Lawlink NSW: 5. Fault

5.1 In Australia, it is not necessary to prove that a person or organisation actually intended to interfere with the administration of justice, in order to establish liability for sub judice contempt.¹ All that is needed to establish liability is an intention to publish the material in question,² and proof that the publication had a tendency to interfere with the administration of justice.

5.2 Because intention to interfere is not a requirement of liability, it seems that a person or organisation may be guilty of contempt even if they publish material without knowing that proceedings are current or pending which may be prejudiced by that material.³ But the cases do not establish this principle a one of clearly binding authority.

5.3 Sub judice contempt is generally regarded as imposing criminal liability, and carries criminal sanctions. It is a general principle of criminal law that, to be guilty of an offence, a person must both commit the conduct prohibited by law and intend the consequences of that conduct, or be reckless or at least negligent as to whether the conduct will have those consequences. For example, to be guilty of murder, a person must both have killed another human being and have intended to kill, or be reckless as to whether certain conduct will result in another person’s death.

5.4 However, there are exceptions to this general principle. The criminal law recognises some offences that impose “absolute liability” and others that impose “strict liability”.⁴ Offences of “absolute liability” do not require proof that the accused knew or could reasonably have known that his or her act was wrongful, and do not recognise any excuse of honest and reasonable mistake. 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.⁵

5.5 Following this distinction, it would appear that sub judice contempt may be an offence of absolute liability under current Australian law: that is, it may impose liability even if the publisher did not know, and could not reasonably have known, that an offence was being committed. It would follow that publishers could not escape a contempt conviction even if they made reasonable efforts to check that no proceedings were pending which might be affected by a publication.

5.6 In DP 43, the Commission took the position that it is fairer to require an element of fault than to impose absolute liability for sub judice contempt and that legislative reform is desirable to make it clear that fault is an element of liability.⁶

5.7 It argued that, while the law of sub judice contempt aims to prevent prejudice from arising by deterring the media from indulging in risky activities, the deterrent force of the law is not made any stronger by the imposition of absolute liability. As on one view the law currently stands, 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. A fault requirement explicitly formulated in the law would give them more incentive to be careful. They would know that if they did not take reasonable care, they could not be punished for contempt. Imposition of absolute liability is not the most effective means of ensuring that publishers take reasonable precautions to avoid prosecution.

5.8 There was general agreement by the media with the Commission’s position on this matter during the consultation meetings.⁷ There was also support in the written submissions. The Australian Press Council expressly agreed with the proposal to introduce an element of fault.⁸ The New South Wales Law Society likewise agreed with the Commission, stating that the “golden thread” of criminal liability is that there should be mens rea for any offence carrying significant punishment.⁹ One submission expressed preference for the retention of absolute liability, because it provides the best protection to the administration of justice, but was nevertheless open to the introduction of a fault element through a defence of innocent publication.¹⁰

5.9 The Commission has found no reasons since conducting its consultations to change its position that legislative reform is desirable to introduce fault as an element of liability for sub judice contempt.

5.10 There are three alternative approaches that could be adopted to inject some element of fault into liability for sub judice contempt:

5.11 Actual intention or recklessness. The first is to formulate liability in a way that required the prosecution to prove that the defendant had an actual intention to interfere with the administration of justice. This approach was favoured by Justice Kirby in Registrar, Court of Appeal v Willesee,¹¹ on the basis that it conforms to ordinary principles of criminal law. A requirement of intention could include reckless indifference as to whether a publication interfered with particular proceedings.¹²

5.12 The Commission’s view is that to require proof of actual intention would be to place too heavy a burden on the prosecution. Because media publications are often produced by several people (reporters, producers, editors, etc), it would be very difficult to prove the necessary intent. In addition, one of the aims of the law in this area is to impose positive obligations on the media to take care when publishing information about court proceedings. If the law were changed to require actual intention to interfere, it would exclude from liability those who are unreasonably careless. As a consequence, the sub judice rule would lose much of its deterrent effect, relieving the media of any real obligation to take precautions when publishing potentially damaging information.

5.13 Negligence. Liability for sub judice contempt could be formulated in a way that would require the prosecution to prove negligence on the part of the defendant. That is, it would have to be proved that a reasonable person in the defendant’s position would have anticipated that the publication created a substantial risk of prejudice to the administration of justice, or alternatively, that a reasonable person would have anticipated that the publication would prejudice the administration of justice. It would be for the court in each case to determine what was “reasonable”. A number of factors could be considered, such as the steps taken by the publisher to ensure that the specific publication would not breach the sub judice rule.

5.14 An advantage of formulating liability in terms of negligence is that it punishes the careless, without punishing those who have taken all reasonable steps to avoid offending the law. It is a compromise between the current approach, which is open to criticism for setting too low a threshold for liability, and an approach requiring proof of actual intention or recklessness, which can be said to set too high a threshold.

