Director of Public Prosecutions v Francis (No 2)
[2006] SASC 261
•25 August 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
DIRECTOR OF PUBLIC PROSECUTIONS v FRANCIS & ANOR (NO 2)
[2006] SASC 261
Reasons for Sentence of The Honourable Justice Bleby
25 August 2006
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - POWER OF COURT TO PUNISH FOR CONTEMPT - SUPREME COURT
Contempt - Imposition of sentence - Radio presenter and radio broadcaster guilty of two counts of contempt of court - Guilty pleas to count one of bringing a judicial officer into contempt or lowering his authority - Defendants found guilty of count two being words spoken or calculated to prejudice or pervert the course of justice - Where radio broadcast had tendency to prejudice trial of an accused person - Considerations relevant to penalty - Deterrence.
Criminal Law Consolidation Act 1935 (SA) s 63A(1)(a); Summary Procedure Act 1921 (SA) s 5, referred to.
Director of Public Prosecutions v John Fairfax and Sons Pty Ltd (1987) 8 NSWLR 732; Gallagher v Durack (1983) 152 CLR 238, applied.
Director of Public Prosecutions v Francis & Anor [2006] SASC 211, discussed.
Zappia v Registrar of the Supreme Court (2004) 90 SASR 193; Rich v Attorney-General for Victoria (1993) 103 A Crim R 261; Director of Public Prosecutions v Wran (1987) 7 NSWLR 616; Registrar of the Supreme Court of South Australia v Advertiser Newspapers Ltd (Unreported, Bollen J, 17 May 1996, Judgment No S5616); Registrar of Supreme Court v Channel 9 SA Pty Ltd (2001) 212 LSJS 90; Registrar of the Supreme Court v Nationwide News & Ors (2004) 89 SASR 113; Hinch v Attorney General for Victoria [1987] VR 721, considered.
DIRECTOR OF PUBLIC PROSECUTIONS v FRANCIS & ANOR (NO 2)
[2006] SASC 261BLEBY J:
Introduction
The defendants Robert Neville Francis (“Francis”) and Festival City Broadcasters Pty Ltd (“FCB”) are each charged with the following two counts of contempt of court:
Count 1 : Bringing a judicial officer into contempt or lowering his authority;
Count 2 : Words spoken calculated to prejudice or pervert the course of justice
Both defendants pleaded guilty to count 1 and not guilty to count 2. I have since found both defendants guilty of count 2.[1] It is my function now to impose appropriate penalties in each case for each of those two counts.
[1] Director of Public Prosecutions v Francis & Anor [2006] SASC 211.
Francis is a radio presenter for radio station 5AA operated by FCB.
Robert John Walker had been charged in the Magistrates Court of South Australia with possession of child pornography. He was charged on information for what was a minor indictable offence.[2]
[2] Section 63A(1)(a), Criminal Law Consolidation Act 1935 (SA). For the definition of minor indictable offence see section 5, Summary Procedure Act 1921 (SA).
On 26 October 2005, Mr Walker’s application for bail came before a Magistrate in the Adelaide Magistrates Court. It was anticipated that a psychiatric report of Doctor Raeside relevant to the application for bail would be available, but it was not. As a consequence, Mr Walker was remanded in custody, and the hearing of the bail application was adjourned until the report could be made available to the court. At that time it was still open to Mr Walker to elect for trial by jury. No plea had been entered.
On the evening of 26 October 2005, Francis was the host of a talk back radio programme on radio station 5AA between 8.07 pm and 11.37 pm. During that period Francis, either in encouraging listeners to telephone him or in the course of conversation with listeners who had telephoned, made a number of comments which were broadcast over the radio station and which are the subject of the two counts of contempt. For the sake of completeness I repeat what is set out in my earlier decision as to the relevant facts and the particular parts of the broadcast relied upon by the DPP in respect of each of the two counts. In the quotations which follow the words in italics are relied on by the DPP as constituting together the breach of count 1. The words underlined are those on which the DPP relied in order to constitute the breach of count 2.
When Francis began his program he was suggesting topics on which listeners might call in order to participate in the on‑air discussion. The subject of the Magistrates Court proceedings was introduced in the following manner:
What about, I mean, this has got to be the hottest thing at the moment. The judge says or a judge says the accusations against a […] year-old [named suburb] man are amongst the most bizarre he’s ever heard. Now listen to this very closely. Robert John Walker was charged earlier this month with having some two thousand child porn images, that’s irrelevant. A police document has been released in court today giving details of a comprehensive address book of girls aged under ten, this is in Adelaide, this is in Adelaide folks and diaries written by W saying that he wanted to eat the internal organs of these young girls. Now here’s the big one. Bail has been refused until at least next Monday, the Judge saying to let him into the community without a psychiatric examination would be irresponsible. I mean, am I stupid; do I live in this bloody world? Am I here as a normal bloody human being or do judges live in another world?
