Director of Public Prosecutions v Johnson & Yahoo!7

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2016 03949

THE QUEEN (ON THE APPLICATION OF THE DIRECTOR OF PUBLIC PROSECUTIONS)	Applicant
v
KRYSTAL JOHNSON	First Respondent
And
YAHOO!7 PTY LTD (ACN 089 187 100)	Second Respondent

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 NOVEMBER 2016
DATE OF JUDGMENT:	28 NOVEMBER 2016
CASE MAY BE CITED AS:	DPP v JOHNSON & YAHOO!7
MEDIUM NEUTRAL CITATION:	[2016] VSC 699

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CONTEMPT OF COURT – Sub judice contempt – Jury empanelled and trial underway – Publication on an internet news website of the suggestion that the accused in a murder trial had previously displayed a violent propensity towards the victim – Prosecution not intending to lead evidence of any such propensity – Single issue whether the accused, who pleaded guilty to manslaughter, had the requisite murderous intent – Whether publication had a real and definite tendency to prejudice the trial – Relevance of directions given by the trial judge to the jury – Relevance of circumstances of publication.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms K E Judd QC with Ms R L Kaye	John Cain, Solicitor for Public Prosecutions
For the Respondents	Mr W T Houghton QC with Ms R L Enbom	M&K Lawyers Group Pty Ltd

HIS HONOUR:

Background

The Director of Public Prosecutions seeks a declaration that the respondents be adjudged guilty of sub judice contempt of court. The first respondent is an online news journalist employed by the second respondent. At the request of the respondents, this hearing was limited to determining the liability of the respondents.

The issue is whether the Director has established beyond reasonable doubt that a publication, as a matter of practical reality, had a real and definite tendency to prejudice the trial of the accused when the publication was on a less frequently accessed news website and occurred after empanelment of the jury in a murder trial, which jury, it ought to be assumed, would faithfully and carefully adhere to directions given by the trial judge about seeking and using in their deliberations information from sources other than the evidence.

I find that the conduct of the respondents in publishing the article during the trial of an accused on a murder charge was conduct in contempt of court. I am satisfied beyond reasonable doubt that the publication, objectively and as a matter of practical reality, had a real and definite tendency to prejudice the trial of the accused.

Findings of fact

The trial of Mataio Jordan Aleluia on one count of murder of Brittany Harvie commenced with the empanelment of a jury on 17 August 2016 before Lasry J. Following empanelment and throughout the remainder of that day, the trial judge directed the jury about the conduct of the trial, the Crown Prosecutor opened the Crown case and defence counsel identified the issues.

The first respondent wrote an article titled ‘Man paused to take “smoke break” while bashing girlfriend to death’ (the ‘article’) and the respondents published it by uploading it to the second respondent’s website on 18 August 2016 at 8.45am. The fact of publication in this manner was not contested.

The jury heard evidence from the prosecution on 18 and 19 August 2016.

On the evening of 21 August 2016, counsel for the accused, Mr G A Georgiou SC, discovered the article by a Google search. He was monitoring media coverage of the trial. The evidence did not reveal his search terms. On 22 August 2016, Mr Georgiou applied for the jury to be discharged. The Crown Prosecutor supported the application, which succeeded. The jury was discharged that day. The trial judge was satisfied that there was a high degree of necessity to discharge the jury in order to avoid the risk of unfair prejudice to the accused.[1]
[1]R v Aleluia (Ruling No. 1) [2016] VSC 497.

Towards the end of the article was a heading: “Brittany Harvie predicted her death on Facebook” followed by:

In March last year, Ms Harvie posted a chilling Facebook premonition that she would one day be harmed by the man she loved. “It won’t be long and he will put me six feet under. I love him until the day he kills me. He needs a punching bag, we all do,” she wrote three months before she was killed.

Underneath that heading the article included the following image, highlighting three posts from Ms Harvie’s Facebook page:

Evidence of such matters had not been opened by the Crown Prosecutor, and would not be adduced by the Crown. No allegations would be made in the trial that the accused had been violent towards the victim on any occasions other than in the circumstances that resulted in the victim’s death. The prosecution opening address and defence response made it clear that the single issue in the trial was to be whether the prosecution could prove beyond reasonable doubt that the accused man had the requisite intention for the offence of murder. His plea of guilty to manslaughter was not accepted by the Crown in satisfaction of the indictment.

