• Overview
• Starting point for sub judice contempt: When legal proceedings are pending
• Identifying when proceedings are no longer "pending": Fixing appropriate end points for sub judice restrictions
• Time limits and "intentional" contempt

OVERVIEW

7.1 This chapter makes recommendations on the period when the sub judice rule should operate, that is, when it should begin and when it should end for publications that relate to criminal, as well as civil and coronial proceedings. It also looks at whether the sub judice rule should continue to operate during the appeal period, and in the case of criminal convictions, during the sentencing stage. Finally, the chapter deals with the issue of whether different time rules should apply to intentional contempts.

7.2 The Commission’s recommendations require, generally speaking, that the relevant legal proceedings be “pending” for purposes of the law on sub judice contempt. It emphasises that this is a necessary but not sufficient condition for the sub judice restrictions to be operative. The question whether a sub judice restriction is in fact operative depends on (a) whether the proceedings are criminal on the one hand, or civil or coronial on the other; and (b) whether the restrictions in question seeks to protect jurors, or a witness or a party from a risk of influence. Depending on the answer to these two questions, a restriction will have its own starting point(s) and end point(s).

STARTING POINT FOR SUB JUDICE CONTEMPT: WHEN LEGAL PROCEEDINGS ARE PENDING

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

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

The sub judice rule should not start when the related legal proceedings are merely “imminent”

7.5 In DP 43, one issue was identified with respect to the commencement period of the sub judice rule: namely, whether or not the operation of the rule should be advanced to the period when proceedings are merely “imminent”.

7.6 In England, the common law allowed for liability for sub judice contempt to begin when legal proceedings are imminent.¹ “Imminent” proceedings would seem to cover acts occurring before the legal process has formally been set in motion, such as, for example, police questioning of a suspect. The English courts justified the inclusion of imminent proceedings within the sub judice period on the basis that media publicity at that stage may cause just as serious a degree of prejudice to a case as publicity at the time when proceedings are pending or current.²

7.7 The Commission expressed the view in DP 43³ that the sub judice rule should not commence from the time the proceedings are “imminent”. The exceptional power of courts to try contempt cases without jury and impose penal sanctions is aimed at ensuring that legal proceedings over which they have control receive a fair trial. Where the proceedings have not in fact commenced, which is the case when the proceedings are merely “imminent”, such an extraordinary power should not be available, except in one situation noted below.

7.8 This is the situation of a publication which might influence the conduct of a prospective litigant. While it is possible that media publicity occurring at a time when proceedings are “imminent” may cause serious prejudice to the administration of justice in any future trial, it seems likely that the risk of such prejudice would generally be less than the risk arising from publicity at a later stage, such as at the time of arrest or some other time closer to the trial.

7.9 Moreover, the courts in England did not develop a clear and settled test as to the meaning of “imminent”.⁴ As the Phillimore Report declared, “there is no way of knowing what period the word ‘imminent’ is intended to cover.”⁵ The uncertainty for the media in determining at what time proceedings may be considered “imminent” would impose too severe a restriction on freedom of discussion. The media may, for example, become reluctant to report on police activities if it were thought that they might attract contempt liability for doing so.

7.10 The Commission notes that the Contempt of Court Act 1981 (UK) does not adopt the test of imminence. Under this Act, proceedings must be “active” in some sense before the restrictions under it can apply.⁶

7.11 There was support from the submissions⁷ to the Commission’s position on this issue. The Commission concludes that generally speaking the sub judice rule should not commence from the time the proceedings are merely “imminent”.

RECOMMENDATION 12

Subject to one exception relating to influence on prospective parties, the sub judice rule should not apply to a publication unless the proceedings to which it relates are pending at the time of the publication.

7.12 In relation to criminal proceedings, it has been said that the sub judice period commences from the time the processes of law has been set in motion for bringing an accused person to trial and a court has become “seised” of the matter.⁸ At the time of the publication of DP 43, the methods by which criminal proceedings may be initiated in New South Wales were through:⁹

1. arrest without a warrant;

2. the laying of a charge;

3. the laying of the information and either the issue of summons to appear or issue of a warrant of arrest; and

4. the presentation of an ex-officio indictment by the Director of Public Prosecutions or the Attorney General.

