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Luzung, Aniano --- "Contempt by Publication: Improving the Law on Court Reporting By" [2004] ALRCRefJl 24; (2004) 85 Australian Law Reform Commission Reform Journal 27


Reform Issue 85 Summer 2004/05

This article appeared on pages 27–30 & 59 of the original journal.

Contempt by publication: Improving the law on court reporting by the media

By Aniano Luzung*

In 2003, the New South Wales Law Reform Commission completed a review of the law on sub judice contempt, which imposes restrictions on publications that have a tendency to influence the conduct of particular legal proceedings or that prejudge the issues at stake in those proceedings.

The effect of the sub judice rule is to prohibit the publication of certain information about a case that is being heard or is pending hearing in a court. An example of a publication that is likely to violate the law on sub judice contempt is a newspaper article (including one published on the Internet), radio or television broadcast revealing the criminal record of a person who is currently standing trial for a criminal offence. Another would be a publication suggesting the guilt (or innocence) of an accused.

Most often, it is the proprietor of the media organisation, and/or the program producer or editor, who is prosecuted for contempt. However journalists, radio announcers, printers, and individuals who made prejudicial statements to the public (in particular to the media) have also been prosecuted. A single story being covered by several media organisations may result in several contempt convictions.

The purpose of the sub judice rule is to prevent the publication of material that may cause prejudice to particular court proceedings. More specifically, it is intended to protect jurors, witnesses and parties in legal proceedings from the possibility of influence by material that was not or could not have been used as evidence in court. Because it imposes restraints on the publication of information, the sub judice rule may limit both access to information about matters coming before the courts and freedom of discussion in our society.

The aim of the Commission’s review was to achieve clarity and precision in the operation of the law on sub judice contempt with a view to achieving the right balance between the public interest in protecting the proper administration of justice, on the one hand, and the public interest in access to information and freedom of speech, on the other. The law should enable the media to publish material to the fullest extent possible without jeopardising the fairness of court proceedings.

Test for liability

The current test for liability for sub judice contempt is generally formulated in terms of ‘tendency’. To constitute contempt, a publication must be shown to have a real and definite tendency, as a matter of practical reality, to prejudice or ‘embarrass’ particular legal proceedings.

There are two principal grounds for criticism of this test: (1) it is imprecise; and (2) it is too broad. In relation to the first criticism, sub judice contempt attracts criminal sanctions, including (potentially) the imposition of a term of imprisonment. The principles of liability governing this offence should therefore be defined with sufficient precision and clarity to allow members of the public (including media practitioners) to know what conduct will expose them to criminal liability. Secondly, it is arguable that the current test sets too low a threshold for liability, thereby intruding unjustifiably on freedom of discussion. Publications may be prohibited which have a tendency to prejudice but which do not in fact pose any serious risk to the administration of justice.

In lieu of the ‘tendency’ test, the Commission recommends the adoption of a ‘substantial risk’ test. That is, a publication 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.

This is preferable to one based on ‘tendency’ because it is more precise, clearer, and raises the threshold for liability to a level that justifies curtailment of freedom of discussion to prevent prejudice to legal proceedings.

An element of fault

To establish liability for sub judice contempt, it is not necessary to prove that a person intended to interfere with the administration of justice. Newspaper editors and publishers, as well as radio broadcasters, may be found guilty of contempt even if they did not know and could not reasonably be expected to have known that there was a case pending in court which may be affected by their publication or broadcast. Consequently, there is, in theory, very little that the media can do to be certain of avoiding liability, no matter how careful they are and how reasonably they act to ensure that they do not breach the sub judice rule.

The Commission considers that it is fairer to require an element of fault for sub judice contempt than to impose absolute liability. It would also give those in the media incentive to be more careful about what they publish. To achieve this, the Commission recommends that the taking of reasonable care, with reference in particular to being aware of pending proceedings, should be a defence to a charge of sub judice contempt. This would allow defendants to be excused from liability for contempt if they could show that they exercised reasonable care to avoid creating a substantial risk of interference with the administration of justice.

The public interest principle

A person or organisation may avoid liability for sub judice contempt for a publication that relates to a matter of public interest. In this situation, a publication might have a sufficient tendency to prejudice particular legal proceedings, but the detriment arising from this possible prejudice is outweighed by the public interest served by freedom of discussion of a matter of public importance. 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 be found to have a tendency to interfere with particular criminal proceedings against a person accused of committing sexual offences against children. However, the court may determine that the publication does not amount to contempt, on the ground 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.

This principle is an important ground for exonerating defendants from liability for contempt and the Commission does not wish to leave its development entirely to the common law. Consequently, it recommends that 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.