How dare the judge make a comment to say he’s refused bail until next Monday because they can’t let him into the community without a psychiatric examination? This is a guy who has your children, your ten-year-old little girls on his books that his wife found under a cupboard in his house. Don’t tell me Attorney-General that this man is innocent until proven guilty. These were bloody lists that he said he wrote, under the bloody cupboard that his wife found and the judge may give him bail next week. How dare he. I go crazy over things like this. Hello, anybody living out there. Do you want to talk about it? Are you interested at all? Do you know that ten-year-old kids are on a list of a man out there who’s at the moment in jail but may get out next week? Come on. 8223 0000. Am I going mad to myself, am I going stupid about something ridiculous? Get on the bloody air and talk about it for goodness sake. This is where your family, your people in this State under our laws may be having people walk the streets and [they] and maybe those people who are going out there and having a list of little children that this man wants to bloody eat and a judge is thinking of maybe giving him bail. I find it just so bloody hard to understand.
I have quoted the whole of those paragraphs in order to place the words complained of, particularly those relating to count two, in the relevant context. At that stage of the program Francis was encouraging callers to telephone the radio station to express their views about what he said the Magistrate had done. At other times during the course of the evening he repeated the assertions as to what had happened in the Magistrates Court in similar language, either for the purpose of encouraging members of the public to express their views, or in the course of conversations with listeners. On several occasions, and this was reflected in the tone of his voice as well as what was said, he expressed his own personal anger both at what Walker was alleged to have done and at what the Magistrate had said on adjourning the bail application. It is also clear from later parts of the program that Francis was sympathetic and encouraging to those who shared his views about what the Magistrate had done and was unsympathetic to and dismissive of at least one who expressed a view that there might be more to the story than had been reported.
In short, Francis (and many of his callers) made very clear their personal and intolerant views of a man charged with possession of pornographic material who allegedly kept a list and diary of the nature of that described. Francis (and some of his callers) also made clear, particularly, their intolerant views of what the Magistrate had reportedly said on adjourning the bail application and as to the granting of bail to such a person at all.
In the course of conversation with one of the earlier callers Francis said of the accused:
… You know this guy has got to die, he’s got to die, and he’s got to die and be seen … to be bloody dead.
In conversation with the same caller he later said:
This is probably one of the most dreadful things that have ever happened … and the thought of what’s ever happened. This is worse than The Family deaths; this is worse than the Snowtown bloody deaths; this is worse than the Truro deaths; this is bloody terrible.
Less than half an hour into the program Francis said:
But those of you who’ve just tuned in, I’ve been talking about the judge saying that the accusations against a […] year old [named suburb] – this is in Adelaide, in Adelaide here – amongst the most bizarre he’s ever heard. Robert John Walker, remember that name, that name may go down in history, was charged earlier this month with having some 2,000 child porn images. A police document has been released in court today giving details of a comprehensive address book of girls aged under ten, which his wife, I believe, found under a cupboard in his house, and diaries written by W saying he wanted to eat the internal organs of young girls. He had the names and addresses and telephone numbers of some of these children from primary schools all around town. The worst thing about this whole situation is bail has been refused until at least Monday. They’re even thinking about bail, the judge. The judge saying “To let him into the community without a psychiatric examination would be irresponsible”. Irresponsible! Oh, smash the judge face in!
The conversation with a subsequent caller was, in part, as follows:
FRANCIS: And then to think, oh well, we may leave him out on bail because it’d be irresponsible if we let him out if he was psycho. Psycho – the bastard’s a dick brain.
CALLER: Oh, look, he shouldn’t even be allowed to breath the air.
FRANCIS: Hear, hear.
CALLER: I’m sorry.
FRANCIS: And we’ve decided, and I’m sure the whole bloody State has, and I have …
CALLER: Yeah.
FRANCIS: … you know.
CALLER: Yeah.
FRANCIS: He’s guilty, guilty, that’s it, guilty.
To another caller he said:
I’ve just pushed everybody to ring tonight, because I think … it’s something that people have to … ring the Attorney-General. This guy can’t be allowed to walk the streets until he’s found bloody guilty in the … or not guilty in a court.
…
CALLER: … As I said, I can’t speculate but the judge allowing him bail, the word for that is criminal.
FRANCIS: No, well …
CALLER: Not stupid, criminal.
FRANCIS: Yeah, that’s what gets me, you know. It’s the judge who should have a psychiatric examination, in my opinion.
At another point where Francis was encouraging callers to telephone he said:
This is – I am such a; I’m so uptight about this situation with the […] year old [named suburb] man who’s being assessed by, well, assessed for bail – assessed - he’s being assessed for bail do you mind, by a psychiatrist, despite a judge saying that the claims against him are amongst the most bizarre he’s ever heard. Robert Walker’s diaries – handed in to police by his wife – reveals that he wanted to eat the internal organs of young girls. Among them were booklets entitled “Food Supply” and “Bondage”, and details of names, addresses and phone numbers of young girls aged under 10. Its unbelievable. Police told the court Walker told them the documents were stopping him from acting out his fantasies – amongst them, discs containing 2,000 images of child porn. And he’s on – they’re even thinking about – his lawyers are thinking about applying for bail. I find that so – oh, so disgusting.
To a caller who raised a question about the reason for behaviour like that attributed to the accused, Francis said:
FRANCIS: Of course, there’s deep issues with these people. How dare they even think like that. They’re, you know, they’re obviously loony bins. What annoys me is the judge has thought about him getting bail. … You know, it’s even in his mind to give him bail. The judge is as loony as the bloody guy himself.
