• Should a power to order costs be enacted?
• DP 43
• Submissions to DP 43
• Conclusion
• Overview of the Costs in Criminal Cases Amendment Bill 1997
• Criticisms of the Bill
• DP 43
• Submissions to DP 43
• Conclusion

14.1 This chapter examines the issue of compensation for loss suffered as a result of a contemptuous publication. Specifically, this chapter considers whether the media, or any one else, should be made liable for the costs of a trial that is aborted because of a contemptuous publication, and, if so, how a power to order costs should be formulated. As part of this discussion, the provisions of the Costs in Criminal Cases Amendment Bill 1997 (NSW)¹ (“the Bill”) are analysed.

SHOULD A POWER TO ORDER COSTS BE ENACTED?

Existing powers to order compensation

14.2 In Discussion Paper 43 (“DP 43”),² the Commission examined whether there were existing powers in New South Wales to order payment of compensation for the costs of legal proceedings that are discontinued because of a contemptuous publication.³ The Commission concluded that that was doubtful. This conclusion was reached after considering three possible sources for such power:

1. A common law action for damages arising out of an aborted trial.⁴ There does not appear to have been any recent attempt to bring an action in this situation⁵ and whether such an action would be successful has not been resolved;

2. A power derived from s 21B of the Crimes Act 1914 (Cth).⁶ It was suggested in one case that s 21B may possibly be relied on to order payment of reparation in respect of a contempt relating to a Federal court. However, this case decided that it did not provide a State court with the power to make such an order, even if the State court were exercising Federal jurisdiction.⁷

3. A power derived from s 77B of the Victims Support and Rehabilitation Act 1996 (NSW).⁸ As far as the Commission is aware, however, this legislative provision has never been relied on to ground a claim for compensation for the costs of an aborted trial following a conviction for sub judice contempt.

Is a power to order costs desirable?

14.4 In DP 43, the arguments in favour of a power to order compensation and the arguments against such a power were considered.⁹ These are summarised below.

Arguments in favour of a power to order compensation
14.5 In brief, the arguments in favour of a power to order compensation are as follows:¹⁰

• The expense incurred by aborting a trial is usually substantial.¹¹ Neither the community nor the parties in a trial should have to bear losses occasioned by the unlawful conduct of the contemnor.
• A power to order costs may act as a deterrent to irresponsible media reporting.
• The law should implement all measures to deter conduct that may result in a trial being aborted. Aside from the significant wasted expenses and the costs of a new trial, if a trial is aborted there is the risk that witnesses may not be able to be found at a later date, including an accused’s exculpatory witnesses. There is also the possibility that clear recollections of events will deteriorate. Overall, the public interest in the due administration of justice is frustrated.
• There is ample precedent for ordering offenders to make reparation to those who have suffered loss as a result of their criminal conduct and, in fact, a trend towards doing so.¹²
• Reparation is a legitimate element of sentencing.¹³
• It has been suggested that it is becoming an increasingly common problem that trials are aborted because of media publicity, therefore warranting the introduction of a means to recover the considerable wasted expense.¹⁴

• Ordering media organisations to pay for the cost of an aborted trial, in addition to paying what could well be a large fine (the usual sentence imposed for contempt), would be to punish the offender twice for the same offence.¹⁶ The financial burden placed on the organisation as a result could be enormous.
• A further consequence of punishing the media twice for a contempt was that the State would recover twice over the amount of money lost from an aborted trial, thereby profiting unfairly.¹⁷ The money levied from a fine imposed for the contempt conviction should be able to be applied to compensate individuals who have been financially disadvantaged as a result of media publicity.
• The incidence of trials that are aborted because of media publicity is very low and that it is therefore not warranted to introduce a scheme to recover costs, and certainly not one as draconian as that provided for in the Bill.¹⁸
• The existing unlimited powers to punish for contempt by way of a fine and/or imprisonment are sufficient to deter the media from publishing material that might be contemptuous.¹⁹
• It is unfair to impose an order to pay compensation for an offence that requires no element of blameworthiness on the part of the offender.²⁰
• A decision to abort a trial is a matter for the discretion of the individual trial judge, which may be exercised too readily, or give rise to inconsistencies between cases.²¹ There is generally no avenue for questioning the appropriateness of the decision to abort (as opposed to the decision not to abort) a trial. Furthermore, if the courts were given the power to order payment from the media for the costs of an aborted trial, trial judges would be more willing to abort trials in the knowledge that it could be the media, and not the State, that would be required to pay for the expense.
• The fear of being ordered to pay substantial costs would discourage the media from reporting at all on criminal proceedings. In this way, a power to order compensation for the cost of an aborted trial would represent a significant restriction on freedom of discussion.²²
• A costs power could have particularly harsh consequences on small, regional media groups, and may have the potential of putting such groups out of business. This would have the undesirable effect of limiting the diversity of media publications and, consequently, narrowing access by the public to information about the courts and court proceedings.
• If a power to order compensation were introduced in New South Wales, it would serve only to place New South Wales at odds with the approach taken in other Australian jurisdictions and, indeed, in the rest of the common law world, while doing nothing to clarify the anomalies surrounding the law of sub judice contempt.

14.7 In DP 43, the Commission was inclined to support, in principle, enactment of a power to order costs where a trial is discontinued because of a contemptuous publication or broadcast.²³ However, the Commission acknowledged the arguments raised against such a power and invited further submissions on the issue.

SUBMISSIONS TO DP 43

14.8 The Australian Broadcasting Corporation opposed,²⁴ and a collective of Australian broadcasters²⁵ “strongly” opposed,²⁶ the introduction of a power to order costs. The Australian Broadcasters submitted that “there is no evidence to suggest an endemic problem requiring this excessive response.” They expressed concern that liability to pay substantial costs may result from an incorrect decision to abort a trial. The Australian Broadcasters also argued that the imposition of a costs order without regard to the contemnor’s capacity to pay would threaten the viability of smaller broadcasters and discourage their provision of reporting services. This would particularly affect people in rural areas who are more likely to access the broadcasts and publications of small, local, media organisations. Further, the Australian Broadcasters argued that to impose both a fine or other penalty in the contempt proceedings, and a costs order, amounted to excessive punishment and would discourage court reporting and adversely affect both freedom of speech and open justice.