This statutory recommendation contains the main elements of the principles developed at common law, including a balancing approach. However, it defines more precisely than does the case law what matters need to be ‘weighed’ against each other. The case law refers to the protection of the public interest in the integrity of the criminal justice system or public interest in a fair trial as the main interest against which others must be weighed. The recommendation particularises how the public interest might be harmed—by the creation of a risk of influence on those involved in a pending legal proceeding.

Creating a ‘public safety’ defence

There may be instances when the media may need to publish information that has a tendency to prejudice particular proceedings but which is in the interest of protecting public safety. For example, if a person charged with a crime has jumped bail and is at large, it may be in the public interest to publicise the fact that that person has a history of violence and may be dangerous, and/or to publish a photograph of the alleged offender. Publications of this kind might give rise to liability for sub judice contempt if no ground of exoneration existed.

It is possible that a media organisation that publishes prejudicial information in the interests of public safety would be able to rely on the public interest principle, if it were charged with contempt. It is perhaps more likely that the prosecuting authority would choose not to prosecute for contempt at all, in the exercise of its prosecutorial discretion. However, the Commission took the position that, rather than relying on prosecutorial discretion or waiting for courts to broaden the application of the public interest defence, it is preferable for publications of this kind to have their own separate protection in legislation.

Time limits

To remove uncertainties found in common law, the Commission has made recommendations about when the sub judice rule should operate, that is, when it should begin and when it should end. For example, it recommends that as regards criminal proceedings, the sub judice rule should only start from the occurrence of any of these steps for initiating criminal proceedings in New South Wales:

• the arrest of the accused;

• the laying of the charge;

• the issue of a court attendance notice and its filing in the registry of the relevant court; or

• the filing of an ex officio indictment.

Hence, for example, the media may publish material about a crime suspect without worrying about the sub judice rule if police are still questioning the suspect as part of their investigation of the crime.

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

Establishing upper limits for penalties

There are currently no upper limits for the penalties for contempt, which are a fine (the usual penalty) and/or imprisonment (which is rarely imposed in sub judice cases). Establishing a maximum amount for the fine or term of imprisonment that may be imposed ensures certainty for those who are most likely to have to deal with the principles of sub judice, such as media practitioners, about the possible penalty if such principles are breached.

The Commission recommends that Parliament set a maximum fine that is 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. It also recommends that the upper limit for a custodial sentence should be five years.

Costs of aborted trials

There have been cases of trials being terminated as a result of the publication of material that breached the sub judice rule. The expenses incurred in aborting a trial are usually substantial. The parties pay for legal costs and/or the state incurs costs in providing legal services to the accused (usually in the form of legal aid). The state also incurs costs in the conduct of the proceedings, such as expenses paid to jurors and witnesses.

The Commission recommends that courts be given the power to order a contemnor to pay for the costs of an aborted trial. Neither the community nor the parties in a trial should have to bear the financial effects of the unlawful conduct of the contemnor. The 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 the termination of some trials. Under the Commission’s recommendations, publishers and others responsible for the publication must be prosecuted and convicted for contempt before they can become liable for the costs. Moreover, it must be proved that the contemptuous publication was either the sole or a substantial cause of the termination of the trial.

Other related reforms

Access to court documents. The Commission’s report extends, as well as defines more precisely, the circumstances in which journalists and members of the public may obtain access to documents used in 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. On a practical level for the media, it would enable better reporting of legal proceedings.

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. The Commission recommends 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 the Commission is recommending is narrower—that is, less easily satisfied—than the criteria contained in a number of existing legislative provisions.

Cooperation between the media and the courts. 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 cooperative 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. The Commission makes a number of recommendations to improve the relationship between the courts and the media, including:

• the appointment of a media information officer 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.

• the establishment of 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.

* Aniano Luzung is a legal officer with the NSW Law Reform Commission.

Endnotes

1. Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSWCA, No 40236/96, 11 March 1998, unreported).

2. R v Connolly (NSW Supreme Court, Criminal Division, No 70036/95, Hunt CJ, 30 May 1997, unreported).

3. See Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 (liability); (1990) 5 BR 419 (penalty); Attorney General (NSW) v Amalgamated Television Services Pty Ltd (1990) 5 BR 396; Attorney General (NSW) v Australian Broadcasting Corporation (NSWCA, No 40136/90, 11 October 1990, unreported); Attorney General (NSW) v United Telecasters Sydney Ltd (NSWCA, No 40139/90, 11 October 1990, unreported); Attorney General (NSW) v Nationwide News Pty Ltd (NSWCA, No 40141/90, 11 October 1990, unreported); Attorney General (NSW) v Dean (1990) 20 NSWLR 650.


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