5.15 One disadvantage of formulating sub judice contempt in terms of negligence is that it may not be a very precise way of setting the limits of liability. That is, it may not be clear what factors the courts will consider relevant in determining whether conduct was “reasonable”. For example, would the courts take into account the financial and other resources available to individual publishers in determining whether they conducted a reasonable search to ensure that no proceedings were current or pending before publishing? Would it be considered reasonable for a publisher to rely on legal advice in deciding whether to publish? Would the courts take into account the particular time constraints facing the individual publisher when preparing for publication, in recognition of the practical demands that come with having to compete with other media organisations to be the first to deliver the most up-to-date information to the public?

5.16 Another disadvantage of this approach is that it places too heavy a burden on the prosecution to require it to prove, beyond a reasonable doubt, that the publisher acted unreasonably. This is because the factual matters relevant to the issue are generally within the knowledge of the defendant. The deterrent effect of the sub judice rule might therefore be significantly diminished.

5.17 Defence of innocent publication. The third approach would be to maintain the principle that no element of fault amongst the matters to be proved by the prosecution, but to provide by legislation that taking reasonable care, with reference (among other things) to being aware of pending proceedings, should be a ground of defence. This would allow defendants to be excused from liability if they could show that they exercised reasonable care to avoid creating a substantial risk of interference with the administration of justice.

5.18 The advantage of this approach is that it introduces an element of fault into the offence of sub judice contempt, but provides less barriers to a successful prosecution for contempt by placing the onus of proving reasonable care on the defendant.

5.19 The Commission considers that this may be the preferable approach to adopt.

5.20 The Commission proposed in DP 43 a defence of innocent publication that should be available to two broad categories of persons who may be liable for sub judice contempt. The first covers those persons who are in a position to exercise editorial control in relation to the contemptuous publication. This includes, for example, publishers, editors and reporters. The second covers those persons who have no such control, for example, distributors, vendors and broadcasters who broadcast live interviews. As the situations for these two sets of persons are quite different, the Commission developed separate proposals for each. The common underlying principle for both of them is the need to exercise reasonable care.

5.21 The Commission proposed¹³ that legislation should provide that it is a defence to a charge of sub judice contempt, to be proved on the balance of probabilities, that the person or organisation charged with contempt:

Support for the proposal
5.23 The New South Wales Law Society and the Australian Press Council both agreed with the proposal. Mr David Norris, Senior Solicitor at the Crown Solicitor’s Office, also gave his approval, stating that of the possible ways of introducing a fault element canvassed by the Commission, the proposed defence of innocent publication would seem the most workable.¹⁴ Moreover, he stated that it may provide an additional incentive to ensure that workable arrangements are made by the courts, police and prosecution authorities, like the Director of Public Prosecutions, to provide information to the media within the scope of an obligation to take reasonable steps.¹⁵

5.24 Mr Norris, however, warned that it would be dangerous to provide a lower threshold for establishing the defence where the resources available to the publisher are less. He argued that a publisher that is insufficiently resourced to take appropriate steps to protect the integrity of trials should not publish material that could possibly carry a risk of prejudice to trials. His comment was in response to the Commission’s invitation for comments on whether it would be useful to include a specific reference to the accused’s resources in the formulation of a defence of innocent publication.

5.25 The Commission’s proposal is largely modelled on the formulation recommended by the Australian Law Reform Commission (“ALRC”).¹⁶ However, under the ALRC’s formulation, in determining whether the defendant took “reasonable steps”, the court was expressly required to consider the resources available to the defendant to ascertain the relevant facts. In DP 43, the Commission took the view that it is not desirable to include a specific reference to the defendant’s resources in a legislative formulation of a defence of innocent publication. It questioned the necessity or appropriateness of singling out resources in legislation as a relevant factor for the defence, but nevertheless invited submissions on this.

5.26 Mr Norris’ submission effectively supports the Commission’s view. No contrary submissions were made on this particular issue. The Commission has not found any reason to change its position on this matter of the defendant’s resources. The resources available to the defendant should be just one of a number of matters that the court may in its discretion take into account in determining what is “reasonable”.

Opposition to the proposal
5.27 In their joint submission, the Federation of Australian Commercial Television Stations, the Federation of Australian Commercial Radio Broadcasters, the Australian Broadcasting Corporation and the Special Broadcasting Service, disagreed with the proposal.¹⁷ They said that the media would not be able to use this defence because it would be difficult to establish that all reasonable steps were taken to ascertain any fact that would cause the publication to breach the sub judice rule. It was claimed that the defence would have very little application to media organisations, which are normally unaware of the facts surrounding particular legal proceedings.