14.9 The Australian Press Council submitted that if the proposed power:

is enacted in conjunction with the other proposals in the DP, the consequences will be far too draconian and illiberal. The risk and threat of excessive costs as much as anything else will result in inappropriate media self-censorship. … the issue of a trial abortion, or a judge’s decision to continue the trial, should properly be a matter for a judge to consider when assessing any penalty for a conviction on a contempt charge.²⁷

addresses a problem that does not merit such a draconian response and does so in a way that will, inevitably, have negative consequences on the public’s right to information that would enable it to participate in important community debates.²⁸

14.12 The Victorian Bar Council expressed reservations about a power to order costs. The Bar Council submitted that:

[t]rials may be aborted for very serious contempts and also for much more minor and technical contempts. In either case, the fact of aborting a trial is a very significant additional punishment. The imposition of very considerable liability for costs is probably not desirable in most cases. The Bar Council has significant concerns that such a proposal could have a potential for abuse which, in turn, would have the potential to bring the law itself into disrepute. Finally, and possibly most importantly, in light of the freedom of speech considerations involved and the risk of unnecessary restrictions on speech, such a proposal should be examined and considered very carefully before it is introduced.³²

14.14 Similarly, Fairfax Limited opposed the power on the basis that the consequence would be to increase the number of applications by defence counsel to trial judges to abort trials.³⁴ Channel 10 submitted that the common law should be allowed to develop in response to losses occasioned as a result of an aborted trial, without legislative intervention.³⁵

14.15 Prime TV drew attention to the fact that contempt convictions have often resulted from unintentional infringements.³⁶ Therefore, if the courts had the power to order the media to bear the costs of an aborted trial, local broadcasters and small newspapers would not run the risk of reporting on a trial. It submitted that this would leave society worse off and would deleteriously affect open justice and the integrity of justice system. However, it would not oppose enactment of a power to order costs if a prerequisite was that the contempt had been intentional, provided that elements of “reasonableness” and “recklessness” were not introduced into the formulation.

14.16 TCN Channel 9 said that it would factor in the risk of a costs order when deciding whether to broadcast a report and, as a result, there would probably be more occasions when a report was not broadcast. It was argued that if this is the likely response of a large broadcasting organisation, then the smaller media groups, with less resources than TCN Channel 9, would be likely to withhold reports of trials even more often. This, it was submitted, raised concerns for freedom of speech.³⁷

14.17 The New South Wales Legal Aid Commission submitted that the media, not the State or a self-funded accused, should bear the costs of a trial aborted because of a contemptuous publication.³⁸ It pointed out that about 80% of District Court trials, and an even higher percentage of Supreme Court murder trials are funded by Legal Aid. It submitted that the costs to Legal Aid of an aborted trial can be enormous and yet Legal Aid struggles to meet commitments within its budget. It further submitted that, by contrast, many media organizations are well resourced.

CONCLUSION

14.18 The Commission agrees that the incidence of aborted trials due to contemptuous media publications is not high.³⁹ However, the Commission cannot accept that the law should not respond to an identified problem within the legal system, by way of enacting legislation, merely on the basis that the legislative power may rarely need to be invoked. What is important is to ensure that the framing of the response is not “draconian” or excessive.

14.19 As noted above, an objection to a costs order has been made on the basis that it would mean punishing the contemnor twice, to some extent, this objection misconceives the different purposes served by the imposition of a fine and an order for compensation. A fine is imposed as part of the sentencing process whereas compensation is an order that is ancillary to sentencing. The focus of sentencing is on the offender, with its aim being punishment, but including the objective of deterrence. The focus of compensation is on those who have suffered loss as a result of another’s criminal conduct, with its aim being to provide a means of recovery for that loss. A power to order costs is also consistent with the general trend in criminal law to compensate victims of crime. Furthermore, while it is true that money raised from a fine will go to the State, that does not mean that that money will be applied to reimburse those State bodies that have suffered direct financial loss from an aborted trial.

14.20 The objection does, however, highlight that a fine should not be increased solely on the ground that the publication caused a trial to be aborted.

14.21 The Commission is concerned that an order to pay compensation for an aborted trial could be made where there was no intention to commit a contempt or, in some circumstances, where a contempt could not reasonably have been avoided. This is because it is not necessary to prove any element of intent or fault in order to establish liability for contempt. Of particular concern is the situation where interviews or broadcasts are live, such as radio broadcasts.⁴⁰ In this regard, the Commission accepts Prime TV’s assertion that contempt convictions have often resulted from unintentional infringements. The Commission considers that unfairness can arise from this absence of any requirement for fault and has therefore made recommendations to introduce an element of fault into liability for sub judice contempt.⁴¹ If liability were formulated according to the Commission’s recommendations, then the potential for unfairness in respect of a power to order compensation would be significantly diminished.

14.22 The Commission has considered the arguments against a power to order costs that focus on the exercise of a judicial discretion. Although there is good reason to approach the exercise of a discretion that may give rise to a liability for costs with caution, in this case, there are a number of factors that allay concerns. First, while it is true that it is ultimately a matter for the trial judge whether or not to abort a jury trial,⁴² there are established principles that guide the exercise of that discretion. These include the principle that the trial judge should only discharge the jury if she or he considers it necessary to do so in the interests of ensuring a fair trial, and that a jury should not be discharged merely because some prejudicial material has been published, if appropriate directions can cure any possible prejudice.

14.23 The possibility that the costs of an aborted trial will be recovered from a media organisation is not a factor that can properly be taken into account in the exercise of the discretion to discharge. At any rate, the trial judge would be conscious of the fact that he or she is not in a position to speculate as to whether or not the Attorney General is likely to prosecute for sub judice contempt and to apply for an order for compensation.

14.24 Secondly, the Commission is not aware of any evidence to support the perception that judges mistrust the capabilities of juries, nor of any real basis for such a view. It seems to be an overly cynical concern that judges would base a decision to abort a trial principally on pecuniary issues. Trial judges would almost certainly have in mind other serious effects of an aborted trial pertaining to hardship and inconvenience to the defendant and witnesses, the eroding of memories, possible loss of evidence, difficulty finding witnesses at a later stage and frustration of the public interest in speedy justice.

14.25 Thirdly, the discharge of a jury would not automatically trigger a power to order costs. The power to order costs would arise only where, on the present formulation in the Bill, a charge of contempt has been proven, or, if the Commission’s recommendation is accepted, there is a conviction for contempt.

14.26 Fourthly, it will not be enough that the prejudicial effect of media publicity is one of a number of reasons for discharging the jury. It will have to be the sole or main reason (if the Bill as presently drafted is passed) or a substantial cause of the trial being discontinued (if this is thought to be a better test).