The article, in making reference to the victim’s Facebook posts, revealed a history of violence perpetrated by the accused against the victim. This information was apparently sourced from media publications around the time of the victim’s death. Considered in isolation, the suggestion that the accused had on occasions prior to the circumstances of the victim’s death, exhibited a violent propensity towards the victim was plainly sufficient for satisfaction that the article had a real and definite tendency to prejudice the fair trial of the accused. The respondents did not contend otherwise. Accepting that the content of the publication could have a real tendency to prejudice the fair trial of the proceeding, the respondents contended that the circumstances of publication raised a reasonable doubt whether, as a matter of practical reality, it could have that tendency.

The article became publicly available from about 8:45am on 18 August 2016 on the Yahoo!7 website at until about 12:37pm on 22 August 2016 when it was removed from the website after the respondents became aware that it had caused discharge of the jury. When an internet user navigated to the Yahoo!7 website homepage on 18 August 2016, a series of hyperlinked headlines appeared in the top left corner of the homepage under the heading ‘Today’s Headlines’. Also, a News Tab at the top of the homepage took the reader to a news page where hyperlinks to a greater range of articles were displayed in a like fashion. No more than the first two sentences of the article would have been visible on these pages. It was not suggested that what was published on the homepage contained prejudicial material.

The relevant headline ‘Man paused to take “smoke break” while bashing girlfriend to death’ on both the home page and the news page was hyperlinked to the file location that revealed the full article.

When either of these hyperlinks was followed, the file where the article had been uploaded to the website was downloaded by the reader’s web browser software. For the offending content to come to the attention of the reader, the reader needed to follow the hyperlink and open the article in the reader’s web browser.

Further, from the time it was uploaded, the article could be identified by internet search engines, web crawlers and like software that could generate and display a link to a URL or file location that could display the article in full, or images from the article, and from where it could be indexed, saved or copied.

Mr Simon Wheeler, Head of Editorial at Yahoo!7, described the website as generally accessible, meaning it was not protected by a pay wall so as to require a subscription. In his experience, articles accessible on the homepage under the heading ‘Today’s Headlines’ were replaced after about 24 hours as the news cycle revolved.

If the article was removed from the website, by deleting or moving the file from the URL to which the hyperlinks directed a reader, the reader’s web browser could no longer call it up and then displayed a message that the article was no longer available and took the reader to the general search page for the Yahoo!7 website.

A Yahoo7! journalist who authors an article works in a program referred to as the Content Management System, from where the article is uploaded to the website. Uploading is usually effected by an editor rather than the journalist although, in this case, the article was directly uploaded to the website by the first respondent without being checked by any other employee of the second respondent.

Records can be obtained from the Content Management System about the article, principally when it was posted and when any changes were made to it. There is no evidence that any member of the jury saw or otherwise become aware of the article. Records about access to the article through the website by internet users are available through a program called Google Analytics. Printouts of such records were tendered without objection. These records demonstrated that the article was mostly accessed on the date it was uploaded, 18 August 2016 and access to it decreased in frequency until it was removed. The record suggested that, over the period that the article was available, it was viewed in Victoria on 4180 occasions by 4123 individual users. Those individual users cannot be identified from these records and although the respondents observed that the trial judge made no enquiry as to whether any member of the jury had read or otherwise become aware of the article, quite properly the respondents made no criticism of the manner in which the trial judge dealt with this issue. It is not necessary to further analyse these statistics.

An alternative method for an internet user to discover the article is to use a search engine such as Google. Many different search terms, which can readily be constructed from commonly known facts, such as the names of the accused and the victim, will identify relevant material on the internet, including both the article, if the search specifies display of ‘All’ hits, or ‘News’ hits and the images contained in the article if the search specifies display of ‘All’ hits or ‘Images’ hits. Where images are searched, the image is usually hyperlinked to a source article. Although a hyperlink to the file location of the article on the Yahoo!7 website becomes ineffectual when the article is removed from the site, if an internet user copied or saved the article or images to another internet location before it was removed, a new source location for the material may be created and is likely to be identified by an internet search engine.

Mr Wheeler accepted that a process that he described as ‘copy and paste’ was commonplace and readily anticipated by journalists and news website proprietors as a legitimate and possible use of material posted to the website. Although the article in its original form may no longer be available from the website, I am satisfied that the respondents appreciated at the time of publication that the article, or material from it such as images, if copied or saved may remain available to be identified by internet search engines notwithstanding its removal from the Yahoo!7 website.