7.14 There is also a concern for the undue restriction on the freedom of the media to report on the events if a warrant is not executed for a long period, or not at all. If the person named in a warrant, for example, were never found, the media would continue to be restricted with regard to what could be published for as long as the warrant existed.

Recent change in the law
7.15 The Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW) will, when it commences, abolish the laying of an information as a way of commencing criminal proceedings.¹² In lieu of this procedure, the new law provides that criminal proceedings will be taken to have commenced through the issue of a court attendance notice and the filing of a notice in the registry of the relevant court.¹³ Generally, it will be police officers or other public officers who will be authorized to commence proceedings in this manner.¹⁴ However, a private individual may also use this method to commence a private prosecution.¹⁵ The new law is intended to simplify the procedure for commencing criminal prosecutions. Police or other relevant public officers will be able to issue and serve a court attendance notice on the accused on the spot. ¹⁶ Previously, they had to attend a court registry to swear an information and then wait while the magistrate considered issuing a summons or warrant.

7.16 Proposal 11, now Recommendation 13 below, has been revised to reflect the changes to the law. It now includes the issue of court attendance notices and their filing in the registry of the relevant court as one of the means of commencing the sub judice rule for criminal proceedings. The reference in the original proposal to the laying of an information has been removed.

7.17 In cases where police or other public officers believe that the defendant’s appearance can only be ensured by the issue of a warrant of apprehension, the new law provides new procedures for doing this. This can be done generally through an application for a warrant after the issue of a court attendance notice. In this situation, the criminal proceedings have commenced (through the issue of court attendance notice and its filing in the court registry) by the time the warrant is issued.

Scope of this recommendation
7.18 This recommendation applies to the restrictions on publicity imposed by the sub judice rule in so far as they seek to prevent influence being exerted on jurors or on witnesses or on the parties to the criminal proceeding.

Submissions
7.19 There was general support in the submissions for the Commission’s views and proposal on the commencement period for sub judice contempt in criminal cases. For example, the New South Wales Director of Public Prosecutions¹⁷ and the Australian Broadcasting Corporation¹⁸ agreed with Proposal 11.

7.20 Others were supportive but suggested modifications to the proposal. In the Joint Broadcasters’ Submission, it was suggested that paragraph (a) of Proposal 11 should read “arrest, whether with or without a warrant.” The aim of the suggestion is to clarify the Commission’s position that the issue of a warrant of arrest does not make proceedings pending for purposes of the commencement of the sub judice rule.

7.21 Mr David Norris made a similar suggestion to the Joint Broadcasters’ Submission that paragraph (a) of Proposal 11 should read “arrest with or without warrant” to better reflect the Commission’s view that the issue of a warrant for arrest does not trigger the sub judice rule.¹⁹

7.22 There was one submission that disagreed with Proposal 11. The Australian Press Council objected to the proposal stating that the Commission’s definition of proceedings pending is far too sweeping and that the restrictions of the sub judice rule should only start to apply when the criminal matter has been set down for hearing.

The Commission’s response to the submissions
7.23 The starting point must cover pre-trial publicity. The Commission does not agree with the comments made by the Australian Press Council. Since one of the aims of sub judice contempt is to protect the fairness of criminal proceedings, it makes sense for the sub judice rule to begin from the time the criminal process is first set in motion against a person. The courts should be given the power to protect the integrity of the proceedings from the moment they are initiated.

7.24 The suggestion by the Australian Press Council that the sub judice rule should only begin from the time the criminal case is set down for hearing ignores the possible impact of pre-trial publicity once the trial has commenced. Pre-trial publicity usually occurs at the time of the commission of the offence, when a person is arrested or charged with the offence, and/or at the preliminary proceedings, such as the committal or bail application hearings.