14.27 The Commission has given careful consideration to the argument that a power to order costs will inhibit freedom of speech. In the Commission’s view, the Bill, as currently formulated, does represent a potentially significant intrusion on freedom of discussion. However, it does not follow that all schemes for compensation will unacceptably inhibit freedom of speech. A scheme of compensation formulated in different terms could successfully achieve its aim of reparation as well as striking a proper balance between due administration of justice and freedom of discussion. Amendments to the Bill that the Commission believes would achieve these aims are outlined in paragraphs 14.64-14.75 below. In particular, measures that would alleviate restrictions on freedom of speech, and which the Commission proposes, are to require the court to consider the amount of any fine imposed in the sentencing process, to introduce an element of fault into liability for sub judice contempt⁴³ and to reformulate the test for liability from one of “tendency” to prejudice to one of “substantial risk” of prejudice.⁴⁴

14.28 The Commission also notes that, although no other common law jurisdiction has, as yet, enacted a power to order compensation for sub judice contempt in the circumstances provided for in the Bill,⁴⁵ law reform bodies and governments have shown support for the notion of introducing a statutory power, in various forms, to require payment of compensation for wasted expenses resulting from a contemptuous publication.⁴⁶

14.29 On balance, the Commission remains of the view that, in principle, it is proper for a person or organization found guilty of sub judice contempt to bear the wasted costs of a trial that is discontinued because of the contemptuous publication. However, the Commission believes that the way in which a power to order costs is formulated in the Bill has the potential to give rise to injustice and inhibit freedom of speech to an unacceptable degree. Criticisms of the Bill are set out in paragraphs 14.35-14.39 below, following an outline of the key provisions of the Bill.

RECOMMENDATION 34

The Costs in Criminal Cases Act 1967 (NSW) should be amended to enable the Supreme Court to make an order for costs against a publisher of material, in contempt of any court at which a criminal trial is held before a jury, if the publication causes the discontinuance of the trial.

14.30 Under the framework provided by the Bill, there are three conditions that must be met before an order for compensation may be made:

• First, legal proceedings must have been discontinued “solely or mainly” because they were affected by a publication by the media.
• Secondly, the legal proceedings affected must have been criminal proceedings before a jury.
• Thirdly, a charge of contempt must have been proven against the media proprietor or other person in charge of the media business, although it is not necessary that that person actually be convicted of contempt.⁴⁷

14.32 The Bill vests the power to order payment of costs in the Supreme Court (“the Court”). The Court has a discretion whether or not to make an order. The costs that may be recovered under the Bill⁴⁹ consist of the legal costs of the parties to the discontinued proceedings, the costs to the State in the provision of legal services to the accused, the costs to the State in respect of the conduct of proceedings (including the salaries of judicial officers and other court officers and staff, fees paid to legal practitioners and jurors, and expenses paid to witnesses and jurors), and costs of any other class prescribed by regulation.⁵⁰ It is questionable whether the “legal costs” of the parties and the provision of “legal services” to the accused include disbursements, such as payment to expert witnesses and the cost of transcripts.⁵¹

14.33 The Bill provides that an order by the Court to pay costs may be made only on application by the Attorney General. Any such order must be made in favour of the Attorney General, for the benefit of the persons specified in the application. Such persons could be the accused in the discontinued proceedings, the State, and/or any other person, or a person within a class, prescribed by regulation. The Attorney General may provide the Court with a certificate setting out the relevant costs as they apply to each person. However, if it decides to make an order for payment of costs, the court may order payment of an amount that is less than or equal to (but not more than) the amount specified in the certificate. The Attorney General must distribute any costs recovered on an application to the persons and in the amounts specified in the court’s order.

14.34 Under the Bill, proceedings to determine an application for costs against a person or organisation may be made any time after proceedings have commenced for contempt against that person or organisation, but must be made within three years from the conclusion of those contempt proceedings. Proceedings to determine an application for costs are civil. Any order made by the Court on an application is enforceable as a civil debt. Failure to comply with a costs order does not itself constitute contempt of court.

CRITICISMS OF THE BILL

14.35 In DP 43, the Commission examined criticisms of the Bill that had been raised in submissions.⁵² These are summarised in the following paragraphs 14.36-14.39.

14.36 Submissions criticised the Bill on the basis that the contemnor may become liable for certain losses that were not referable to the offence. As it is presently drafted, the Bill allows for the costs that can be ordered to include the cost of remuneration of judicial officers and other staff. It was argued that these costs cannot really be regarded as wasted costs where that trial is aborted, since they are costs which the State is obliged to pay in any event.⁵³

14.37 It was also argued that it was unfair to single out media organisations in the application of the Bill.⁵⁴ In some instances, persons other than media organisations are primarily responsible for a contempt, and the media unintentionally also attracts liability by publishing the contemptuous statements of those others.

14.38 The fact that the Bill allows the costs proceedings to take place separately from, and up to three years after, the contempt proceedings, was criticised on the basis that it may result in excessive penalisation of the contemnor.⁵⁵ Under this framework, the sentencing court may not be in a position to take into account a compensation order as a mitigating factor. On the contrary, the fact that the publication has caused a trial to be aborted may be considered by the sentencing court as an aggravating factor that increases the amount of the fine to be imposed.⁵⁶

14.39 Other criticisms raised in submissions included: that the definition of “publication” in the Bill may not cover cable television transmission or transmission to subscribers to diffusions services, since these services use a transmission path provided by material substances; and that the reference in s 7 to the discontinuance of criminal proceedings was insufficiently clear. It is arguable that “criminal proceedings” remain extant notwithstanding that a jury may be discharged. In some cases, a proposed hearing date must be vacated in advance because of prejudicial publicity, or a trial may be adjourned prior to the jury being empanelled.⁵⁷ The Bill’s provision that a certificate from the Attorney General would be conclusive evidence of the costs of the aborted trial was also criticised.⁵⁸

DP 43

14.40 The Commission considered the argument that the Bill imposes on the contemnor liability for expenses not directly referable to the contempt, namely the salaries of court staff. Although there is a counter-argument that the judicial officer and other court staff could have been employed on hearing another case if it were not for the time wasted by the necessity to abort the trial, that does not get away from the fact that it is an expense the State has to bear anyway. The Commission concluded that the legislation should restrict compensation to expenses directly referable to the trial in question.

14.41 The Commission agreed that it is unfair to make the media the sole target of an order to pay compensation and tentatively concluded that any legislation which establishes a scheme for compensation should apply to any individual or organisation found guilty of sub judice contempt if that contempt necessitates the discontinuance of the trial.

