Lawlink NSW: 12. Procedure and jurisdiction in sub judice contempt proceedings

12.1 Sub judice contempt is treated as a criminal offence punishable by criminal sanctions such as imprisonment or fine.¹ It follows that the burden of proving liability for contempt lies with the party bringing the prosecution. Liability must be proved beyond reasonable doubt.²

12.2 Contempt is an offence sui generis which attracts a distinctive jurisdiction and set of procedures. The procedures for prosecution and trial, as well as the powers of the courts in disposing of the matters, are peculiar to this particular offence. For example, whereas the Director of Public Prosecutions (“DPP”) is generally responsible for the day-to-day prosecution of most criminal offences, it is the Attorney General who initiates and conducts prosecutions for contempt. Contempt cases are conducted summarily and, notwithstanding their criminal nature, they are dealt with as a form of civil proceeding.³ In New South Wales, appeals from convictions for contempt are heard by the Court of Appeal, not the Court of Criminal Appeal.⁴

12.3 In this chapter, the Commission examines procedural aspects of the prosecution and hearing of sub judice contempt proceedings with particular attention to: (1) who may initiate sub judice contempt proceedings; (2) where should they be heard and decided; (3) what should be the mode of trial (specifically, whether the present summary procedure should be continued); and (4) which court should hear and decide appeals.

DO THE RECOMMENDATIONS IN THIS AND THE NEXT CHAPTER APPLY TO OTHER FORMS OF CONTEMPT?

12.4 This Report is primarily concerned with sub judice contempt. This is mainly because the inquiry originated from the controversy arising from the Costs in Criminal Cases Amendment Bill 1997 (NSW), which deals with matters relating to the operation of the sub judice rule. This chapter, as well as the following chapter on sanctions and remedies, follows this approach by confining the discussion of issues on procedure, sanctions and remedies to issues that have a direct impact on sub judice contempt. Matters concerning civil contempt or those peculiar to other forms of criminal contempt will not be dealt with in these chapters.

12.5 Nevertheless, most of the proposals in these two chapters are drafted in a manner that would apply not just to sub judice contempt, but to criminal contempts in general. As the policies underlying most of the proposals on procedure, sanctions and remedies apply equally to all forms of criminal contempt, confining the proposals to sub judice contempt may lead to a situation where one set of rules applies to sub judice contempt and another governs other forms of criminal contempt. Hence, for example, Recommendation 27 on the transfer of appeal proceedings from the Court of Appeal to the Court of Criminal Appeal, if confined to sub judice contempt, would lead to a situation where a person convicted of sub judice contempt goes to the Court of Criminal Appeal to appeal the conviction, while a person convicted of another form of criminal contempt goes, as at present, to the Court of Appeal. Recommendation 28 and 29 on the establishment of upper limits on prison sentences and fines, if limited to sub judice contempt, would establish certainty as to the penalties that can be imposed for sub judice contempt but would allow courts to continue to possess virtually unlimited discretion when sentencing persons convicted of other forms of criminal contempt. The decision by the Commission to draft the relevant proposals in broad terms is aimed at preventing such undesirable results. The Commission acknowledges that some of these proposals may also be appropriate to civil contempts. However, it will not endeavour to examine the effectiveness of the relevant proposals to civil contempts as this would veer too far away from its terms of reference.

12.6 The Attorney General has the primary responsibility at common law to protect the administration of justice by instituting proceedings, when appropriate, for the punishment of alleged contempt.⁵ In Attorney General v Times Newspapers Ltd,⁶ Lord Diplock said of the British Attorney General’s role in relation to contempt of court:

12.8 The following sections of this chapter consider the roles of persons other than the Attorney General in the instigation of sub judice contempt proceedings. In particular, the Commission looks at whether the (1) Director of Public Prosecutions, (2) private individuals, and (3) courts (on their on motion) should be able to initiate these proceedings.

Does the DPP have the power to prosecute for contempt at common law?
12.9 The DPP is the main prosecution arm of the government. His or her responsibilities include instituting and conducting the prosecution of indictable offences in the Supreme Court and the District Court,¹¹ committal proceedings for indictable offences, proceedings for summary offences in any court and proceedings for indictable offences that may be dealt with summarily in Local Courts.¹²

12.10 The Director of Public Prosecutions Act 1986 (NSW) (“DPP Act”) is silent as to the power of the DPP to commence contempt proceedings. However, two decisions have examined the issue of whether the DPP can prosecute criminal contempts. In Director of Public Prosecutions v Australian Broadcasting Corporation (“ABC”),¹³ the New South Wales Court of Appeal held that the Commonwealth DPP has standing to institute contempt proceedings in relation to a case being tried by a State court involving a federal offence. In reaching this decision, the court said:

12.12 An analysis of the cases of Director of Public Prosecutions v ABC and R v Pearce¹⁸ produces this result at common law: While the Attorney General is the law officer primarily charged with the prosecution of contempt cases, the DPP has this power only with respect to contempt relating to cases in which the DPP is a party.¹⁹

12.13 Notwithstanding the recognition at common law of the DPP’s power to prosecute certain contempt cases, the DPP in New South Wales has yet to exercise this power. In this state, the Attorney General²⁰ remains the main prosecution officer for contempt cases.

