This paper is a summary of the New South Wales Law Reform Commission’s Report 100, which is the culmination of a review of the law of contempt by publication.
Table of Contents
Terms of reference
On 14 July 1998, the Attorney General, the Honourable Jeff Shaw QC MLC, asked the Law Reform Commission to inquire into, and report on, whether the law and procedures relating to contempt by publication are adequate and appropriate including whether, and in what circumstances, a person against whom a charge of contempt is found proven should be liable to pay, in addition to any criminal penalty, the costs (of the government and of the parties) of a criminal trial aborted as a result of the contempt.
Participants
Pursuant to s 12A of the Law Reform Commission Act 1967 (NSW) the Chairperson of the Commission constituted a Division for the purpose of conducting the reference. The members of the Division are:
The Hon Justice Michael Adams
Professor Janet Chan
Professor Michael Chesterman (Commissioner-in-Charge)
The Hon Justice Greg James
The Hon Justice Ruth McColl
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Ms Rebecca Kang
Mr Ani Luzung
Ms Catherine Gray
Ms Judy Maynard
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Summary of Report 100
CONTEMPT BY PUBLICATION
THE SCOPE OF THE REPORT
[1] The law restricts the publication of certain information relating to court proceedings. These restrictions are known as the law of “sub judice contempt”. They aim to make sure that those involved in court proceedings, particularly jurors and witnesses, are not influenced by information other than that which is admitted in court as evidence. As such, material cannot be published that has a tendency, or a risk, of interfering with legal proceedings. A person who publishes such material is guilty of a criminal offence.
[2] At the same time as seeking to protect the proper administration of justice by ensuring that those involved in court hearings are not prejudiced by extrinsic material, the law on sub judice contempt recognises the public interests in freedom of discussion and access to information. The law must find a balance between these fundamental public interests and restrict the public dissemination of information only to the extent that is necessary to protect the proper administration of justice. This is the basic principle that underlies the approach of the New South Wales Law Reform Commission in its review.
[3] In Report 100, the Commission examines the law on sub judice contempt, and makes recommendations for its reform. It also looks at two related areas: the law regulating access to court documents, and the law on suppression orders. In formulating recommendations for change, the Commission has consulted widely with the public, in particular with representatives of the media and the legal profession. A list of those people consulted appears as Appendix B to the Commission’s report.
[4] The report is divided into four parts. Part One deals with the principles governing liability for sub judice contempt and contains Chapters 2-9.
[5] Chapter 2 addresses the fundamental question of whether the sub judice principle should be abolished or retained. It evaluates the competing public interests in freedom of speech and a fair trial. It also evaluates the soundness of certain assumptions on which the sub judice rule is predicated.
[6] Chapter 3 discusses the meaning of “publication” and “responsibility” as prerequisites for liability for sub judice contempt. In particular, it considers whether these terms should be legislatively defined. The chapter makes recommendations for a legislative formulation of the notion of “responsibility” for publication.
[7] Chapter 4 examines the test for liability for sub judice contempt, with particular reference to the impact of publicity on criminal trials. The principal instances of prejudice discussed are influence on jurors and on witnesses (both actual and prospective). It also considers whether categories of prejudicial publications should be prescribed. It examines the relevance to liability for contempt of a trial being aborted, of pre-existing publicity and of the availability of remedial measures. An ancillary matter which the chapter looks at is the admissibility and utility of expert evidence to prove the risk of a publication prejudicing legal proceedings.
[8] Chapter 5 discusses the relevance of fault to liability for sub judice contempt. The chapter recommends defences to a charge of contempt that take into account questions of fault and responsibility.
[9] Chapter 6 examines the application of the sub judice rule to publications concerning civil proceedings. As well as discussing the effect of publicity on witnesses, judicial officers and juries in civil proceedings, the chapter discusses improper pressure on parties and the prejudgment principle.
[10] Chapter 7 discusses the time limits for liability for sub judice contempt, including whether it should continue to operate during the appeal period and, in the case of criminal convictions, during the sentencing stage. The chapter also considers whether different time rules should apply to intentional contempts.
[11] Chapters 8 and 9 explore two grounds of exoneration that may excuse a person from liability for sub judice contempt. Chapter 8 considers whether a prejudicial publication may not be in breach of the sub judice rule if it relates to a matter of public interest, or promotes the public interest in some other way (though these factors alone are not sufficient to warrant exemption from liability). The chapter considers whether any reform to this ground of exoneration is necessary or desirable. In addition, it looks at whether it is desirable to introduce a separate defence of “public safety” to apply to publications in the public interest that are designed specifically to protect public safety.
[12] Chapter 9 considers the second ground of exoneration, namely that a charge of contempt may be defended on the basis that the prejudicial publication is a fair and accurate report of proceedings held in open court, or, possibly, a fair and accurate report of parliamentary proceedings. It considers related outstanding issues that may require reform.
[13] Part Two, containing Chapters 10 and 11, is concerned with issues relating to reporting legal proceedings and the open justice principle.
[14] Chapter 10 deals with suppression orders and, in particular, the need for a clear and comprehensive regime which addresses the uncertainties surrounding various aspects of the court’s powers in this area.
[15] Chapter 11 explores the issues of public access to, and reporting on, court documents. It first considers whether there should be a public right of access to court documents and, if so, to what documents such a right should apply and what should be the parameters of the right. Secondly, it considers whether, and in what circumstances, a right of access to court documents should extend to publishing the contents of the documents.
[16] Part Three, containing Chapters 12, 13 and 14, deals with the procedure for prosecuting sub judice contempt, and the sanctions and remedies available, including a power to order compensation.
[17] Chapter 12 considers procedural and jurisdictional issues in sub judice contempt prosecutions and hearings. In particular, the chapter appraises who should initiate proceedings, whether the present summary procedure should be retained, and what is the appropriate court in which a contempt should be prosecuted or a conviction for contempt appealed.
[18] The first section of Chapter 13 is concerned with penalties for contempt, focusing on the principal sanctions of fines and imprisonment. It examines whether legislation should prescribe a maximum penalty in relation to fines and, if so, what that maximum should be and whether a distinction should be made between individual and corporate offenders. It considers whether imprisonment should continue to be an available sanction and, if so, whether there should be a statutory maximum term. The chapter also examines other sentencing options, specifically considering corporate offenders. It also considers the creation of a registry of court outcomes of criminal contempt proceedings for sentencing purposes. The second section of the chapter examines available remedies for contempt, in particular, injunctions and damages.
[19] Chapter 14 explores 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) are analysed.
[20] Part 4 contains Chapter 15, which examines the relationship between the media and the courts. Representatives of the media suggested to the Commission that there are ways in which communication and co-operation between the media and the courts in New South Wales could be improved. They cited several practical matters that, in their view, have a significant impact on their ability to report on the courts and avoid liability for sub judice contempt. In this chapter, the Commission makes recommendations for improving the media/courts relationship as a way of minimising the risk of prejudice to court proceedings.