5.28 The Commission does not accept an argument that seeks to excuse the media from an obligation to ensure that its activities do not prejudice the proper administration of justice. Media organisations are businesses operating for profit. Their profit is derived from the same activity that poses a risk to the administration of justice. The benefits obtained from such a business should carry certain obligations and responsibilities. The Commission considers it appropriate to impose laws that require media organisations to devote resources to avoid the risk of interfering with the administration of justice.

5.29 The proposal addresses this unfairness by providing a defence to those who exercise reasonable care in the publication of material that may affect legal proceedings. It would absolve liability in at least two situations. The first is where the defendant did not know that proceedings were pending which may be affected by the publication, having taken all reasonable steps to ascertain that there were no such proceedings. The second is where the defendant knew or found out that proceedings were pending and took all reasonable care to exclude material that is likely to be prejudicial to the proceedings. The following illustrative examples are precautions that a media organisation or its relevant staff may take to avoid liability:

5.31 The Commission recognises that there is a degree of uncertainty in any test that requires consideration of what is “reasonable”, and that it will involve a value judgement by the court deciding the issue. However, it may be necessary to allow for some uncertainty in order to provide sufficient flexibility to take into account the facts of each particular case. Any uncertainty in the operation of the defence should be reduced with the development of case law on what is “reasonable” in this context. The question of what is reasonable is an issue that the courts address on a regular basis, as they are elements of many criminal offences and civil causes of action.²²

Suggested changes to the proposal
5.32 Burden of proof. There was a suggestion during the consultations that the onus should be on the prosecution to prove that the defendant failed to take reasonable steps.²³ This is effectively a suggestion to adopt the negligence approach to sub judice contempt; that is, it would have to be proven that a reasonable person in the defendant’s position would have anticipated that the publication created a substantial risk of prejudice to the administration of justice.

5.33 The Commission considered and rejected this approach in DP 43, and has found no reasons to change its position. Rather than imposing positive obligations of care on the media, this approach would put the onus on the prosecution to prove that the defendant’s conduct was blameworthy. The deterrent effect of the sub judice rule may be significantly diminished if this approach were adopted. It also places too heavy a burden on the prosecution.

5.34 Reasonable steps. There was a suggestion that if the proposed defence is adopted, the words “reasonable steps” should be used instead of “all reasonable steps.”²⁴

5.35 The Commission agrees with this suggestion. The purpose of the proposed defence is not to require the person responsible for the publication to exhaust every possible means of ensuring that the publication does not breach the sub judice rule. Rather, the defence should only require that the publisher take such steps as are reasonable in the circumstances.

5.36 Reliance on the reasonable steps taken by others. In the consultations, there was a comment that the Commission’s proposal does not go far enough because it may in some situations leave some people in a media organisation without protection.²⁵ There was particular concern that the reforms being proposed by the Commission would require many people in a media organisation to take reasonable steps to ensure that no sub judice liability arose individually. It would seem that in some instances, an officer of a media outlet might rely on the measures that another in the organisation has already taken to ensure compliance with the law. An example given during one of the consultation meetings was that of an editor who leaves the pressroom (or broadcast room) temporarily, perhaps to perform some other duty in the organisation. He or she is still arguably responsible for supervising the publication and may therefore be criminally liable if the published material is subsequently adjudged to be contemptuous.²⁶

5.37 If someone else has taken reasonable steps to ensure that the sub judice rule is not violated and the editor in the example relied on them, the Commission agrees that the editor should be able to invoke the proposed defence. The proposal has been revised to take into account this and similar situations.

5.38 In DP 43, the Commission suggested in Proposal 8 that legislation should also provide that it is a defence to a charge of sub judice contempt if the accused can show, on the balance of probabilities:

First group of situations where the proposed defence may be used
5.40 The first limb of the proposal, which is contained in paragraph (b)(i) of the proposal, is patterned after the defence of innocent distribution in the Contempt of Court Act 1981 (UK) s 3(2).

5.41 A defence for distributors of print material. The primary aim is to give distributors of printed material²⁷ a defence to a charge of sub judice contempt. Distributors are not in any way involved in the production of the material and therefore should not be obliged to exercise the same degree of care as is expected of editors or publishers in ascertaining whether a substantial risk of prejudice to pending proceedings will result from the publication. Although they do not have control over the content of the publication, they do have control of its dissemination and therefore have the capacity, through the exercise of reasonable care, to prevent the risk of prejudice from arising. Distributors should be held responsible if at the time of the publication they had reason to suspect that contempt might arise and did not take reasonable steps to avert it.

5.42 However, the situation of innocent distributors at the lower end of the distribution network, such as the street-corner vendor or newsagent, should be distinguished from that of large-scale distributors. The Commission agrees with the view expressed by one commentator that the former would act reasonably in assuming that others higher up in the chain have taken care to avoid dissemination of prejudicial material.²⁸ In other words, the standard of care that is to be expected of large-scale distributors should be higher than that of newsagents and others who directly sell newspapers.