14.42 The Commission was of the view that the sentencing court should be able to take into account as relevant to determining an appropriate fine, the likelihood that an order for compensation would be made and, conversely, the Court in the costs proceedings should be able to take into account the amount of any fine imposed on the offender by the sentencing court. The Commission reached the tentative conclusion that it would therefore be desirable to retain cl 14(2) of the Bill, which envisages that the costs application can form part of the contempt proceedings. However, the Commission did not consider it essential that both should be heard together.

14.43 The Commission noted the concerns over the definition of “publication” and proposed that reference in the Bill to “printed publication” and “radio, television or other electronic broadcast” be omitted and that “publication” for the purposes of the legislation simply be defined to mean a “publication in respect of which a conviction for contempt has been entered”.

14.44 The Commission agreed that deeming the Attorney General’s certificate to be “conclusive” evidence of the costs of an aborted trial gives cause for concern. The Commission believed that the party against whom a costs order is to be made should be able to challenge the accuracy of the contents of the certificate.

14.45 As well as discussing the criticisms of the Bill raised in submissions, DP 43 also analysed certain features of the Bill to determine whether or not the power to order costs could be better formulated.

14.46 The Commission had misgivings that the Bill allows for an order for costs to be made in respect of a person against whom a charge of contempt is simply “found proven”.⁵⁹ An order could therefore be made where there was no conviction for contempt, provided that the charge of contempt was proven. For example, the court could find that a charge of contempt against a person is proven, but, in its discretion, determines not to enter a conviction due to mitigating circumstances. Under the provisions of the Bill, a person in this situation could still be subject to an order to pay the costs of an aborted trial, even though the court finds that he or she should not, in the circumstances, be convicted of contempt. The Commission was of the view that the Bill’s potential for unfairness would be diminished if the power to order compensation arose only when there had been a conviction for contempt.⁶⁰

14.47 The Commission considered whether the power to order costs should arise where proceedings had been discontinued “solely or mainly” because of a contemptuous publication, as the Bill provides,⁶¹ or, alternatively, where the contemptuous publication was the sole reason proceedings were discontinued. The Commission was inclined to adopt a “sole reason” test, provided the Court had a discretion to order an amount for compensation that was just and equitable.⁶² The Commission noted that this would give the Court the flexibility to order the contemnor to pay a reduced amount if there were factors in addition to the contemptuous publication or broadcast which caused the trial to be aborted.⁶³

14.48 The Commission believed that it was desirable that the power to make a costs order should continue to be a discretionary one⁶⁴ but queried whether legislation should include guidelines as to the factors which ought to be taken into account in the exercise of that discretion.⁶⁵ The Commission noted that both the Victims Support and Rehabilitation Act 1996 (NSW)⁶⁶ and the Crimes Act 1914 (Cth)⁶⁷ include provisions setting out factors that the court must take into account in the exercise of its discretion.

14.49 Although the Bill gives the Court the discretion to order an amount less than or equal to the amount specified in the certificate tendered by the Attorney General, it does not give the Court any discretion to order an amount greater than the amount specified in the certificate tendered by the Attorney General nor what the Court might determine to be a reasonable amount.⁶⁸ The Commission proposed that the Court should have a discretion to order an amount that is “just and equitable in all the circumstances”.⁶⁹

14.50 The Bill contemplates a scheme for compensation as an adjunct to a criminal offence, rather than providing for a separate action in tort.⁷⁰ The Commission concluded that this was proper as there would be a number of disadvantages to allowing a civil action for compensation.⁷¹

14.51 The Commission queried whether the Bill should apply not only to “discontinuance” of proceedings but to wasted expenses arising out of delays in the commencement of a trial because of publicity, a change of venue, and an overturning of a conviction, and the ordering of a retrial, because of prejudicial reporting. The Commission was of the tentative view that the legislation should not be widened in this way. In relation to retrials, in particular, the Commission was inclined to the view that there is no longer the necessary causation between the prejudicial reporting and the expenses incurred in appeal proceedings and a retrial, given the intervening “error” of the trial judge in not aborting the trial.

14.52 The Commission’s tentative view was that the Bill was correct to limit its application to criminal jury trials and not to apply to civil proceedings.

14.53 The Bill provides for compensation for economic loss but not for compensation for other types of losses, or even injuries, such as emotional and physical injury where the accused must spend longer time in prison waiting for a retrial. The Commission was of the provisional view that, based on the precedent of the Victims Compensation Act, the accused should be able to apply for compensation for any emotional or physical injury directly arising from the discontinuance of proceedings. However, the Commission did not think it appropriate to allow witnesses to be able to claim compensation for any emotional distress caused by the discontinuance of a trial.

14.54 The Commission took the view that an individual, such as the accused in the substantive trial, should have standing to apply for compensation and that there was no reason why the Attorney General should be able to take over the application, although he or she could receive notice and could seek to be joined as a co-claimant.⁷²

SUBMISSIONS TO DP 43

14.55 The Australian Broadcasting Corporation (“ABC”)⁷³ submitted that if there were to be enacted a power to order costs (which they opposed) it agreed with all the Commission’s proposals for modifications to the Bill except the proposal that the accused should be able to apply for compensation for any emotional or physical injury directly arising from the discontinuance of proceedings. The ABC did not give reasons why it disagreed with this proposal.

14.56 The Australian Broadcasters submitted that if a costs order were to be enacted (which they also opposed), it should only follow on a conviction for contempt and a finding that the contempt was intentional. They also submitted that regard should be had to the contemnor’s ability to pay.⁷⁴

14.57 The Australian Press Council was of the view that the proposed Bill, even as modified, was not appropriate.⁷⁵

14.58 Mr Cowdery, QC, Director of Public Prosecutions (“DPP”)⁷⁶ agreed with Proposal 32, except Proposal 32(4) that an order for compensation be made only where a trial is discontinued “solely” because it has been affected by a contemptuous publication or broadcast. The DPP preferred the wording of the current Bill, which provides that the Court may make an order in respect of proceedings that are discontinued solely or mainly because they have been affected by a contemptuous publication. The DPP questioned:

why should an organisation escape liability where some other minor factor contributed to a discharge in circumstances where the main reason for the discharge was its own conduct? The legislation is designed partly as a deterrent and partly as a punishment. Its effectiveness in both respects would be enhanced by the more robust trigger proposed in the initial Bill.