[21] Two draft bills are attached to the Commission’s report. They reflect the recommendations of the Commission for legislative change. The law on sub judice contempt is currently governed by the common law. The Law Reform Commission does not recommend that legislation should replace the common law completely. Instead, it recommends legislative changes that are intended to clarify uncertainties in the common law and, in some areas, to modify the common law in a way that strikes a more appropriate balance between the public interests in freedom of discussion and the proper administration of justice. Consequently, the draft bills do not represent an attempt to codify the law on sub judice contempt. They build on, rather than replace, the common law foundations.
WHO IS LIABLE FOR SUB JUDICE CONTEMPT?
[22] A person is liable for sub judice contempt if that person is found to be “responsible” for a publication. A person and/or organisation is generally responsible for a publication if they are in a position to exercise control over its contents, production, distribution, or broadcast.
[23] Most often, it is the proprietor of a media organisation, and the editor or program producer, who are prosecuted for contempt. However, the common law is capable of making a wider class of people liable for contempt, including for example:
- journalists;
- radio announcers and talk-back hosts;
- distributors;
- printers;
- production companies; and
- private individuals.
[24] In Discussion Paper 43, the Commission suggested a legislative formulation of “responsibility” to replace the common law notion. We noted a preference for retaining the common law, but invited comments on the suggested formulation as an alternative. The formulation sought to place legal responsibility for publication on those high up in any organisation from which the publication emerged, and to exclude from the notion of responsibility those at the lower end, such as reporters, journalists, and distributors. We have ultimately rejected this proposed formulation, and conclude that the common law notion of responsibility should be retained. There was merit in the proposal seeking to exclude from liability those lower down in the publishing hierarchy. However, any statutory formulation of a notion such as “responsibility” is inherently ambiguous and inflexible, and is likely to give rise to uncertainty in its interpretation. These disadvantages outweigh the benefits of such a proposal.
WHAT MATERIAL MUST NOT BE PUBLISHED?
[25] Material must not be published that has a real and definite tendency to prejudice or embarrass particular legal proceedings. This prohibition potentially covers a wide range of material. For example, a statement in a media report that suggests that an accused person is guilty or innocent may be prohibited. Similarly, the publication in a newspaper or television broadcast of a photograph of an accused may be prohibited if his or her identity is an issue at trial. The law does not set down blanket prohibitions on specific categories of material that cannot be published, but instead determines in each individual case whether a publication has a tendency to prejudice proceedings.
[26] Some judges, law reform agencies and legal commentators have criticised the “tendency” test as being vague and uncertain. Some argue that the test is too broad because it sets too low a threshold for the prosecution to prove contempt, “by requiring no more than a “tendency” to prejudice. Publications may be prohibited which have a tendency to prejudice but which do not pose any serious risk to the administration of justice. The test may then be considered to tilt the balance further than is necessary to protect the fairness of legal proceedings at the expense of protecting freedom of discussion.
[27] We recommend replacing the “tendency” test with a test based on “substantial risk of prejudice”. We consider that the “substantial risk” test is more precise, and therefore allows the media to determine with a greater degree of certainty which publications would expose them to prosecution. Moreover, the “substantial risk” test requires there to be a higher degree of risk of prejudice before the publication of material will be restricted. We intend that this test would not be confined to criminal proceedings, but would apply also to civil and coronial proceedings. The Commission’s recommended test is as follows:
The publication of matter should constitute a contempt if it creates a substantial risk, according to the circumstances at the time of publishing the matter, that:
[28] The recommendation provides for an assessment of the risk of contact with the published material and the risk of recall of that material as separate elements of liability that the prosecution must prove. Proof of actual contact and recall would not be required - only proof of a “substantial risk” of contact and recall. In this way, we hope to direct the courts’ attention to giving express consideration to these factors in determining liability. While these elements may now be generally subsumed in the basic formulation for liability, there is the danger that the courts may blur these two notions if they are not explicitly spelled out as separate elements of liability.
[29] The recommendation imposes liability when there is a substantial risk that participants “will” become aware of the material, “will” recall the contents of the material and, as a result, that the fairness of the proceedings “will” be prejudiced. The use of the word “will” creates a higher threshold of liability for the prosecution to prove than is currently required.
[30] The recommended test refers to jurors and witnesses, but not judicial officers. We consider that judges, because of their training and experience, should not be considered susceptible to influence for the purpose of determining liability for sub judice contempt.
[31] The recommendation refers to the substantial risk that participants in the proceedings will “become aware of” the contents of published material. This encompasses both a direct and indirect encounter with the contemptuous material. Jurors or witnesses may become aware of the material by reading, watching or listening to it themselves, or may be told about it by, for example, a friend, family member, or another juror.
SHOULD THE FACT THAT A TRIAL HAS BEEN ABORTED BE ADMISSIBLE EVIDENCE IN THE CONTEMPT HEARING?
[32] A trial judge may dismiss a jury, resulting in the trial being aborted, if he or she considers that a publication concerning the trial is so prejudicial as to make the trial unfair. In that case, should that decision to dismiss be admissible in the contempt proceedings as relevant to the issue of liability for sub judice contempt? Conversely, should a judge’s decision not to dismiss the jury be relevant? It is currently unclear whether the trial judge’s decision is admissible evidence in the related contempt proceedings on the question of liability for contempt, though it seems settled that it is relevant to the question of penalty, once a contempt has been proven.
[33] Although different issues and considerations face the trial judge from those facing the court hearing the contempt case, and therefore the contempt court can never be bound by the trial judge’s decision, both courts must consider the effect of the relevant publicity on the jury. Consequently, we are of the view that evidence of the trial judge’s decision should be admissible in the contempt proceedings as relevant to the question of liability for contempt. However, it should not be determinative of the question of whether or not a contempt has occurred.
[34] We also recommend that the trial judge’s reasons for his or her decision be admissible. Once evidence is brought in of a decision to dismiss (or not dismiss) the jury, it would be artificial not then to allow evidence of the reasons for that decision. For example, if the trial judge has taken into account considerations additional to the effect of the particular publicity, such as the general atmosphere of the trial itself, then the contempt court should be made aware of these by having access to the reasons for the trial judge’s decision.
IMPROPER PRESSURE ON PARTIES
[35] A publication may also constitute contempt if it tends to impose improper pressure on a party to court proceedings as to the conduct of those proceedings. In particular, a publication may exert undue pressure on a party to discontinue or settle a claim, which he or she has instigated or is defending. The basis for restricting the publication of material in this context is that the individual party, as well as litigants and potential litigants generally, need to be protected from publicity that unfairly inhibits their access to the justice system and unfairly inhibits how they choose to conduct or participate in legal proceedings.
[36] The common law has adopted various approaches to defining what may amount to improper pressure, with the result that it is difficult to distil any clear majority view as to the material that it is permissible to publish. We have concluded that there should be legislative clarification and reform of the common law.
[37] A person should be liable for contempt for publishing material that gives rise to a substantial risk that a party to proceedings will make a different decision in relation to those proceedings, for the reason that it vilifies a person in their character as a party to the proceedings. This test hinges on the “vilification” of the litigant, which we define as inciting hatred towards, serious contempt for, or severe ridicule of the party through unfair comment and/or material misrepresentations of fact. The key element in the test needs to be the effect (or likely effect) the publication has on the audience (namely that it will think significantly less of the litigant in some way), which thereby gives rise to the risk that the litigant will feel pressured.