5.43 A defence for distributors of (or those that relay or re-broadcast) broadcast (television/radio) material. The proposed defence as it relates to paragraph (b)(i) of Proposal 8 is intended to apply not only to distributors in the print media but also to distributors of broadcast (television/radio) material. A broadcasting station that is doing no more than relaying a program prepared by another station and has no control over the contents of the program should be able to avail itself of the proposed defence. However, a subordinate station would be unable to use the proposed defence if under its contract with the principal station, it had the opportunity to check for and censor material that was prejudicial.²⁹

Second group of situations where the proposed defence may be used
5.44 The other group of situations that Proposal 8 seeks to address is where the offending material was published through the facilities of the accused who, having become aware of the contemptuous material prior to or after its publication, could have taken steps to prevent its publication or its re-publication. This second limb of the proposed defence is contained in paragraph (ii) of the proposal. As in paragraph (i), neither the accused, nor any person for whose conduct in the matter it is responsible should have had any editorial control of the content of the offending material. The accused would only be guilty of sub judice contempt if it failed to take reasonable steps to prevent the material from being published.

5.45 Live interviews: media’s defence for contemptuous statements made by interviewees. An illustrative situation is a live radio or television broadcast of contemptuous statements by interviewees or contributors.³⁰

5.46 While the source of the prejudicial statement, eg the interviewee, should be liable for sub judice contempt, the liability of the broadcaster remains unclear at common law. The Phillimore Committee considered this issue and concluded that the editorial responsibility should remain strict in this situation.³¹ It was of the view that even if the broadcaster had no reason to suspect that a contributor would make a particular statement, it should still be held liable, although this circumstance should be taken into account in the determination of a penalty.³²

5.47 The Commission does not agree with this position.³³ It is not in favour of imposing liability without any element of fault.³⁴ But the law should require a person to take reasonable precautions in order to avoid conviction for contempt.

5.48 In circumstances where remarks which were not anticipated by the broadcaster are made during a live interview, the broadcaster should be exonerated from a charge of sub judice contempt if it can show that when it became aware of the contemptuous statement, it took reasonable steps within its means to prevent the publication of the statement.

5.49 Radio “talk” stations are a case in point. Most of them operate on systems that allow for delayed broadcast of an average of 7.2 seconds.³⁵ Such systems allow for certain words or names to be “dropped out” from the broadcast.³⁶ Moreover, the producer and the radio talent on air usually both control a “panic button” which will allow them to stop the broadcast of a statement by the interviewee/contributor.³⁷ Under those circumstances, the radio broadcaster and others involved do indeed have the means, upon hearing the contemptuous statement, to prevent it from being broadcast. Unreasonable failure to use the mechanism would generally be construed by courts as a failure to exercise the reasonable care required by the proposed defence.

5.50 The internet: a defence for internet content hosts and internet service providers for contemptuous material posted on the internet. The proposed defence contained in paragraph (ii) of Proposal 8 is also intended to apply to two types of entities that play a major part in the distribution of information through the Internet. These are Internet service providers (“ISPs”) and Internet content hosts (“ICHs”). An ISP is a person who gives to the public the facility to access the Internet.³⁸ An ICH is a person who hosts Internet content, which is information kept on a data storage device and accessed through the Internet.³⁹

5.51 Most ISPs and ICHs have no control over the content of the information that goes through their systems, although they may have the capacity to include or exclude certain information. The liability of ISPs and ICHs for carrying or hosting material that breaches the sub judice principle has not yet been considered by any Australian court. It is uncertain whether the common law principles developed regarding the liability of distributors⁴⁰ or even those concerning licensees of television channels⁴¹ would apply to ISPs and ICHs.

5.52 The Broadcasting Services Amendment (Online Services) Act 1999 (Cth) established a framework for dealing with “offensive” content on the Internet. Among its additions to the Broadcasting Services Act 1992 (Cth) is Schedule 5, clause 91 which states that a law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it would: (1) subject an ISP or ICH to civil or criminal liability for hosting or carrying content where it was not aware of its nature; (2) and require an ISP or ICH to monitor, make inquiries about or keep records of content which it hosts or carries.

5.53 It has been argued that the immunity granted by clause 91 to ISPs and ICHs should be broadly construed because there is no apparent limitation in the Act on the subject matter of the laws that might be overridden by the clause, nor is there a limitation on the type of content applicable.⁴² Consequently, even though the immunity under clause 91 is granted in the context of the regulation of “offensive” online content, one commentator has agued that the new defence applies to a range of State based content liability laws, such as defamation law, the law on sub judice contempt and statutory reporting restrictions.