A reform option considered: should legislation be adopted making the DPP the prosecution officer for contempt cases?
12.14 One reform option that the Commission considered in its Discussion Paper 43 (“DP 43”)²¹ is for legislation to be passed giving the DPP the day-to-day responsibility for the prosecution of criminal contempts, with the Attorney General retaining residual powers. This would resemble the arrangement under the DPP Act for indictable offences.²² This was essentially the recommendation of the Australian Law Reform Commission (“ALRC”) in its report on contempt.²³

12.15 The main argument for such an option is that sub judice contempt is a criminal offence and as such should be treated like all other offences, including the way in which it is prosecuted. This would be consistent with the purpose underlying the establishment of the office of the DPP in 1986, that is, to vest the general day-to-day responsibility for the prosecution of serious criminal offences in a single person. The office was created to facilitate a more efficient and consistent prosecution policy and to provide for independent decision-making in the prosecution system.²⁴ Enabling the DPP to prosecute sub judice contempt would bring the prosecution of sub judice contempt in line with that followed for all other serious offences. Moreover, giving the DPP the responsibility over sub judice cases would ensure the adoption of a consistent prosecution policy for such cases, which would be uniform, or at least be congruent with, the policy for all other offences.

12.16 Another reason for empowering the DPP to prosecute sub judice contempt is to ensure independence from political influence in such prosecutions. Sub judice contempt can often have political dimensions, for example, because the alleged contemnor is a political figure, or the government of the day has a special interest in the trial because it is politically sensitive or highly controversial, or a prosecution might alienate a powerful media organisation or commentator. The Attorney General is an elected Member of Parliament and is also a member of Cabinet (in New South Wales). As such, he or she exercises political functions and is therefore vulnerable to the perception that his or her decisions to prosecute alleged acts of sub judice contempt may be influenced by political considerations. In contrast, the DPP is a statutory appointee whose office was created with a view to insulating prosecutions from the political process and ensuring independence with respect to decisions concerning prosecutions.²⁵

12.17 On the other hand, it may be argued that the DPP may also be susceptible to the perception of partiality in sub judice prosecutions. Where the DPP commenced the criminal proceedings to which the alleged contempt relates, he or she may appear to be partisan when it comes to determining whether contempt proceedings should also be commenced. In a case involving statements by a police officer or one involving material published by a media organisation that are favourable to the case of the prosecution, a decision by the DPP not to prosecute may be perceived as resulting from bias.

The Commission’s view in DP 43
12.18 In DP 43, the Commission expressed the opinion that there is no need to change the current position at common law, whereby the Attorney General is the main law officer charged with the prosecution of sub judice contempt cases and the DPP has power to prosecute contempts which relate to cases in which the DPP is a party. Such an arrangement recognises the complementary roles of the Attorney General as the primary officer charged with the maintenance of the due administration of the justice system and of the DPP as the primary prosecution officer of the government.

12.19 Moreover, because both the Attorney General and the DPP are susceptible to accusations of partiality in sub judice contempt prosecutions, it is important to maintain the standing of both officers in such cases. This will ensure that where the circumstances of a case are such that one of them becomes vulnerable to perceptions of bias, the other may be relied upon to take up the prosecution. Furthermore, a system of allocating the primary responsibility for the prosecution of sub judice contempt proceedings to the DPP may result in further pressure on the resources of this office.

Feedback from the consultations and written submissions
12.20 There were no objections made during the consultation meetings and in the written submissions to the Commission’s position on the matter. The Law Society of New South Wales and the Bar Council of Victoria, and Mr David Norris of the Crown Solicitor’s Office support the Commission’s position.²⁶ The DPP (NSW) informed the Commission that the current arrangements on the prosecution of contempt proceedings are working well. He expressed the view that the current law and convention, whereby the Attorney General is the main law officer charged with the prosecution of sub judice contempt cases, do not need to be changed.²⁷

The Commission’s final view
12.21 There are no reasons to change the view adopted by the Commission in DP 43.

The current law
12.22 At common law, any person may apply to the court for an order punishing a contempt, although usually the applicant is a person aggrieved by the relevant conduct.²⁸ In particular, any party to litigation, including a corporation, may take proceedings for contempt to protect that litigation.²⁹ It seems that a litigant may apply in person to the court.³⁰

12.23 Part 55 rule 11(4) of the Supreme Court Rules 1970 (NSW) preserves this right.³¹ It provides that the power of the Registrar, by order of the Supreme Court, to institute contempt proceedings “does not affect such right as any person other than the registrar may have to commence proceedings for punishment of the contempt prior to the commencement of proceedings by the registrar.”

Possible reform options
12.24 The issue that arises is whether this rule should be retained. In DP 43, at paragraphs 12.23-12.31, the Commission canvassed these possible alternatives:

12.26 As to the possibility of frivolous and vexatious contempt prosecutions, the Commission is not aware that there is currently a problem of private parties using contempt proceedings for harassment or for vexatious or for other improper purposes. This is probably because the substantial costs involved in contempt litigation serve to discourage such types of prosecutions. Another deterrent is possible liability in tort for malicious prosecution³⁶ or for collateral abuse of legal process.³⁷

12.27 Even if frivolous contempt prosecutions did occur, the Commission notes that courts have an inherent jurisdiction to prevent abuses of process both in relation to the commencement of proceedings and in relation to the conduct of pending proceedings where they are conducted in a vexatious and time wasting manner.³⁸ These powers were canvassed in paragraph 12.35 of DP 43 and need not be repeated here.

12.28 The Commission, in DP 43, rejected a prior consent requirement. It preferred leaving the assessment of the merits of a prosecution or the motives behind its institution to the courts rather than requiring law officers, such as the Attorney General or the DPP to screen private prosecutions. This would be unduly restrictive of the right of private individuals to prosecute for sub judice contempt.

