempt places strong obligations on the publisher to ensure that the risk of prejudice to legal proceedings does not arise. [48] The Commission’s tentative view. The Commission does not presently agree that the imposition of liability without any element of fault is justified. If there is absolute liability, there is, in theory, nothing that the media can do to be certain of avoiding liability, no matter how careful they are and how reasonably they act to ensure that they do not breach the sub judice rule. The deterrent force of the law is not made any stronger by the imposition of absolute liability. On the contrary, a fault requirement may give publishers more incentive to be careful. Other approaches [49] There are three possible approaches to introducing an element of fault into liability for sub judice contempt. These are: (1) a requirement to show actual intention to interfere with the administration of justice or recklessness as to whether interference will arise; (2) a requirement to show negligence; and (3) a defence of “innocent publication”. These three approaches are summarised in paragraphs 50-52 below. [50] Actual intention or recklessness. The Commission’s tentative view is that to require proof of actual intention would place too heavy a burden on the prosecution and would allow those who were negligent, as distinct from reckless, to escape liability. [51] Negligence. Punishing the careless, without punishing those who have taken all reasonable steps to avoid offending the law, is fairer than imposing absolute liability. The negligence approach does, however, carry with it the uncertainties attaching to any law that requires a determination of what is “reasonable”. It would also place the burden on the prosecution to prove the defendant’s negligence. It could be said that this might tilt the balance too far in favour of freedom of discussion over the public interest in the proper administration of justice. [52] Defence of innocent publication. A third approach would be to introduce a defence of innocent publication. This could be formulated in one of two ways. In its broader formulation, defendants would be excused from liability if they can prove, on the balance of probabilities, that they had no knowledge of the relevant facts, and that, having regard to available resources, all reasonable care was taken to ascertain such facts. This defence could apply both to the situation where: (1) the defendant does not know that relevant proceedings are current or pending; and (2) the defendant knows that proceedings are pending or current but takes all reasonable care to exclude material which is likely to be prejudicial to the proceedings. In its narrower formulation, only the defendant in the first situation, that is, who does not know, and has no reason to suspect, that relevant proceedings are current or pending, would be excused from liability. [53] The Commission’s proposals. The Commission supports the introduction of a defence of innocent publication. We propose that it vary according to the category of person who seeks to rely on the defence. The first proposal (Proposal 7) covers defendants who are in a position to exercise editorial control in relation to the contemptuous publication, including publishers editors and reporters. The second proposal (Proposal 8) covers defendants who have no such control, including distributors, vendors and broadcasters who broadcast live interviews. Proposal 8 is also intended to apply to Internet service providers and Internet content hosts. At this stage, the Commission does not consider it necessary or desirable to include an express reference in legislation to the defendant’s resources as a factor to be taken into account in determining what is “reasonable”, although it invites submissions on this point. Corporate media proprietors – identifying the “corporate mind” [54] Where corporate proprietors rely on the proposed defence of innocent publication, it may be difficult to identify who in the organisation has the responsibility of exercising reasonable care. The Commission takes the tentative view that a corporation should be liable for its contemptuous publications, but has available to it a defence if all relevant employees have behaved reasonably in relation to the publication and have taken reasonable steps to prevent the conduct amounting to contempt. To rely successfully on the proposed defence of innocent publication, the media proprietor must show, on the balance of probabilities, that every employee involved in the publication process for the publication in question exercised reasonable care according to the requirements set out in Proposals 7 and 8. Where actual intent is proven [55] There is some authority to suggest that liability for sub judice contempt may arise where there has been an intention to interfere with the course of justice, even if the publication did not have a tendency to interfere with the administration of justice. However, the conduct charged must have created at least a remote possibility of interference. But the law in this area remains uncertain. If, at common law, there is a separate offence of “intentional sub judice contempt”, the Commission can see no reason why it should continue to exist. There is already an offence of perverting the course of justice, which focuses on the intention of the offender rather than the acts taken to carry out that intention. Under sub judice law, evidence of actual intention should be relevant only to the question of penalty, not to liability as well. Discussion Paper Chapter 6 PUBLICATIONS RELATING TO CIVIL PROCEEDINGS [56] In theory, the sub judice rule applies both to civil proceedings and criminal proceedings. In practice, however, it has only limited application to civil proceedings. This is because these are usually determined by a judge or magistrate without a jury and it is assumed that judicial officers are not susceptible to prejudicial publicity. Civil proceedings also tend to attract less media publicity than do criminal proceedings, because their subject matter is generally less dramatic. The most likely application of the sub judice rule to civil proceedings is in preventing a publication from prejudicing a witness or putting pressure on a party. In addition, a publication relating to civil proceedings may amount to contempt if it prejudges the issues at stake in particular proceedings. In this chapter, the main issue is whether the sub judice rule should apply at all to civil proceedings. Effect of publicity on civil juries [57] In principle, juries in civil trials may be as susceptible to influence by media publicity as may juries in criminal trials, and should therefore be protected from the possibility of such influence. But in practice, the role of the jury in civil proceedings is far more limited than in criminal proceedings. Most civil proceedings in the Supreme and District Courts are heard by judge alone. Therefore, if the main basis for the sub judice rule is the danger of influence on a jury, is there sufficient justification for retaining it for publications relating to civil proceedings? [58] The Commission’s tentative view. Except for defamation proceedings where the jury now plays a greatly restricted role, the Commission is presently inclined towards the view that the sub judice rule should apply equally to prevent publications that prejudice civil proceedings as it does to prevent prejudice to criminal proceedings. Even though juries are used infrequently in civil proceedings, there may still be significant interference with the administration of justice in a particular case as a result of the influence of media publicity on a jury. Effect of publicity on parties [59] A publication may constitute contempt if it tends to impose improper pressure on a party to proceedings as to the conduct of those proceedings, such as pressure to discontinue or settle. The parameters within which a publication may comment on, or criticise, a party without constituting a contempt are most uncertain. There are two particular areas of uncertainty: (1) how the courts should implement the distinction between “proper” and “improper” pressure; and (2) whether the tendency of the publication should be measured against the capacity of the particular litigant involved to withstand pressure, or whether it should be measured against some hypothetical litigant of “ordinary” fortitude. [60] The Commission’s tentative view. At this stage, the Commission is inclined to the view that the law should provide some protection against pressure by a publication on parties in