5.54 The consequence of such a broad construction of clause 91 with respect to sub judice contempt is that ISPs and ICHs are not obliged to actively monitor the content that goes through their systems to determine whether a publication has a substantial risk of prejudice to pending proceedings. Furthermore, they cannot be held liable for sub judice contempt for hosting or carrying contemptuous publication if they were not aware of such offending material.

5.55 The Commission agrees in principle with this interpretation of clause 91. The Commission acknowledges the difficulties ISPs and ICHs may encounter in screening material posted on the Internet. It also agrees with the objectives of the Broadcasting Services Amendment (Online Services) Act 1999 (Cth) of encouraging the development of Internet technologies and services and avoiding putting unnecessary administrative and financial burdens on ISPs and ICHs.⁴³

5.56 Nevertheless, the Commission considers that where an ISP or ICH becomes aware of some contemptuous publication that it carries or hosts, it should then have an obligation to take steps within its means to prevent the material from being further published. This is consistent with the framework of the Broadcasting Services Act 1992 (Cth) as amended by the Broadcasting Services Amendment (Online Services) Act 1999 (Cth) whereby ISPs and ICHs are required to remove content following formal notification by the Australian Broadcasting Authority.⁴⁴ This position is reflected in paragraph (i) of Recommendation 5.

5.57 There was support for this proposal⁴⁵ and no significant opposition to it.

5.58 In his written submission, Mr David Norris supported the proposal but queried whether in so far as distributors are concerned, the word “publication” in the proposal refers to publication of the material by the original publisher or the act of distribution by the distributor.

5.59 The liability for contempt of distributors is based on their act of distributing the offending material. They can only be expected to exercise reasonable care before they distribute the material and not at an earlier or any other time. Hence under the Commission’s proposal, a distributor charged with contempt need to prove that he or she exercised reasonable care before distributing the material, regardless of whether or not it has be previously published by another person.

5.60 The Commission has found no reason to change the substance of its proposal. However, its final recommendation contains two revisions to the original proposal.

5.61 First, the words “reasonable steps” should be used instead of “all reasonable steps.” This is consistent with the immediately preceding recommendation. The purpose of the proposed defence is not to make the person responsible for the publication to exhaust every possible means of ensuring that the publication does not breach the sub judice rule. The defence should only require that the publisher take such steps as are reasonable under the circumstances.

5.62 Secondly, paragraph (b)(ii) has been redrafted to cover the situation where, in a live interview situation, the interviewer anticipated or even invited (through the questions asked, for example) the interviewee to make a contemptuous statement. If the interviewer elicited or anticipated the offending statement and did not take reasonable steps to prevent its publication, then he or she cannot invoke of the defence.

5.63 Recommendation 6 would give a defence to organisations accused of contempt if they did not have control of the content of the publication and either (a) they did not know the publication contained contemptuous material, or (b) became aware of such material and took steps to prevent it from being published. Under the Recommendation, a broadcasting station that is doing no more than relaying a program prepared by another station and has no control over the contents of the program should be able to avail itself of the proposed defence, if it fulfils the requirements in (a) or (b).

5.64 In these circumstances, the defence would depend on the contractual arrangement between the provider of the program and the licensee, and its existence could be determined by an examination of such arrangement. This would be a matter of significance to the Attorney General, or other person prosecuting for contempt, in considering whether or not to commence or proceed with the prosecution. Licensees may not be prepared to reveal this or, indeed, may be contractually obliged not to reveal it.

5.65 Mr David Norris suggested legislation that would provide for costs penalties if a defendant broadcaster does not disclose evidence of the availability of a defence under Recommendation 6 to the prosecutor within a certain period of being served with summons commencing contempt proceedings.⁴⁶ This, he argues, should help prevent a prosecution proceeding to trial in ignorance of the available defence.

5.66 Mr Norris’ suggestion received support from Mr Peter Berman, Deputy Senior Crown Prosecutor, who said that he does not favour criminal prosecutions being commenced when the defendant has a complete defence, which, if it had been made known to the prosecution, would inevitably have meant that no prosecution was launched. Criminal prosecutions should not be commenced on a speculative basis.⁴⁷

5.68 The Commission’s proposal for a defence of innocent publication requires consideration of the principles of responsibility for a publication, and the availability of the defence according to those principles.

5.69 In Chapter 3 of this Report, the Commission expressed the view that it is implicit in the draft bill annexed to this Report that a person may be liable as a principal if he or she participates materially in a contemptuous publication.⁴⁸ A range of persons may be held liable as principals for a contemptuous publication. For example, both an individual reporter, and a supervising editor, may be liable as principals. Since the basis for liability is primary rather than vicarious, the proposed defence of innocent publication may be available to either the reporter or the editor, or both, depending on each person’s conduct. That is, an editor may rely on the defence by showing that he or she did not know of the relevant facts and took all reasonable care to ascertain those facts. The success of the defence would depend on the editor’s own conduct, rather than that of the reporter (as would be the case if the basis for the editor’s liability were vicarious).