CALLER: Yeah, well I don’t think jail is a situation for these type of people. I think they should be locked up in a psychiatric ward, and the key thrown away in that situation.
FRANCIS: Let him go to court first, and if he’s found to be bloody ill, psychiatric ward, let him bloody burn at the bloody, at the stake, as far as I’m concerned. Anybody who even thinks like this has to be got rid of off the face of this earth.
In relation to a caller who raised a question as to the influence the “do-gooder” movement had on the “lax sentencing” of the accused Francis said:
Well, there’s no sentencing yet because the man hasn’t even really gone to court … and been, you know, put up to trial.
A little later to the same caller he said:
Because, I guess, that’s the country we live in and we give these people the right to be able to say you’re innocent until proven guilty. He hasn’t done any of these things; he had it just on his mind. And I think, “Geez, if you’ve got it on your mind mate, and … if I was the judge … if I was Saddam Hussein, I’d blow your head off in one second”.
To the next caller who complained that “the judge is just as bad as what he is as far as I’m concerned”, Francis said:
And that’s what I’m mainly concerned about. I mean it hasn’t gone to court yet, but the fact is, my main concern, that the judge is sitting in court has said, “I refuse bail until at least Monday … because, you know, I wouldn’t want to send you into the community without a psychiatric examination”. Bloody hell! … Maybe the judge should go into a psychiatric bloody examination to even think about giving him bail.
In the course of conversation the next caller asked whether the accused would go to gaol for the amount of pornographic material he was said to have had, to which Francis replied:
I don’t know. And he hasn’t gone to court yet, … and here we are, … here we are we’ve been giving him sort of a kangaroo court on air I suppose … And somebody who even thinks about something like this. But in my opinion this guy is almost guilty, but the fact is I don’t want to – I didn’t want to stress on that. My stress was the fact that the judge, … the dirty, lousy, bloody judge, … even thought about having bail for a person like this.
With another caller the conversation developed around judicial independence. The caller commented that judges were “above everybody else and above criticism and above all we lower class of people”. The caller went on to complain that judges “live in a world of their own and have nobody to answer to” but went on to comment about ultimate equality, to which Francis said:
I know what, I know what you’re saying, and you can say it straight – their shit still stinks like everybody, and that’s … Yeah, yeah, stinks like everybody else’s, that’s right. But they think it doesn’t. You see that’s the point, they think it doesn’t, that’s right.
Much later in the program, when Francis was again calling for callers to telephone, he again described what had allegedly happened in the Magistrates Court that day and said:
Now, that’s what made me go crazy. How dare the judge, whether be male or female, even contemplate having a bail – I mean the guy, now, is obviously in the jugaroony (sic) and I hope he stays there and dies in the jugaroony as far as I’m concerned. He hasn’t been convicted, he hasn’t gone to jail yet, but they’ve obviously kept him in. But they’re thinking about giving this guy bail. I can’t believe that any human being, let alone a judge, would allow the thought of maybe bail being given to somebody like this.
Now I’m here for an hour folks, 8223 0000.
We have not talked about any other subject tonight except for this situation of this […] year old guy – […] year old guy who wants to eat the internal organs of young girls and he has their addresses and telephone numbers from primary schools in Adelaide in a book that was put to the court this morning. The dirty, rotten little runt!
Finally, he said in the course of conversation with a late caller:
FRANCIS: … If I was a parent of a 10 year old child, I’d be going nuts tonight thinking about what the hell is this, chance of this man even getting out of jail next week, because he hasn’t been convicted of anything yet.
CALLER: And he hasn’t even had a psychiatric report. That’s, that’s another …
FRANCIS: Well he’s going to. He’s going to have a psychiatric report.
CALLER: Yes.
FRANCIS: How long has he been thinking that way? Has he, has he done anything in the past?
CALLER: I’ve never heard anything.
FRANCIS: We haven’t heard anything about lost 10 year old girls, no.
Count 1
Without being exhaustive as to the comments made, Francis gave the clear impression that the Magistrate was “irresponsible” for even contemplating giving Mr Walker bail and that the Magistrate’s face should be smashed in. He accused the “judge” of being “as loony as the bloody guy himself”, and suggested that he should have a “psychiatric bloody examination” for even thinking about granting bail. He described the Magistrate “the dirty, lousy, bloody judge”.
The thrust of Francis’ insulting invective and its obvious effect was to undermine public confidence in the Magistrate and in the judicial system of which he was part and in their ability to make a just decision according to law. If bail was subsequently granted the comments would plainly tend to destroy confidence in the Court’s decision and hence in the administration of justice. Even if bail was not granted, that confidence was already destroyed by the assertion that bail was even being contemplated.
Francis’ damaging remarks about the Magistrate displayed inexcusable ignorance of the process in which the Magistrate was involved. The Magistrate had no choice but to hear Mr Walker’s application for bail and to adjourn the application so that a proper hearing according to law could be given to the application before him – an application which any accused person has a right to make. It was not as though the Magistrate had even expressed an opinion as to whether he should be granted bail, let alone having made such a decision. All the Magistrate did was to adjourn the hearing of the application because the necessary evidence was not available for consideration.