civil proceedings. The Commission is uncertain, however, as to how liability for contempt should be imposed in this situation, and what should be the limits of liability. One option is to impose liability for contempt if a publisher could be shown to have intended to impose pressure on a party to withdraw from litigation, or to vilify a person or organisation in their capacity as a party to proceedings. A publisher could escape liability in this situation by showing that its publication related to a matter of public interest. A second option is to impose liability for contempt for a publication that goes beyond fair and temperate comment and is likely, or intended, to inhibit a litigant from asserting his or her right to have the case determined by a court. Again, a finding of liability could be made subject to the public interest principle. The likely effect of a publication could be measured according to the “reasonable” litigant, or a litigant of “reasonable” fortitude. A third option is to impose liability when a publication is found to have a substantial risk of imposing improper pressure on a party in civil proceedings as to the conduct of those proceedings. Consideration could be given to attempting to define in legislation, or provide guidelines as to, the meaning of “improper” pressure. [61] At this stage, the Commission makes no proposal in relation to publications that exert pressure on parties in civil proceedings. Instead, submissions are invited on the following issues:
The prejudgment principle [62] According to what may be called the “prejudgment principle”, publications may be contemptuous solely on the ground that they prejudge issues that are at stake in a case currently before a court. It is not clear how far, if at all, this principle operates in Australia. The prejudgment principle does not rely on the traditional formulation of a tendency to cause prejudice to proceedings. It is instead concerned with ensuring that media publicity does not compromise the general administration of justice by usurping the courts’ role and undermining public confidence in the court system. It predominantly operates to restrict publications relating to civil proceedings, but may also operate to restrict publication of material relating to appeals (whether civil or criminal). The restrictions imposed by the prejudgment principle may have particular importance for investigative journalism, and even, perhaps, for academic and scientific publications on matters which are the subject of civil proceedings. [63] The Commission’s tentative view. The Commission is, like others, concerned that application of the prejudgment principle in contempt law unacceptably infringes on freedom of expression. It may curtail free public discussion of topics of general concern where no potential for actual damage to a particular case can be identified. Furthermore, the principle poses difficulties in definition and may have a very wide scope. The Commission proposes that 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. Discussion Paper Chapter 7 TIME LIMITS [64] In Australia, the sub judice rule restricts the publication of information relating to proceedings when they are “current” or “pending”. It is not always easy to ascertain when, at common law, proceedings may be regarded as “pending”. [65] Chapter 7 of the Discussion Paper makes proposals as to when the sub judice rule should commence, when it should end, whether the rule should apply during appeal proceedings and at sentencing, and whether different time rules should apply to intentional contempts. Fixing an appropriate starting point for sub judice contempt [66] Publications relating to criminal proceedings. The Commission’s view is 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 potential liability should at least begin at that point. The Commission therefore proposes that legislation should provide that criminal proceedings become pending for the purposes of the sub judice rule from the occurrence of any of these initial steps of the proceedings:
[67] The Commission does not consider that the sub judice rule should extend to an earlier period, such as the time of the issue of a warrant for arrest or the period when proceedings may be said to be “imminent”. [68] The reason 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 this event 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. [69] On the other hand, the Commission considers that the sub judice rule should not commence from the time the proceedings are merely “imminent”. This is not only because the courts have no control over the proceedings when they are merely “imminent” but also because of the lack of certainty as to the meaning of “imminent”. At common law, “imminent” proceedings may cover acts occurring before the legal process has formally been set in motion, such as police questioning of a suspect. [70] Accused not in New South Wales. The Commission believes that legislation should specify the starting point for the sub judice period where the accused is not in New South Wales. It tentatively proposes that where the accused 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 issue of the extradition order is a verifiable event for the media. It is also close 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 earlier publicity. [71] Publications relating to civil proceedings. In determining the starting point of the sub judice period for civil proceedings, the Commission believes it necessary to distinguish between prejudice to the parties, on the one hand, and prejudice to the jury and witnesses, on the other. In relation to prejudice to the jury and witnesses, it is of the view 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. This creates certainty for the media, as the setting of a hearing date can easily be verified with the courts. [72] This is subject to two provisos. First, the sub judice rule should apply only from the time when it is known that a jury will be used in the proceedings. While there are cases where jury trial is certain to occur at the time of the setting down for hearing, there are also cases where trial by jury is not ordered or ever contemplated until a later period of time. [73] Secondly, the sub judice rule should not apply in cases where the jury is to be empanelled under s 7A of the Defamation Act 1974 (NSW). The restricted role of juries in such proceedings does not justify the application of the sub judice rule in that context. [74] 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 may be too late because the pressure on a party may occur at any time after the proceedings are commenced. Pressure on parties by the media may occur, for instance, during pre-trial negotiations, and the law should accord some protection to the parties during this period. Fixing an appropriate end point for sub judice contempt [75] Publications relating to criminal proceedings. The Commission proposes that legislation should provide that the end point of the sub judice period should be fixed at the conclusion of the trial or hearing at first instance, that is: (1) by acquittal; (2) by any other verdict, finding, order or decision which puts an end to the proceedings; or (3) by discontinuance of the proceedings or by operation of law. The sub judice rule should not apply during any appellate proceedings, which are always determined by judges without a jury. As noted earlier, judges are less susceptible to the risk of influence by publicity about a pending appeal and the generally legal nature of the issues in appeal proceedings makes the decision-making process less vulnerable to influence. [76] The Commission also considers that 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 a re-trial being ordered. The uncertainty as to whether an appeal will be lodged and the infrequency of re-trials in New South Wales do not justify the extension of the sub judice rule during this period. [77] The Commission has, however, proposed that publications expressing opinions as to the sentence to be passed on any specific convicted offender, whether at first instance or on appeal, should be prohibited, subject to any defence which is available in the proposed legislation or at common law. 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” 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. Another consideration for some form of restriction during the sentencing stage is the risk that the sentenced offender, or the Crown law officers, may be influenced by the media reactions to the sentence in their decision whether or not to appeal the sentence. [78] Finally, the Commission proposes that 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. [79] Publications relating to civil proceedings. By contrast with criminal proceedings, the Commission’s current view is 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. 