Director of Public Prosecutions v Davies Brothers Pty Ltd - [2021] TASSC 13

[2021] TASSC 13

COURT: SUPREME COURT OF TASMANIA

CITATION: Director of Public Prosecutions v Davies Brothers Pty Ltd [2021] TASSC 13

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  DAVIES BROTHERS PTY LTD

FILE NO:  2552/2020
DELIVERED ON:  29 March 2021
DELIVERED AT:  Hobart
HEARING DATE:  16 March 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Courts and Judges – Contempt – Particular contempts – Justice and administration of law – Prejudicing fair trial of accused – Media publication – During trial – Newspaper article revealing accused in custody – Photo depicting accused in handcuffs escorted by correctional officers – Interference in the administration of justice not intended or foreseen.

Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15, referred to.
Aust Dig Courts and Judges [123]

REPRESENTATION:

Counsel:
             Applicant:  D G Coates SC
             Respondent:  D F M Zeeman
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Butler McIntyre & Butler

Judgment Number: [2021] TASSC 13
Number of paragraphs: 22

Serial No 13/2021
File No 2552/2020

DIRECTOR OF PUBLIC PROSECUTIONS v DAVIES BROTHERS PTY LTD

REASONS FOR JUDGMENT BLOW CJ

29 March 2021

The Director of Public Prosecutions has made an application for the respondent, Davies Brothers Pty Ltd, to be punished for contempt of court. The respondent is the publisher of the Mercury newspaper – a daily newspaper that is circulated in Tasmania, particularly in southern Tasmania. On 23 September 2020 the respondent published material that resulted in a criminal trial being aborted. It does not dispute the allegation that publishing the material constituted a contempt of court.
The trial commenced the day before the publication. The accused, Jarod Lee Kringle, was charged with one count of armed robbery. It was alleged that he robbed two staff members at gunpoint in a bottle shop in Claremont in July 2018. He pleaded not guilty and the trial commenced.
In Hobart this Court has two buildings. One is designed as a criminal court. On the level below its courtrooms there are cells and a garage for prison vehicles. It is designed so that prisoners being tried in that building do not pass through any public areas. The other building was designed and constructed for the hearing of civil cases. Because of the COVID-19 pandemic and related social distancing requirements, it has not been possible to conduct more than one trial at a time in the criminal court building. Since July 2020 criminal trials have routinely been conducted in one of the civil courts, Court 1. When a criminal trial is in Court 1 and the accused is in custody, it is necessary for the accused to be brought to and from the that building via a forecourt that is open to the public. When Mr Kringle was being taken across that forecourt on 22 September 2020 he was photographed by a photographer from the Mercury.
On the morning of Wednesday, 23 September 2020 the respondent published an article and a photograph relating to Mr Kringle's trial on page 10 of that day's Mercury. There was nothing inappropriate in the text of the article. The photograph showed Mr Kringle in handcuffs with correctional officers on either side of him. Each of the two correctional officers appeared to have a hand on his back. Mr Kringle's face had been pixilated and was unrecognisable, but the photo was captioned "Accused armed robber Jarrod Lee Kringle leaves Supreme Court under police custody". Although Mr Kringle's face was pixilated, jurors would have been able to recognise his shirt and trousers as garments that he was wearing on the first day of the trial.
A very important issue at the trial, if not the most important, was the identity of the robber. According to the Crown prosecutor's opening speech, the robber was wearing a balaclava, and the evidence as to the robber's identity was circumstantial. It had not been revealed to the jury that Mr Kringle was in custody because of the risk that that information might have led them to reason, impermissibly, that he was a person of bad character and therefore likely to be guilty of the crime with which he had been charged. The publication of the photograph and its caption had a tendency to prejudice or interfere with the due administration of justice, in that it was likely to prejudice the jury against Mr Kringle and thus prevent him from receiving a fair trial.
Under the common law of Australia, the publishing of material that tends to prejudice the fairness of legal proceedings can amount to a contempt of court. The relevant principles are as stated by Deane J in Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15 at 46-47, as follows:
"The publication of material in circumstances where the clear tendency of the publication is to preclude or prejudice the fair and effective administration of justice in particular pending legal proceedings constitutes contempt of court unless, as a matter of weighing competing public interests, the detriment of the possibility of prejudice to the administration of justice is outweighed by other identified factors such as the public interest served by freedom of discussion of matters of public importance and by the exposure of public dangers and abuses: Victoria v Australian Building Construction Employees' and Builders Labourers' Federation ('the BLF Case') (1982) 152 CLR 25; Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242, at pp 249-250. While the act of publication must be intentional, an intention or purpose of prejudicing the due administration of justice is not an essential ingredient of this type of contempt of court: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, at p 371. The 'critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important': per Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ, Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245, at p 258; and see, generally, Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650, at pp 658, per Kirby P and, per Hope JA (1985) 3 NSWLR, at pp 673-676."
In this case there is no suggestion that there was any factor that warranted the publication of the photograph and its caption. However, although their publication constituted a contempt, the commission of that contempt was accidental, in the sense that the material was published as the result of confusion, ignorance, inadvertence and carelessness, without anyone knowingly doing the wrong thing or acting recklessly.
When the trial resumed on the morning of 23 September, counsel for Mr Kringle applied for the discharge of the jury and provided the trial judge with a copy of the article, including the photograph and caption. The application was not opposed. The trial judge, Estcourt J, discharged the jury. He commented, "Well, in my view the jury need to be discharged and some time needs to be placed between this disgraceful affair and a new trial."