7.25 While a recent study on juries in New South Wales suggests that the incidence of jury recall of pre-trial publicity is generally low,²⁰ it also found that that there are categories of cases where such recall is higher.²¹ It was found, for instance, that jurors were more likely to remember pre-trial publicity where the accused is independently well known in the community,²² or if the offence occurred in the neighbourhood where they lived.²³ If the Australian Press Council’s suggestion were adopted, some significant situations where prejudicial pre-trial publicity might be recalled by the jurors would not be covered by the sub judice rule. For example, the publication of the criminal history of a well-known person, where the publication was made at the time when he is arrested for another crime, would not be prohibited under the Australian Press Council’s suggestion, even though this kind of publicity might well be recalled by jurors during the trial.

7.26 The Commission’s proposal will cover the types of cases identified in the jury study where jury recall of pre-trial publicity is likely to be comparatively high. No doubt the proposal will also cover cases outside this category. But the important point to remember is that the commencement of sub judice restrictions would not have the consequence that all prejudicial publications relating to the proceedings would automatically be held in contempt under the Commission’s recommendations. The fundamental criterion recommended in Chapter 4, namely that there must be a substantial risk of serious prejudice, must still be satisfied. Other things being equal, the closer in point of time that a publication is to the commencement of the restriction, the less likely it would be held in contempt. The study of New South Wales juries suggest that prejudicial publications made at the time of an arrest or charge may in some cases create the requisite risk. But because the period between this event and the time of the trial is generally quite substantial, it is only in a small minority of cases that this risk will be held to arise.

7.27 Arrest with or without a warrant. The Commission agrees with the observation in the Joint Broadcasters’ Submission and in Mr Norris’ submission that the phrase “arrest without a warrant” in Proposal 11 does not reflect the Commission’s position that the issue of a warrant of arrest does not trigger the sub judice restrictions. To address this issue, the recommendation below refers merely to the arrest of the accused.

RECOMMENDATION 13

Legislation should provide that, for purposes of the sub judice rule, criminal proceedings should become pending, and the restrictions on publicity designed to prevent influence on juries, witnesses or parties should apply, as from the occurrence of any of these initial steps of the proceedings:

(a) the arrest of the accused;

(b) the laying of the charge;

(c) the issue of a court attendance notice and its filing in the registry of the relevant court; or

(d) the filing of an ex officio indictment.

7.29 In DP 43, the Commission proposed²⁴ that where the accused is not in New South Wales, but is in another Australian jurisdiction, criminal proceedings should be treated as pending from the time of the arrest of the accused in the other jurisdiction. On the other hand, where the accused is overseas, the Commission proposed that the criminal proceedings be treated as pending from the making of the order for the extradition of the accused. The arrest overseas should not make proceedings pending because overseas extradition proceedings can be said generally to take longer than interstate extradition. By the time a trial commenced in New South Wales, the publicity would have likely been spent. An alternative starting point for cases involving overseas extradition is the time when the extradition hearing commences. However, the time frame for this would vary from country to country and could not be easily defined in legislation. The issue of the extradition order is a more verifiable event for the media than the commencement of the extradition proceedings in the relevant country.²⁵ It is also closer in time to when the case would be taken up in New South Wales so that any publicity surrounding the issue of the extradition order would have a greater impact than any earlier publicity.

7.30 In one of the consultations with the media, there was general support for the Commission’s proposal.²⁶ It was agreed that there is a need for legislation to create certainty on this question. The Australian Broadcasting Corporation, in its written submission, also agreed with the proposal.²⁷

7.31 There were no submissions opposing or suggesting changes to the proposal.

RECOMMENDATION 14

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

Prejudice to jurors and witnesses
7.32 With respect to publications that may create risks of influence on juries and witnesses, the Commission proposed in DP 43, Proposal 13 that the starting point for publications relating to civil proceedings should be the time of the setting down of the matter for hearing. This is different to the recommended starting point for publications relating to criminal proceedings, which is from the time of commencement of such proceedings. The restrictions imposed by contempt law on publications relating to civil jury trials should be less stringent than those imposed in criminal proceedings because the liberty of the subject is not involved, the strong presumption of innocence in favour of the accused is not present and the law of evidence does not shield from the civil jury the same broad range of allegations that are treated as inadmissible in a criminal trial on the ground that they are likely to be more prejudicial than probative.²⁸

7.33 Cases where jury trial is not certain to occur until after at the time of the setting of the matter for hearing. DP 43 in para 7.46 considered possible situations where at the time of the setting of the matter for hearing, jury trial is not contemplated or is uncertain. In such situations, Proposal 13 provided that the restrictions imposed by the sub judice rule should occur only from the time when it is known that a jury trial will occur.