Count 2
In relation to count 2 I made the following observations in my previous decision:[3]
For the purposes of count two, the significance of what Francis said was his vilification of the accused, the contempt and hostility expressed towards the accused and Francis’ encouragement of others to take a similar view. At one stage he purported to be expressing the view of the whole State that the accused was guilty of something, and that so serious was his “crime” that he should not even be allowed to remain alive. The significance lay in the conscientious[4] and deliberate attempt to poison the minds of the listening public against the accused and to campaign for his permanent incarceration, if not elimination. Furthermore, he conducted the campaign in a manner which belittled anyone who might care to express a contrary or qualified view.
The accused was not being attacked for his possession of child pornography, being the offence with which he was charged, but for alleged facts and circumstances which, on his trial, might well be inadmissible and irrelevant. The picture being painted of the accused was of a person of disrepute, unworthy to remain a member of a civilised society.
So graphic was the description, so unusual were the allegations and so persistent was Francis in reminding the public of the name of the accused that the allegations would be bound to persist in the responsive listener either consciously or subconsciously for long enough to be aroused and reawakened upon the trial of the accused on the possession charge. Any juror, having heard or heard of the broadcast, could well be influenced to conclude any disputed facts against the accused because of the prejudice engendered against him by the broadcast. In my opinion, that was the evil of the publication.
[3] [2006] SASC 211 at [59], [60] and [64].
[4] The use of this adjective was an error. I intended to say and I meant “conscious”.
There were three possible ways in which a contempt of this nature could be committed. I found that there was no evidence of actual interference with the administration of justice, and that this was not the type of contempt which tends to interfere with the administration of justice generally by way of diminishing public confidence in the system of law and the impartiality of judicial officers. I found that the essence of this contempt involved the risk of interference with justice in Mr Walker’s case, should he elect for trial by jury – a fact which was unknown at the time of the broadcast.
The DPP had relied on an affidavit which alleged that Mr Walker was charged on complaint with possession of child pornography. It was on that basis that the defendants were advised to and did plead not guilty to count 2. The risk of interference with the administration of justice was only proved when the DPP, without objection from the defendants, re-opened his case in order to prove that Mr Walker had been charged on information with a minor indictable offence. As I observed in the course of my previous reasons, if the matter was a matter to be dealt with summarily on complaint by a magistrate sitting alone, there is every likelihood that the charge would not have been made out. I will need to return to that fact when considering the question of an apology.
Matters Relevant to Both Counts
Francis’ description of the Magistrate and of Mr Walker were offensive, abusive, vitriolic and degrading. They were repeated over the length of the programme. They were delivered in a degrading and abusive manner, in a way which encouraged listeners to express similar contemptuous remarks and in a manner which belittled any contrary views.
Talk back radio hosts and others who enjoy a high public profile not only reflect but in many cases direct public opinion. If they choose to comment on a matter of public interest it behoves them to be properly informed about the subject matter of their comment, particularly when that concerns one of the constitutional foundations of our democratic society, namely an incorruptible judiciary of the highest integrity.
That is not to say that the judiciary is or should be beyond criticism. Any judge or magistrate is accountable for his or her decisions and for adopting due process, either to an appellate court, or to a superior court on judicial review. No judge or magistrate is or should be immune from informed public criticism of a decision properly and lawfully made in the proper exercise of the court’s jurisdiction. But ill-informed, unfounded and prejudicial public attacks on the judiciary can only serve ultimately to undermine public confidence in the administration of justice and in one of those constitutional foundations essential to a healthy democracy.
The attack on Mr Walker, likewise, was ill-informed, asserting guilt of criminal conduct way beyond the offence with which he was charged. It was a highly prejudicial attack on a person brought before a court who enjoys the presumption of innocence until the case is proved against him. The nature of the allegations ran a severe risk that, for the offence charged, had Mr Walker pleaded not guilty, he would have had less than a fair trial. The attack seems to have been based on a few lines of quite inadequate information supplied to Mr Francis by his producer but without any further enquiry, and with the clear intention of vilifying Mr Walker. As previously observed, it was a conscious and deliberate attempt to poison the minds of the listening public against Mr Walker, with reckless indifference as to the consequences for the administration of justice in his case.
I do not accept the submission that there was no malice on Mr Francis’ part. The words he used both of the Magistrate and of Mr Walker speak for themselves. I accept that they may have been born out a genuine and strong reaction by Francis against paedophilia and sadism. But that was no excuse for the deliberate denigration of the Magistrate, the judicial system and Mr Walker without any attempt to ascertain the true facts.
If the comments were made out of self-interest and a desire to increase ratings, that would constitute a matter of aggravation. However, I am unable to make such a finding beyond reasonable doubt. In fact, it is possible, on the information before me, that it has had the reverse effect, although again, no positive findings can be made, as there are many factors which influence a programme’s rating performance. There was an interest, however, in encouraging listeners to call the radio station and express similar views to those of Mr Francis, and to provoke public outrage at the actions of the Magistrate and the conduct and character of Mr Walker.