14.60 Mr Norris also submitted that no legislative definition of “publication” is required, although he did point out that an issue may arise as to whether a statement made by an interviewee to a journalist is a “publication”, if contribution to costs were to be sought in that situation.⁸⁰ In relation to the Commission’s proposal that the party against whom a costs order is to be made should be able to challenge the accuracy of the contents of the Attorney General’s certificate as to costs, Mr Norris submitted that the certificate should at least amount to prima facie evidence, in the absence of contrary evidence produced by the contemnor.⁸¹

14.61 The Law Society of New South Wales (“Law Society”) submitted that the definition of “discontinued” contained in the Bill should remain as presently drafted.⁸² It also submitted that the application of the legislation should be widened to apply to circumstances where the commencement of a trial is delayed because of publicity, a change of venue is granted, or a conviction is subsequently overturned, and a retrial ordered, because of prejudicial reporting.⁸³

14.62 The Commission raised two questions for discussion, namely, whether legislation should contain guidelines for the exercise of the Court’s discretion to make an order for costs and, if so, whether guidelines should include that the Court ought to take into account the contemnor’s ability to pay and whether there were any other factors leading to the decision to discharge the jury. The Commission also asked what other guidelines should be included.

14.63 The Law Society submitted that the legislation should contain guidelines for the exercise of the court’s discretion and offered examples of relevant factors to be taken into account:

• the real loss occasioned
• to what extent it was occasioned to the public purse, a public company, to a private individual etc
• the capacity of the contemnor to pay (but only in appropriate circumstances)
• the capacity of the party who has been put to expense, being able to bear that expense
• the culpability of the contemnor (eg, a deliberate and calculated intention to cause the trial to abort, contract ignorance of the law or ignorance of the fact that there was a trial going on)
• whether there were any other factors leading to the decision to discharge the jury.⁸⁴

14.64 The Commission notes that, except for the Australian Press Council who oppose any scheme for compensation, submissions either expressly supported, or offered no opposition to, the Commission’s proposals that the following modifications be made to the Bill:

• The application of the legislation should not be restricted to media organisations.
• An order for compensation should only be made where there has been a conviction for contempt.
• The Court should have a discretion to order an amount which is “just and equitable in all the circumstances”.
• The “legal costs” of the parties and the provision of “legal services” to the accused should include disbursements directly related to the aborted trial.
• In ordering a sum for compensation, the Court should be able to consider the amount of any fine ordered by the sentencing court to be paid by the contemnor.

14.65 The Commission notes that there was support for its proposal that the party against whom a costs order is to be made should be able to challenge the accuracy of the contents of the Attorney General’s certificate setting out the costs that relate to the discontinued proceedings. The Commission agrees, however, that the certificate should amount to prima facie evidence of the costs, in the absence of contrary evidence produced by the contemnor.

14.66 Although these matters were not raised for discussion in DP 43, the Commission now makes two recommendations in relation to the accused’s costs. First, the Attorney General’s certificate should include the accused’s claim for costs. Secondly, where the Court makes an order awarding an amount that is less than the total amount claimed in the certificate, the accused should receive the full amount of his or her claim, with the balance going to the State.

14.67 In Proposal 32(3), the Commission proposed that reference in the Bill to “printed publication” and “radio, television or other electronic broadcast” be omitted and “publication”, for the purposes of the legislation, be defined to mean a “publication in respect of which a conviction for contempt has been entered”. The Commission notes the view that that no legislative definition of “publication” is required but is inclined to interpret this submission as supporting the Commission’s proposal. The reason for this is that the Bill attempts to restrict “publication” to printed matter or electronic broadcasts whereas the Commission is proposing that there be no such restrictions. If a defendant is found guilty of publishing a contempt, the court in the contempt proceedings has been satisfied that there has been the requisite publication and this, therefore, would be enough to trigger the costs power.

14.68 The Commission has considered the view that legislation retain the more “robust trigger” of the Bill that an order for compensation should be made where a trial is discontinued “solely or mainly” because it has been affected by a contemptuous publication or broadcast. The Commission has also considered the suggestion that the language of cl 7 of the Bill be reformulated, requiring contemptuous publicity to be the “principal or substantial reason” for discontinuance, to take account of relatively minor additional grounds. The Commission sees the merit in this suggestion and believes that the right balance between freedom of speech and due administration of justice is struck if the power to order compensation is triggered where a contemptuous publication has been a substantial cause of the trial being aborted. It need not have been the sole or main cause. However, in determining what is a “just and equitable” amount the contemnor be ordered to pay, the fact that the publication was, or was not, the sole cause of the trial being discontinued would become relevant. The Commission has recommended that the trial judge’s reasons for aborting a trial be admissible in the contempt proceedings.⁸⁵ It will therefore be possible for the court to establish whether the contemptuous publication has, or has not, been the sole reason for the trial having been aborted.

14.69 The Commission has considered the objection to the Commission’s Proposal 32(6) that the costs in respect of which an order may be made should exclude the cost to the State of the remuneration of judicial and other court staff and any other ongoing State expenses not directly referable to the aborted trial. The Commission notes that in no other circumstances where an order for costs can be made, are ongoing State expenses, such as judicial salaries, ordered to be paid. The Commission is of the view that including such expenses in a costs order is too harsh. Accordingly, the Commission is not persuaded by the reasons on which the objection was based and concludes that cl 8 of the Bill should be amended to exclude losses not directly referable to the aborted trial in question.

14.70 The Commission has reconsidered its proposal that the accused should be able to apply for compensation for any emotional or physical injury directly arising from the discontinuance of proceedings. The sole purpose of the Bill is to recover costs thrown away when a trial is aborted. It is not a victims’ compensation mechanism. It is therefore proper that the monies that a contemnor can be ordered to pay are confined to the wasted expenses borne by the State and the accused. However, the Commission suggests that an amendment to the Victims’ Compensation Act be considered to provide for compensation for the physical and emotional harm that an accused suffers when the finalisation of his or her trial is delayed because of a contemptuous publication.

14.71 The Commission recommends that the legislation contain guidelines for the exercise of the discretion to order an amount that is “just and equitable in all the circumstances”. For example, it may be reasonable for the Court to be able to take into account a contemnor’s ability to pay, and the financial hardship that may result from a costs order. This would address the concerns of smaller media organisations whose viability may be threatened by an order against them. As well, in the absence of consideration of financial hardship, it may be thought unrealistic to extend the application of legislation to individuals who have limited ability to pay the costs of an aborted trial. Legislation could also direct the Court to consider, in determining what is just and equitable, the financial hardship that would arise from the imposition of an order for a certain amount.