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). Time limits and “intentional” contempt [80] A distinction is sometimes made at common law between the time limits that apply to an unintended contempt and those relating to an intentional contempt. However, as noted in paragraph 55 of this summary, the Commission proposes to abolish the common law category of intentional sub judice contempt. The proposal 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, a publication which creates a substantial risk of prejudice will be prohibited, regardless of the presence or absence of intent to cause prejudice. In like manner, the Commission is of the view that 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. Discussion Paper Chapter 8 PUBLICATIONS IN THE PUBLIC INTEREST Public interest [81] At common law, a person or organisation may avoid liability for contempt for a publication that relates to a matter of public interest. In this situation, the detriment arising from possible prejudice to pending proceedings is outweighed by the public interest served by freedom of discussion of, and dissemination of information about, a matter of public importance. For example, a publication dealing with the subject of paedophilia, in the context of an ongoing public debate about the problem of paedophilia in the community, may be found to have a tendency to interfere with particular criminal proceedings against a person accused of committing sexual offences against children. However, the court may determine that the publication does not amount to a contempt, on the ground that it relates to a matter of public interest, and the element of public interest outweighs the detriment it may cause to the criminal proceedings in question. [82] This process of weighing up the competing public interests forms part of a single decision by the court as to whether a contempt has been committed. The public interest principle is not a ground on which the court may use, after having determined that a contempt has been committed, to decide not to impose a penalty. In other words, the principle operates as a component of the test for liability for contempt rather than as a defence. The burden is on the prosecution to prove that the public interest in publishing the material in question did not outweigh the public interest in restricting publication in the interests of the proper administration of justice. [83] As originally articulated in the 1937 New South Wales case of Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd, the public interest principle appeared to be quite narrow. It only applied to publications forming part of a general, ongoing public discussion or debate, where the discussion or debate began before any particular legal proceedings had commenced. To avoid liability, the publication had to be prompted by the general public discussion, rather than by particular legal proceedings, and could not refer specifically to the particular proceedings allegedly prejudiced. [84] In the only case in which the High Court has considered the public interest principle, the 1987 case of Hinch v Attorney General (Victoria), the Court expanded the scope of the principle significantly by recognising that it could apply to publications which were prompted by, and which dealt specifically with, the facts of particular proceedings. It could apply in any case where the court, having conducted a balancing exercise between the competing public interests in the due administration of justice and freedom of discussion of public affairs, found that the former was outweighed by the latter. [85] The Commission believes that there is a need to formulate a new, narrower public interest defence. It proposes that legislation should provide for a defence where:
[86] Under this proposal, once the publication is adjudged to be in good faith and on a matter of public affairs or general public interest, the test is whether 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. A balancing act is not required. The media will be required to demonstrate that the discussion is genuinely important, that the material in question forms an integral part of the discussion and that the discussion would suffer significantly if the publication were delayed until the risk of prejudice had ceased. The proposal would operate as a true defence, that is, the burden of proof would be on the defendant to prove all the elements of the defence. Public safety [87] In addition, the Commission proposes a new defence that has no common law counterpart. It proposes that a defence be available in circumstances where the media publish information that has a tendency to prejudice particular proceedings but which is in the interest of protecting public safety. [88] Under the proposed public safety defence, a defendant would be exonerated from liability if he or she could prove, on the balance of probabilities, 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. For example, if a person accused of a crime is at large, it may be in the public interest to publicise the fact that that person has a history of violence and may be dangerous, and/or to publish a photograph of the alleged offender. Without the proposed defence, publications of these kinds could give rise to liability for sub judice contempt. Discussion Paper Chapter 9 FAIR AND ACCURATE REPORTING PRINCIPLE [89] Chapter 9 of the Discussion Paper deals with the fair and accurate reporting principle. According to this principle, a report of proceedings, whether civil or criminal, heard in open court does not constitute contempt if:
[90] At this stage, the Commission is not inclined to propose any changes to the existing fair and accurate reporting principle. It acknowledges that there are possible issues with respect to the principle, such as what constitutes good faith, what is an accurate summary of proceedings, and whether the principle operates as a defence or as a component of liability. However, the Commission considers that these are best left for the courts to clarify. Nevertheless, it welcomes submissions on these issues and any other matter concerning the fair and accurate reporting principle. Discussion Paper Chapter 10 SUPPRESSION ORDERS [91] Chapter 10 deals with the power of courts to make suppression orders. These are orders that limit what may be published about legal proceedings. Their function is to restrict publicity that may prejudice a fair trial or the administration of justice in general. [92] The common law has long recognised that a judge may, in certain circumstances, order reports of proceedings to be postponed where such an order would further the interests of justice. The full extent of this power is unclear in New South Wales. It appears that a suppression order will only be binding on the parties, witnesses and other persons present in the courtroom. It cannot apply to persons outside the courtroom who have no connection with the proceedings in question. On this view, the order does not bind the media generally and a breach by them of an order will not constitute a contempt of court. [93] Apart from the common law, s 119 of the Criminal Procedure Act 1986 (NSW) (which replaced s 578 of the Crimes Act 1900 (NSW)) confers a power on any judge to make suppression orders forbidding publication of the evidence in proceedings before him or her. The power contained in s 119 is limited. It applies only to criminal, not civil proceedings. It is subject to the veto power of parties to the proceedings. It may only be used to suppress publication of evidence and does not extend to other material the publication of which could be prejudicial, such as names. It cannot be invoked in other preliminary proceedings like bail applications. [94] Given that the statutory regime governing suppression orders is not comprehensive, and that the scope of the common law power is unclear, there are a number of issues that arise about suppression orders. These include:
A broad power to suppress publication where there is a substantial risk of prejudice to the administration of justice [95] The Commission proposes the repeal of s 119 of the Criminal Procedure Act 1986 (NSW) and its replacement with a new provision in the Evidence Act 1995 (NSW). This would provide 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 new section should not replace the common law or existing statutory powers (other than s 119) to restrict publication of court proceedings. [96] The proposal would empower courts to make suppression orders for the purpose of preventing prejudice to the “administration of justice”. The administration of justice is a very broad term, which covers the detection, prosecution and punishment of offenders. Its proper administration requires not only that trials be fair, but that persons who can assist in its administration be encouraged to participate. The power of courts to make suppression orders in terms of the “administration of justice” therefore incorporates both the need to prevent prejudice to the fairness of a particular trial and the need to restrict publicity where this would be prejudicial to the judicial system generally. This is a broader principle than the current focus only on the fairness of a particular trial. [97] In at least one Australian jurisdiction, the fact that publication of evidence or identifying particulars may be harmful to individuals, such as witnesses, can be a ground for a suppression order. The Commission, however, does not consider that hardship or embarrassment caused to an individual should of itself be sufficient cause for a suppression order to be made. The Commission believes that any derogation to free speech and of the open justice principle should be based upon securing the needs of justice rather than the needs of individuals. [98] Under the proposal, the level of risk of prejudice to the administration of justice must be substantial. The fact that an order would be in the interests of justice generally, or that publication would be likely to prejudice the administration of justice, should not be sufficient grounds for the making of an order. Bail and committal hearings [99] The proposal covers all court proceedings, including bail and committal proceedings. The Commission considered the option of imposing a complete ban on reporting of bail and committal proceedings and has tentatively decided against this. The main advantage of such a ban is that the media would then know that they can never publish reports of such proceedings. However, a complete ban on reports of such proceedings seems an unjustifiable intrusion on the right to freedom of discussion and an unnecessary infringement of the principle of open justice. Power to suppress names as well as evidence [100] The Commission’s provisional position is that the power to make suppression orders should extend to material which would lead to the identification of parties and witnesses involved in proceedings, where suppression is necessary to prevent 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). This power should not, however, alter the special protection given by existing legislation to specified groups such as sexual assault victims and children. Power to apply to both civil and criminal proceedings [101] The general power to suppress evidence and names should apply to both civil and criminal proceedings. If the basis of the power to make suppression orders is that they are necessary to avoid a substantial risk to the administration of justice, there seems to be no good reason why the law should treat civil and criminal proceedings differently. Legislative provisions for standing and costs [102] The question of whether at common law the media has standing to be heard on an application, variation or revocation of a suppression order is not settled and requires legislative clarification. The Commission’s provisional view is that legislation should 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. A person or organisation 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. A person or organisation undertaking an appeal should take on the status of an intervener and as such should be in the same position in relation to costs of the proceedings as any other party. Appeals [103] The Commission proposes that 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. Sanction [104] As is presently the case under s 119 of the Criminal Procedure Act 1986 (NSW), the Commission proposes that breach of a suppression order should constitute a criminal offence. Discussion Paper Chapter 11 ACCESS TO AND REPORTING ON COURT DOCUMENTS [105] While the rule allowing the fair and accurate reporting of court proceedings, discussed in Chapter 9, is reasonably well settled at common law, there is uncertainty about the media’s right to report on the contents of documents involved in such proceedings. Moreover, the media generally do not have a right of access to documents kept on the court file of proceedings. [106] In the Commission’s view, the law that governs the media’s right to report on documents should be clarified. In accordance with the fundamental notion of open justice, the Commission considers that there should be a general public right of access to documents (including electronic material and sound or visual recordings), where those documents, or the relevant parts of them:
[107] The documents should be accessible only after proceedings in open court have commenced, and availability should be subject to any lawful order made by the court restricting access to such documents. [108] The law should also make it clear that there is a general right to publish the contents of, or a fair and accurate summary of the contents of, a document of a type referred to above. Again, this right should be subject to any lawful order by the court to restrict publication. If these recommendations are adopted, the Commission suggests that courts establish a system to facilitate ready access by non-parties, such as media representatives, to the relevant documents. Discussion Paper Chapter 12 PROCEDURAL MATTERS [109] Chapter 12 examines procedural aspects of sub judice contempt proceedings. It pays particular attention to:
Instigation of proceedings [110] The Attorney General and the Director of Public Prosecutions. The Attorney General is the usual public officer who initiates proceedings for sub judice contempt. Courts recognise the Attorney General as the appropriate public officer to represent the public interest in the administration of justice. [111] On the other hand, the Director of Public Prosecutions is the main prosecution arm of the State. His or her responsibilities include, among others, instituting and conducting the prosecution of indictable offences in the Supreme Court and the District Court, committal proceedings for indictable offences, and proceedings for summary offences in any court. Courts have also recognised the power of the Director of Public Prosecutions to prosecute for contempt but only in relation to cases where he or she is a party. [112] One option is for legislation to give the Director of Public Prosecutions the day-to-day responsibility for the prosecution of criminal contempts with the Attorney General retaining residual powers. This would be similar to the arrangement for indictable offences. The main advantage of this approach is that sub judice contempt is a criminal offence and as such, should be treated like all other offences, including in the way in which it is prosecuted. [113] The Commission’s provisional view is, however, that there is no need to change the current position at common law, where the Attorney General has the general power to prosecute sub judice contempt cases while the Director of Public Prosecutions has power to prosecute contempts that relate to cases in which he or she is a party. Such an arrangement recognises the complementary roles of the Attorney General as the primary officer charged with the maintenance of the due administration of the justice system, and of the Director of Public Prosecutions as the primary prosecution officer of the State. It is important to maintain the standing of both officers. This helps to ensure that if, in a particular case, one of them becomes vulnerable to perceptions of bias, the other may be relied upon to take up the prosecution. [114] Right of private individuals to prosecute. Any private individual may prosecute for contempt, although usually the applicant is a party to the litigation affected by the offending publication. [115] The Commission believes that the right of individuals to institute sub judice contempt proceedings should be retained. However it proposes that a private individual who intends to initiate and maintain a prosecution for criminal contempt should notify the Attorney General and the parties to the relevant proceedings (if any). This would contribute towards preventing duplication of the efforts to prosecute the same offence and