It was put in mitigation by FCB that it had already paid out $110,000 in settlement of a claim for damages for defamation brought by the Magistrate, of which FCB was required to pay the sum of $50,000 by way of uninsured excess. While that is an indication of FCB’s acknowledgement of wrongdoing, the settlement relates only to the damage to the personal reputation of the Magistrate. It does not redress the damage caused by unjustifiably exposing the Magistrate and the judicial system to public ridicule, odium and contempt.
Apologies
The broadcast concerned extended over a period of three and a half hours during the evening of 26 October 2005. Late in the afternoon of 27 October the General Manager of FCB was contacted by the senior media liaison officer of the Courts Administration Authority enquiring whether the management was aware of the content of the broadcast and what they proposed to do about it. As a result, there was broadcast on two occasions during the course of the evening of 28 October a pre-recorded apology by the General Manager in the following terms:
Announcer: The General Manager of 5AA, Mr Paul Bartlett:
5AA apologises for a broadcast made during the evening of Wednesday, 26 October 2005 by Mr Bob Francis.
The broadcast included discussion and debate as to a Court appearance on the 26th October 2005 of a person charged with offences relating to child pornography.
Some of the opinions expressed by Mr Francis were quite inappropriate, in particular, criticisms he made of the Judicial Officer responsible for considering the question of bail for the defendant.
5AA sincerely regrets any hurt, offence or distress which may have been caused to the Magistrate by the broadcast.
5AA intends to meet with representatives of the Courts Administration Authority to personally apologise over the broadcast.
5AA is also taking appropriate action to ensure that comments of this type are not broadcast in the future.
On two separate occasions during the same evening the following pre-recorded apology was made by Mr Francis:
During my program broadcast on 26 October 2005, I made comments concerning the appearance of a man in the Magistrates’ Court on this day charged with offences relating to child pornography. I said things about the Judge, whom I now know to be a Magistrate, which I sincerely regret.
I have strong beliefs about offences involving children and I believe that I became overwhelmed by my emotions, however, I realise that my comments concerning this matter were quite inappropriate. My language was unacceptable. At the time of the broadcast, I did not understand that the Magistrate was obliged by legislation to consider the question of bail, no matter what the offence. I misunderstood the Magistrate’s reported comments and my opinions were therefore unfortunate. He was simply discharging his duties.
I unequivocally apologise to the Court and the Judicial Officer for my comments.
It was put that those apologies were unconditional, unambiguous, prompt, complete and sincere. However, some further observations must be made.
When they were made, the apologies were appropriate as far as they went and, as I accept, genuine. However, they were not spontaneous. They only arose after an investigation prompted by the contact from the Court’s senior media liaison officer.
The apologies related only to the Magistrate and count 1. There was no apology in respect of count 2 until in the course of submissions before me after the finding of guilt on count 2. That may be explained by the circumstances giving rise to the plea of not guilty to that count and the belief, on advice reasonably given, that count 2 was unlikely to succeed. On the other hand, when the case was re-opened and the evidence led which cast a different complexion on count 2, there was no indication of a desire to change the plea to guilty. As in the case of count 1, the true facts were either known or could have been readily ascertained and an apology issued well before proceedings were initiated, rather than rely on a technical failure by the DPP properly to allege the true nature of the proceedings after the summons for contempt was issued some months later. Furthermore, it is the fact and timing of an apology for offences of this nature that carry the greatest weight when it comes to fixing any penalty.
The apologies properly apologised for any hurt or distress caused to the Magistrate. There was little or no reference to the great harm done to the administration of justice in this State or recognition of the harmful effect that such statements can have on public confidence in the judicial system, so fundamental to a democratic society. It is that aspect of the broadcast with which I am primarily concerned.
I accept that an attempt was made by FCB through its solicitors and the Crown Solicitor to meet with representatives of the Courts Administration Authority and the Chief Magistrate to offer a personal apology and to assure the authorities of the steps being taken to avoid a repetition. However, no meeting was arranged because of the decision of the DPP to prosecute these proceedings.
I also take into account that Francis, in a letter to the DPP dated 24 November 2005, offered a further apology. However, that must be read in the light of the fact that the DPP was then actively contemplating these proceedings.
Factors relevant to Mr Francis
Mr Francis was born on 11 March 1939. He migrated to Australia with his parents from Egypt when he was eight years old. Since leaving school, his life has been devoted to many facets of radio broadcasting in South Australia, having begun as a panel operator and announcer in 1952. He has also hosted locally produced television shows. Since 1985 he has been the evening talk back host between 8 pm and 12 midnight on Mondays to Fridays for the radio station owned by his present employer.
He has received a number of awards for his performance in radio and television, including a Medal of the Order of Australia in the General Division in 1998. The citation was “For service to the community, particularly through supporting charitable organisations which seek to help young people and to the media in the area of talk-back radio”. He was accredited for and acted as a war correspondent for three years during the Vietnam War, and has been engaged in many community fundraising and public benefit projects. In all his 48 years of broadcasting he has never been charged with contempt before.