7.34 Defamation proceedings. Proposal 13 contained a proviso excluding defamation proceedings from its application. This reflected an earlier proposal in the DP to exclude defamation proceedings from the coverage of the sub judice rule.²⁹ However, in the light of the Commission’s decision in this Report to retain the status quo with respect to defamation proceedings (that is, they should be subject to the sub judice rule)³⁰ the proviso in Proposal 13 has been removed. The Commission’s recommendations on time limits for the sub judice rule as they apply to civil proceedings apply equally to defamation proceedings.

7.35 Prejudice to witnesses. Since the publication of DP 43, the Commission has reconsidered its view with respect to publications that create a risk of prejudice to witnesses. In a trial, case preparation often takes place long before the case is set down for trial. Witnesses therefore commit themselves to accounts of events which may well be influenced by the inappropriate publicity and be unable or unwilling to tell the truth when the case is heard. Consequently, the Commission has decided to recommend that with respect to publications that may create risks of prejudice to witnesses, the sub judice rule should start from an earlier time – from the issue of a writ or summons, rather than from the setting down of the matter for hearing.

Influence on parties to civil proceedings
7.36 In Proposal 13 of DP 43, the Commission proposed that in the case of a publication that tends to impose improper pressure on parties to civil proceedings, the sub judice period should commence from the issue of a writ or summons. The time of the setting down of the matter for hearing is too late because the pressure on a party may occur from the time when the proceedings are commenced. Pressure on parties by the media may occur during the pre-trial negotiations, and the law should accord to the parties some degree of protection during this period.

Submissions and the Commission’s response
7.37 Proposal 13 did not receive a great deal of comment in the submissions or during the consultation meetings. The Australian Press Council supports the Commission’s proposal.³¹

7.38 Mr Norris, in his written submission, raised the issue of when coronial proceedings become pending. He expressed the view that “given that the requisition of a jury is relatively unusual, contempt by reason of influencing a jury [in a coronial inquest] should only apply once a request for a jury has been made under the section 18 of the Coroners Act.”³²

7.39 The Commission found these comments to be helpful. DP 43 did not discuss directly the commencement period for the sub judice rule with respect to coronial proceedings. There was an underlying assumption in DP 43 that coronial inquests and inquiries, because they were not criminal in nature, belong to the same category as civil proceedings. However, the nature and purpose of coronial proceedings are different to those of civil proceedings. Unlike civil cases, coronial proceedings do not settle rights between parties but are inquisitorial in nature. ³³ In a coronial inquest, the coroner or jury must find, if possible, the identity of the deceased person, the date and place of death and the manner and cause of death. In a coronial inquiry, which is a proceeding that relates to a fire or explosion, the coroner or jury shall make a finding as to the date and place and circumstances of the fire or explosion.³⁴ A coroner or a jury may make such recommendations as they consider necessary or desirable to make in relation to any matter connected with the death, suspected death, fire or explosion with which an inquest or inquiry is concerned.³⁵

7.40 Because of their investigative nature, there are no parties to coronial proceedings.³⁶ Consequently, in this context, there would not be a concern that a publication may have a tendency to pressure a party to discontinue or settle proceedings. The doctrine on improper pressure on parties, which forms an aspect of the sub judice rule for civil proceedings, has no application in coronial proceedings.