[38] In practice, this recommendation is chiefly relevant to publicity relating to a civil proceeding. But it also applies when the publicity relates to a criminal trial.
GROUNDS FOR AVOIDING LIABILITY FOR SUB JUDICE CONTEMPT
[39] A person may not be liable for contempt even though he or she published prejudicial material if the publication was in the public interest, or was a fair and accurate report of legal proceedings. The Commission reviewed both grounds of exoneration. We also recommended the creation of two statutory defences to sub judice contempt: a public safety defence, and a defence of innocent publication or distribution.
The fair and accurate reporting principle
[40] A publication will not constitute contempt, even if it may be prejudicial to a case, if it is a fair and accurate report of proceedings that take place in open court. For example, normally a publication referring to an accused’s past criminal conduct would be contemptuous. However, a fair and accurate report of bail proceedings may not breach the sub judice rule, even if it contains reference to the previous convictions of the accused, if that information has been revealed in open court in the course of the bail proceedings.
[41] For the principle to apply, there are certain conditions that must be present. Among the more important requirements are the following:
[42] First, the report must be of legal proceedings, which are held in open court.
[43] Secondly, the report must be fair and accurate. A report may be unfair by virtue of its mode of presentation or its content, the inclusion of extraneous matters or comment, or an absence of a proper balance. Moreover, if the report is inaccurate, the principle will not apply.
[44] Thirdly, the report must not be about material that is the subject of a suppression order, or in breach of laws prohibiting the reporting of the proceedings. There are, for instance, laws restricting the reporting of family court proceedings and proceedings involving children.
[45] Fourthly, the report must not relate to matters that are said in the absence of the jury. For example, a newspaper report will not amount to a fair and accurate report of a criminal trial if it refers to an alleged confession of the accused, where information about the alleged confession was put before the court in the absence of the jury.
[46] Fifthly, the report must be published in good faith. An unfair report or a delay in reporting the proceedings may be evidence of the absence of good faith. Reporting of a committal proceeding many months after it occurred but very close to the trial could indicate a lack of good faith.
[47] The Commission makes no recommendation for legislative change to the fair and accurate reporting principle. The common law should continue to govern and develop this aspect of sub judice contempt.
The public interest principle
[48] A person or organisation may avoid liability for contempt for a publication that relates to a matter of public interest, if the detriment arising from the possible prejudice is outweighed by the public interest served by freedom of discussion of the matter. For example, a publication dealing with the subject of paedophilia, in the context of an ongoing public debate about the problem of paedophilia in the community, may have a tendency to interfere with a particular trial of a person accused of committing sexual offences against children. However, the court may decide that the publication does not amount to contempt, on the grounds that it relates to a matter of public interest, and the element of public interest outweighs the detriment it may cause to the criminal proceedings in question.
[49] We recommend the following legislative reformulation of the public interest principle. A person should not be guilty of sub judice contempt if:
- the material relates to a matter of public interest; and
- the public benefit from the publication of the material, in the circumstances in which it was published, and from the maintenance of freedom to publish such material, outweighs the harm caused to the administration of justice by virtue of the risk of influence on one or more jurors, potential jurors, witnesses, potential witnesses and/or litigants created by the publication.
[50] This recommendation, while containing the main elements of the principles developed at common law, refines the current law. It follows the “balancing approach” - each case requires a balancing exercise between the competing public interests in the administration of justice and the freedom of discussion of public affairs - but it defines more precisely than does the current law what matters need to be “weighed” against each other. It also defines how the public interest might be harmed, namely, by the creation of a risk of influence on those involved in a pending legal proceeding.
Public safety defence
[51] The Commission recommends a new defence to sub judice contempt as follows. If a person is responsible for publishing material alleged to breach the sub judice rule, he or she should not be found guilty if that publication was reasonably necessary or desirable to facilitate the arrest of a person, to protect the safety of a person or of the public, or to facilitate investigations into an alleged criminal offence.
[52] An example of the application of this recommendation is where a person accused of a crime is at large, and it is necessary for the police, in the interest of public safety, to publicise the fact that that person has a history of violence and may be dangerous, and/or to publish his or her photograph.
The defence of innocent publication or distribution
[53] Sub judice contempt imposes criminal liability - a finding of guilty can be punished by the criminal sanctions of fine and imprisonment. It is, however, prosecuted differently from most other criminal charges in one respect. The prosecution in a sub judice contempt case need not prove fault on the part of the accused - that is, it need not show that the accused intended to interfere with the administration of justice, or did not exercise reasonable care in preventing such interference.
[54] We consider it fairer to require that fault be present than to impose absolute liability for sub judice contempt. To achieve this, we recommend that taking reasonable care should be a defence to a charge of sub judice contempt. This would allow defendants to be excused from liability if they could show that they exercised reasonable care to avoid creating a substantial risk of interference with the administration of justice.
[55] Who would be able to use the defence of innocent publication or distribution and what are the conditions that they must meet? We recommend that the defence should be available to two broad categories of persons. The first covers those persons who are in a position to exercise editorial control in relation to the contemptuous publication. This includes, for example, publishers, editors and reporters. The second covers those persons who have no such control, for example, distributors, vendors and broadcasters who broadcast live interviews.
[56] First category: those who have editorial control. A defence of innocent publication should be available where it can be proved, on the balance of probabilities, that a person or organisation, as well as any other person for whose conduct in the matter the person or organisation is responsible:
(a) did not know a fact that caused the publication to breach the sub judice rule; and
(b) before the publication was made, either
(i) took reasonable steps to ascertain any fact that would cause the publication to breach the sub judice rule; or
(ii) relied reasonably on one or more other person to take such steps and to prevent publication of any such fact was ascertained.
[57] For example, a journalist who made reasonable efforts to inquire from the police, the Director of Public Prosecutions or the courts whether legal proceedings had been commenced against the person (for example, if the person had been charged) and consequently believed that there were, as yet, no such pending proceedings, could use the defence of “innocent publication and distribution” if it turned out that there was a pending case and the article he or she wrote created a substantial risk of prejudice to it. An editor could also rely on the defence if he or she can establish that certain precautionary steps were taken. This would involve the editor showing that he or she has instituted, and enforces, an effective system of ensuring that there are no pending court cases that might be prejudiced by the article. The proprietor of the newspaper, if it relied reasonably on the inquiries of the journalist and the efforts of the editor to prevent a breach of the sub judice law, could also claim immunity.
[58] Second category: those with no editorial control. A defence of innocent distribution should be available if it can be proved, on the balance of probabilities:
(a) that the offending matter was published pursuant to an agreement or arrangement whereby the content of matter to be published by the accused was to be determined by a person or persons other than the accused or any employee or agent of the accused; and
(b) that either:
(i) at the time of the publication, having made such inquiries as were reasonable in the circumstances, neither the accused or any servant or agent of the accused knew or had any reason to suspect that the material to be published would comprise or include the offending matter or any like matter; or
(ii) prior to the publication, having become aware, or having reason to suspect, that the material to be published would or might comprise or include the offending matter or any like matter, the accused, or a servant or agent of the accused, took reasonable steps to endeavour to prevent such matter from being published.