The webpage that is the article contains links to other areas of the website indicated by tabs across the top of the displayed page. There is also an icon that permits the reader to access his or her profile and email with Yahoo!7. At the start of the article there are icons for links that provide different methods for the reader to share the article with others. These links permit the reader to share the article over Facebook, Twitter, WhatsApp, and by email. When using these ‘social media’ options the reader may add comments.

Principles of sub judice contempt of court

The guiding purpose of the law of contempt of court is to ensure that the actions of those involved, whether directly or indirectly, with any proceeding that is subject to adjudication in the courts do not interfere with or compromise the administration of justice. Conduct by a publication that interferes with the due administration of justice by materially prejudicing the fair hearing of a criminal trial before a jury is classified as sub judice contempt of court.

There was no dispute between the parties as to the applicable principles, which are well settled. I have applied the following principles, distilled from my review of the relevant authorities:[2]
[2]What follows is principally drawn from the recent analysis of the principles by the Court of Appeal in Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors [2014] VSCA 261.

(a) All contempt of court proceedings involve circumstances where there has been an interference with the due administration of justice;

(b) The law is concerned with the tendency of the matter published in the risk created by its publication.[3] It is unnecessary to prove that a juror or potential juror actually read or heard the prejudicial material;[4]
[3]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 370-372; Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368, 382.
[4]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 372; News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 265 [65].

(c) The test for liability for sub judice contempt is whether the published material has, as a matter of practical reality, a real and definite tendency to prejudice or embarrass particular legal proceedings or interfere with the due administration of justice in the particular proceeding;[5]
[5]See John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 372; Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362, 386; Victoria v Australian Building Construction Employees & Builders Labourers Federation (1982) 152 CLR 25, 56 (Gibbs CJ), 99 (Mason J) and 166 (Brennan J); R v Saxon [1984] WAR 283, 292; Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 28 (Mason CJ), 34 (Wilson J), 46 (Deane J), 70 (Toohey J) and 88 (Gaudron J); General Television Corporation Pty Ltd v Director of Public Prosecutions & Ors [2008] VSCA 49, [36].

(d) The tendency is to be ‘determined objectively by reference to the nature of the publication and it is not relevant for this purpose to determine what the actual effect of the publication on the proceedings has been or what it probably will be. If the publication is of a character which might have an effect upon the proceedings, it will have the necessary tendency, unless the possibility of interference is so remote or theoretical that the de minimis principle should be applied’;[6]
[6]Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362,; R v Saxon [1984] WAR 283, 292.

(e) The tendency is to be determined at the time of the publication;[7]
[7]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 372; R v Regal Press Pty Ltd [1972] VR 67, 73; Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 70.

(f) Publication on the internet occurs when the material is uploaded onto the internet;[8]
[8]The Queen v Hinch [2013] VSC 520, [53].

(g) Proof of an intention of the contemnor to interfere with or obstruct the administration of justice is not a necessary element to be proved;[9]
[9]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 371; Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 69; R (on the appln of Attorney-General (Vic)) v Bonacci [2015] VSC 121, [78].

(h) It is not relevant to consider the actual effect of the publication. Regard is had to the nature and content of the publication and to the circumstances in which it occurred;[10]
[10]R v David Syme & Co Ltd [1982] VR 173, 176; Director of Public Prosecutions v Wran (1987) 7 NSWLR 616, 626. In Director of Public Prosecutions v Sexton & Another [2008] NSWSC 152, [25], Howie J considered the fact of discharge of the jury to be relevant but not decisive and generally deserving of little weight.

(i) Publishing or broadcasting material that is inadmissible before a jury may have the necessary tendency to prejudice an accused’s right to a fair trial;[11]
[11]See R v The Evening Standard Co Ltd [1954] 1 QB 578.

(j) It is an elementary principle in the administration of criminal justice that, apart from exceptional cases, usually defined by statute, the bad character or prior convictions of an accused cannot be put before the jury on a trial;[12]
[12]R v Parke [1903] 2 KB 432; R v Regal Press Pty Ltd [1972] VR 67, 73-4; Davis v Baillie; Davis v Kay [1946] VLR 486, 496; Minister for Justice v West Australian Newspapers Ltd [1970] WAR 202, 211; Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 88; R v Thompson [1989] WAR 219.