He has a high public profile in this State which he has used to benefit the community. However, with such a profile comes an ability to influence a wide range of public opinion, and hence the need to do so responsibly. The uninformed and damaging outburst on 26 October 2005, can only serve to emphasise the need for someone in his position to exercise that power responsibly.
He may have a reputation, as his counsel submitted, for expressing “robust views in strong and often exaggerated and florid terms”. He cannot be criticised for that. But when he chooses to do so and to encourage others to do so without ascertaining the true facts and in a manner which denigrates and ridicules the system of justice which guarantees that very freedom, he must answer the consequences.
Factors relevant to FCB
FCB operates radio station 5AA. It is wholly owned by DMG Radio Australia which in turn is owned by a substantial media organisation in the UK. The company operates many radio stations in all mainland capital cities and some regional areas. It has operated in this State as the owner of 5AA since 1996. In its history of broadcasting in Australia, it has never been found guilty of contempt.
Before this incident it had conducted training for staff concerning the requirements of the Broadcasting Services Act 1992 (Cth), the Commercial Radio Codes of Practice and Standards under the Broadcasting Services Act and developed in accordance with the requirements of section 123 of the Act. It has provided other training concerning defamation, contempt and complaints generally.
Since the offending broadcast, FCB has undertaken additional training directed towards Mr Francis in particular with emphasis on all aspects of contempt, together with appropriate documentary aids. FCB has included in its current contract with Mr Francis a provision allowing termination of the contract without notice in the event of Mr Francis committing a further contempt.
Notwithstanding these measures, however, it is apparent that the broadcast in question continued for approximately three and a half hours. What Mr Francis said was not a single line statement made without repetition. The various items comprising these counts of contempt were spread over the whole broadcast, and their effect was repeated several times. FCB had no mechanism in place to warn Mr Francis or take him off the air once the first contempt was committed right at the beginning of the programme. FCB seems to have been quite unaware of the contempt until alerted to it, almost a full day later, by the senior media liaison officer of the Courts Administration Authority. It was only then that the station, to use the words of its counsel, went into damage control.
The other identifiable failure in the system was the provision to Mr Francis of a brief and inaccurate summary of the news item, the source of which was not explained, which formed the basis of Mr Francis’ attacks. FCB must take its share of the blame for providing the source on which Mr Francis based his contemptuous outbursts.
The determination of appropriate penalties
The first point to note is that the Criminal Law (Sentencing) Act 1988 (SA) has no application to punishment for contempt.[5]
[5] Zappia v Registrar of the Supreme Court (2004) 90 SASR 193.
The categories of contempt are numerous, and the result in one case will not necessarily be applicable to the result in another. However, Kirby P in Director of Public Prosecutions v John Fairfax and Sons Ltd[6] has identified a number of principles relevant to cases like the present:
Contempts, whether civil or criminal, share a common characteristic. It is, as Lord Diplock said in Attorney-General v Leveller Magazine Ltd [1979] AC 440 that they “involve an interference with the due administration of justice either in a particular case or more generally as a continuing process”. This “common characteristic” led the High Court of Australia recently to emphasise the importance of the operation of contempt law “to uphold and protect the effective administration of justice”: see Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 60 ALJR 608 at 611; 66 ALR 577 at 584. In that case, the court laid emphasis upon the public wrong which is involved in impeding the administration of justice, as for example by interfering in the right of a person to have a fair trial ibid at 610-611; 583: see also Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 493 and Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127 at 133.
Courts have approached cases such as the present fully mindful of the important values which, typically, are in competition. On the one hand, there is the value of the media, exposing, in the public interest, wrongs which are of concern to the community and which might otherwise go undetected or unredressed: cf Publications Control Board v William Heinemann Ltd [1965] 4 SA 137 at 160 and see Murphy J in Attorney-General for Victoria v Hinch (Supreme Court of Victoria, 22 May 1986, unreported at 43). On the other hand, courts have been vigilant to deprecate trial by the media and the premature publication of matters which would prejudice the right of the person facing criminal charges to have those charges disposed of according to law, in the courts and not by public trial in the media. …..
Special attention has been paid to the publication of past convictions where a person is to be tried by jury and where the recipients of the publication could contain members of the public later summoned to constitute that jury. …
[6] (1987) 8 NSWLR 732 at 739-740.
The same would apply to publication of a person’s notoriously bad character or involvement in other serious criminality. Kirby P continued:[7]
Woven through the language of the courts in their approach to penalty in such cases are references both to the intent and “culpability” of the contemnor and the need, objectively, to ensure, whatever the intent, that such conduct is emphatically denounced and effectively deterred. …..
It is not necessary, where a contempt is established, that the court proceed to punish the contemnor. ….. In some cases, the prosecution itself, the burdens of the trial, the published findings of the court and an order for costs will be adequate to vindicate the public interest, to punish the contemnor and to deter others. In cases of publication such as the present regard will be had to the “human element” which is inescapable in any system, however careful, for the prevention of contempt of court by the media. Regard will also be had to the good record of a publisher and to the system which it has put in place to ensure against interference in the administration of justice.