[59] The primary aim of paragraph (b)(i) is to give distributors of printed material a defence to a charge of sub judice contempt. A company that distributed a magazine, which contained a contemptuous article, can rely on the defence if it did not know about the article. On the other hand, if the company was aware of a pending court case and that the magazine contained an article that could be prejudicial to the trial, but did nothing to stop its distribution, it could be liable for contempt. However, in Australia, distributors of printed material are not usually prosecuted.
[60] Distributors of broadcast (television/radio) material would be able to rely on the proposed defence under certain circumstances, for example, a broadcasting station that is doing no more than relaying a program prepared by another station and did not have control over the contents of the program. However, a subordinate station would be unable to rely on the defence if, under its contract with the principal station, it had the opportunity to check for, and censor, material that was prejudicial.
[61] The defence in paragraph (b)(ii) could be invoked in a variety of situations, such as in the case of live radio or television broadcast of contemptuous statements by interviewees or contributors. In circumstances where remarks which were not anticipated by the broadcaster are made during a live interview, the broadcaster should be exonerated from a charge of sub judice contempt if it can show that when it became aware of the contemptuous statement, it took reasonable steps within its means (for example, through the use of the “panic button” in radio broadcasts) to prevent the publication of the statement. The defence would not be available if the interviewer anticipated or extracted the contemptuous statement from the interviewee.
TIME LIMITS FOR THE APPLICATION OF THE SUB JUDICE PRINCIPLE
[62] The law restricts the publication of information relating to proceedings that are current or pending. Material will not attract liability for contempt if it relates to proceedings that are not current or pending, for example if it refers to a person who is under police investigation but has not yet been charged with a crime.
[63] The starting and ending times for the application of the sub judice restrictions are not clear at common law. We recommend changes to the common law to clarify the time limits, with different rules to apply for criminal cases, on the one hand, and civil and coronial proceedings, on the other.
[64] Our basic principle is that subject to one exception relating to influence on prospective parties, the sub judice rule should not apply to a publication unless the proceedings to which it relates are “pending” at the time of the publication.
Starting point for publications relating to criminal proceedings
[65] We recommend that for the purposes of the sub judice rule, criminal proceedings become pending, and the restrictions on publicity designed to prevent influence on juries, witnesses or parties should apply, as from the occurrence of any of these initial steps of the proceedings:
- the arrest of the accused;
- the laying of the charge;
- the issue of a court attendance notices and its filing in the registry of the relevant court; or
- the filing of an ex officio indictment.
[66] If the accused is not in New South Wales but is in another Australian jurisdiction, we recommend that criminal proceedings become pending from the arrest of the accused in the other jurisdiction. Where the accused is overseas, criminal proceedings should become pending from the making of the order for the extradition of the accused.
Starting point for publications relating to civil proceedings
[67] The starting point for sub judice liability for publications affecting civil and coronial proceedings would depend on whether the substantial risk of prejudice is by virtue of influence on witnesses, parties, or jurors.
[68] We recommend that in its application to publications which create a substantial risk of prejudice by virtue of influence on witnesses or parties in civil or coronial proceedings, the sub judice rule should apply from the issue of a writ or summons.
[69] In the case of publications that create substantial risk of prejudice by virtue of influence on jurors, the sub judice rule should apply as from the time when it is known that a jury will be used in the civil or coronial proceedings.
[70] We recommend that the earlier starting point for liability apply to publications that impose improper pressure on parties because such pressure may occur from the time when the proceedings are commenced. Pressure on parties by the media (or by opposing parties through the media) may occur during the pre-trial negotiations, and the law should accord to the parties some degree of protection during this period.
[71] In the case of influence on witnesses, we recommend the earlier starting point for liability, rather than from the time when the matter is set down for hearing, because of the case preparation that takes place before the hearing. Witnesses may commit themselves to accounts of events, which may have been influenced by inappropriate publicity, and may then be unable or unwilling to state the true facts when the case is heard.
Influence on prospective parties to proceedings (civil and criminal)
[72] One significant feature of our recommendations dealing with publications imposing improper pressure on parties to legal proceedings is that they also seek to protect prospective parties (persons who are or appear to be in a position to prosecute or defend a claim) from publications that may influence them as to whether or not they should proceed with the litigation. For this type of publication, the persons responsible for them should be liable for sub judice contempt even though the relevant proceedings have not yet commenced at the time of the publication, and may indeed never commence. This constitutes the exception, foreshadowed earlier, to the general rule that sub judice restrictions should not commence until proceedings are “pending”.
End point for publications relating to criminal proceedings
[73] The end point of the sub judice period should be fixed at the conclusion of the trial or hearing at first instance. Consequently, we recommend that, as a general rule, the sub judice restrictions only apply until:
(1) the jury has given its verdict; or
(2) the court makes an order, or any other event occurs, having the effect that the offence or offences charged will not be tried before a jury, or will not be charged at all.
[74] However, for the purposes of determining whether there has been contempt of court because of influence on parties, witnesses or potential witnesses, the sub judice restrictions should remain operative until the conclusion of appeal proceedings, or the expiry of any period of appeal or further appeal.
[75] In the situation where a re-trial before a jury is ordered following a successful appeal against a conviction, the sub judice rule, as it applies to all types of publications (including those that create risks of influence on a jurors, potential jurors, witnesses, potential witnesses and/or parties), should begin to operate again from the time the order for a re-trial is made.
End point for publications relating to civil proceedings
[76] We recommend that liability for sub judice contempt for publications affecting civil and coronial proceedings end when the proceedings are disposed of by judgment at first instance, settled or discontinued. Sub judice liability should become operative again only when and from the time a re-hearing, or another inquest or inquiry in the case of coronial proceedings, is ordered.
POSSIBLE CONSEQUENCES OF A CONVICTION FOR CONTEMPT
[77] Sub judice contempt is a criminal offence and attracts criminal sanctions. The court can impose a fine and/or imprisonment. Courts rarely impose a term of imprisonment.
[78] There are currently no upper limits set for either the fine or the term of imprisonment that may be imposed following a finding of sub judice contempt. We recommend the adoption of limits for both that legislation fix maximum limits for both sanctions.
[79] In current law, there are no upper limits for these penalties. We recommend the adoption of limits for both.
[80] For fines, we recommend the adoption of a maximum that is substantially more than $250,000. This amount is the highest imposed so far in New South Wales and has been imposed in several cases in recent years. The maximum should be more than this amount to enable courts to deal with the worst class of cases.
[81] For imprisonment, we recommend the law set a maximum of five years.
A proposed power to order payment for costs of aborted trials
[82] The New South Wales Government has introduced a bill that would create a further consequence for those convicted of sub judice contempt. If the contemptuous publication caused the discontinuance of a criminal trial, the bill proposes giving courts the power to order the contemnor to pay for the costs of the aborted trial. We agree with this initiative. However, we recommend a number of changes to the bill.