7.41 There need also be no concern that a publication may have the tendency to influence the coroner, if the proceedings are heard by a coroner without a jury.³⁷ In Chapter 4, the Commission reached the conclusion that the law should not impose liability for sub judice contempt on the basis of possible influence on a judicial officer,³⁸ including a coroner. This is consistent with the common law, which holds that a publication will not usually be considered to have a tendency to prejudice the administration of justice if the only basis for possible prejudice is the potential for influencing the coroner.³⁹ The law should therefore focus on influence on jurors and witnesses as grounds for imposing sub judice liability in coronial proceedings.⁴⁰ The time limits should necessarily also reflect these concerns.

7.42 The provision in Proposal 13 of DP 43 making the starting point of the sub judice rule from the time of the setting of the matter for hearing should also apply to coronial proceedings. The same reasons given for civil proceedings apply to coronial proceedings and need not be repeated here.⁴¹ The relevant provision of the proposal of DP 43, now contained in Recommendation 15 of this Report, has been amended to expressly cover coronial proceedings.

7.43 Mr Norris suggested that contempt by reason of influencing a jury in a coronial inquest should only apply once a request for a jury has been made under the section 18 of the Coroners Act 1980 (NSW).⁴² Proposal 13 contains a proviso that the restrictions on publication which the sub judice principle imposes out of concern to prevent influence on a jury should apply only from the time when it is known that a jury will be used in the proceedings. This proviso was made to address cases where trial by jury is not ordered or contemplated at time of the setting of the matter for hearing. Mr Norris’s comment relates to a similar situation that may occur in a coronial inquest.⁴³ The relevant proviso in Proposal 13 of DP 43, now contained in Recommendation 15, should be sufficient to address this concern but has, nevertheless, been revised to expressly cover coronial proceedings.

RECOMMENDATION 15

Legislation should provide that in its application to publications which create a substantial risk of prejudice by virtue of influence to witnesses in civil or coronial proceedings, the sub judice rule should apply as from the issue of a writ or summons.

In its application to publications which create a substantial risk of prejudice by virtue of influence on jurors, the sub judice rule should apply as from the time when it is known that a jury will be used in the civil or coronial proceedings.

In its application to publications which create a substantial risk of prejudice by virtue of influence on parties, the sub judice rule should apply as from the issue of a writ or summons.

7.45 This constitutes the exception, foreshadowed earlier, to the general rule that sub judice restrictions should not commence until proceedings are “pending”.

RECOMMENDATION 16

Legislation should provide that, in its application to publications which create a substantial risk of influence on prospective parties to criminal or civil proceedings, the sub judice rule may apply even though no proceedings have commenced.

End point for publications relating to criminal proceedings

7.46 At the moment in New South Wales, the sub judice restrictions on publications relating to criminal proceedings continue till the time for lodging an appeal has expired, or a judgment on appeal has been handed down.⁴⁵ That period covers the time after a jury reaches its verdict and before the judge sentences the accused (if convicted), after sentence has been passed and before a notice of appeal has been or should be lodged, during appellate proceedings, and the time before and during any retrial which is ordered on appeal.

7.47 Basic end point. In DP 43, Proposals 14, 15 and 16, the Commission proposed that the end point of the sub judice period should be fixed at the conclusion of the trial or hearing at first instance, which is usually when the jury has given its verdict or when the proceedings are terminated by other means. The sub judice rule should not, as a general rule, continue to apply beyond this point.

7.48 In DP 43, the Commission identified exceptions to the general rule. First, the sub judice rule may still apply in a limited way during the sentencing stage and until the sentence has become final. The Commission proposed that publications expressing opinions as to the sentence to be passed to a specific convicted offender should continue to be prohibited. As discussed below, this proposal has been revised in light of the submissions received from the public. The second exception is when a re-trial is ordered.

7.49 Before a notice of appeal is or should be lodged. It was proposed in Proposal 15 of DP 43 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 subsequently a re-trial being ordered. The possibility of a re-trial is not, in the Commission’s view, sufficient basis to extend the sub judice rule during the appeal proceedings. It appears that appellate courts do not order re-trials very frequently.⁴⁶ More importantly, comment made during the period before the notice of appeal is lodged is not likely to influence the jury in a re-trial because the publication would have been published a considerable time before the re-trial, with the result that any potential for prejudice is likely to be significantly diminished with the passage of time.