consequently save resources. [116] The courts on their own motion. At common law, the courts may act on their own motion to deal with contempt cases. The Supreme Court has, under its rules, the power to direct the registrar to commence proceedings for the punishment of criminal contempt, including sub judice contempt. The Commission is of the view that no change is required in this regard. Trial of sub judice contempt cases [117] As from its creation as a Division of the Supreme Court in 1965, the Court of Appeal has had jurisdiction under the Supreme Court Act 1970 (NSW) to hear sub judice contempt cases. However, in 1997, this power was transferred to the Common Law Division of the Supreme Court. Sub judice contempt proceedings are now heard by one of the Common Law Division judges instead of three Judges of Appeal. [118] The Commission believes that there is a need to revert to the former arrangement. It is unaware of any practical difficulties arising from the recent assignment of these matters to the Common Law Division. An advantage of this procedure is that a person who has been convicted for sub judice contempt has an automatic right to appeal to the Court of Appeal. Mode of trial [119] One of the most distinctive characteristics of the law of criminal contempt is that the offence is dealt with summarily, that is, without a jury. The issue that arises is whether this procedure should be retained or replaced by trial by jury. [120] The Commission’s provisional view is that the summary procedure for sub judice contempt cases should be retained. The Commission is not aware of practical difficulties with the existing procedure. Moreover, it considers that the special features of the jury system which makes it effective for purposes of fact-finding are not essential in sub judice cases. Finally, sub judice contempt cases require a balancing of certain legal principles, such as freedom of expression, open justice and the right to a fair trial. These are arguably better understood by judges. Appeal proceedings [121] Appeals against convictions for sub judice contempt may be taken to the Court of Appeal. However, because the courts have consistently recognised that a conviction for contempt is a conviction for a criminal offence, it is arguable that appeals from such convictions should be assigned to the Court of Criminal Appeal. That Court has a number of special powers under the Criminal Appeal Act 1912 (NSW), such as the power to grant a new trial and the power to release the appellant on bail pending the appeal, that the Court of Appeal does not have. The Court of Criminal Appeal’s greater experience in the matter of sentencing for criminal offences may also give it some advantage where sentencing is an issue in the appeal. Consequently, the Commission proposes that appeals from convictions for criminal contempt should be assigned to the Court of Criminal Appeal. Discussion Paper Chapter 13 PENALTIES AND REMEDIES [122] Chapter 13 discusses the sanctions that may be imposed after a person is convicted of contempt of court, as well as other remedies. Fines [123] A fine is the usual penalty courts impose in sub judice contempt cases. At common law there is no upper limit on the fine that can be imposed. The main issue with respect to fines is whether or not there is a need to provide a statutory maximum. [124] The Commission’s current position is that there should be an upper limit on fines. Sub judice contempt should be in line with most other offences for which the penalties have ceilings. The Commission has not, however, formed a position as to a specific maximum fine for sub judice contempt and it welcomes submissions on this matter. It also seeks submissions on whether there should be different amounts depending on whether the defendant is a body corporate, or an individual, such as a journalist, radio announcer, editor or person interviewed by the media. Imprisonment [125] Although imprisonment has always been available as a sanction in cases of contempt, it has only been used once in Australia. There are two issues about imprisonment. The first is whether imprisonment should continue to be a sentencing option in sub judice contempt cases. The second is whether, if it is retained, there is a need to set an upper limit on the period of imprisonment. [126] The Commission has formed the view that imprisonment should remain available as a sanction. The Commission considers, however, that an upper limit must be established for the penalty of imprisonment. The penalty for sub judice contempt should be in line with other criminal offences for which the courts’ sentencing powers have been limited in almost every sphere by legislation. The Commission has no firm proposal as to the specific maximum period but invites submissions on this issue. Alternative sanctions [127] The law generally provides a number of alternatives to imprisonment such as community service orders, good behaviour bonds, dismissal of charges and conditional discharge of the offender, deferral of sentencing for rehabilitation, and suspended sentences. There are also alternatives to full-time detention in prisons through schemes such as periodic detention and home detention. Finally, parole enables sentenced prisoners to be discharged from custody prior to the expiry of the maximum term of imprisonment. One issue for consideration in this reference is whether the sentencing options available in criminal offences generally should also be available in criminal contempt cases. [128] The Commission proposes that legislation be adopted expressly providing that the various alternatives to, and methods of, serving a custodial sentence are available in criminal contempt proceedings. The aim of these sentencing options is to provide the sentencing courts the flexibility to allow them to achieve the purposes of penal sanctions, primarily the rehabilitation of the offender but also deterrence of the commission of crimes. The Commission considers that the same policy considerations underlying these sentencing options apply equally to criminal contempt cases. Creation and maintenance of official records of contempt convictions [129] Information about an offender’s record of criminal conviction is regularly used by courts in sentencing. At present, there is no formal central registry of court outcomes in contempt prosecutions. The Crown Solicitor’s Office relies on its own files to obtain information on prior convictions for contempt, for the purpose of assisting the sentencing court by identifying any relevant previous convictions. The Commission believes that a formal system for recording this information should be established. A formal registry is desirable to facilitate a closer scrutiny of the type of information created and maintained. It would also promote consistency in the information recorded. The Commission proposes that the Attorney General create and maintain a registry of court outcomes of criminal contempt proceedings. The information in the registry should be used only for sentencing purposes. Sequestration [130] One remedy which may be available in contempt proceedings is the writ of sequestration. This is a method of enforcing judgments or orders which require a person: (1) to do an act within a specified time; (2) to do an act forthwith, or forthwith upon a specified event; or (3) to abstain from doing an act. By its nature, the writ of sequestration is available only for a civil contempt, that is, disobedience of, or non-compliance with, a judgment or order of the court, and not for a criminal contempt. The question then arises as to the relevance of this remedy to sub judice contempt, which is a form of criminal contempt. [131] It would appear that while sequestration may not be available as a primary penalty in sub judice contempt proceedings, it may still be relevant to: (1) enforce a fine imposed as a penalty for sub judice contempt; and (2) enforce an injunction issued in connection with sub judice contempt proceedings. The Commission makes no proposals concerning sequestration. Injunction [132] In sub judice contempt proceedings, injunctions are most usually sought to restrain the publication and distribution of the prejudicial material. They may also be used to require a publisher to retrieve copies of the published material where it has a already been released or to restrain a repetition of an already committed contempt. [133] The usual applicant for an injunction in sub judice contempt cases is the Attorney General. However, the common law recognises that a private individual who is deemed to have a sufficiently proximate interest may also apply for an injunction. While the Commission supports this rule, it is of the view that an individual should, before making the application, notify the Attorney General, and, if the material relates to criminal proceedings, the Director of Public Prosecutions. This is to coordinate the efforts of parties to the proceedings. [134] In addition, legislation should confer the power to apply for injunctions in relation to sub judice contempt on the Director of Public Prosecutions. The Director of Public Prosecutions has the power at common law to prosecute sub judice contempt. The Commission considers it useful for the Director of Public Prosecutions to possess an ancillary power to deal with an apprehended commission or an anticipated repetition of the contempt. Discussion Paper Chapter 14 PAYMENT FOR COSTS OF ABORTED TRIALS [135] Chapter 14 examines the following: 1. Should a statutory power be given to courts to order a contemnor to pay the costs of a trial which is aborted because of a contemptuous publication? 