[83] Should courts have the proposed costs order power? The expenses incurred in aborting a trial are usually substantial. The parties incur legal costs and/or the State incurs costs in providing legal services to the accused (usually in the form of legal aid). The State incurs costs in the conduct of the proceedings, such as expenses paid to jurors and witnesses. Neither the community nor the parties in a trial should have to bear the financial effects of the unlawful conduct of the contemnor. Introduction of a means to recover the considerable wasted expense is warranted. As well, a power to order costs may act as a deterrent to irresponsible media reporting and avert 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 the accused’s own defence 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.
[84] Imposing both a fine and a costs order on a contemnor would not necessarily amount to double punishment. Different purposes are served by a fine and an order for compensation. A fine is imposed as part of the sentencing process. The focus of compensation is on those who have suffered loss as a result of another’s criminal conduct, with its aim being to provide a means of recovery for that loss. In order to allay any concerns, we recommend that the court, in determining the amount of any fine to be imposed and the amount of a costs order, must take account of the total sum to be paid by the contemnor. Its task should be to order an amount which is “just and equitable in all the circumstances”.
[85] Some of the Commission’s recommendations concerning the proposed power. An order for compensation should only be made where there has been a conviction for contempt. If a judge discharges a jury for fear that a publication may have prejudiced the proceedings, that by itself is not sufficient to make the publishers pay for the costs of the aborted trial. The publishers and others responsible for the publication must be prosecuted and convicted for contempt before they can become liable for the costs.
[86] 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.
[87] The application of the legislation should not be restricted to media organisations. Individuals and other organisations that are not part of the media industry can commit sub judice liability and should also be liable for costs, if they publish material that caused the discontinuance of a trial.
[88] In determining the amount of any fine to be imposed and the amount of a costs order, the court should take account of the total sum to be paid by the contemnor.
[89] 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 matters to which the court should have regard in the exercise of this discretion should include the financial resources of the contemnor; and the degree of culpability of the contemnor.
[90] 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. These are costs that the State incurs whether or not the trial is discontinued and the contemnor should not be made liable for them.
[91] The “legal costs” of the parties and the provision of “legal services” to the accused should include disbursements directly related to the aborted trial. Examples of these would be payment of expert witnesses and the costs of court transcripts.
[92] An order for costs which is less than the amount claimed in the Attorney General’s certificate should at least include the full amount of the accused’s costs.
PROCEDURES FOR THE PROSECUTION OF SUB JUDICE CONTEMPT CASES
Who should be allowed to commence prosecutions?
[93] The Attorney General and the Director of Public Prosecutions. 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 Director of Public Prosecutions (“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.
[94] 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.
[95] The Supreme Court. No change is required to the present law, which gives the Supreme Court power 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, namely 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. Moreover, private parties affected by prejudicial publications who are unable to convince the prosecution officers to prosecute, and who may not themselves have the resources to prosecute, should be able to apply to the Supreme Court to direct the registrar to commence contempt proceedings.
[96] Private Individuals. At common law, private individuals can commence prosecutions for contempt. Some object to this on the basis that frivolous and vexatious contempt prosecutions may be instituted. However, the Commission is not aware of there being a problem in this regard. For a start, the substantial costs involved in contempt litigation serve to discourage such types of prosecutions. Secondly, even if frivolous contempt prosecutions were commenced, courts have sufficient powers to prevent and punish such abuse of the legal process.
[97] Parties to criminal or civil proceedings, particularly an accused whose liberty is at stake, have a compelling interest in ensuring the fairness of the trial. Even where no actual prejudice to the main proceedings is caused by the contemptuous publication, parties may nevertheless suffer in terms of delay and costs. Accordingly, if the official prosecution authorities do not set contempt proceedings in motion, the private parties should have the right to do so.
[98] We recommend that legislation should provide that a private person may commence proceedings for the punishment of contempt. However, this should be subject to two provisos.
[99] First, the person must, prior to the commencement of such action, notify the Attorney General and the parties to the proceeding (if any) allegedly involved. This notice requirement is aimed at preventing duplication of the efforts to prosecute the same contempt. It would also allow better co-ordination 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 decides it appropriate to do so.
[100] Secondly, the Attorney General (or the Solicitor General or Crown Advocate acting under a delegation from the Attorney General) and the DPP should have the discretion to take over the matter, in the same way that they may take over a criminal offence prosecution.
Jurisdiction: Who should hear sub judice contempt proceedings?
[101] Prior to 1997, the Court of Appeal heard contempt cases. One disadvantage of that arrangement was that a person convicted of contempt did not have a right to appeal the conviction.
[102] In 1997, changes to the law meant that contempt cases are now heard by a single judge of the Common Law Division of the Supreme Court with a right to appeal to the Court of Appeal.
[103] We have concluded that the current arrangement should continue.
Should the summary procedure for sub judice contempt “proceedings be retained?
[104] One of the most distinctive characteristics of the law of criminal contempt is that the offence is dealt with summarily and hence without the assistance of a jury. Some have argued that sub judice contempt should be tried with a jury. Juries are used to assess and determine the facts in certain proceedings, especially criminal trials, because they are seen as able to do this better than a judge. The 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. Some argue that in sub judice contempt cases, there may be issues that may be best settled by a jury.
[105] We concluded that the summary procedure for sub judice contempt cases should be retained. First, we are not aware of practical difficulties with the existing procedure. Secondly, the practice is well established, having been, in the last century, the only known procedure for contempt in New South Wales, and judges, legal practitioners and parties are familiar with it. There appears to be no real pressure for change.
[106] Moreover, the advantages of having a jury determine facts 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 undisputed.
[107] As well, 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.
[108] Finally, sub judice contempt cases require a balancing of certain legal principles, such as freedom of expression, open justice and the right to a fair trial. Arguably, judges better understand this exercise and the principles involved.
Should appeal proceedings for contempt be heard by the Court of Appeal or by the Court of Criminal Appeal?
[109] Currently, the Court of Appeal hears appeals relating to criminal contempts.
[110] We recommend that the hearing and decision of an appeal against a conviction and/or sentence for criminal contempt, and of a review of a question of law submitted by the Attorney General, should be assigned to the Court of Criminal Appeal.
[111] Because the courts have consistently recognised that a conviction for contempt is a conviction for a criminal offence, it follows that appeals from such convictions should logically be assigned to the Court of Criminal Appeal. The Court of Criminal Appeal would be in a better position to hear such cases because of a number of facilities provided by the law, such as the power to grant a new trial, the power to release the appellant on bail pending the appeal, and the power to dismiss the appeal if it considered that “no miscarriage of justice has actually occurred”. 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.
APART FROM SUB JUDICE CONTEMPT, WHAT OTHER ISSUES DOES THE REPORT CONSIDER?
[112] We explored the issue of public access to court documents related to court proceedings. This was an important issue to consider as public access to court documents enables the public to exercise its right to scrutinise and criticise courts and court proceedings. This promotes open justice, an accepted doctrine within the Australian justice system founded on the belief that courts and court proceedings should be open and accountable.