12.29 The Commission proposed in DP 43, however, that a private individual who intends to initiate and maintain a prosecution for criminal contempt should notify the Attorney General and the parties to the relevant proceedings (if any).³⁹

12.30 The notice requirement would have the desirable effect of bringing the matter to the attention of the Attorney General and, where appropriate, the State or Commonwealth Director of Public Prosecutions, without giving these public officers the power to veto the individual’s right to prosecute. It would contribute towards preventing duplication of the efforts to prosecute the same offence and consequently save the resources of the stakeholders, including the prosecution authorities, the courts and the person accused of committing contempt. It would also allow better coordination of efforts between individuals and law officers, should the latter choose to be involved. It would, for example, enable the Attorney General to intervene in the proceedings, if he or she considered it appropriate to do so.

12.31 The Commission also notes that under the Supreme Court Rules 1970 (NSW), if the Supreme Court, through the registrar, prosecutes for contempt on referral by individuals, the registrar must notify the Attorney General.⁴⁰ There is no policy reason why the relevant public law officers should be notified when the court prosecutes the contempt but not when a private individual does so.

Submissions
12.32 Support for the proposal. The New South Wales Director of Public Prosecutions, the Australian Press Council and Mr David Norris support the proposal.⁴¹

12.33 However, Mr Norris suggested possible additional provisions.⁴² He proposed, as one option, that the Attorney General should have power (exercisable by the Solicitor General or Crown Advocate under s 53 of the Criminal Procedure Act 1986 (NSW)) to take over a criminal contempt prosecution in the same way that the DPP may take over a criminal offence prosecution pursuant to s 9 of the DPP Act. This, he believed, would provide an additional option to intervention or appearance as amicus curiae.⁴³ Alternatively, he suggested that the Attorney General could have a statutory right to intervene in contempt proceedings.

12.34 Opposition to the proposal. The Federation of Australian Commercial Television Stations, the Federation of Australian Commercial Radio Broadcasters, the Australian Broadcasting Corporation and the Special Broadcasting Service, in their joint submission, argued that a private individual should not have the right to commence proceedings for criminal contempt because “criminal proceedings should always be a matter for the State.”⁴⁴

12.35 The New South Wales Law Society, in its written submission, expressed the same view. Its reason was that “there is too high a risk of the prosecution being initiated otherwise than in good faith.”⁴⁵ During a consultation meeting, Mr Trevor Nyman, the Law Society’s representative, suggested that there is a danger, in the future, of private groups being formed for the purpose of prosecuting the media for any legal liability, in the same manner that the victims’ groups and similar interest associations have been formed and become vocal in recent years.⁴⁶ It was, however, suggested to him that such contempt prosecutions are expensive and private individuals or organisations have not instituted them in the past. In the end, Mr Nyman agreed that the Law Society should not be too concerned about the Commission’s proposal.

12.36 The Victorian Bar Council referred to s 46 of the Director of Public Prosecutions Act 1994 (Vic), which vests the initiation of contempt prosecutions in the Attorney General.⁴⁷ The Council claimed that this section has played a valuable role in ensuring that an experienced prosecutorial officer initiates and conducts contempt proceedings. It also removes, according to the Council, an opportunity by litigants to file abusive or vexatious contempt prosecutions.⁴⁸

The Commission’s response to the submissions and its final recommendation
12.37 The submissions opposing the proposal did not persuade the Commission that private individuals should not be allowed to initiate contempt proceedings. In relation to the comment in the joint submission from the broadcasters, the Commission notes that private prosecution is available in criminal offences generally, even for offences more serious than contempt.

12.38 As regards the comment of the Victorian Bar Council, the Commission has noted in DP 43, at paragraph 12.28 that s 46 of the Public Prosecutions Act 1994 (Vic) has proved difficult and complex to interpret and apply. As to the Council’s concern for vexatious or abusive prosecutions for contempt, the Commission considers that the possibility of abuse is not a sufficient reason for abolishing the right of private individuals to prosecute criminal contempt. Courts have powers to deal with frivolous or abusive prosecutions.⁴⁹ The proposal is however being revised, as indicated below, partly to deal with this issue.

12.39 Taking over a private prosecution. The Commission accepts Mr Norris’ suggestion that the Attorney General be given the power to take over a private prosecution for contempt. However, the proposed right should also be given to the DPP, who has also has the power at common law to prosecute certain criminal contempts.

12.40 The objects of such a power would be to ensure integrity, neutrality and consistency in the making of prosecutorial decisions and the conduct of prosecutions. The right of private prosecution is open to abuse and to the intrusion of improper motives. Further, there may be considerations of public policy why a private prosecution, although instituted in good faith, should not proceed, or at the least should not be allowed to remain in private hands. The proposed power would constitute an important safeguard against abuse of the right.

12.41 The proposed power, if implemented, should be exercised very carefully and only in limited categories of appropriate cases. It is not a general veto power over the right of private prosecutions, which must be recognised and upheld unless there are compelling reasons for curtailing it. Examples of cases where the proposed power might be exercised are where a prosecution appears to be frivolous or vexatious, or there appears to be a conflict of interest, or if the private prosecutor requests the public authorities to take over.