2. If so, could the power be better formulated than it is in the Costs in Criminal Cases Amendment Bill 1997 (NSW) (“the Bill”)? A statutory power [136] Existing powers to order compensation. It is doubtful whether the courts in New South Wales currently have any general power to order payment of compensation for the costs of an aborted trial. The Victims Compensation Act 1996 (NSW) may confer such a power, but as far as the Commission is aware, that Act has never been relied on for this purpose. A court exercising federal jurisdiction may have power pursuant to s 21B of the Crimes Act 1914 (Cth) to order payment of compensation for a contemptuous publication which affects proceedings under a law of the Commonwealth. [137] Justifications for a power to order compensation. There is a general trend in the criminal justice system towards ordering offenders to make reparation to those who have suffered loss as a result of their criminal conduct, not as a part of the sentence itself but as something ancillary to sentencing. 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. A clear example of this is the situation dealt with by the Bill, where a criminal trial must be discontinued because of media publicity. The parties in the trial suffer the (often substantial) wasted expense of an aborted trial, as well as, potentially, the additional expense of a new trial. [138] Arguments against a power to order compensation. The principal arguments against a power to order compensation raised in submissions to the Commission are: 1. It would result in a contemnor being punished twice for the same offence. 2. The incidence of trials aborted because of media publicity is very low, so a scheme such as this is not warranted. 3. The existing unlimited powers to punish for contempt by way of a fine and/or imprisonment are sufficient to meet the purpose of deterrence. 4. 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. 5. 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, which may be exercised inconsistently from one judge to the next. 6. A power to order compensation for the cost of an aborted trial would represent a significant restriction on freedom of discussion. 7. If a power to order compensation were introduced in New South Wales, it would place New South Wales at odds with the approach taken in other Australian jurisdictions and, indeed, in the rest of the common law world. The Commission’s responses [139] Double punishment. Different purposes are served by the imposition of a fine and an order for compensation. A fine is imposed as part of the sentencing process. The focus of compensation is on those who have suffered loss as a result of another’s criminal conduct. [140] Unnecessary legislation. Although the incidence of aborted trials due to contemptuous media publications is not high, 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. [141] Deterrence. Although the possibility of a costs order may deter the publishing of contemptuous material, it is not the main purpose of the order. The sentencing of an offender and the imposition of an order for compensation fulfil two separate objectives. [142] No element of fault. The Commission agrees that unfairness can arise from the absence of any requirement for fault. This is reflected in our proposal for a defence of innocent publication (see Chapter 5). [143] Exercise of the discretion to abort a trial. There are established principles which guide the exercise of judicial discretion. In addition, the discharge of a jury would not automatically trigger a power to order costs. The prejudicial effect of media publicity would 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) for discharging the jury. [144] Restriction on freedom of discussion. 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. [145] Inconsistency with other jurisdictions. The notion of introducing a statutory power to require payment of compensation for wasted expenses resulting from a contemptuous publication has been debated in Australia and overseas for some time and has been supported by various law reform bodies and governments. [146] The Commission’s tentative view in relation to a power to order costs. 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, the Commission believes that the formulation of the power in the Bill poses an unjustifiable intrusion on freedom of discussion and may give rise to injustice. Overview of the Bill [147] Pre-conditions. There are three conditions in the Bill which must be met before an order for compensation may be made:
[148] Definition of “publication”. 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) in charge of the business or other undertaking responsible for the printed publication or broadcast. [149] Order to pay costs. The Bill vests the power to order payment of costs in the Supreme Court, which has a discretion whether or not to make an order. An order must only may be made: on application by the Attorney General; 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 the Court decides to make an order for payment of costs, it 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. [150] Costs that may be recovered. The costs that may be recovered under the Bill are 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. It is not clear 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. [151] Timing of costs application. 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. [152] Nature of 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. Criticisms of the Bill raised in submissions [153] Submissions criticised specific aspects of the Bill as follows:
The Commission’s proposals [154] Proposals for amendments to the Bill:
[155] Aspects of the Bill which the Commission proposes should remain unchanged:
Other proposals [156] 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. Submissions [157] The Commission invites submissions on the following issues:
Appendix A : List of Proposals PROPOSAL 1 (DP 43, chapter 2) PROPOSAL 2 (DP 43, para 3.17-3.46)
PROPOSAL 3 (DP 43, para 4.3-4.58) 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: (i) encounter the publication; and (ii) recall the contents of the publication at the material time; and (b) by virtue of those facts, the fairness of the proceedings would be prejudiced. PROPOSAL 4 (DP 43, para 4.59-4.75)
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 (DP 43, para 4.92-4.104) PROPOSAL 6 (DP 43, para 4.105-4.108) PROPOSAL 7 (DP 43, para 5.38-5.46)
PROPOSAL 8 (DP 43, para 5.38-5.41, 5.47-5.62) 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 (DP 43, para 5.72-5.76) 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 (DP 43, para 6.37-6.54) PROPOSAL 11 (DP 43, para 7.1-7.14, 7.24-7.38) PROPOSAL 12 (DP 43, para 7.15-7.22, 7.39) PROPOSAL 13 (DP 43, para 7.23, 7.40-7.48) PROPOSAL 14 (DP 43, para 7.49-7.53, 7.72, 7.75-7.77) PROPOSAL 15 (DP 43, para 7.54-7.71, 7.73, 7.74) PROPOSAL 16 (DP 43, para 7.54-7.68, 7.72, 7.73) PROPOSAL 17 (DP 43, para 7.78-7.84) PROPOSAL 18 (DP 43, para 7.85-7.86) PROPOSAL 19 (DP 43, para 8.3-8.43)
The defendant should bear the burden of proof and the standard of proof should be on the balance of probabilities. PROPOSAL 20 (DP 43, para 8.44-8.50) PROPOSAL 21 (DP 43, chapter 10) 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 (DP 43, chapter 11)