[113] On a more practical level for the media, it also enables better reporting of legal proceedings. It is not always practical for a media organisation to have a representative in attendance for the duration of every court proceedings. Hence, the media will not always know everything that has transpired in a trial or hearing. Furthermore, there is an increasing trend towards giving evidence in documentary form and a practice of affidavits not being read aloud in open court, but formally “read” by the judge. As well, in a civil matter, one party, but not the other, may make documents available to the media, giving a one-sided view of proceedings. If the media does not have all the information regarding a case, the reporting to the public is less reliable. If, on the other hand, there is a general right of access to the courts documents, it can be argued that the media will obtain a better understanding of the facts and issues involved in a case, and “fair and accurate” reporting of court proceedings would result.
[114] We also looked at suppression orders. Like sub judice contempt, a court’s power to make these orders is another way of limiting the availability of information about court cases to protect court proceedings from being prejudiced or disrupted by influences outside the court.
[115] Finally, we looked at the need for a co-operative relationship between the media and courts.
Access to court documents
[116] In New South Wales, the public (including the media) does not have a right of access to court documents and files. A person must obtain the leave of the court to inspect any document or thing in any court proceedings.
[117] A new law has been passed by Parliament (although it has not yet commenced) to give the media (but not the public) greater access to court documents, but only those relating to committal proceedings before magistrates and proceedings for summary and indictable offences. In addition, the right is subject to a number of limitations. It is not clear whether, or subject to what conditions, the media would be able to publish the contents of the documents to which access has been allowed.
[118] We recommend that the public be allowed greater access to court documents. In particular, we recommend that the public should have a right of access to any document relating to legal proceedings (civil or criminal) in the following categories:
1. pleadings to the extent their content is relied on in open proceedings and referred to as forming the basis of the case argued by a party;
2. judgments and orders;
3. documents that record what was said or done in open court;
4. documents that were admitted into evidence in proceedings other than bail and committal proceedings and coronial inquiries;
5. written submissions, to the extent their content is relied on in open proceedings and referred to as forming the basis of the case argued by a party; and
6. documents recording the offences with which a person has been charged in open court.
[119] In all other cases, an application for access to a document should be made to the court in which the proceedings are taking place. In other words, we recommend that there be no automatic right of access with respect to other categories of court documents. Specifically, access to documents in bail and committal hearings and coronial inquiries would only be granted upon application.
[120] Should the right to access those documents be absolute? We recommend that the right should be subject to an order of the court prohibiting or restricting access to the relevant document.
[121] It should also be subject to any law or court order prohibiting or postponing reporting of the proceedings. For example, if there is a suppression order over the proceedings, access to the documents should be barred, until the order is lifted. Also, if there is a law prohibiting the reporting of certain proceedings (proceedings against children, for example), access to the documents in those proceedings should not be given as a matter of right.
[122] A party to the proceedings, or a person having a sufficient interest in the case, should be able to object to public access to the relevant court documents. Where an objection is made, the court should only prohibit or limit access if the person objecting establishes that a grant of access would be contrary to the due administration of justice.
[123] The right to publish the contents of court documents. Currently, the law is not clear whether a grant of access to court documents carries with it a right to publish the contents of those documents.
[124] We recommend that the public should have the right to publish the contents of, or a fair and accurate summary of the contents of, documents to which access has been granted (whether as of right, or by order of the court). This should be subject to any law or court order prohibiting or postponing reporting of the court proceedings.
Suppression orders
[125] We recommend that a new provision should be introduced into the Evidence Act 1995 (NSW) to provide that any court in any proceedings, civil or criminal, has the power to suppress the publication of reports of any part of the proceedings, where this is necessary for the administration of justice, either generally or in relation to specific proceedings. The law as it stands is not always consistent in its guidelines as to when courts may exercise the power to make suppression orders. The criterion of “necessity” that we are recommending is narrower - that is, less easily satisfied - than the criteria contained in a number of existing provisions of broad scope. The new statutory provision would replace these existing ones.
[126] Currently, while courts clearly have the power at common law to make suppression orders, there is some uncertainty as to whether such orders are binding on persons not present in the courtroom. The recommendation would remove such uncertainty, as a legislative sanction would bind the public generally. Breach of a suppression order should be a criminal offence of strict liability, meaning that a person publishing restricted material will be guilty of an offence unless able to show an honest and reasonable belief that the conduct was not criminal.
[127] A person with a sufficient interest in the matter should be able to apply to the court for the making, variation or revocation of a suppression order. In relation to the application, the court may hear the applicant, together with the media and anyone else the court regards as having a sufficient interest in the matter. The same categories of persons should be able to appeal. On appeal, a person should be entitled to be heard if they were heard previously on the original application. Other people with a sufficient interest may appeal if granted leave to do so by the court.
[128] A court should also be able to make an interim suppression order, but only in a case where the court is satisfied (a) that the order is necessary for the due administration of justice, and (b) that the hearing of an application for a “regular” suppression order would delay unduly the hearing of the trial being conducted. An interim order would last no more than seven days, but subsequent orders could be applied for and granted.
A CO-OPERATIVE RELATIONSHIP BETWEEN THE MEDIA AND THE COURTS
[129] The Commission recognises the importance of a good relationship between the media and the courts as a way of minimising the risk of prejudice to court proceedings. A co-operative relationship, based on open communication, represents a significant first step in preventing breaches of the sub judice rule and fulfilling the fundamental aim to which that rule is directed, namely, to ensure that the fairness of the judicial system is not compromised by media publicity. We make a number of recommendations to improve the relationship between the courts and the media.
[130] We recommend that a media information officer be appointed in New South Wales with the specific function of liaising between the media and the Supreme Court, the Land and Environment Court, District and Local Courts, the Coroner’s Court and the Industrial Relations Commission.
[131] While there is currently a Public Information Officer of the Supreme Court of New South Wales, who does much to facilitate communication between the media and the courts, her functions extend to other facets of public relations, such as educating members of the public on the functions of the Court. We recommend that a position be established specifically for liaising between the media and the courts, as has been done in Victoria. This would allow the media information officer to focus solely on the demands involved in facilitating communication between the media and the courts.
[132] We also recommend establishing a Courts Media Committee, comprising representatives of both the media and the courts. This recommendation is based on the Courts Media Committee in Victoria, which meets on a needs-basis to discuss issues of concern to the courts and the media, and to formulate means of addressing these concerns.
[133] We recommend the adoption of a protocol whereby the terms of any suppression orders made by courts are posted on the court’s website within a specified period of time of the making of the order. It is more efficient and effective to use the court websites for such communications rather than requiring the media information officer to fax notices of the orders to individual media organisations. We also recommend that the registry of each court be required to keep a register of the terms of all current suppression orders issued by that court, to be made available to the public on request. These recommendations aim to ensure that the media, and any other interested member of the public, are made aware of the terms of suppression orders and are able to verify these terms with relative ease.
Appendix A : List of Recommendations
RECOMMENDATION 1
Liability for sub judice contempt should be retained.
RECOMMENDATION 2
The publication of matter should constitute a contempt if it creates a substantial risk, according to the circumstances at the time of publishing the matter, that:
(a) members, or potential members, of a jury, or a witness or witnesses, or potential witness or witnesses, in legal proceedings will:
(i) become aware of the matter; and
(ii) recall the content of the matter at the relevant time; and
(b) by virtue of those facts, the fairness of the proceedings will be prejudiced.