Where there has been a recognition that an item has a potential to amount to contempt, and the publisher nonetheless proceeds to publish it …..; where there is found to be reckless indifference as the effect of the publication, though it is a contempt ….. or where there is irresponsible conduct amounting to gross negligence ….., the courts have not considered that a finding of guilt alone is sufficient to punish the contemnor: … Where there is deliberate conduct, including persistent conduct without obtaining appropriate legal advice, though the contemnor is aware of what he was doing, an especially serious view will be taken of the contempt: ….. [References omitted]
[7] Ibid at 741-742.
The relevant principles applicable to punishment for contempt where there are imputations against courts and judges, as in count 1 in this case, were summarised by the High Court in Gallagher v Durack:[8]
The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that “it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority”: per Dixon J. in R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 447. The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment “is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable”: R v Fletcher; Ex parte Kisch, per Evatt J (1935) 52 CLR 248 at 257.
[8] (1983) 152 CLR 238 at 243.
In that case the High Court upheld a sentence of imprisonment of 3 months for an imputation by a Union official that the Federal Court of Australia was influenced in its decision to reduce his sentence for a previous contempt by strike action taken by members of his Union. In refusing leave to appeal, the High Court took into account not only the gravity of the contempt but the fact that there was no apology, despite an opportunity to do so. There was also evidence that a fine would not be paid by the person convicted out of his own funds, thus defeating any deterrent effect of a penalty by way of a fine.
It is difficult to compare penalties for contempt where there has been an immediate confrontation with the Judge which threatens to disrupt the whole proceedings then being carried out,[9] and where the only available remedy is a period of imprisonment. I do not find a great deal of assistance from such cases.
[9] See for example Rich v Attorney-General for Victoria (1999) 103 A Crim R 261.
Nevertheless, the penalty for this kind of contempt must give significant recognition to the seriousness of the offending and must be such as to act as a deterrent both to the offender and to others. The vice in this type of contempt is the denigration of and the undermining of confidence in the administration of justice.
Where there has been interference with the administration of justice in a particular case, different considerations apply as to appropriate penalties. In Director of Public Prosecutions v Wran[10] the New South Wales Court of Appeal had allowed an appeal by the Honourable Mr Justice Murphy, a Justice of the High Court, against a conviction for attempting to pervert the course of justice, and had directed a re-trial. The Premier of New South Wales, at a media conference, then said, amongst other things, “I have a very deep conviction that Mr Justice Murphy is innocent of any wrongdoing”. It was held by the Court of Appeal that the statement was made in the hope that the media might help members of the public to form a view favourable to Mr Justice Murphy on the question of his innocence. The Premier was held not to have had in mind potential jurors in the re-trial, but was held to have acted recklessly and with indifference as to the effect the statements might have on the administration of justice in respect of the new trial. The report of the Premier’s remarks was carried under a banner headline in a Sydney Newspaper:
MURPHY INNOCENT - WRAN
The Court imposed a penalty of $25,000 on the Premier and $200,000 on the newspaper which published his statement. The Court said:[11]
The processes of criminal justice are not subject to the opinions of leaders of the community, however eminent. The impartiality of jurors must be protected from the influence which the public expression of opinion by prominent people about the critical issue of guilt or innocence may tend to exert. It must be made plain in particular that the courts will not tolerate the deliberate intervention of those in positions of authority who deploy their power and prestige in support of assertions of that kind.
The same may be said of well-known radio personalities who seek to command and to influence public opinion.
[10] (1987) 7 NSWLR 616.
[11]Ibid at 640.
In Registrar of the Supreme Court of South Australia v Advertiser Newspapers Ltd[12] a newspaper article published by “The Advertiser” contained material that had a tendency to prejudice the trial of Mr Keogh. The jury had retired on a Friday afternoon and were sequestered overnight. They came back the next day, unable to reach a verdict. That same morning the Advertiser published an article about the trial including opinions about the credibility of witnesses and raising a theory that had not been put to the jury. Owing to swift action on the part of Court staff, no juror actually saw the newspaper. Credit was given for the prompt plea of guilty by the defendant and its expression of regret and apology. There were no previous convictions. It was accepted that there was no intention to cause harm to or to interfere with the trial, but there was what the trial Judge described as “extreme negligence” on the part of the defendant for not having a responsible system to check compliance. The Judge also took into account the potentially devastating consequences of the publication but that the publication had no actual effect on the trial. A fine of $10,000 was imposed.
[12] Unreported, Bollen J, 17 May 1996, judgment no. S5616.
In Registrar of Supreme Court v Channel 9 SA Pty Ltd[13] a television channel had exclusive possession of photographs concerning charges of unlawful sexual intercourse against an accused person. While the trial was proceeding, the station broadcast two photographs that had not been tendered and which did not form part of the prosecution case. They showed parts of entwined naked bodies, and as they were being broadcast, the news reporter stated that the Crown alleged that the accused took photographs of the complainant on two occasions. The trial Judge refused an application the next day for a mistrial. However, two days later there was an incident in the courtroom where two men in the public gallery were engaged in an audible conversation, one of them stating in the presence of the jury that he was there as a victim to watch the proceedings. A mistrial was declared on the basis that the statement compounded what the jurors had seen in the television news bulletin.
[13] (2001) 212 LSJS 90; [2001] SASC 3.