5.70 A consequence of classifying liability as primary rather than vicarious, in the context of claiming the proposed defence of innocent publication, is that one defendant may be convicted and another acquitted of contempt for the one publication.

5.71 The Commission’s proposed defence of innocent publication requires particular consideration in its application to media proprietors, where the proprietor is a corporate body. Media proprietors are commonly corporate bodies, rather than individuals. A problem in applying the proposed defence of innocent publication to corporate proprietors is identifying the “corporate mind”, that is, who exactly in the organisation is to be shown to have exercised reasonable care in order for the proprietor to rely on the defence.

5.72 To address the issue of criminal responsibility of corporate bodies generally, the criminal law has developed a principle of corporate criminal liability. According to this principle, the “corporate mind” of a corporation is located in certain, senior-ranking employees, on the basis that they are acting as the company and directing the “mind” of the company.⁴⁹ It has been suggested that if the principle of corporate criminal liability applies to the law of sub judice contempt, liability of a media proprietor could depend, for example, on the blameworthiness of an editor, on the basis that editors are superior officers in the day-to-day control of the company, and could be regarded as the “brain” of the organisation’s publishing activities.⁵⁰

5.73 The principle of corporate criminal liability has been criticised for being out of touch with modern corporate structures, in which greater delegation to relatively junior employees occurs,⁵¹ and for representing no more than an unsatisfactory form of compromised vicarious liability.⁵²

5.74 An alternative approach to corporate criminal liability is to rely on basic principles of vicarious liability for corporate bodies, but with provision for the corporation to avoid liability if it can show that it took reasonable precautions and exercised due diligence to avoid the criminal conduct engaged in by its director, servant or agent.⁵³

5.75 In DP 43, the Commission took the view that a media organisation is liable primarily, by virtue of the fact of publication, but has a defence if the relevant employees behaved reasonably in relation to the publication and taken reasonable steps to prevent the conduct amounting to contempt. The proposed defence of innocent publication would therefore be available to a media proprietor on the basis that the proprietor exercised reasonable care in avoiding a breach of the sub judice rule. To rely successfully on the proposed defence of innocent publication, the media proprietor would have to show, on the balance of probabilities, that the employees involved in the publication process and who, by the nature and functions of their position in the organisation, were charged with exercising reasonable care in ensuring that the publication did not breach the sub judice rule, in fact exercised this obligation of care.

5.77 Although it is not a necessary element of the offence, proof of actual intention to interfere with the administration of justice may give rise to liability for sub judice contempt. The law, however, is uncertain in this situation. It is not clear whether, if actual intent to interfere is proven, it is also necessary, in order to establish liability, to prove that the intent was accompanied by an act which had a tendency to interfere with the administration of justice. It has been said in some cases that liability may arise solely from an intention to interfere with the course of justice, so long as the conduct charged created at least a remote possibility of interference.⁵⁴ That approach, however, does not appear to be supported by statements in other cases.⁵⁵

5.78 In DP 43, the Commission proposed that 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.

5.79 To the extent that there may currently exist at common law a separate offence of “intentional sub judice contempt”, the Commission saw no reason why it should continue to operate independently of the ordinary principles of liability for sub judice contempt. 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. Section 319 of the Crimes Act 1900 (NSW) requires only the commission of an act with the intention to pervert the course of justice, with no additional requirement that the act be likely or tend to succeed in perverting the course of justice.⁵⁶

5.80 There does not appear to be any need to retain as well a category of contempt that imposes liability upon any conduct that might conceivably affect legal proceedings if it is unaccompanied by an intention to prejudice those proceedings. It is preferable to have one form of sub judice contempt, which requires a substantial risk of serious prejudice, with a defence of reasonable care. Evidence of actual intention will then be relevant to the question of penalty, rather than liability. Where there is evidence of actual intention, without an accompanying act creating a substantial risk of serious prejudice, it may be possible to charge the publisher with the offence of intent to pervert the course of justice under s 319 of the Crimes Act 1900 (NSW).

5.81 There was support for the proposal in the submissions.⁵⁷ The Commission received no opposition to it in the written submissions and during the consultation meetings.

5.82 The discussion of intent in relation to liability for sub judice contempt raises the issue of whether or not there should be an offence of attempt to commit sub judice contempt in New South Wales.