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 (DP 43, chapter 11) PROPOSAL 24 (DP 43, para 12.22-12.37) PROPOSAL 25 (DP 43, para 12.80-12.84) PROPOSAL 26 (DP 43, para 13.7-13.11) PROPOSAL 27 (DP 43, para 13.3-13.6, 13.12-13.35) PROPOSAL 28 (DP 43, para 13.36-13.48) PROPOSAL 29 (DP 43, para 13.57-13.69) PROPOSAL 30 (DP 43, para 13.57-13.66, 13.70, 13.71) PROPOSAL 31 (DP 43, para 14.2-14.56, 14.78, 14.79) PROPOSAL 32 (DP 43, para 14.57-14.88) (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 1996 (NSW) 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 (DP 43, para 14.87) 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. Appendix B : Costs in Criminal Cases Amendment Bill 1997 (NSW) Explanatory note This explanatory note relates to this Bill as introduced into Parliament. Overview of Bill The object of this Bill is to amend the Costs in Criminal Cases Act 1967 to enable the Supreme Court to make an order for costs against a publisher of printed material, or broadcaster of material, in contempt of any court at which a criminal trial is held before a jury, if the publication or broadcast necessitates the discontinuation of the trial. The order for costs is to be in favour of the Attorney General for the benefit of the parties, the State and other persons prescribed by the regulations. The costs consist substantially of the cost of the remuneration, salaries, fees and expenses of, for example, the judicial and other officers, staff, jury members, witnesses and lawyers involved in the trial that has failed. The order can only be made against a person who is the proprietor or other person in charge of the business or other undertaking responsible for the printed publication or broadcast. An amendment is also made to the Suitors’ Fund Act 1951 to ensure that amounts paid under that Act to a defendant are reduced by the amount recovered for the defendant under the Costs in Criminal Cases Act 1967. Outline of provisions Clause 1 sets out the name (also called the short title) of the proposed Act. Clause 2 provides for the commencement of the proposed Act on a day or days to be proclaimed. Clause 3 is a formal provision giving effect to the amendments to the Costs in Criminal Cases Act 1967 set out in Schedule 1. Clause 4 is a formal provision giving effect to the amendment to the Suitors’ Fund Act 1951 set out in Schedule 2. Schedule 1 Amendment of Costs in Criminal Cases Act 1967 Schedule 1 [1]–[3] provide for the division of the existing provisions of the Costs in Criminal Cases Act 1967 into Parts 1 (Preliminary) and 2 (Costs in criminal proceedings). Schedule 1 [4] consequentially amends section 6 of that Act. Schedule 1 [5] omits an obsolete provision from that Act. Schedule 1 [6] inserts new Parts and a Schedule in the Costs in Criminal Cases Act 1967, as set out below. Part 3 Costs of trial discontinued because of contemptuous publication or broadcast Section 7 enables the Supreme Court to make orders as to costs if a criminal trial is discontinued because of a contemptuous printed publication or broadcast. An order can only be made on application by the Attorney General and against a person who is the proprietor or other person in charge of the business or other undertaking responsible for the printed publication or broadcast. Section 8 specifies the costs that may be ordered as being the costs of the parties and the State and other costs prescribed by regulation. Section 9 specifies the persons for the benefit of whom the Attorney General may make application and the limitations on the application. Section 10 provides that the Attorney General may issue a certificate as to the costs that relate to a discontinued trial. The certificate is conclusive evidence of those costs, except if it has not been prepared in accordance with the regulations. Section 11 sets out certain requirements as to orders. Section 12 provides that an order for costs may be enforced as a civil debt and that the Attorney General is to distribute the costs recovered among the persons entitled to them. Section 13 requires the amount of any payment under the Suitors’ Fund Act 1951 to be refunded or recovered to the extent that the payment has been covered by an order for costs under the proposed new Part of the Costs in Criminal Cases Act 1967. Section 14 clarifies certain procedural matters, including that the Supreme Court may make orders for costs as part of criminal proceedings for contempt, may do so if the charge of contempt is found proven (even without subsequent conviction) and may treat two or more contemnors as jointly or severally liable for the costs. Section 15 specifies certain matters for which regulations may be made for the purposes of Part 3. Part 4 Miscellaneous Section 16 is the standard power for the making of regulations. Section 17 is a formal provision giving effect to a proposed Schedule 1, details of which follow. Schedule 1 Savings and transitional provisions Clause 1 is the standard power for the making of savings and transitional regulations. Clause 2 preserves an existing transitional provision in the Costs in Criminal Cases Act 1967. Clause 3 provides that the proposed Part 3 is to apply to proceedings, whether started before, on or after the commencement of that Part, but only if the contemptuous printed publication or broadcast that causes their discontinuation occurs on or after that commencement. Schedule 2 Amendment of Suitors’ Fund Act 1951 Schedule 2 inserts proposed section 6E in the Suitors’ Fund Act 1951 to reduce payments under that Act to a defendant for whom costs are recovered under proposed Part 3 of the Costs in Criminal Cases Act 1967. Costs in Criminal Cases Amendment Bill 1997 Contents 1 Name of Act 2 Commencement 3 Amendment of Costs in Criminal Cases Act 1967 No 13 4 Amendment of Suitors’ Fund Act 1951 No 3 Schedules 1 Amendment of Costs in Criminal Cases Act 1967 2 Amendment of Suitors’ Fund Act 1951 Costs in Criminal Cases Amendment Bill 1997 No , 1997 A Bill for An Act to amend the Costs in Criminal Cases Act 1967 with respect to the costs of a jury trial discontinued because of a contemptuous publication or broadcast; to amend the Suitors’ Fund Act 1951 consequentially; and for other purposes. The Legislature of New South Wales enacts: 1 Name of Act This Act is the Costs in Criminal Cases Amendment Act 1997. 2 Commencement This Act commences on a day or days to be proclaimed. 3 Amendment of Costs in Criminal Cases Act 1967 No 13 The Costs in Criminal Cases Act 1967 is amended as set out in Schedule 1. 4 Amendment of Suitors’ Fund Act 1951 No 3 The Suitors’ Fund Act 1951 is amended as set out in Schedule 2. Schedule 1 Amendment of Costs in Criminal Cases Act 1967 (Section 3) [1] Part 1 Insert “Part 1 Preliminary” before section 1. [2] Section 1 Short title and commencement Omit subsection (3). [3] Part 2 Insert “Part 2 Costs in criminal proceedings” before section 2. [4] Section 6 Certificate not admissible in evidence Omit “Act”. Insert instead “Part”. [5] Section 7 Amendment of Act No 27, 1902 Omit the section. [6] Parts 3 and 4 Insert at the end of the Act: Part 3 Costs of trial discontinued because of contemptuous publication or broadcast 7 Supreme Court may order contemnor to pay costs (1) The Supreme Court may make an order under this Part as to the costs of criminal proceedings before a jury that are discontinued solely or mainly because they have been affected by: (a) a printed publication circulated to the public, or (b) a radio, television or other electronic broadcast to the public. (2) The order may only be made against a person: (a) against whom a charge of contempt of court is found proven because of the printed publication or broadcast, and (b) who is the proprietor or other person in charge of the business or other undertaking responsible for the printed publication or broadcast. (3) The order may only be made on application by the Attorney General. (4) The order may only be made in favour of the Attorney General for the benefit of all or any of the persons specified in the application. (5) The order may be made whether or not a new trial has been ordered in place of the discontinued proceedings. 8 Nature of costs The costs in respect of which an order under this Part may be made are: (a) the legal costs of parties to the discontinued proceedings, and (b) the cost to the State in the provision of legal services to the accused, and (c) the cost to the State in the provision of salaries, fees and services related to the conduct of the proceedings (including the remuneration of judicial and other officers and other staff, the fees paid to legal practitioners and members of the jury and the expenses paid to witnesses and members of the jury), and (d) costs of any other class prescribed by the regulations. 