14.72 The Commission considered whether the category of cases where a costs order could be made should be limited to cases where there is significant fault or culpability. This would mean, for example, that a publisher must have had actual knowledge of proceedings and must have acted negligently or recklessly in publishing contemptuous material without due concern for its likely effect on the trial. It would need to be shown by the prosecution that the contemnor should have known that the likely consequence of publishing the contemptuous material was that the trial would be aborted. The Australian Broadcasters and the Law Society went a step further and submitted that, in order to establish liability for costs, it should be proved that the contempt was intentional. However, the Commission is of the view that this is too high a threshold as intention to commit a contempt would be too hard to prove.

14.73 The Commission has concluded that there should not be a specific requirement that there be a finding of fault before an order for costs can be made. Rather, in the exercise of its “just and equitable” discretion, the Court would take into account the culpability of the contemnor’s conduct on the issue of quantum.

14.74 The Commission notes that there were no submissions on whether there should be a statutory cap on the total amount of money that may be ordered by way of compensation. The Commission has concluded that a statutory cap is unnecessary in light of its recommendation that the court have a “just and equitable” discretion. However, the Court should not have the power to make an order for an amount that is higher than the actual wasted costs.

14.75 As noted in paragraph 14.42 above, in DP 43, the Commission was of the view that, for a number of reasons, it would be advantageous, but not essential, that the costs application and the contempt proceedings be heard at the same time. The Commission considers now that it is sufficient to provide that the Court, in determining the amount of any fine to be paid and the amount of any costs order, must have regard to the total sum that the contemnor will have to pay. While the application for a costs order will not be made until the Court has determined the issue of contempt liability adversely to the person charged, it will generally be appropriate for the Court to adopt the approach of fixing the penalty and reaching its decision regarding the costs order at the same time. All parties to the trial that was aborted would need to be given notice of the initiation of contempt proceedings and the opportunity to file an application for a costs order.

14.76 The Commission notes that it will be necessary for the Supreme Court Rules 1970 (NSW) to be amended to take into account the provisions of the Bill.

RECOMMENDATION 35

The amending legislation should substantially be in the form set out in the Costs in Criminal Cases Amendment Bill 1997 (NSW) but with the following modifications:

The application of the legislation should not be restricted to media organisations.

An order for compensation should only be made where there has been a conviction for contempt.

An order for compensation should only be made where the contemptuous publication was either the sole or a substantial cause of the trial being discontinued.

Reference in the Costs in Criminal Cases Amendment Bill 1997 to “printed publication” and “radio, television or other electronic broadcast” should be omitted. “Publication” for the purposes of the legislation should be defined to mean a “publication in respect of which a conviction for contempt has been entered”.

The legislation should provide that the Court, in determining the amount of any fine to be imposed and the amount of a costs order, should take account of the total sum to be paid by the contemnor.

The Court should have a discretion to order an amount which is “just and equitable in all the circumstances”, providing that the amount ordered does not exceed the actual wasted costs. The legislation should provide that the matters to which the court should have regard in the exercise of this discretion should include:

(a) the financial resources of the contemnor; and

(b) the degree of culpability of the contemnor.

The costs in respect of which an order may be made should exclude the cost to the State of the remuneration of judicial and other court staff and any other ongoing State expenses not directly referable to the aborted trial.

The “legal costs” of the parties and the provision of “legal services” to the accused should include disbursements directly related to the aborted trial.

Where the Attorney General attaches or tenders a certificate setting out the costs that relate to the discontinued proceedings, the party against whom a costs order is to be made should be able to challenge the accuracy of the contents of the certificate. However, the certificate should amount to prima facie evidence of the costs, in the absence of contrary evidence produced by the contemnor.

The Attorney General’s certificate of costs should include the costs claimed by the accused affected by the discontinued trial.

An order for costs which is less than the amount claimed in the Attorney General’s certificate should, nonetheless, include the full amount of the accused’s costs.

1. This Bill lapsed on 3 February 1999 when the Legislative Council was prorogued.

2. NSW Law Reform Commission, Contempt by Publication (Discussion Paper 43, 2000) (“NSWLRC DP 43”).

3. NSWLRC DP 43 at para 14.2-14.6.

4. See United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 340-347 (Samuels J, Clarke and Meagher JJ concurring). See also Astro Exito Navehacion SA v WT Hsu (The “Messiniaki Tolmi”) [1983] 1 Lloyd’s Reports 666 at 671, in which Justice Mustill noted that it is at least arguable that there exists a civil cause of action to recover damages for an act amounting to a contempt of court. See also Chapman v Honig [1963] 2 QB 502 at 519-520 (Pearson J). However, see the interpretation of Justice Mustill’s comments by Justice Samuels in United Telecasters Sydney Ltd v Hardy at 342. Justice Samuels concluded that these comments did no more than support the proposition that an act constituting a contempt may also amount to a tort or a breach of contract, in which case damages may be recoverable not for the loss occasioned by the contempt but by the damage sustained because of the tort or breach of contract. In an earlier English case, Weston v Central Criminal Courts Administrator, Lord Stephenson had commented that a contempt is not punishable by payment of costs: [1976] 3 WLR 103 at 112. That case was not, however, concerned with contempt by publication.

5. In United Telecasters Sydney Ltd v Hardy, the NSW Court of Appeal acknowledged the possibility of a cause of action arising from loss sustained as a result of a trial aborted because of a contemptuous publication. However, the court refused to consider the merits of such a claim in the particular case before it until it was pleaded in a statement of claim. It directed the party seeking relief to proceed by way of statement of claim, since the party had not done so. The action does not appear to have been proceeded with following this judgment of the court.

6. Section 21B provides, among other things, that a person who is convicted of an offence against a law of the Commonwealth may be ordered by the court: “… to make reparation to the Commonwealth or to a public authority under the Commonwealth, by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the Commonwealth or the authority, as the case may be, by reason of the offence; or … to make reparation to any person, by way of money payment or otherwise, in respect of any loss suffered by the person as a direct result of the offence.”

7. See United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 338-339 (Samuels J). It seems clear that a contempt prejudicing Federal proceedings being tried in a State court would not be an “offence against a law of the Commonwealth”, as the relevant contempt principles are State laws: See Re Colina; Ex parte Torney (1999) 200 CLR 386.