5.83 In the New South Wales Court of Appeal, Justice Mason noted the trend of the courts in past cases to regard actual intention to interfere as sufficient in order to prove liability for contempt, without any regard to whether the intention was accompanied by an act that had a tendency to interfere.⁵⁸ Justice Mason commented that there was no clear explanation for this approach. One possibility was that the courts considered that a person who does an act with such an intention admits a belief that he or she has a reasonable chance of success, with this admission being used as evidence of the fact. Another possible explanation was that proof of actual intention was analogous to an attempt to commit an offence. That is, intention to interfere, together with preparatory acts to carry out that intention, would be sufficient to sustain a charge for contempt. Justice Mason did not attempt to resolve the uncertainties in the law in this area.

5.84 These comments by Justice Mason echo suggestions by an earlier commentator that the trend in past cases represents a move by the courts towards recognising an offence of attempted contempt.⁵⁹ The Commission is, however, not aware of any Australian case that squarely involves an attempt to commit sub judice contempt. It is unclear what would be the practical significance of a finding of attempted contempt, as opposed to one of contempt, for example, whether it would result in the imposition of a lesser penalty.

5.85 In England, attempt to interfere with the course of justice was mentioned as early as 1837,⁶⁰ but it was in the case of Balogh v St Albans Crown Court where Lord Justice Lawton appeared to have assumed the existence of such an offence. However, Lord Justice Stephenson did not share this view, stating that “contempt of court is a misdemeanour at common law, but I doubt if an attempt to commit a contempt is punishable as such.”⁶¹

5.86 A Canadian case discussed the possibility that such an offence exists,⁶² although there was no finding of an offence of attempted contempt in that case.

5.87 The Commission does not make any recommendation to reform this area of law. It is prepared to allow the law in this area to develop through the common law.

Table of Contents

1. See, for example, R v David Syme & Co Ltd [1982] VR 173; Director of Public Prosecutions (Cth) v Australian Broadcasting Corporation (1987) 7 NSWLR 588; Attorney General (NSW) v Dean (1990) 20 NSWLR 650; Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (1992) 7 BR 364 at 378 (Sheller JA, Handley JA concurring); Attorney General (NSW) v Radio 2UE (NSWCA, No 40236/96, 16 October 1997, unreported). It has been argued that earlier cases in the United Kingdom supported a view that some sort of intention or negligence was required to establish liability: see Daily Mirror; Ex parte Smith [1927] 1 KB 845; C J Miller, Contempt of Court (2nd edition, Clarendon Press, Oxford, 1989) at 284. However, later cases have rejected this approach: see especially the discussion of the Daily Mirror case in Ex parte Auld; Re Consolidated Press Ltd (1936) 36 SR (NSW) 596 at 598-599 (Jordan CJ).

2. See McLeod v St Aubyn [1899] AC 549 at 562; Registrar, Supreme Court, Equity Division v McPherson [1980] 1 NSWLR 688 at 696-697 (Moffitt P and Hope JA); Attorney General (SA) v Nationwide News Pty Ltd (1986) 43 SASR 374 at 408 (Olsson J).

3. See R v Odhams Press Ltd; Ex parte Attorney General [1957] 1 QB 73; But see the criticisms of this approach in Registrar, Court of Appeal v Willesee (1985) 3 NSWLR 650 at 655 (Kirby P). There are authoritative dicta to the effect that, although intention to interfere is not a requirement, it is a relevant consideration in determining liability: For a discussion on this, see NSW Law Reform Commission, Contempt by Publication (Discussion Paper 43, 2000) (“NSWLRC DP 43”) at para 5.4, 5.5.

4. See Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v The Queen (1985) 157 CLR 523; Hawtgorne v Morcam Pty Ltd (1992) 29 NSWLR 120.

5. See NSWLRC DP 43 at para 5.8-5.14 for a more detailed discussion on these types of offences and examples.

7. Radio and Television Organisations, Consultation; Print Media Representatives, Consultation 1.

12. A criterion of reckless indifference would require that the defendant be able to foresee the probability that his or her act would result in interference with the administration of justice, but that he or she proceeded to publish the material without caring whether such interference might actually occur.

18. Australian Broadcasters, Joint Submission at 4; Victorian Bar Council, Submission at para 18.

22. The law contains a myriad of “reasonable” standards. In the criminal context, for example, there are objective tests of reasonable force in relation to self defence or defence of property, a reasonable mistake requirement for strict liability offences, and exemption from offences on a showing of “reasonable excuse” for what would otherwise be criminal conduct: see Crimes Act 1900 (NSW) s 93G, 93H, 316, 545E. In the civil context the reasonable person represents the foundations of the law of negligence. Reasonable excuse, reasonable steps, reasonable time periods and reasonable notice are examples of reasonableness standards that are applied in many areas of the law.

