Director of Public Prosecutions v Channel 9 South Australia P/L (No 2) - [2007] SADC 29

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DIRECTOR OF PUBLIC PROSECUTIONS v CHANNEL 9 SOUTH AUSTRALIA P/L (NO 2)
[2007] SADC 29
Reasons for Penalty Delivered by His Honour Judge Robertson
21 March 2007
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - POWER OF COURT TO PUNISH FOR CONTEMPT
Contempt of Court - breach of a suppression order - broadcast facial images suppressed from publication - not deliberate - no system in place to check Suppression Order Register - responsibility to check Register - publication not cause specific lasting harm - fine of $1,500.
Evidence Act 1929 s 70; District Court Act 1991 s 48; District Court Rules 1992 r 93, referred to.
Zappia v Registrar of the Supreme Court (2004) 90 SASR 215; Registrar of the Supreme Court v The Advertiser (unreported) Supreme Court SA Judgment Number S5616, Bollen J, 17 May 1996; Director of Public Prosecutions v Francis & Anor (No 2) (2006) SASC 261; Registrar of the Supreme Court v Nationwide News Ltd & Others (2004) 89 SASR 113, applied.
Registrar of the Supreme Court v Channel 9 SA Pty Ltd (2001) 212 LSJS 90, discussed.

DIRECTOR OF PUBLIC PROSECUTIONS v CHANNEL 9 SOUTH AUSTRALIA P/L (NO 2)
[2007] SADC 29
Judge Robertson
Civil