Courts have an inherent power at common law to initiate contempt proceedings
12.42 The courts may act on their own motion to deal with cases on contempt,⁵⁰ including contempt by publication.⁵¹ This has been described as an exceptional power, to be invoked sparingly and only in clear cases.⁵² The departure from ordinary safeguards in such proceedings, where the court is essentially both accuser and adjudicator, is justified by the overriding public interest in the safeguarding of the administration of justice from interference by swift deterrent action by the court itself.⁵³

The Supreme Court has the power under its Rules to commence contempt proceedings
12.43 Part 55 rule 11(1) of the Supreme Court Rules 1970 (NSW) provides that “[w]here it is alleged, or appears to the court on its own view, that a person is guilty of contempt of the court or of any other court, the court may, by order, direct the registrar to apply by motion for, or to commence proceedings for, punishment of contempt.” For the purposes of this rule, the Crown Solicitor acts as solicitor for the registrar and briefs counsel, in accordance with long accepted practice that predates the Supreme Court Act 1970 (NSW).⁵⁴ Although the proceedings remain technically the proceedings of the court and the court’s officer is responsible only for the giving of relevant instructions, the proceedings are conducted in a practical sense in the same way as if initiated by the Attorney General.⁵⁵

12.44 It has been held that a person does not, by this rule, have a right to apply to the court requesting it to commence and maintain proceedings for criminal contempt. The commencement of such proceedings is entirely a matter for the court’s decision taken of its own motion.⁵⁶ Hence, a party, witness, juror, a court or police officer or some other person may inform the court of an alleged contemptuous conduct but the judge may decide to do nothing because the matter is too trivial or best dealt with by a warning or the material put before him or her is unsatisfactory or because he or she considers it more appropriate that the Attorney General should initiate proceedings.⁵⁷

12.45 Where it appears to the District Court, Local Court or any other court that a person is guilty of contempt before such court, it may refer the matter to the Supreme Court, which may then exercise its power under Part 55 rule 11(1) of the Supreme Court Rules 1970 (NSW) to direct the Registrar to commence proceedings for contempt of court.⁵⁸

Courts in other Australian and overseas jurisdictions have the power to initiate contempt proceedings
12.46 The Rules of Court of the other Australian jurisdictions also contain provisions empowering their respective Supreme Courts to initiate contempt proceedings.⁵⁹ In the United Kingdom and Victoria, where legislation locates the authority to initiate most forms of contempt proceedings in the Attorney, the relevant laws have expressly preserved the power of the courts to initiate such proceedings on their own motion.⁶⁰

The Commission’s position in DP 43
12.47 In DP 43, the Commission took the view that no change is required to the present law, which gives the power of the Supreme Court to direct the registrar to commence proceedings for the punishment of criminal contempt, including sub judice contempt. This power is useful because it supplements the authority of the traditional prosecution officers, ie the Attorney General in contempt cases and the DPP in most other offences. Where these officials do not act on a publication that the court considers to be prejudicial to pending proceedings, the court should be in a position to commence prosecution on its own motion.

12.48 Moreover, private parties affected by the prejudicial publication, who are unable to convince the prosecution officers to prosecute and who may not have the resources to prosecute themselves, should be able to approach the Supreme Court and may request it to prosecute.

Feedback from the consultations and written submissions
12.49 There were no objections made during the consultation meetings and in the written submissions to the Commission’s position on the matter.

The Commission’s final view
12.50 There are no reasons to change the view adopted by the Commission in DP 43.

The prosecution of contempt relating to a Commonwealth offence which is being tried in a State court

12.51 The Director of Public Prosecutions for the Commonwealth has been held to possess the power to commence proceedings in an appropriate State court for the punishment of any contempt relating to the trial of a federal offence in which he or she is the prosecuting authority.⁶¹ This power to institute proceedings is, it would seem, concurrent with those of the Attorney General of the Commonwealth (which would seem to extend to any alleged contempts relating to federal proceedings in any court) and of the Attorney General of the relevant State.⁶²

12.52 At the same time, courts have confirmed the power of a State Attorney General to prosecute contempt in relation to a suit heard by a State court under federal jurisdiction invested in that court by statute.⁶³ Hence, for example, the State Attorney General may prosecute the publication of material relating to pending criminal proceedings involving the importation of narcotics goods, in violation of the Customs Act 1901 (Cth) and the Crimes Act 1914 (Cth).⁶⁴

12.53 The Commission is not aware of any reform issues on this matter and therefore makes no recommendation.

12.54 Since its creation as a Division of the Supreme Court in 1965, the Court of Appeal has had jurisdiction under the Supreme Court Act 1970 (NSW) to hear sub judice contempt cases.⁶⁵ Prior to the establishment of the Court of Appeal, the Supreme Court, which meant all the judges sitting together, or three or more judges sitting in banc, heard sub judice contempt proceedings.⁶⁶ However, from 1997, this power has been transferred to the Common Law Division of the Supreme Court.⁶⁷ Consequently, sub judice contempt proceedings are now heard by a Supreme Court judge of the Common Law Division rather than by three judges of the Court of Appeal.

12.55 The law appears to have been changed as a result of a call for reform by Justice Kirby in Young v Registrar, Court of Appeal.⁶⁸ In that case, his Honour held that the arrangement whereby the Court of Appeal heard sub judice cases did not give the person convicted of contempt a right to appeal. This, according to him, contravened Article 14.5 of the International Covenant on Civil and Political Rights (“ICCPR”), which Australia has ratified, and which provides: “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” Justice Kirby did not regard the procedure for review by special leave application to the High Court, which may be taken after a conviction by the Court of Appeal, as a sufficient compliance with article 14.5. This case is discussed in greater detail in paragraphs 12.48-12.50 of DP 43.

12.56 On the other hand, under the present arrangement, a person convicted of contempt by a single Supreme Court judge has the right to appeal the conviction and sentence to the Court of Appeal.