RECOMMENDATION 3
Section 129(5)(b) of the Evidence Act 1995 (NSW) should be amended to allow for a trial judge’s decision to dismiss, or not to dismiss, a jury in a criminal trial following the publication of matter, and the reasons given for that decision, to be admissible in the related contempt proceedings, subject to s 135 of the Evidence Act 1995 (NSW). The mere fact that the trial judge cannot be cross-examined should not be considered in itself to cause unfair prejudice to a party for the purpose of s 135. Evidence of the decision, and the reasons for the decision, should be admissible as relevant to the issue of liability for sub judice contempt, but should not be determinative of the question of liability.
RECOMMENDATION 4
Legislation should provide that the risk of prejudice presented by the publication of matter is not reduced by reason only that matter containing similar contents has been published on a previous occasion.
RECOMMENDATION 5
Legislation should provide that it is a defence to a charge of sub judice contempt, proved on the balance of probabilities, that the person or organisation charged with contempt, as well as any person for whose conduct in the matter it is responsible:
(a) did not know a fact that caused the publication to breach the sub judice rule; and
(b) before the publication was made, either
(i) took reasonable steps to ascertain any fact that would cause the publication to breach the sub judice rule; or
(ii) relied reasonably on one or more other person to take such steps and to prevent publication of any such fact was ascertained.
RECOMMENDATION 6
Legislation should provide that it is a defence to a charge of sub judice contempt if the accused can show, on the balance of probabilities:
(a) that the offending matter was published pursuant to an agreement or arrangement whereby the content of matter to be published by the accused was to be determined by a person or persons other than the accused or any employee or agent of the accused; and
(b) that either:
(i) at the time of the publication, having made such inquiries as were reasonable in the circumstances, neither the accused or any servant or agent of the accused knew or had any reason to suspect that the material to be published would comprise or include the offending matter or any like matter; or
(ii) prior to the publication, having become aware, or having reason to suspect, that the material to be published would or might comprise or include the offending matter or any like matter, the accused, or a servant or agent of the accused, took reasonable steps to endeavour to prevent such matter from being published.
RECOMMENDATION 7
Legislation should provide for costs penalties if a defendant does not disclose evidence of the availability of a defence under Recommendation 7 to the prosecutor within 14 days of being served with summons commencing contempt proceedings.
RECOMMENDATION 8
Legislation should make it clear that mere intent to interfere with the administration of judice does not constitute sub judice contempt, in the absence of a publication that creates a substantial risk of prejudice to the administration of justice.
RECOMMENDATION 9
The sub judice rule should continue to apply to civil proceedings in the terms recommended in Recommendation 2.
RECOMMENDATION 10
Legislation should provide that, having regard to the circumstances of publication, a person or organisation that publishes material that gives rise to a substantial risk that a person of reasonable fortitude in the position of a party to civil or criminal proceedings will make a different decision in relation to those proceedings, for the reason that it vilifies the person in their character of a party to the proceedings, is liable for contempt.
“Party” in this context includes a prospective party, being a person who reasonably believes that they may become a party to the proceedings, or who is or appears to be in a position to institute the proceedings, whether or not they are minded to do so.
“Decision” in this context means a decision to institute, not to institute, to discontinue, to participate, or to participate further or to take a particular step in proceedings.
“Vilifies” in this context means inciting hatred towards, serious contempt for, or severe ridicule of the party through unfair comment and/or material misrepresentations of fact.
The “defences” available in other cases of sub judice contempt should be available in this case.
RECOMMENDATION 11
Legislation should make it clear that liability for sub judice contempt cannot be founded simply on the basis that a publication prejudges issues at stake in proceedings.
RECOMMENDATION 12
Subject to one exception relating to influence on prospective parties, the sub judice rule should not apply to a publication unless the proceedings to which it relates are pending at the time of the publication.
RECOMMENDATION 13
Legislation should provide that, for purposes of the sub judice rule, criminal proceedings should become pending, and the restrictions on publicity designed to prevent influence on juries, witnesses or parties should apply, as from the occurrence of any of these initial steps of the proceedings:
(a) the arrest of the accused;
(b) the laying of the charge;
(c) the issue of a court attendance notice and its filing in the registry of the relevant court; or
(d) the filing of an ex officio indictment.
RECOMMENDATION 14
Legislation should provide that: (a) where the accused is not in New South Wales but is in another Australian jurisdiction, criminal proceedings become pending from the arrest of the accused in the other jurisdiction; and (b) where the accused is overseas, the criminal proceedings become pending from the making of the order for the extradition of the accused.
RECOMMENDATION 15
Legislation should provide that in its application to publications which create a substantial risk of prejudice by virtue of influence to witnesses in civil or coronial proceedings, the sub judice rule should apply as from the issue of a writ or summons.
In its application to publications which create a substantial risk of prejudice by virtue of influence on jurors, the sub judice rule should apply as from the time when it is known that a jury will be used in the civil or coronial proceedings.
In its application to publications which create a substantial risk of prejudice by virtue of influence on parties, the sub judice rule should apply as from the issue of a writ or summons.
RECOMMENDATION 16
Legislation should provide that, in its application to publications which create a substantial risk of influence on prospective parties to criminal or civil proceedings, the sub judice rule may apply even though no proceedings have commenced.
RECOMMENDATION 17
Legislation should provide that for purposes of determining whether there has been contempt of court on the ground of influence on jurors or potential jurors, a criminal proceeding remains “pending” and sub judice restrictions remain operative until:
(a) the verdict of the jury in the proceedings is handed down, or
(b) the making of an order, or any other event, having the effect of the offence or offences charged will not be tried before a jury, or not at all.
For purposes of determining whether there has been contempt of court because of influence on parties, witnesses or potential witnesses, a criminal proceeding remains “pending” and sub judice restrictions remain operative until the conclusion of appeal proceedings or the expiry of any period of appeal or further appeal.
Where a re-trial before a jury is ordered following a successful appeal against a conviction, the sub judice rule as it applies to all types of publications (including those that create risks of influence on a jurors, potential jurors, witnesses, potential witnesses and/or parties) begins to operate again from the time the order for a re-trial is made.
RECOMMENDATION 18
Legislation should provide that publications relating to civil and coronial proceedings cease to be subject to the sub judice rule when the proceedings are disposed of by judgment at first instance, settled or discontinued. The rule should become operative again only when and from the time a re-trial, or another inquest or inquiry in the case of coronial proceedings, is ordered.
RECOMMENDATION 19
Legislation should provide that the same time limits for the operation of sub judice restrictions apply whether or not there was an actual intention to interfere with the administration of justice.
RECOMMENDATION 20
Legislation should provide that a person charged with sub judice contempt on account of responsibility for the publication of material should not be found guilty if:
(a) the material relates to a matter of public interest; and
(b) the public benefit from the publication of the material, in the circumstances in which it was published, and from the maintenance of freedom to publish such material, outweighs the harm caused to the administration of justice by virtue of the risk of influence on one or more jurors, potential jurors, witnesses, potential witnesses and/or litigants created by the publication.