24. Australian Broadcasters, Joint Submission at 4; Broadcast Media Representatives, Consultation.

25. Print Media Representatives, Consultation 1; Broadcast Media Representatives, Consultation.

27. The liability of distributors of printed material is discussed in NSWLRC DP 43 at para 3.37-3.40.

29. See Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, a defamation case, where it was held that if the television broadcaster which took no part in the production of the program but had the ability to supervise and control the material televised but chose not to do these things, the publication was not innocently disseminated.

30. See Window v 3AW Broadcasting Co (Vic, County Court, 5 March 1986, unreported) for an illustration of liability for defamation for statements in radio talk-back where the radio station failed to use the so-called “panic button”. See also Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 for an illustration of the application of the defence of innocent dissemination in defamation in the context of a live television interview.

31. See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (Cmnd 5794, HMSO, London, 1974) at para 152.

32. See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (Cmnd 5794, HMSO, London, 1974) at para 152.

33. For a criticism of the Phillimore Committee’s position of this issue, see Miller at 304-305.

35. Information provided D Bacon, Chief Executive Officer of the Federation of Australian Radio Broadcasters Ltd (4 May 2000).

36. Information provided D Bacon, Chief Executive Officer of the Federation of Australian Radio Broadcasters Ltd (4 May 2000).

37. Information provided D Bacon, Chief Executive Officer of the Federation of Australian Radio Broadcasters Ltd (4 May 2000).

42. J Eisenberg, “Safely out of sight: the impact of the new online content legislation on defamation law” (2000) 6 University of New South Wales Law Journal 23.

45. Australian Press Council, Submission at para 10; Law Society of NSW, Submission at para 16-20.

49. See Tesco Supermarkets Ltd v Nattrass [1972] AC 153. See generally, D Brown, D Farrier, D Neal and D Weisbrot, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (2nd edition, Federation Press, Sydney, 1996) vol 1 at para 4.8.4-4.8.6; Australia, Criminal Law Officers Committee of the Standing Committee of Attorneys General, Model Criminal Code: Chapter 2: General Principles of Criminal Responsibility (Discussion Draft, July 1992) at 95-97; G Borrie and N Lowe, The Law of Contempt (3rd edition, Butterworths, London, 1996) at 384-385.

51. See Australia, Criminal Law Officers Committee of the Standing Committee of Attorneys General, Model Criminal Code: Chapter 2: General Principles of Criminal Responsibility (Discussion Draft, July 1992) at 95; (Final Report, December 1992) at 105; B Fisse, “Recent developments in corporate criminal law and corporate liability to monetary penalties” (1990) 13 University of New South Wales Law Journal 1 at 3-4.

52. B Fisse and J Braithwaite, Corporations, Crime and Accountability (Cambridge University Press, Melbourne, 1993) at 46-47.

53. See Industrial Chemicals (Notification and Assessment) Act 1989 (Cth) s 109; Ozone Protection Act 1989 (Cth) s 65. See also the recommendation of the Criminal Law Officers Committee of the Standing Committee of Attorneys General, Model Criminal Code: Chapter 2: General Principles of Criminal Responsibility (Final Report, December 1992) at proposed s 501.4.

54. It was suggested in the following cases that proof of intention is sufficient to establish liability, with no additional requirement that the conduct had a tendency to interfere with proceedings: see Attorney General (NSW) v John Fairfax & Sons [1980] 1 NSWLR 362 at 369; Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682 at 691 (Moffitt P). See also Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554 at 561, where Justice Hunt commented that a public statement which is intended to influence a party to proceedings amounts to a contempt. Justice Hunt made no reference to any additional requirement that the public statement be shown to have a tendency to influence. But see The Prothonotary v Collins (1985) 2 NSWLR 549 at 550-555 (Kirby P), at 571 (McHugh JA), in which it was held that intention to interfere is not sufficient on its own to establish liability, but must be accompanied by an act which has the requisite tendency.

55. See John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371 (Dixon CJ, Fullagar, Kitton and Taylor JJ), in which it was said that the “ultimate question is as to the inherent tendency of the matter published”. See also Lane v Registrar, Supreme Court (NSW) (1981) 148 CLR 245; The Prothonotary v Collins (1985) 2 NSWLR 549 at 550-551 (Kirby P), at 570-571 (McHugh JA).

56. The statutory offence appears to differ from the common law offence of perverting the course of justice. The common law offence requires the commission of an act which is both intended and which has the tendency to pervert the course of justice: see R v Vreones [1891] 1 QB 361; R v Selvage [1982] QB 372.

57. ABC, Submission at 2; Australian Press Council, Submission at para 11; D Norris, Submission at para 66.

59. I Freckelton, Prejudicial Publicity and the Courts (Australian Law Reform Commission, Reference on Contempt of Court, Tribunals and Commissions, Research Paper 4, 1986) at 92-94.

60. See Re Ludlow Charities, Lechmere Charlton’s Case (1837) 2 My & Cir 316, 40 ER 661.