12.57 The Commission took the position in DP 43 that there is no need to revert to the former arrangement. It was aware of no practical difficulties arising from the assignment to the Common Law Division of the Supreme Court of proceedings for sub judice contempt. Moreover, it found persuasive the concerns raised by Justice Kirby in Young v Registrar, Court of Appeal about the absence of an effective right of appeal under the former arrangement and its possible inconsistency with Article 14.5 of the ICCPR.⁶⁹ It considered it desirable to continue with the present procedure where a single judge of the Common Law Division of the Supreme Court hears and decides the case and a person who has been convicted for sub judice contempt has an automatic right to appeal the conviction.

12.58 Nevertheless, the Commission, in DP 43, welcomed submissions on the matter, including any evidence about the practical workings of the new process.

Feedback from the consultations and written submissions
12.59 During the consultation meetings and in the written submissions, there was no mention of any practical or policy difficulties with the present arrangement.

The Commission’s final view
12.60 There are no reasons to change the current position. Sub judice contempt proceedings should continue to be heard by a Supreme Court judge of the Common Law Division of the Supreme Court.

MODE OF TRIAL: SHOULD THE SUMMARY PROCEDURE FOR SUB JUDICE CONTEMPT PROCEEDINGS BE RETAINED?

12.61 One of the most distinctive characteristics of the law of criminal contempt is that the offence is dealt with summarily without the assistance of a jury.⁷⁰ In the case of contempt in facie curiae or in the face of the court itself, there is no formalised procedure. In the case of other forms of contempt, including sub judice contempt, the proceedings are more formal. For example, such proceedings in New South Wales are commenced by way of summons.⁷¹ Evidence in support of the charge for contempt is given by affidavit, unless the court permits it to be given in some other form.⁷² Even so, such proceedings are still summary in the sense that the defendant does not have the right to a jury trial.

12.62 An alternative to the present form of summary procedure in sub judice contempt cases is to treat them as normal criminal trials and to prosecute the accused by way of indictment. The accused may then have the benefit of a trial by jury. The main arguments in support of this procedure are: (a) speed in hearing the contempt case is not always essential; and (b) certain questions of primary fact are best dealt with by a jury.

Speedy response not always essential
12.63 The rationale for summary procedure for contempt cases is that it provides a speedy and efficient means of trying contempt, which the ordinary criminal process could not do.⁷³ Its practical justification lies in the fact that in general, “the undoubted possible recourse to indictment and criminal information is too dilatory and too inconvenient to afford any satisfactory remedy.”⁷⁴ This is true especially in cases of contempt committed in the face of the court, where contemnors have to be dealt with swiftly to prevent them from further disturbing the court proceedings.

12.64 The situation with a publication that may be in breach of the sub judice rule is, however, different. In New South Wales, while the practice has been for the contempt proceedings to be initiated as soon as practicable, the hearing is adjourned until after the conclusion of the related criminal proceedings.⁷⁵ The reason for this is that the media publicity attaching to the contempt proceedings would add to the possibility of unfair prejudice in the criminal trial.⁷⁶ If the publication has in fact caused some harm to pending proceedings by creating prejudice in the minds of the jurors, the hearing of the contempt case could add to such harm. The publicity that will ensue from the hearing of the contempt case will only draw more attention to the original publication that had the risk or tendency to create the prejudice.⁷⁷

12.65 It therefore appears that courts in New South Wales consider it more important to ensure that no further harm is caused to related pending proceedings than to determine immediately whether the sub judice rule has been breached and swiftly punishing those responsible for any breach. If harm was indeed done by the publication, a quick finding that the persons responsible for the publication were guilty of contempt will not undo the harm. Consequently, it can no longer be argued that a summary process is necessary to ensure a speedy response to sub judice contempt.⁷⁸

Certain issues better dealt with by jury
12.66 Juries are used to assess and determine the facts in certain proceedings, especially criminal trials, because they are seen as better equipped to do this than a judge. The twelve members of a jury are able to bring to their task a range of backgrounds and experiences far broader than that possessed by a judge. A group that represents a cross-section of the community with varied experiences in life and of the behaviour of people is considered better able to understand and appraise human conduct than a single judge.⁷⁹ It has been claimed that juries are effective fact-finders for these reasons:⁸⁰

12.68 It is significant that in the law of defamation, where the meaning of the publication is also tested by the ordinary member of the community standard, the question of whether a publication did in fact convey the meaning the plaintiff contends and whether the publication was defamatory of the plaintiff are questions of fact for the jury.⁸⁵ It may be argued that there is a greater need to require a jury to apply a similar test to a similar issue in a sub judice contempt case because of the criminal sanction it attracts.

12.69 Another issue where jury input may be desirable concerns the element of fault. If the Commission’s Recommendation 5 were adopted, it would create a defence that the person charged with contempt did not know a fact that caused the publication to breach the sub judice rule and before the publication was made, took all reasonable steps to ascertain any fact that would cause the publication to breach the sub judice rule. It may be argued that it would be appropriate for a jury to assess the type of evidence that would be raised and tested in relation to the proposed defence.

12.70 Although it is universally recognised that contempt is criminal in nature, the policy justification for treating it as an offence sui generis lies in its nature.⁸⁶ It is the duty of judges to see that justice is administered in the courts. The imposition of this duty carries with it the power to act in protection of justice, if its fair and effective administration is threatened. Such power must encompass the authority to try summarily those accused of interfering in any manner with the administration of justice. It is therefore the peculiar character of the offence – that it strikes at the foundation of the administration of justice – which commends the summary mode of dealing with it.