RECOMMENDATION 21
Legislation should provide that a person charged with sub judice contempt on account of responsibility for the publication of material should not be found guilty if the publication the subject of the charge was reasonably necessary or desirable to facilitate the arrest of a person, to protect the safety of a person or of the public, or to facilitate investigations into an alleged criminal offence.
RECOMMENDATION 22
A new provision should be introduced into the Evidence Act 1995 (NSW) which provides that any court in any proceedings, has the power to suppress the publication of reports of any part of the proceedings (including documentary material), where this is necessary for the administration of justice, either generally, or in relation to specific proceedings (including proceedings in which the order is made). The power should apply in both civil and criminal proceedings and should extend to suppression of publication of evidence and oral submissions, as well as material that would lead to the identification of parties and witnesses involved in proceedings before the court.
The new section should not replace the common law, and should operate alongside existing statutory provisions that restrict publication unless a successful application has been made rendering such a provision inapplicable in the circumstances. However, section 119 of the Criminal Procedure Act 1986 (NSW), together with any other provisions contained in other statutes which give courts discretion if grounds are affirmatively made out to impose suppression orders, should be repealed.
A section should be introduced into the Crimes Act 1900 (NSW) making breach of an order a criminal offence. The offence created by this section should be one of strict liability.
The Evidence Act 1995 (NSW) should also expressly provide that a person with a sufficient interest in the matter should be eligible to apply to the court for the making, variation or revocation of a suppression order. The applicant for a suppression order, together with the media and anyone else regarded by the court as having a sufficient interest may be heard on the application. The same categories of persons should also be able to appeal in relation to a suppression order. Such a person, if heard previously on the original application, should be entitled to be heard on the appeal. Any other person with a sufficient interest may seek leave to be heard.
An appeal against a decision should be heard by a single judge of the Supreme Court, except where a suppression order was made in the Supreme Court, in which case an appeal should be heard by the Court of Appeal.
The court should also be empowered to make an interim suppression order, having a maximum duration of seven days, before proceeding to a final determination. The court should have the power to grant subsequent interim suppression orders.
RECOMMENDATION 23
Legislation should provide that, subject to (a) any statute, (b) any order of the court prohibiting or restricting access to the relevant document or prohibiting or postponing reporting of the proceedings, or of the relevant part of the proceedings, and (c) any objection by a party or a person having a sufficient interest, the public should have a right of access to any document in one or more of the following categories:
(1) pleadings to the extent their content is relied on in open proceedings and referred to as forming the basis of the case argued by a party;
(2) judgments and orders;
(3) documents that record what was said or done in open court;
(4) documents that were admitted into evidence in proceedings other than bail and committal proceedings and coronial inquiries;
(5) written submissions, to the extent their content is relied on in open proceedings and referred to as forming the basis of the case argued by a party; and
(6) documents recording the offences with which a person has been charged in open court.
Where an objection is made, the court must prohibit or limit access only if the person objecting establishes that a grant of access would be contrary to the due administration of justice.
In relation to all other categories of document, applications for access to a document must be made to the court in which the proceedings are taking place. The applicant must establish grounds for a grant of access.
The word “document” should be defined to mean any record of information including:
(a) anything on which there is writing;
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph.
RECOMMENDATION 24
The court in which the proceedings are taking place should have the power to prohibit or impose conditions on access to, or reporting of, a document referred to in Recommendation 23, including a condition restricting the purpose for which the document is to be used.
RECOMMENDATION 25
Legislation should provide that, subject to any rule of common law or statute or any order of the court prohibiting or postponing reporting of the proceedings, or of the relevant part of the proceedings, the public should have the right to publish the contents of, or a fair and accurate summary of the contents of, a document referred to in Recommendation 23.
RECOMMENDATION 26
Legislation should provide that a private person may commence proceedings for the punishment of contempt.
This is subject to two provisos.
First, the person must, prior to the commencement of such action, notify the Attorney General and the parties to the proceeding (if any) allegedly involved.
Second, the Attorney General (or the Solicitor General or Crown Advocate acting under a delegation from the Attorney General) and the Director of Public Prosecutions shall have the discretion to take over the matter and:
(a) carry on the proceeding,
(b) cause the termination of the proceeding,
(c) carry on, on behalf of the prosecution or as respondent, an appeal in any court in respect of the contempt,
(d) cause the termination of an appeal in any court in respect of a contempt,
(e) institute and conduct, on behalf of the prosecution, an appeal in any court in respect of the contempt, and
(f) conduct, as respondent, an appeal in any court in respect of the contempt.
RECOMMENDATION 27
The hearing and decision of an appeal against a conviction and/or sentence for criminal contempt, and of a review of a question of law submitted by the Attorney General, should be assigned to the Court of Criminal Appeal.
RECOMMENDATION 28
Legislation should provide an upper limit for fines that may be imposed on persons convicted of criminal contempt. The maximum amount to be set in legislation should be substantially more than $200,000, the highest amount imposed so far in New South Wales in sub judice cases, to enable courts to deal with the worst class of criminal contempt cases. The legislation need not distinguish between the maximum fines that may be imposed on corporate offenders on the one hand, and individuals on the other.
RECOMMENDATION 29
Legislation should provide that the upper limit for a custodial sentence that may be imposed on a person convicted of criminal contempt should be 5 years.
RECOMMENDATION 30
Legislation should expressly provide that the various methods of and alternatives to serving custodial sentence, such as community service orders, good behaviour bonds, dismissal of charges and conditional discharge of the offender, deferral of sentencing, suspended sentences, periodic detention orders, home detention orders and parole, are available for the sentencing courts to use in criminal contempt proceedings.
RECOMMENDATION 31
The Attorney General should create and maintain a registry of court outcomes of criminal contempt proceedings. The information in the registry should be used only for sentencing purposes.
RECOMMENDATION 32
Legislation should provide that a private individual who intends to apply for an injunction to stop an apprehended criminal contempt shall, prior to such application, notify the Attorney General and the parties to the proceedings (if any) allegedly involved.
RECOMMENDATION 33
Legislation should provide that the Director of Public Prosecutions may apply for an injunction to restrain the publication of material relating to criminal proceedings which would be in breach of the sub judice principle or which would be a repetition of such breach.
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.
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.
RECOMMENDATION 36
A media information officer should be appointed in New South Wales with the specific function of liaising between the media and the Supreme Court (including the Court of Appeal), the Court of Criminal Appeal, the Land and Environment Court, the Children’s Court, the District and Local Courts, the Coroner’s Court, the Industrial Relation Commission, and the Dust Diseases Tribunal.
RECOMMENDATION 37
A Courts Media Committee should be established in New South Wales, comprising representatives of both the media and the courts, based on the courts media committee in Victoria.
RECOMMENDATION 38
There should be a protocol to the effect that, when a court makes a suppression order, the terms of that order are to be posted on the court’s web page within a specified period of time.
RECOMMENDATION 39
The registry of the court in which a suppression order is made should make available to the public the terms of the order.