8. Section 77B of the Victims Support and Rehabilitation Act 1996 (NSW) states, among other things, that if a person is convicted of an offence, the court may direct that a specified sum be paid out of the property of the offender to an “aggrieved person”. An “aggrieved person” is defined in s 77A to include a person “who has sustained loss through or by reason of” the offence for which the offender is convicted. It is not clear whether “loss” could be interpreted to cover pecuniary loss suffered by reason of a trial that is aborted because of a contemptuous publication. Although the statutory scheme for compensation established by the Victims Support and Rehabilitation Act 1996 (NSW) is for victims of violence, the alternative scheme that the Victims Support and Rehabilitation Act 1996 (NSW) establishes, under which a court may order the person it finds guilty of a crime to pay compensation to any victim of the crime, is not limited to crimes of violence. See the objects of the Victims Support and Rehabilitation Act 1996 (NSW) as articulated in s 3; see Pt 4 (Compensation Awarded by Court), especially Div 2 (Compensation for Loss).

9. NSWLRC DP 43 at para 14.13-14.55

10. These are set out in full in NSWLRC DP 43 at para 14.13-14.19.

11. The daily cost of running a case in court is high. Appendix B of NSWLRC DP 43 sets out estimates of the cost of running a criminal jury trial in the District and Supreme Courts (since these are the types of proceedings most likely to be aborted as a result of media publicity). Based on these estimates, the cost of running a criminal jury trial in the Supreme Court is approximately $6,011 per day, and in the District Court it is approximately $4,526 per day. These figures include the cost of salaries for judicial officers and other court staff (as apportioned for a daily figure), but exclude the cost of legal representation and other services such as the Police and Corrective Services (where the accused is in custody). The Public Defenders’ costs are estimated to be $845 per day. The cost of legal representation for a legally aided accused is estimated at $3,420 per day in the Supreme Court and $2,268 per day in the District Court. The average length of a criminal trial in the District Court (State-wide) in 1998 was 5.3 days and in the Sydney region was 8.4: see NSW District Court, Annual Review 1998 at 4. In the Supreme Court no estimate of the average length of a criminal trial has been made. The costs borne by an accused who is not legally funded could well be higher than these figures.

12. NSWLRC DP 43 at para 14.14. See the provisions in the Victims Support and Rehabilitation Act 1996 (NSW) and the Crimes Act 1914 (Cth) for the payment of compensation by an offender to his or her victim. Reparation may also be made by means of diversionary schemes which operate as alternatives to the traditional sentencing process, such as community-based victim/offender mediation, or as a condition to a police caution.

13. See Australian Law Reform Commission, Sentencing (Report 44, 1988) at para 142; Victoria, Law Reform Committee, Restitution for Victims of Crime: Final Report (PP 96, 1994) at xviii; NSW Law Reform Commission, Sentencing (Discussion Paper 33, 1996) at para 10.27-10.30, (Report 79, 1996) at para 13.2. See also Davies v Taylor (1996) 140 ALR 245.

14. See United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 347 (Samuels J); NSW, Parliamentary Debates (Hansard) Legislative Assembly, 14 May 1997 at 8572. However, that suggestion has been strongly disputed by others, particularly by the media.

15. These are referred to in detail in NSWLRC DP 43 at para 14.21-14.55.

16. FACTS, Submission 1 at para 3.2; John Fairfax Publications Pty Limited and News Limited, Joint Submission to Attorney General at para 1.2; SBS, Submission at 2. See also M Chesterman, “Costly Terminations” [1997] 45 Gazette of Law and Journalism 5 at 6.

17. FACTS, Submission 1 at para 3.2; SBS, Submission at 2. The money from a fine would pass into Consolidated Revenue for the State, and most of the money obtained from an order to pay compensation for an aborted trial would also pass to the State.

18. ABC, Submission to the Attorney General (20 September 1997) at 1; FACTS, Submission 1 at para 4.2; John Fairfax Publications Pty Limited and News Limited, Joint Submission to Attorney General at para 1; SBS, Submission at 1.

19. SBS, Submission at 2.

20. ABC, Submission to the Attorney General (20 September 1997) at 1; David Syme & Company Limited, Submission at para 9; FACTS, Submission 1 at para 4.2; John Fairfax Publications Pty Limited and News Limited, Joint Submission to Attorney General at para 5; SBS, Submission at 2; S Walker, Submission at para 2.

21. ABC, Submission to the Attorney General (20 September 1997) at 1; John Fairfax Publications Pty Limited and News Corporation, Joint Submission to Attorney General at para 2.6; SBS, Submission at 2.

22. ABC, Submission to the Attorney General (20 September 1997) at 1; David Syme & Company Limited, Submission at para 9; FACTS, Submission 1 at para 4.2; John Fairfax Publications Pty Limited and News Limited, Joint Submission to Attorney General at para 5; SBS, Submission at 2; S Walker, Submission at para 2.

23. NSWLRC DP 43 Proposal 31.

24. ABC, Submission at 4.

25. Collective submission from the Federation of Australian Commercial Television Stations, Federation of Australian Commercial Radio Broadcasters, Australian Broadcasting Corporation (Legal Services Department) and the Special Broadcasting Service.

26. Australian Broadcasters, Joint Submission at 8-9.

27. Australian Press Council, Submission at para 28.

28. Australian Press Council, Submission at para 28, quoting from a submission to members of the NSW Legislative Council in September 1997.

29. N Cowdery QC, Submission.

30. Law Society of NSW, Submission at para 57.

31. D Norris, Submission.

32. Victorian Bar Council, Submission at para 38-40.

33. News Limited, Consultation.

34. Fairfax Limited, Consultation.

35. Channel 10, Consultation.

36. Prime TV, Consultation.

37. TCN Channel 9, Consultation.

38. NSW Legal Aid Commission, Consultation.

39. Professor Chesterman has examined the criminal cases in Australia between 1980 and 1997 in which the jury has been discharged because of prejudicial publications and/or the publishers have been found guilty of contempt. He identified 21 such cases, of which 11 were “convergence cases”, that is, both the jury was discharged and there was a conviction for contempt: M Chesterman, “Media prejudice during a criminal jury trial: stop the trial, fine the media, or why not both?” (1999) 1 University of Technology Sydney Law Review 71 at 72-73. The Director of Public Prosecutions has advised the Commission that in the two-year period between November 1996 and November 1998, three trials prosecuted by the DPP were aborted. The Supreme Court has a record of two further trials that were aborted because of prejudicial publications. In the following recent contempt proceedings, the related criminal trials were aborted as a result of prejudicial publications: Attorney General (NSW) v John Fairfax & Sons Ltd (NSWCA, No 371/87, 21 April 1988, unreported); Director of Public Prosecutions (Cth) v United Telecasters Sydney (1992) 7 BR 364; Attorney General (NSW) v Northern Star Ltd (NSWCA, No 40259/94, 14 October 1994, unreported); Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSWCA, No 40236/96, 11 March 1998, unreported).