Once again, the Court accepted that there was no intention to publish prejudicial material but that the system of safeguards was unsatisfactory. It was a serious contempt resulting in a mistrial. The Court took into account the defendant’s unblemished record, but held that a penalty was required that reflected the seriousness of the contempt. The starting point for the fine was $25,000, reduced to $20,000 on account of the early plea of guilty.
In Registrar of the Supreme Court v Nationwide News Ltd and Ors[14] a number of newspapers published a photograph of an accused in breach of a suppression order, having a potential effect on the accused’s subsequent trial. Two newspapers pleaded guilty to contempt; one contested the charge and was found guilty. The prosecution accepted that the breaches were unintentional and not in wilful disobedience of the Court order. There were no actual adverse consequences to the trial, but the potential ramifications were significant. Nevertheless, the penalty was required to reflect the seriousness of the contempt. The two newspapers that pleaded guilty were fined $22,500 (reduced from $30,000 on account of the plea). The one that was convicted was fined $25,000. The fine would have been $30,000 but for the defendant’s contrition and prompt apology.
[14] [2004] 89 SASR 113.
Finally, reference must be made to Hinch v Attorney General for Victoria.[15] In that case a radio talk back host had mentioned an accused person’s previous convictions on two occasions. Those were the subject of one motion before the Court. After notice of motion had been served the accused was convicted of two other offences, following which the defendant referred to those charges and repeated his earlier statements, identifying the accused by name. A further notice of motion was issued alleging contempt in respect of that broadcast. The Court held that there was a real risk of interference with the administration of justice in the case of that accused and that there was a need for deterrence. The accused was fined $15,000 in respect of the first motion and was sentenced to four weeks imprisonment in respect of the second. The radio station owner was fined $15,000 in respect of the first motion and $25,000 in respect of the second. The penalties for the one offence the subject of the second motion were higher because the broadcast the subject of the second motion constituted an act of defiance in ignorance of the warning contained in the earlier proceedings which had by then been served.
[15] [1987] VR 721.
Young CJ said:[16]
Reluctant as I am to impose a sentence of imprisonment in the case of a man like Hinch, of whom many people have spoken very highly and who has undoubtedly rendered service to the community, I am unable after considering all the possible sentencing alternatives to think of any sentence other than imprisonment which would adequately mark the seriousness of the offence and at the same time as a deterrent to Hinch and others from instituting in this country trial by media. The third broadcast was, if not an act of defiance, at best an act of reckless indifference to whether Father Glennon should have a fair trial. The Court cannot condone such conduct in any way. If the rule of law and the authority of the courts are to be maintained, the sentence must show that no-one can place himself above the law.
[16] Ibid at 733.
Kaye J[17] described the third broadcast as having been “made recklessly not caring that harmful consequences might accrue to (the accused) by the prejudicial matters which he intended to and did publish”. Kaye J continued:[18]
(T)he appellant Hinch’s disregard of, if not contempt for, the law revealed by his conduct in making the prejudicial statements during the third broadcast, compel the imposition of a sentence designed to operate as a strong deterrent to him and others whose occupation enables them to influence public opinion from indulging in similar conduct. In my opinion these considerations called for punishment by the imposition of a custodial sentence.
[17] Ibid at 750.
[18] Ibid at 750-751.
I turn to the sentences to be imposed in this case. I take into account all that I have said about the offences and what courts have consistently said about the type of offending. While the penalties imposed in past cases do give some guidance, no two cases are the same, and the value of money has changed. The penalties I impose will reflect the seriousness of the offending and the other factors I have identified. I have also taken into account all that counsel has put to me on behalf of both defendants.
Count 1 involved a bitter and sustained attack on and repeated denigration of a judicial officer and of the judicial process. I regard the breach as a very serious interference with the administration of justice and the authority of the Courts. I am satisfied that it was done intentionally, albeit with subsequent regret and apology. However, I cannot regard the apologies as spontaneous, and in the case of FCB, despite the taking of some precautions, there was a failure in the system of supplying the information for the programme and inadequate monitoring of the programme at the time.
In the case of Francis, I consider it warrants committal to prison. But for the plea of guilty, I would commit him to prison for 3 months. In the circumstances, that will be reduced to 9 weeks. However, given Mr Francis’ past record, his contrition and that this is his first offence, I will suspend the sentence on his entering into a bond in the sum of $2000 to be of good behaviour for a period of 18 months.
In the case of FCB, but for the plea of guilty, its apology and its past record, I would fix a fine of $60,000. In the circumstances that will be reduced to $45,000.
Count 2 involved a serious threat to the fair trial of Mr Walker. While that may not have been Francis’ intention, the remarks were made with reckless disregard for their consequences. As it happened, Mr Walker pleaded guilty to the charge before a Magistrate, and there may in fact have been no harmful effects. There was no apology until after the finding of guilt by me. Although that may be explained in part by the plea of not guilty as a result of the DPP’s failure properly to plead the case, the true facts were known or could have been ascertained, and a proper apology made much earlier. On this count Francis will be fined $20,000 and FCB will be fined $35,000.
There will be an order that the defendants pay the costs of the DPP.
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