7.50 The proposal focused on possible influence on jurors. It did not take into account publications that may create a risk of influence on parties and witnesses. The Commission’s final recommendations below have been revised so that during the period before notice of appeal is or should be lodged any of these times, the sub judice restrictions should continue to apply out of concern to prevent influence on parties and witnesses. The reasons for the revisions are explained below.

7.51 During appeal proceedings. In DP 43, Proposal 15, the Commission proposed that the sub judice rule should not apply during any appellate proceedings. The reason for this was that these proceedings are determined by judges without a jury. Judges, because of their training, skills and experience, are less susceptible to the risk of influence by publicity about pending appeal cases. The generally legal nature of the issues in appeal proceedings also makes the decision-making process by the judges less vulnerable to influence. There are no grounds for establishing restrictions on publications solely out of concern for influence on the judge, whether he or she is presiding at first instance or on appeal.

7.52 The proposal focused on the absence of any substantial risk of influence on judges and jurors. It did not take into account publications that may create a risk of influence on parties and witnesses. The Commission’s final recommendations below have been revised so that during appeal proceedings, publications that create a risk of influence on parties and/or witnesses to the proceedings should remain restricted. The reasons for the revisions are explained below.

7.53 Re-trial. If the appeal results in an order for re-trial, it was proposed in DP 43 Proposal 16 that the sub judice rule must begin to operate again because the new trial will involve a jury and witnesses who will need to be shielded from prejudicial publicity. The sub judice period for the re-trial should begin from the date when the order of the re-trial is made and should terminate when the case is finally disposed of, such as when the jury makes its verdict.

7.54 There are no changes in this Report to this particular proposal.

7.55 Sentencing. In DP 43, Proposal 14, the Commission proposed that the broad sub judice rule should no longer apply at the sentencing stage but that legislation be adopted prohibiting the publication of an opinion about the sentence to be passed on any specific convicted offender, from the time of the laying of a charge to the final disposition of the proceeding, or while an appeal against sentence was pending.⁴⁷

Feedback from the submissions and consultations
7.56 Only one aspect of the proposals relating to the end of the sub judice period received wide comment – Proposal 14 on publications relating to sentencing. This proposal was largely rejected both in the written submissions and during the consultation meetings.

7.57 Among those who lodged written submissions, the following disagreed with the proposal: the Australian Press Council, the New South Wales Bar Association, the New South Wales Director of Public Prosecutions, Mr David Norris, and the organisations who are parties to the Joint Broadcasters Submission, that is, the Federation of Australian Commercial Television Stations, the Federation of Australian Commercial Radio Broadcasters, the Special Broadcasting Services and the Australian Broadcasting Corporation.

7.58 The New South Wales Bar Association wrote that there is a general assumption in DP 43 that a judicial officer is not susceptible to influence by media publicity in the discharge of his or her judicial function and this assumption should apply equally where the judicial officer if exercising the discretion in determining a sentence.⁴⁸ The Australian Press Council made the same argument and added that the proposal would interfere with the media’s ability to comment on, or argue for, a particular sentence.⁴⁹ The television and radio broadcasters group, in their joint submission, argued that the proposal is an unnecessary infringement on freedom of discussion; that it is inconsistent with the position that a judge is not susceptible to influence by the media; and that the common law is available “if a particular media organisation oversteps the mark with the nature of its comment.”⁵⁰ Mr David Norris wrote that there is a strong and legitimate public interest in the discussion of sentences and suggested that the normal principles applicable to judge-only trials should apply.⁵¹

7.59 The New South Wales Director of Public Prosecutions (“DPP”) objected to the proposal on very different grounds. One was that it paid no attention to the separate issue of pressure on witnesses. The DPP argued that media publicity between conviction and sentence has the potential to impact upon the decision of witnesses whether or not to give evidence, and upon the type of evidence they are prepared to give.