40. Radio news services are often syndicated throughout NSW and other states, so that a regional broadcaster has no control over the content of a national news program prepared by a program supplier which is broadcast live. A broadcaster in this situation could face an order to pay a large financial sum by way of compensation if it broadcast contemptuous material causing a trial to be aborted, even if it was not in a position to prevent the broadcast.

41. See Recommendation 5 and the discussion accompanying this recommendation in ch 5.

42. The courts have emphasised that the decision to discharge a jury because of media publicity is one for the trial judge to make, taking into account the atmosphere of the trial and the nature and extent of the publicity. See R v George (1987) 9 NSWLR 527 at 532-534 (Street CJ, Yeldham and Finlay JJ concurring); R v Smith [1982] 2 NSWLR 608.

43. See ch 5.

44. See ch 4.

45. Although, in a number of cases in Canada, it has been noted that a person or organisation convicted of sub judice contempt can be made to pay part of the costs thrown away because of the contempt, whether they be costs arising from an aborted trial, or, for example, the costs involved in adjourning proceedings to reduce the potential prejudice from a contemptuous publication. However, it is clear that repayment for those costs is made by way of the imposition of a fine, as a sanction, rather than through an order for compensation: see R v Chek TV Ltd (1987) 30 BCLR (2d) 36; R v Societe de Publication Merlin Ltee (1978) 43 CCC (2d) 557 at 564 (Mayrand J).

46. See NSWLRC DP 43 at para 14.52-4.54.

47. See Costs in Criminal Cases Amendment Bill 1997 (NSW) cl 14(4).

48. Under s 21 of the Interpretation Act 1987 (NSW), reference in an Act to a “person” includes reference to a corporation (unless otherwise stated).

49. Costs in Criminal Cases Amendment Bill 1997 (NSW) cl 8.

50. No regulation was drafted, or at least no draft regulation was made publicly available for discussion, prior to the Bill lapsing.

51. One submission pointed out that it is unclear whether cl 8(c) would extend to the salaries and other expenses of police witnesses, and that, it being appropriate that these costs should be included, the legislation should be clear on their inclusion: D Norris, Submission at 5.

52. See NSWLRC DP 43 at para 14.59-14.69.

53. FACTS, Submission 1 at para 3.1.

54. ABC, Submission to the Attorney General (20 September 1997) at 1; David Syme & Company Limited, Submission at para 6; FACTS, Submission 1 at para 4.1; John Fairfax Publications Pty Limited and News Limited, Joint Submission to Attorney General at para 1.3; SBS, Submission at 1; S Walker, Submission at para 1. Under the Bill, an order for costs may only be made against the proprietor or person in charge of a business or other undertaking responsible for the contemptuous publication or broadcast: Costs in Criminal Cases Amendment Bill 1997 (NSW) cl 7(2). The scheme therefore does not apply to individuals, including individual journalists or editors.

55. See Costs in Criminal Cases Amendment Bill 1997 (NSW) cl 9(2). However, the Bill also envisages that the costs application can form part of the contempt proceedings: cl 14(2). It was submitted that it would be preferable for an application for costs to be brought and dealt with at the same time as the penalty phase of the contempt proceedings: D Norris, Submission at 6.

56. See Attorney General (NSW) v John Fairfax & Sons Ltd (NSWCA, No 371/87, 21 April 1988, unreported); R v Thompson [1989] WAR 219 at 225 (Wallace J); Director of Public Prosecutions (Cth) v United Telecasters Sydney (1992) 7 BR 364; Attorney General (NSW) v Northern Star Ltd (NSWCA, No 40259/94, 14 October 1994, unreported). Contrast Hinch v Attorney General (Vic) [1987] VR 721 at 731 (Young CJ), at 748 (Kaye J).

57. D Norris, Submission at 4.

58. SBS, Submission at 2; See Costs in Criminal Cases Amendment Bill 1997 (NSW) cl 10(3).

59. Costs in Criminal Cases Amendment Bill 1997 (NSW) cl 7(2)(a).

60. The Australian Law Reform Commission supported the notion of providing a means to compensate parties in a criminal jury trial where the jury is discharged because of the publication. However, it emphasised that any power to order compensation in these circumstances should be limited to cases where there has been an actual conviction for contempt, and the publication in question was the cause of discharge of the relevant jury: Australian Law Reform Commission, Contempt (Report 35, 1987) at para 485.

61. Costs in Criminal Cases Amendment Bill 1997 (NSW) cl 7(1).

62. See para 14.71.

63. See NSWLRC DP 43 at para 14.76.

64. Costs in Criminal Cases Amendment Bill 1997 (NSW) cl 7(1): “The Supreme Court may make an order under this Part …”

65. See NSWLRC DP 43 at para 14.80.

66. Victims Support and Rehabilitation Act 1996 (NSW) s 73.

67. Crimes Act 1914 (Cth) s 16A.

68. Costs in Criminal Cases Amendment Bill 1997 (NSW) cl 11(3).

69. The Australian Law Reform Commission considered that a court making an order for compensation should be able to order an amount that is just and equitable, without necessarily constituting the full amount of costs incurred by the discharge of the jury: Australian Law Reform Commission, Contempt (Report 35, 1987) at para 485.

70. Costs in Criminal Cases Amendment Bill 1997 (NSW) cl 14(2): “proceedings for the hearing and determination of the application [for costs] are in the nature of civil proceedings, whether they form part of the proceedings at which a person is tried for contempt or not”.

71. See NSWLRC DP 43 at para 14.71-14.73.

72. One submission considered that, as contempt proceedings are brought in the name of the State of NSW, it may be appropriate for the State to be the moving party in an application for costs: D Norris, Submission at 5.

73. ABC, Submission at 4.

74. Australian Broadcasters, Joint Submission at 9.

75. Australian Press Council, Submission at para 28.

76. N Cowdery QC, Submission.

77. D Norris, Submission at para 118.

78. Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333.

79. D Norris, Submission at para 119.

80. D Norris, Submission at para 120. See Director of Public Prosecutions (Cth) v Wran (1986) 7 NSWLR 616.

81. D Norris, Submission at para 121.

82. Law Society of NSW, Submission at para 58(a).

83. Law Society of NSW, Submission at para 58(b).

84. Law Society of NSW, Submission at para 58(c).

85. See para 4.46-4.54 and Recommendation 3.