12.71 It may also be argued that jury trial in sub judice cases is not appropriate because in many cases, the primary facts – the fact of publication and the pending nature of the proceedings allegedly prejudiced – are either undisputed or are matters which the judge can very easily determine by himself or herself. Moreover, it is arguable that what constitutes prejudicial publication – publication that has a tendency to or a substantial risk of prejudice in relation to pending proceedings – has been the subject of a considerable amount of judicial interpretation and has therefore acquired a technical meaning more intelligible to judges than to jurors. Furthermore, sub judice contempt cases require a balancing of certain principles such as freedom of expression, open justice, the right to fair trial and the preservation of public confidence in the administration of justice. These are legal notions better understood by judges who are also, it may be argued, in a better position to discharge the function of achieving the right balance among these competing principles.

12.72 Some of the general criticisms of the jury system may also be used as arguments for the retention of the current procedure. First, the jury is an expensive method of trial. Not only must the twelve jurors be paid but so must the others who form the pool from which the jury is selected. Court personnel are employed to administer the jury system at all stages. Second, there exists the risk of erroneous or perverse verdicts by jury as a result of bias by one or some of the jurors or by ignorance or lack of competence by any of them. Thirdly, such a system will not contribute to the attainment of certainty and predictability in this area of law because juries give “global” verdicts without reasons. In contrast, the reasons given by judges in their judgments as to why a publication is or is not contemptuous serve to guide all those who might have an interest in this area of law, including the media, parties to pending proceedings who may be subjected to media publicity, lawyers, prosecutors and other judges.

12.73 Finally, there is the argument of long-standing practice. There is no recorded case last century in New South Wales of a contempt case being tried otherwise than by summary procedure.⁸⁷ It has been used in contempt cases for such a long time now that practitioners have become accustomed to summary procedure in contempt cases without any practical difficulties.

12.74 In DP 43, the Commission took the view that the summary procedure for sub judice contempt cases should be retained. Its reasons are: first, the Commission is not aware of practical difficulties with the existing procedure. By now, the practice is well established having been the only known procedure for contempt in New South Wales, at least in the last century. Consequently, judges, legal practitioners and parties are familiar with the summary procedure for contempt. There appear to be no real pressures for change.

12.75 Secondly, the special features of the jury system which makes it effective for purposes of fact-finding may not be essential in sub judice cases because many of the primary facts – the fact of publication and the pending nature of the proceedings allegedly prejudiced – are usually non-controversial.

12.76 Thirdly, the determination of the main issue of whether or not the publication has a substantial risk of prejudice in relation to pending proceedings has acquired a technical meaning more intelligible to judges than to jurors.

12.77 Finally, sub judice contempt cases require a balancing of certain legal principles, such as freedom of expression, open justice and the right to fair trial. These are arguably better understood by judges.

Feedback from the consultations and written submissions
12.78 During the consultation meetings and in the written submissions, there was no mention of any practical or policy difficulties with the present arrangement.

The Commission’s final view
12.79 There are no reasons to change the current position.

SHOULD APPEAL PROCEEDINGS FOR CONTEMPT BE HEARD BY THE COURT OF APPEAL OR BY THE COURT OF CRIMINAL APPEAL?

12.80 The legislation transferring the jurisdiction to hear proceedings for most forms of contempt from the Court of Appeal to the Common Law Division of the Supreme Court also conferred a right of appeal to the Court of Appeal from a judgment or order of the Supreme Court in a Division in proceedings that relate to contempt.⁸⁸ Previously, no such right existed. A person convicted of contempt had to seek special leave to the High Court for a review of the judgment or order of the Court of Appeal. Now, a person convicted of contempt by a single judge of the Common Law Division of the Supreme Court may appeal to the Court of Appeal.

12.81 Legislation also allows the Attorney General to submit to the Court of Appeal any question of law arising from or in connection with contempt proceedings in which the person charged with contempt is acquitted.⁸⁹ The determinations of the Court of Appeal of the question of law submitted do not in any way affect any finding or decision in the contempt proceedings.⁹⁰

12.82 In DP 43, the Commission raised the issue whether the jurisdiction to hear appeals should lie with the Court of Appeal or the Court of Criminal Appeal.

12.83 In DP 43, the Commission took the position that it should be with the Court of Criminal Appeal. It would seem that because the courts have consistently recognised that a conviction for contempt is a conviction for a criminal offence,⁹¹ it must follow that appeals from such convictions should be assigned to the Court of Criminal Appeal. It can be argued that the Court of Criminal Appeal would be in a better position to handle such cases because of a number of facilities provided by the Criminal Appeal Act 1912 (NSW) such as the power to grant a new trial,⁹² the power to release the appellant on bail pending the appeal,⁹³ and the entitlement, notwithstanding an error by the trial judge, to dismiss the appeal if it considered that “no miscarriage of justice has actually occurred”.⁹⁴ The Court of Criminal Appeal’s greater experience in the matter of sentencing for criminal offences may also give it some advantage where sentencing is an issue in the appeal.

12.84 There were no contrary views expressed in the submissions and during the consultations meetings.

Table of Contents

1. Registrar, Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314 (Kirby J); Young v Registrar, Court of Appeal (1993) 32 NSLWR 262 at 277 (Kirby J); Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318 at para 20 (Barr J).

2. Witham v Holloway (1995) 183 CLR 525 at 550; Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27 (Mason J).

3. The High Court, in describing the nature of contempt proceedings, stated that “[n]otwithstanding that a contempt maybe described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction …”: Hinch v Attorney General (Vic) (No 2) (1987) 164 CLR 15 at 89.

5. Re Whitlam; Ex parte Garland (1976) 8 ACTR 17 at 23 (Connor J); United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 330 (Samuels J).

8. Ex parte Tubman; Re Lucas (1970) 72 SR (NSW) 555; European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 458-460 (Kirby J); Capaan v Joss (NSWCA, No 40255/94 and 402257/94, 6 June 1994, unreported).