7.60 Secondly, the DPP argued that it would be difficult to identify with certainty whether or not a particular publication offended the proposed prohibition. This, he said, may result in fruitless and expensive prosecutions. According to him, it would be possible for the media to report on various aspects of a conviction in such a manner as to amount to an expression of opinion about the sentence required, without actually directly expressing such an opinion. He cited this example: the media could publish the most graphic quotations from the records of interview of the prisoner, emotive quotations from the family of the victim as to their views about the offender and the victim, and photographs of the victim, and the convicted person’s criminal history. The DPP contended that although the publication may not directly give an opinion on the sentence, its overall impact might convey the message that the convicted person deserves a heavy sentence. Another example he cited was where a politician makes a statement to the effect of “I think the DPP should appeal.”

7.61 The DPP suggested that a partial solution might be to extend the prohibition to publications expressing directly or indirectly as to the sentence passed or to be passed on any specific convicted offender, or as to the sentence passed or to be passed in respect of a particular offender or as to the sentence passed or to be passed in respect of a particular offence. However, he cautioned that such a wording might not put an end to the problem. His preferred approach is to allow the sub judice period to continue until sentence is passed.

7.62 During the various consultation meetings, there was also widespread disagreement with the proposal. The main arguments presented in these meetings against the proposal were: First, if the Commission’s position is that a judge is not susceptible to influence by media publicity in the discharge of his or her judicial function, this principle should apply equally at sentencing.⁵² The Commission’s concern for avoiding “embarrassment” to the sentencing judge, with the view to maintaining the public’s perception of judicial impartiality, is not sufficient basis for prohibiting the publication of opinions on sentences.⁵³ Second, sentencing is a legitimate area of community concern and the public should be allowed to express their opinions on this as part of the process of community discussion.⁵⁴ There should not be an assumption that comment in the media about sentencing is a campaign to influence the judge.⁵⁵

The Commission’s final recommendations
7.63 A general rule on when sub judice principle should end, and exceptions to the rule. The Commission’s proposals in DP 43 regarding the end point for the sub judice rule were anchored on considerations relating to risk of influence on juries. After the verdict is delivered, it may be argued that risk of prejudice to a criminal trial ceases because there is no longer a jury that could be influenced by media publications concerning the proceedings. However, the Commission did not take sufficient consideration of risks of influence on parties and, to a limited extent, witnesses to the proceedings. For example, after a guilty verdict is handed down, publications may create a substantial risk of influence on the accused regarding his or her decision whether or not to appeal. These types of publications may not be common in practice but the law must nevertheless be able to deal with them when they occur. Equally, witnesses may be called in sentencing proceedings, which often take place a significant time after a verdict. They should not be subjected to undue pressure from publicity.

7.64 Consequently, the Commission has revised its position as follows:

• So far as influence on juries is concerned, the sub judice rule should cease to apply when a judgement is made at first instance or the proceedings are dismissed or discontinued. This is subject to an exception: if a re-trial before a jury is ordered, the sub judice rule should apply again from the time the order for re-trial is made.
• With respect to influence on parties and witnesses, the sub judice restrictions should continue to apply until the conclusion of appeal proceedings or the expiry of any period of appeal or further appeal.

7.66 However, the Commission remains concerned about publications that create a risk of influence on the parties or witnesses before sentencing occurs and during the period when an appeal against sentence takes place or may be instituted. The Crown law officers, such as the DPP, may be influenced by the media reactions to the sentence in their decision whether or not to appeal a sentence. A convicted person might also be pressured not to lodge an appeal against the sentence. The New South Wales Supreme Court, in holding that a media publication regarding a sentence may constitute contempt, underlined the dangers of such publications:

A convicted person who appeals against his sentence knows that he does so at the risk of having that sentence increased by the court of appeal. If he were aware that a campaign of vilification was in progress against himself and that newspapers were urging that his sentence was inadequate, this would be calculated to cause him to hesitate before instituting an appeal. He might reasonably fear that he would be sentenced by newspapers rather than by the court, however groundless such fears might be in reality. It is inescapable that an intending appellant might genuinely feel that he would be prejudiced in the matter of such an appeal …⁵⁶

7.68 The Commission’s revised position would not necessarily prevent the media from publishing the detailed accounts of crimes, offenders, victims, etc. that they regularly publish currently as soon as the jury delivers its verdict. Only very limited categories of publications are ever held to influence witnesses or impose improper pressure on parties. In practice, once a verdict is delivered, the only likely category, from a practical point of view, would be that of highly emotive publications which vilify a convicted offender unfairly and advocate a heavy sentence.