9 Application (1) The Attorney General may make application under this Part for the benefit of such of the following persons as have, in the opinion of the Attorney General, suffered monetary loss as a result of the discontinuation: (a) the accused, (b) the State, (c) any other person, or person within a class, prescribed by the regulations. (2) An application against a person may be made at any time after proceedings for contempt against the person have commenced, whether or not they have been concluded, but cannot be made more than 3 years after their conclusion. (3) More than one application may be made against the person. 10 Certificate of costs (1) The Attorney General may attach to an application under this Part, or separately tender, a certificate setting out the costs that relate to the discontinued proceedings and apply to each person specified in the application. (2) To the extent that the regulations so require, the costs set out in the certificate must be stated and calculated in accordance with the regulations. (3) The certificate is admissible in evidence in proceedings under this Part. The certificate is conclusive evidence of the costs certified by it except to the extent that it is shown that the costs have not been stated or calculated in accordance with the regulations. 11 Nature of order (1) An order for costs under this Part is to be made in favour of the Attorney General for the benefit of all or any of the persons specified in the relevant application. (2) The order is to specify in respect of each person for the benefit of whom it is made the amount of costs to which the person is entitled. (3) The amount specified in respect of each person may be less than or equal to the amount specified in the certificate of the Attorney General. 12 Enforcement of order (1) An order under this Part is enforceable by the Attorney General, the costs to which it relates being a civil debt due to the Crown for the benefit of the persons specified in the order and recoverable as such in any court of competent jurisdiction from the person against whom the order is made. (2) A failure to comply with the order does not constitute contempt of court. (3) The Attorney General must distribute the costs recovered under the order among the persons for the benefit of whom they have been recovered according to the distribution specified in the order of the Supreme Court. 13 Recovery of any payment under Suitors’ Fund Act 1951 (1) If the accused has already received payment from the Suitors’ Fund under the Suitors’ Fund Act 1951 and the Supreme Court makes an order for costs under this Part for the benefit of the accused, the Supreme Court is to order that: (a) those costs be paid directly to the Suitors’ Fund to the extent that their amount does not exceed the payment from the Fund, and (b) any amount by which those costs exceed that payment be paid to the accused. (2) If the accused has received the payment from the Suitors’ Fund and some or all of his or her costs ordered under this Part, the Attorney General may recover from the accused the amount of the payment from that Fund (except to the extent that it exceeds the costs received by the accused) and pay it back into that Fund. (3) Payment by the accused of the amount that the Attorney General may recover under subsection (2) is enforceable as a civil debt in any court of competent jurisdiction. 14 Procedure (1) An application for an order for costs under this Part may be heard and determined by the Supreme Court after a charge of contempt has been found proven against one or more persons, even if the finding was made in the Supreme Court as differently constituted. (2) Proceedings for the hearing and determination of the application are in the nature of civil proceedings, whether they form part of the proceedings at which a person is tried for contempt or not. (3) Any evidence heard at the proceedings at which a person is tried for contempt may be taken into account by the Supreme Court at the proceedings for the hearing and determination of the application. (4) The Supreme Court may make an order for costs under this Part even if it does not proceed to a conviction for contempt so long as it has found the charge of contempt proven. (5) The application against one person may be heard and determined whether or not other persons responsible for the printed publication or broadcast to which the contempt relates have been tried for contempt and whether or not, if they have been tried, the charge of contempt has been found proven against them. (6) In a case where there is more than one person against whom a charge of contempt is found proven because of a printed publication or broadcast, the Supreme Court may treat the persons as jointly and severally liable for the costs, or may apportion the amounts of costs, for which it makes an order under this Part. (7) The only parties to the hearing and determination of the application are the Attorney General and the persons against whom the charge relating to the relevant contempt has been found proven. 15 Regulations for the purposes of Part 3 (1) Regulations may be made for or with respect to the following matters: (a) the persons or classes of persons in whose favour costs may be ordered under this Part, (b) the costs that may be ordered under this Part, (c) any other matter relating to applications and orders under this Part. (2) The regulations may prescribe classes, heads and scales of costs, daily costs, maximum costs, formulae and flat rates (or some or all of these) to be applied in the statement and calculation of costs under this Part or may make other provision with respect to the statement and calculation of those costs. Part 4 Miscellaneous 16 Regulations The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. 17 Savings and transitional provisions Schedule 1 has effect. Schedule 1 Savings and transitional provisions (Section 17) 1 Regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts: Costs in Criminal Cases Amendment Act 1997 (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication. 2 Application of Part 2 Part 2 does not apply in respect of proceedings instituted, or appeals lodged, before 1 January 1968. 3 Application of Part 3 Part 3 applies where proceedings, whether commenced before or after the commencement of that Part, are discontinued solely or mainly because of a printed publication or broadcast made on or after the commencement of that Part. Schedule 2 Amendment of Suitors’ Fund Act 1951 (Section 4) Section 6E Insert after section 6D: 6E Reduction where order for costs under Costs in Criminal Cases Act 1967 If an amount is to be paid to an accused from the Fund under this Act in respect of costs incurred in criminal proceedings that have been discontinued, the amount is to be reduced by the total amount (if any) recovered by the Attorney General for the benefit of the accused under an order under Part 3 of the Costs in Criminal Cases Act 1967 in respect of the discontinuation of those proceedings. Pursuant to s 12A of the Law Reform Commission Act 1967 (NSW) the Chairperson of the Commission constituted a Division for the purpose of conducting the reference. The members of the Division are: The Hon Justice Michael Adams Professor Michael Chesterman (Commissioner-in-Charge) Professor Reg Graycar The Hon Justice Greg James Ms Ruth McColl SC Vice President Iain Ross Officers of the Commission Executive Director Mr Peter Hennessy Legal Research and Writing Ms Catherine Gray Ms Rebecca Kang Mr Aniano Luzung Ms Rachel Way Research and Other Assistance Mr Alex Cheung Mr Andrew Floro Ms Pallavi Sinha Ms Sally Traynor Ms Kira Vaisman Ms Amy Veitch Librarian Ms Aferdita Kryeziu Desktop Publishing Ms Rebecca Young Administrative Assistance Ms Helen Bentley Ms Wendy Stokoe FOOTNOTES 1. Offences of “absolute liability” are those that do not require proof that the accused knew or could reasonably have known that his or her act was wrongful. They do not recognise any excuse of honest and reasonable mistake. For example, a statute which makes it an offence to sell adulterated meat, even if the vendor honestly and reasonably believed that the meat was pure, imposes absolute liability. In contrast, offences of “strict liability” exempt the accused from liability if the accused was honestly and reasonably mistaken as to the existence of facts which (if true) would have made the act innocent. For example, a statute imposes strict liability if it makes it an offence to sell adulterated meat, but exempts from liability a vendor who honestly and reasonably believed that the meat sold was pure. |
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