10. Courts Legislation Amendment Act 1998 (NSW) Sch 7. The Act commenced on 8 August 1998. For a more detailed discussion of the relevant provisions of this law, see NSW Law Reform Commission, Contempt by Publication (Discussion Paper 43, 2000) (“NSWLRC DP 43”) at para 12.7-12.8.

13. Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588. This has been followed in United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323.

14. Director of Public Prosecutions v Australian Broadcasting Corporation at 596.

17. See, for example, R v Australian Broadcasting Corporation; Ex Parte the Director of Public Prosecutions (WA) (WA, Supreme Court, No 1256/94, 26 July 1994, unreported); R v 6IX Southern Cross Radio Pty Ltd; Ex parte Director of Public Prosecutions (WA) (1999) WASCA 254.

18. For a detailed discussion of these cases see NSWLRC DP 43 at para 12.11-12.15.

19. The courts have not had the opportunity to decide whether or not the DPP also has this power in relation to criminal cases where he or she is not a party, for example, criminal cases prosecuted by police. It might be argued that although the DPP is not a party to these cases, he or she has an interest as the main prosecution officer of the state, so that if there was a contempt committed in relation to them, the DPP should be allowed to prosecute the contempt.

20. Or the Solicitor General or Crown Advocate under delegation from the Attorney General: Criminal Procedure Act 1986 (NSW) s 16B.

23. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 470. This recommendation was made in the context of the ALRC’s general approach of making the procedures for criminal contempts in line with those of all other offences.

24. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 1 December 1986 at 7339.

26. Law Society of NSW, Submission at para 48; Victorian Bar Council, Submission at para 31; D Norris Submission at para 104.

28. R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 445 (Rich J); European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 458-460; Director of Public Prosecutions (Cth) v Australian Broadcasting Corporation (1987) 7 NSLWR 588 at 595; NSW Bar Association v Muirhead (1988) 14 NSLWR 173 at 184 (Kirby J); United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 328-331 (Samuels J).

29. Director of Public Prosecutions (Cth) v Australian Broadcasting Corporation at 595-596; X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 at 580-581 (Kirby J), at 611-612 (Mahoney J); United Telecasters Sydney Ltd v Hardy at 328 (Samuels J).

31. See Ex parte Tubman; Re Lucas (1970) 72 SR (NSW) 555; European Asian Bank AG v Wentworth at 458-460 (Kirby J); Capaan v Joss (NSWCA, No 40255/94 and 402257/94, 6 June 1994, unreported).

32. Re Hargreaves; Ex parte Drill [1954] Crim L R 54. See also NSWLRC DP 43 at para 12.23.

34. Attorney General v Times Newspaper Ltd (1973) QB 710 at 737-738 (Lord Denning MR). See also NSWLRC DP 43 at para 12.31.

36. For an authority for the right of a person to seek redress for damage caused by an abuse of proceedings of a court by another person in wrongfully setting the law in motion on a criminal charge, see Amin v Bannerjee [1947] AC 322.

37. For illustrative cases on this form of tort, see Williams v Spautz (1992) 174 CLR 509; Varan v Howard Smith Co Ltd (1911) 13 CLR 35; Metall v Donaldson Lufskin & Jenrett Inc [1990] 1 QB 391 at 469.

38. Kinnaird v Field [1905] 2 Ch 306; Davison v Colonial Treasurer (1930) 47 WN (NSW) 19; Commonwealth Trading Bank of Australia v Inglis (1974) 131 CLR 311.

39. The contempt may not relate to particular proceedings, for example, in the case of scandalising the court.

41. N Cowdery QC, Submission at 4; Australian Press Council, Submission at para 26; D Norris, Submission at para 105.

43. For an example of a contempt case prosecuted by a private individual but where the Attorney General appeared as amicus curiae, see Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545.

44. Australian Broadcasters, Joint Submission at 8. The Australian Broadcasting Corporation, in its separate submission (at 3) made the same submission. Both submissions claimed that the Commission did not give reasons for its position that private individuals should be allowed to initiate sub judice contempt proceedings. This is incorrect; the Commission’s reasons are found in NSWLRC DP 43 at para 12.33-12.36.

47. For a discussion of the law in Victoria, see NSWLRC DP 43 at para 12.27-12.30.

50. European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 458-460 (Kirby J); NSW Bar Association v Muirhead (1988) 14 NSWLR 173 at 184 (Kirby J); United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 328-331 (Samuels J).

51. R v Fletcher; Ex parte Kisch (1935) 52 CLR 248 at 258 (Evatt J); R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 445 (Rich J); Registrar, Court of Appeal v Willessee [1984] 2 NSWLR 378.

58. See Re An Allegation of Contempt of Court Made by Her Honour Judge Mathews (NSWCA, BC 8400372, 7 March 1984, unreported); Re An Allegation of Contempt of Court Made by the Honourable Mr Justice Maxwell (NSWCA, BC 8500884, 10 April 1985, unreported); Varley v Attorney General (NSW) (1987) 8 NSWLR 30.

59. See Supreme Court Rules (NT) r 75.07(1); Rules of the Supreme Court (Qld) O 84 r 1; Uniform Civil Procedures Rules 1999 (Qld) Ch 20 Pt 7 r 928; Supreme Court Rules (SA) r 93.03, r 93.04; Supreme Court Rules 2000 (Tas) O 941; Rules of the Supreme Court (Vic) r 75.07; Rules of the Supreme Court 1971 (WA) O 55 r 3. There is no equivalent provision in the Australian Capital Territory.