Clearly his Honour took the view that a delay before a new trial was desirable in order to reduce any risk of prejudice as a result of potential jurors remembering the published material. Mr Kringle stood trial again in February 2021. He was found guilty and sentenced to a term of imprisonment.
The aborting of a trial results in the wasting of time and money and in inconvenience for a considerable number of people. It takes more than 20 people to conduct a criminal trial – the judge, the judge's associate, the judge's attendant, at least one prosecutor, a clerk assisting the prosecutor, at least one defence counsel, at least one correctional officer sitting with the accused, at least one security officer in the courtroom, and 12 jurors, as well as the accused and the witnesses. In this case there were two prosecutors.
The trial had not got very far before it was aborted. After the empanelment of the jury, one of the prosecutors made an opening speech, defence counsel elected not to reply to that opening, one police officer gave evidence, and some photographs were tendered. Then the jury were taken on a view, inspecting the bottle shop at Claremont and viewing a residence in Berriedale, after which they were excused until the next morning. Two witnesses gave evidence in their absence on a Basha inquiry: R v Basha (1989) 39 A Crim R 337. The time spent on the Basha inquiry was not wasted. However all of the individuals who prepared for and attended the trial on its first and second days were inconvenienced and had their time wasted. The two complainants, who had apparently been robbed at gunpoint, had expected to give their evidence, but had to go away and return nearly five months later.
Because of the COVID-19 pandemic, no criminal trials were conducted in Hobart in 2020 between 28 February and 21 July. A pre-existing backlog of criminal trials was exacerbated. The wasting of court time was therefore more significant than it ordinarily would have been.
As I have said, the publication of the inappropriate material was accidental. A reporter and a photographer were present when the photo was taken. The photographer took a number of photographs, including one depicting the police officer who gave evidence at the start of the trial. The reporter wrote the article that was published, and submitted it, assigning a photograph of the police officer. The newspaper had a well established system requiring the text of court stories to be sent for legal checking before publication. The evidence before me does not make it entirely clear whether the legal checking was undertaken by an in-house lawyer or externally, but external checking seems likely. The reporter submitted the text of her article, but nothing more, for legal checking. The publication of the article was approved. She then submitted a file in which she checked a box to show that the article had had a legal check. She added a note which read, "LEGALLED. *Please no pics of Kringle without face blurred*".
The digital editor and the deputy editor took that note to mean that lawyers had approved not only the article but also the use of blurred photos of Mr Kringle. The deputy editor and another staff member decided not to publish the photo of the police officer but instead to publish a photo of Mr Kringle. Even though his face was covered by his hands, they pixilated that part of the photograph. The article, photograph and caption were subsequently published, first on-line and then in the print edition of 23 September.
Tuesday, 22 September was a particularly busy day at the Mercury. There was a mass whale stranding on the west coast. Staff were sent to Strahan to cover it. There was a late breaking news story about the appointment of Mr Simon Overland as the general manager of the Burnie City Council.
The editor of the Mercury, Jenna Cairney, made an affidavit for the purpose of these proceedings. She checked the relevant article without noticing anything inappropriate. In her affidavit she said that she was "fixated on ensuring that the identity of the accused was not revealed in the photograph". It did not occur to her that the jury would still have been able to identify him, and that the published material showed that he was in custody. There was an oversight on her part in failing to realise that the blurring of Mr Kringle's face was insufficient.
On Wednesday, 23 September she learned that the trial had been aborted because of the material that had been published, contacted the newspaper's solicitor, and was advised to remove the photograph from the on-line story, which she did. On 1 October she arranged for the entire 23 September publication to be removed from the internet.
Since at least 2012 the respondent's solicitor, Mr D F M Zeeman, has been conducting training sessions for Mercury staff. Those sessions cover the law of contempt, including restrictions upon the publication of photos of accused persons. Following the 23 September publication he conducted further training sessions in October and November of last year. Following the 23 September publication, Ms Cairney formulated a new written policy to clarify the respondent's requirements as to the publication of photos in court stories. Reporters are now required to ensure that any photos attached to a court or crime story are shown to the newspaper's legal advisors prior to publication, and to provide detail in file notes as to both text and photographs having received legal approval.
The respondent has several prior convictions relating to the publication of inappropriate material. Details of those that might be considered significant are as follows:
· In January 2012, in another of its newspapers, the Sunday Tasmanian, the respondent published an article about a named woman who was said to be a rape victim, contrary to s 194K of the Evidence Act 2001. It was fined $20,000 for contempt: R v Haley [2012] TASSC 86.
· In July 2012, during a rape trial, the Mercury published the name of the alleged victim, contrary to s 194K of the Evidence Act. The respondent was fined $10,000 for contempt: R v Holman [2012] TASSC 75.
· In May 2014 a magistrate in Hobart fined the respondent $3,500 for publishing an account of bail proceedings, contrary to s 37A of the Justices Act 1959.
I do not regard the prior convictions as particularly significant. The Mercury, like the other major Tasmanian newspapers, reports court proceedings on a daily basis under significant pressure as to deadlines and content, without publishing inappropriate material in the vast majority of cases. The respondent should be given credit for making so few serious mistakes. It is also significant that the staff and management in past years were probably not the same people as the staff and management in 2020.
However the publication of prejudicial material in this case could and should have been prevented. The fact that it was necessary to abort an armed robbery trial makes this a serious example of a contempt. The only appropriate penalty is a substantial fine.
The respondent is convicted of contempt of court and fined $80,000. I order that the respondent pay the applicant's costs of and incidental to the application.