Channel 9 South Australia Pty Ltd (“Channel 9”) has pleaded guilty to the charge of Contempt Of Court. It is now necessary to determine the penalty for such contempt.
The contempt occurred as a result of the broadcast of the facial images of two children, in breach of a Suppression Order made in this Court on 22 November 2002. On that day, His Honour Judge Lunn made the following order:
Pursuant to s69A(1)(B)(3) Evidence Act 1929 the names and faces of (names of children excluded) be suppressed from publication until further order.
Mr Rose was tried in the District Court and was found guilty by a Jury of Unlawful Wounding on 11 February 2004.
The Suppression Order arose from the prosecution of Norman John Rose in the District Court. The Suppression Order was made following an application by Mr Rose personally. The application was made after Mr Rose had been committed for Trial by a Magistrate and before the Director of Public Prosecutions (“DPP”) had filed an Information in the District Court. There was no representative of Channel 9 in the Court at the time the application was made.
On 19 March 2004, His Honour Judge Rice sentenced Mr Rose. On that same day, Channel 9 broadcast a story during the course of its evening news program concerning the sentencing of Mr Rose. In the course of that broadcast, the facial images of the two children, the subject of the Suppression Order, were shown.
At the time of the broadcast, details of the Suppression Order were contained in the Suppression Order Register and Index (“Register”), which is a public register held by the Office of the Sheriff of South Australia. Details of the Suppression Order were entered in the Register on 25 March 2004. The Register is available for perusal by members of the public.
Prior to submitting the story for broadcast on Channel 9’s evening news program, the Reporter did not check the Register to determine whether there was a Suppression Order relevant to the prosecution of Mr Rose. Indeed, the Reporter was not aware of the Suppression Order prohibiting the names and faces of the two children, nor was any other employee of Channel 9.
In imposing punishment, in this case, the penalty for contempt is at large. The proceedings for contempt were brought by the DPP pursuant to Section 48 of the District Court Act 1991 and Rule 93 of the District Court Rules 1992. This is to be contrasted with contempt proceedings brought pursuant to Section 70 of the Evidence Act 1929.
It is important to observe from the outset that the provisions of the Criminal Law (Sentencing) Act 1988 have no application when a Court is considering punishment for contempt[1]. In determining a penalty for contempt, Courts have had regard to the intention of the party committing the contempt; any systems that were in place to avoid committing contempt; the circumstances of the publication; the gravity of the contempt; the antecedents of the party and expressions of contrition[2]. These matters are all relevant in this case for the purpose of determining the penalty to be imposed.
[1] Zappia v Registrar of the Supreme Court (2004) 90 SASR 193 at 215
[2] Registrar of the Supreme Court v The Advertiser (unreported, Supreme Court, SA. Judgment No.S5616, Bollen J, 17 May 1996); Registrar of the Supreme Court v Nationwide News Ltd & Others (2004) 89 SASR 113
I accept that the publication of the facial images of the two children was not done deliberately in contravention of the Suppression Order. The breach arose as a result of neglect. The neglect was the failure of the Reporter who produced the report to inspect the Register to determine whether a Suppression Order was in place relating to the prosecution of Mr Rose. The Reporter was in Court, on 19 March 2004, when His Honour Judge Rice delivered his Sentencing Remarks. I accept that she was not aware of the Suppression Order. However, the Register was available to her for checking. At the time, there was no system in place by her employer, Channel 9, which required a check of the Register before any broadcast of a report arising from proceedings before a Court.
It is disturbing that there was not a system in place for the checking of the Register. One of the objects of the maintaining of the Register is to enable the media and others to ensure that any material to be published is not the subject of an order for suppression. The Register is an aid to assist in maintaining the integrity of the Suppression Order regime provided by Section 69A of the Evidence Act. It is not unreasonable to expect that the media would always search the Register before publishing any material arising from proceedings in the Courts. The media bears a heavy responsibility to ensure that breaches of Suppression Orders do not occur. I am told by Counsel for Channel 9, which I accept, that since this breach of the Suppression Order, Channel 9 has put a system in place which requires a search be carried out of the Register before any material is broadcast arising from proceedings in a Court.
I accept the submission by Mr Swan, Counsel for Channel 9, that Channel 9 takes its responsibilities to comply with Suppression Orders seriously and that it would not have published the images if it had been aware of the Order. I accept that there was considerable time between the making of the Order by His Honour Judge Lunn, on 22 November 2002, and the broadcast of the offending material on 19 March 2004. I also accept that the Order was a little unusual in that it related to the name of “ … a person alluded to in the course of proceedings before the court …”, and any other material tending to identify such person. This is to be contrasted with the more usual Suppression Orders made in the Courts which relate to a party to proceedings, or a witness. However, these factors simply emphasise the point that it is imperative that the media search the Register before proceeding to publish material arising from proceedings before the Courts.
A relevant factor in determining a penalty for contempt is the contemnor’s antecedents. In 1996, a corporate predecessor which operated the television station, Channel 9, was found guilty in the Magistrates Court of contempt and fined. The contempt related to a breach of a Suppression Order. Channel 9 was also found guilty of contempt in 2001. This contempt arose from a television news broadcast relating to a criminal prosecution in the District Court. Channel 9 published photographs, as part of the broadcast, which had not been tendered in evidence and, indeed, did not form part of the Prosecution’s case. A mistrial was declared during the course of the Trial. The mistrial was not declared solely in relation to the Channel 9 broadcast, the Judge said that it was a factor that, compounded with others, caused the mistrial[3]. Whilst this contempt was different in nature than the current contempt, it still has some relevance in determining penalty.
[3] Registrar of the Supreme Court v Channel 9 SA Pty Ltd (2001) 212 LSJS 90
On 22 December 2006, Channel 9 pleaded guilty to contempt of court arising from the broadcast of the facial images of the two children. The plea of guilty was entered immediately after this Court determined that the broadcast of the images was in breach of a Suppression Order made by the District Court. Channel 9 had challenged the application by the DPP for an order that the Registrar of the District Court issue a summons against Channel 9 seeking an order that Channel 9 be convicted of acting in contempt of the District Court of South Australia by publishing the images. Channel 9 challenged the application for the issue of the Summons on the following bases:
●First, that the Suppression Order made by His Honour Judge Lunn was made exercising his power as a Magistrate and not a District Court Judge and, as a result, any contempt was of the Magistrates Court and not the District Court.
●Secondly, that, in any event, the Suppression Order related to the Magistrates Court proceedings as they were the only proceedings on foot, and that the broadcast of the images related to the District Court proceedings and, as a result, the broadcast did not breach the Suppression Order.
It is unusual for a challenge to be made at this threshold stage. However, it was agreed by both the DPP and Channel 9 that it was appropriate to deal with the issue raised by Channel 9 at the threshold stage. I was satisfied that it was procedurally appropriate to deal with the matter in the manner agreed. In the end, I rejected the challenge by Channel 9 and ordered that the Registrar issue a Summons for Contempt pursuant to Rule 93 of the District Court Rules 1992. It was immediately after I made the order that Counsel for Channel 9 indicated that Channel 9 pleaded guilty, acknowledging that it was in contempt of court.
I accept that Channel 9 is contrite for its breach. I accept that it takes its responsibilities regarding Suppression Orders seriously. In my view, neither of these two factors are affected by Channel 9 challenging the issue of the Summons. They were matters which Channel 9 were entitled to raise. As I said, the plea of guilty was entered immediately following the decision. In my opinion, Channel 9 is entitled to some credit for its plea of guilty when the penalty is determined[4].
[4] Director of Public Prosecutions v Francis & Anor (No 2) (2006) SASC 261 [72]; Registrar of the Supreme Court v Nationwide News Ltd & Others (2004) 89 SASR 113 [51]
In my opinion, the contempt is serious. Any breach of a Suppression Order affects the integrity of the criminal justice system. The breach was not intentional. However, if Channel 9 had in place, at the time, an appropriate system of checking the Register, then it is likely that the breach would not have occurred. In my view, there is an obligation on all sections of the media to have in place a system which requires that the Register be checked before any publication is made of any proceedings in a Court. This is not the first occasion in which Channel 9 has been guilty of contempt and, in particular, contempt arising from failure to comply with a Suppression Order. Fortunately, it appears that the publication of the facial images of the children has not caused them any specific or lasting harm.
The circumstances are such that a conviction must be recorded. In my opinion, a fine is the appropriate penalty. I fine Channel 9, $1,500. But for the plea of guilty I would have fined Channel 9 the sum of $2,000.
I order that Channel 9 pay the costs of the DPP, which I fix at $1,000.