60. In the United Kingdom, the Contempt of Court Act 1981 (UK) s 7 provides: “Proceedings for a contempt of court under the strict liability rule (other than Scottish proceedings) shall not be instituted except by or with the consent of the Attorney General or on the motion of the court having jurisdiction to deal with it.” In Victoria, while the Public Prosecutions Act 1994 (Vic) s 46(1) states that “[d]espite any provision to the contrary made by or under any other Act or at common law, only the Attorney General may apply to a court for punishment of a person for contempt of court,” s 46(5) provides that nothing in the section “affects the power of a court to deal with a contempt summarily of its own motion.”

61. Director of Public Prosecutions (Cth) v Australian Broadcasting Corporation (1987) 7 NSWLR 588.

62. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 464.

64. See R v David Syme & Co Ltd [1982] VR 173, where the Victorian Attorney General’s power to institute the contempt proceedings was not disputed.

66. See Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716 at 719-720 (Young J).

67. In 1996, the Courts Legislation Amendment Act 1996 (NSW) was passed amending the law by transferring to the Common Law Division of the Supreme Court proceedings for the punishment of contempt (subject to certain exceptions), including sub judice contempt: See Courts Legislation Amendment Act 1996 (NSW) Sch 1[4], 1[6], 1[7]. The amendments were proclaimed to commence on 2 May 1997: see NSW, Government Gazette 47 (2 May 1997) at 2427. The Courts Legislation Amendment Act 1996 (NSW) was repealed on 3 December 1999.

The Supreme Court Act 1970 (NSW) s 53(4), as it now stands, states that “the proceedings assigned to Common Law Division include proceedings for contempt of the court or of any other court (other than proceedings referred to in subsection (3) or s 48(2)(i)). Subsection (3) of the same section assigns to each Division of the Supreme Court proceedings for the punishment of contempt but only those consisting of contempt in the face of the court in that division, disobedience of a judgment or order of the court in that division and breach of an undertaking given to the court in that division. Section 48(2)(i) assigns to the Court of Appeal proceedings for the contempt in the face of the Court of Appeal.
68. Young v Registrar, Court of Appeal (1993) 32 NSWLR 262.

69. No decision was reached on this issue in Young v Registrar, Court of Appeal because Justices Handley and Powell were both of the view that it was unnecessary to resolve it for purposes of that case.

70. The leading authority for proceeding summarily in all categories of contempt (including sub judice contempt), other than contempt in the face of the court, is the case of R v Almon (1765) Wilmot’s Notes 243; 97 ER 94. The historical background of the summary procedure for contempt is discussed lengthily in NSWLRC DP 43 at para 12.55-12.58.

73. R v Castro (1873) LR 9 QB 219 at 233-234; Attorney General (NSW) v Bailey (1917) 17 SR (NSW) 170 at 181 (Cullen J); John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370-371 (Dixon, Fullagar, Kitto and Taylor JJ); Attorney General (NSW) v Mundey [1972] 2 NSWLR 887 at 912; Balogh v St Albans Crown Court [1975] 1 QB 73 at 91.

74. Ex parte Mijnssen; Re Truth & Sportsman Ltd (1956) 73 WN (NSW) 263 at 264 (Street J) quoting R v Davies (1906) 1 KB 32 at 41 (Wills J).

75. Attorney General v John Fairfax & Sons Ltd (1985) 1 NSWLR 402. This is also the practice in the ACT (see Re Whitlam; Ex parte Garland (1976) 8 ACTR 17) but not in Victoria (see Hinch v Attorney General (Vic) [1987] VR 721).

77. For a discussion on how the publicity surrounding the contempt proceeding may affect the related criminal proceeding, see R v Glennon (1992) 173 CLR 592. For a critique on this case, see A Ardill, “The right to a fair trial” (2000) 25 Alternative Law Journal 3.

79. Criminal Law and Penal Methods Reform Committee of South Australia, Court Procedure and Evidence (Report 3, 1975) at 84.

80. Canada, Law Reform Commission, The Jury in Criminal Trials (Working Paper 27, 1980) at 6.

84. R v Pacini [1956] VLR 544 at 549 (Lowe J); Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616 at 626; Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 702 (McHugh J); R v Pearce (1992) 7 WAR 395 at 423 (Malcolm J).

85. Jones v Skelton [1963] SR (NSW) 644 at 651 (Lord Morris PC); Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 172; Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 88 (Jordan J); Stubs Ltd v Russell [1913] AC 386 at 393 (Lord Kinnear); Lewis v Daily Telegraph Ltd [1964] AC 234 at 281 (Lord Devlin). See also Defamation Act 1974 (NSW) s 7A(3)(b).

86. See Registrar, Court of Appeal v Willesee [1984] 2 NSWLR 378 at 382 (Samuels J).

87. Registrar, Court of Appeal v Willessee at 380 (Glass J), at 381 (Samuels). See also NSWLRC DP 43 at para 12.59-12.63.

88. The Courts Legislation Amendment Act 1996 (NSW) inserted s 101(4) to the Supreme Court Act 1970 (NSW).

89. Supreme Court Act 1970 (NSW) s 101A(1). This reflects the right of the Crown to seek a review of a question of law in an acquittal under s 5A(2) of the Criminal Appeal Act 1912 (NSW). In John Fairfax Publications Pty Ltd v Attorney General (NSW) [2000] NSWCA 198, the NSW Supreme Court declared invalid the provisions of s 101A that requires proceedings under it to be held in camera and that which prohibits the publication of any report of any submission made in those proceedings.

91. See Registrar, Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314 (Kirby J); Young v Registrar, Court of Appeal (1993) 32 NSWLR 262 at 277 (Kirby J); Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318 at para 20 (Barr J).