7.69 Summary of the Commission’s recommendations on the end point of sub judice rule for criminal proceedings. So far as influence on juries is concerned, the sub judice restrictions should cease when the jury is discharged at the conclusion of the trial or hearing at first instance, or when the proceedings are terminated by other means.

7.70 However, if a conviction for a criminal offence is an outcome of the proceedings, then during

• the period between the verdict and the commencement of appeal proceedings or the expiry of the time allowed for appeal;
• the appellate proceedings; and
• the sentencing stage,

7.71 In addition, where a re-trial is ordered following a successful appeal against conviction, the sub judice rule as it applies to all types of publications (including those that create risks of influence on a jury, witnesses and/or parties) begins to operate again from the time the order for a re-trial is made.

RECOMMENDATION 17

Legislation should provide that for purposes of determining whether there has been contempt of court on the ground of influence on jurors or potential jurors, a criminal proceeding remains “pending” and sub judice restrictions remain operative until:

(a) the verdict of the jury in the proceedings is handed down, or

(b) the making of an order, or any other event, having the effect of the offence or offences charged will not be tried before a jury, or not at all.

For purposes of determining whether there has been contempt of court because of influence on parties, witnesses or potential witnesses, a criminal proceeding remains “pending” and sub judice restrictions remain operative until the conclusion of appeal proceedings or the expiry of any period of appeal or further appeal.

Where a re-trial before a jury is ordered following a successful appeal against a conviction, the sub judice rule as it applies to all types of publications (including those that create risks of influence on a jurors, potential jurors, witnesses, potential witnesses and/or parties) begins to operate again from the time the order for a re-trial is made.

7.72 The Commission proposed in DP 43, Proposal 17 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. Under the proposal, the sub judice rule would not apply during the appeal proceedings. As with criminal cases, the risks of prejudice during appeal proceedings are minimal and do not warrant the extension of the sub judice rule beyond the hearing at first instance. The only time when the sub judice rule may re-commence is if a re-trial is ordered. If this occurs, the sub judice restrictions should operate again from that period and cease when the re-trial is concluded.

7.73 No objections to the proposal were made in the written submissions or during the consultation meetings. However, the Commission’s final recommendation now expressly mentions coronial proceedings to clarify that the proposed end point for civil proceedings also applies to coronial inquests and inquiries.

RECOMMENDATION 18

Legislation should provide that publications relating to civil and coronial proceedings cease to be subject to the sub judice rule when the proceedings are disposed of by judgment at first instance, settled or discontinued. The rule should become operative again only when and from the time a re-trial, or another inquest or inquiry in the case of coronial proceedings, is ordered.

7.74 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. It has been suggested that, where a publisher intends to prejudice the administration of justice in respect of a particular case, he or she may be liable for sub judice contempt even if legal proceedings relating to that case are not yet pending or imminent.⁵⁷

7.75 In DP 43, the Commission suggested in Proposal 18 that the same time limits for sub judice contempt should apply whether or not there was an actual intention to interfere with the administration of justice. It considered that there are no sound policy grounds for applying different time frames for intentional contempts. If the intentional conduct clearly constitutes perverting the course of justice, it can be prosecuted as a criminal offence. The Commission’s reasons for its position not to advance the starting point of sub judice contempt to a stage when the proceedings are merely “imminent” are discussed in detail in an earlier part of this chapter⁵⁸ and in DP 43⁵⁹ and need not be repeated here.

7.76 No objections were made to the proposal in the written submissions or in the consultation meetings. The Commission has no reason to change it.