(k) The law sets its face against trial by prejudice and innuendo. The principle that the prosecution may not adduce evidence, tending to show that an accused person has been guilty of other criminal acts or has a propensity to violent behaviour, for the purpose of leading to the conclusion that he is a person likely to have committed the offence with which he is charged is deeply rooted and jealously guarded;[13]
[13]Maxwell v Director of Public Prosecutions [1935] AC 309, 317; The Queen v Hinch [2013] VSC 520, [99].

(l) The weight and importance of the various factors that will be material in assessing the circumstances of publication will vary from case to case. Broadly speaking, the more important factors will include the following: the content of the publication; the nature of the proceedings liable to be affected, whether they are civil or criminal proceedings and whether at the time of publication they are pending at the committal, trial or appellate stage; the persons to whom the publication is addressed; and finally, the likely durability of the influence of the publication on its audience;[14]
[14]Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 34. The last-mentioned factor will assume greater or lesser relevance depending on when the pending proceedings are likely to be heard. Hinch, like many sub judice contempt cases, concerned publication pre-empanelment of the jury.

(m) Proceedings in respect of sub judice contempt of court are criminal in nature, as the purpose of the proceeding is to punish the contemnor;[15]

(n) Thus, any finding in respect of the contempt must be proved beyond reasonable doubt;[16]

(o) Even if a contempt is established, the Court retains discretionary authority to make no orders as to fine or committal. This is likely to occur when the contempt can be described as ‘casual, accidental or unintentional’.[17]

[15]Compare proceedings in respect of breach of court orders or wilful breach of an undertaking given to a court that are generally regarded as forms of civil contempt where the purpose is to achieve compliance; Hinch v Attorney-General (Vic) (1987) 164 CLR 15.

[16]Witham v Holloway (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ).

[17]Australasian Meat Industry Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 113 (Gibbs CJ, Mason, Wilson, Deane JJ).

Journalist’s practice

For centuries, a ‘golden rule’ has been observed by journalists and publishers that while proceedings are being tried before the courts, information that is not admitted as evidence before the jury is not reported or published to prevent the possibility that the jury is influenced by prejudicial, extraneous, or irrelevant information. The rationale is well understood. In 1811, Lord Ellenborough stated in R v Fisher:[18]

If anything is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide, with minds pure and unprejudiced’.

[18](1811) 2 Camp 563, 570.

More recently, in 1985, Watkins LJ in Peacock v London Weekend Television[19] reaffirmed the balance between a fair trial and media reporting:

In our land we do not allow trial by television or newspaper. Until the well-recognised institution of this country for the doing of justice, namely the courts, have worked their course, then the hand of the writer and the voice of the broadcaster must be still.

[19](1985) 150 JP 71, 80.

The rule is well understood by journalists through their education and is communicated to journalists by the court. The court’s website has a guide ‘Covering the Courts’[20] that stresses the importance of not disclosing material that is kept from a jury:

Remember the golden rule: do not report anything said in the absence of the jury.
[20]The guide is accessible via the following link: type="1">
In this instance, the article disclosed information that was not, and would not be, the subject of evidence before the jury. The prejudicial nature of that information was, correctly, not in contest. I am persuaded beyond reasonable doubt that the publication of an article communicating such information, in a practical sense, gave rise to a real and definite tendency to prejudice the trial of the accused.
Publication of the information regarding the accused’s violent tendencies, objectively viewed, tends to induce hostility in the jury towards the accused and a bias by the jury in its treatment of the accused. The article had the effect of bringing to the reader’s attention facts that they were not otherwise entitled to know and which were prejudicial to the accused’s right to a fair trial. Moreover, the accused was standing trial for murder, the most serious offence known to the law. As a matter of fact, the content of the article clearly had a real and definite tendency to prejudice the accused’s trial. Having regard to the principles set out above, the respondents’ concession of that tendency was appropriate.
That said, the content of the publication is not to be considered in isolation. There are four salient factors arising from the circumstances of publication, which the parties submitted must be taken into account in determining whether, ultimately, the Director has established beyond reasonable doubt that the publication by the respondents of the article had the necessary tendency.
The trial judge’s instructions
First, the respondents placed considerable emphasis on the trial judge’s initial directions to the jury prior to the Crown Prosecutor’s opening. They submitted that because of the limited access to the article that occurred, as evidenced by the statistics I have set out, and the directions given by the trial judge to the jury before the article was published, I could not be satisfied beyond reasonable doubt that the publication, as a matter of practical reality, had a real and definite tendency to prejudice the trial of the accused. To deal with this submission, it is desirable that I set out the material parts of his Honour’s directions.[21]
[21]These directions are standard and follow the recommended directions set out in the Victorian Criminal Charge Book.
After instructing the jury to put aside any emotions of sympathy or prejudice, the trial judge said:
It’s also important that you understand that your decision in this case must only be based on the evidence you hear in this courtroom. If there’s been anything in the media about this of course you will ignore it. If there is any media coverage of this trial in the course of the running of the trial I suggest you would obviously also ignore that. … So what any journalist or what anyone else thinks about this case is irrelevant to your position.
You must not make any investigations or enquiries or conduct any independent research concerning any aspect of this case or any person connected with it. You must not use what I referred to as research tools such as the internet … And it is not open to you to ask someone else to do that on your behalf.
If you were to do such a thing then you would be in fact committing a criminal offence. Now, in a sense I’m waving a stick but it’s important that – and perhaps you already understand why this is so important – the transparency of the criminal justice system is absolutely fundamental to its successful operation and fair operation and the only way we can ensure that is to make [sure] the system is accountable. The only way we can ensure that is to make sure that juries only decide cases like this on the basis of what they hear in the court room. So anything else is completely irrelevant to your consideration.
I tell you this because of course there’s always a temptation to go surfing the net and looking for things that you think might help you. None of it will help you. The only thing that will enable you to do your job properly is the evidence that is presented before you in this courtroom.
…
You should avoid talking to anyone other than your fellow jurors about the case. That includes family and friends. There are plenty of people with a significant interest in the criminal justice system. There are plenty of people in the community with a strong view or views about how it should operate who will only be too happy to tell you how you should do your job as a juror. Please avoid these conversations. Go home tonight, tell your family or friends you are on a jury, the trial might run until the end of next week and then leave it at that. We want your judgment as the jury, not the judgment of someone outside the courtroom, some member of your family or friend who has some necessarily uninformed opinion about this case.
At the completion of defence counsel’s opening address, before adjourning for the day, his Honour instructed the jury to bear in mind the cautions that he had earlier laid out for them about not discussing the case.
It is not uncommon in criminal proceedings for an issue to arise as to whether or not an accused person is able to have a fair trial in the context of substantial media publicity. I was referred to a long line of authorities in which appellate courts have recognised that the judicial experience is overwhelmingly that the corporate integrity of juries can be relied on and that juries do comply faithfully with directions given by judges to put aside prejudicial material and to consider their verdict solely on the basis of the evidence put before them.[22] This proposition is not in doubt. Plainly, the corporate integrity of the jury was a relevant consideration for the trial judge when determining whether a discharge was warranted. But that deliberation is, as I have noted, either irrelevant or deserving of little weight in determining, objectively, the tendency of the publication for the purposes of the law of contempt. The respondents cannot rely as a justification for their conduct on other protections of the integrity of jury trials that the law sets in place to strike a balance between free and open communication of matters of public interest (assuming, without deciding, the article can be so described) and an accused’s fundamental right to a fair trial.
[22]R v Glennon (1992) 173 CLR 592, 603; R v Yuill (1993) 69 A Crim R 450, 453–4; R v Miletic (1997) 1 VR 593, 605; R v TJB [1998] 4 VR 621, 631; DPP v Bohdan Weiss [2002] VSC 153, [7]; Director of Public Prosecutions v Carl Williams & Ors [2004] VSC 209, [20]; John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344, 366 [103]; General Television Corporation Pty Ltdv Director of Public Prosecutions (Underbelly case) (2008) 19 VR 68, 84 [54]; R v Mokbel (2009) 26 VR 618, 636 [84]-[91]; Dupas v The Queen (2010) 241 CLR 237, 251 [38].
As the Court of Appeal observed in News Digital Media Pty Ltd v Mokbel:[23]
This confidence in the corporate integrity of juries, however, does not mean that the law should abandon its traditional role of protecting them from events which put this integrity to the test. This role has relied upon the familiarity of the media with the restraints of the law of contempt and their respect for these constraints. It has also relied upon the power of the court to make orders restraining publications which might breach these restraints. In the case of such an order, there will often be the question as to its necessity, and as to its ambit; an order should not be made unless this be necessary and, if made, it must be no wider in its terms and its duration than is necessary to ensure that, as far as possible, the apprehended risk to the pending proceeding is removed.
[23](2010) 30 VR 248, 265 [73] (citation omitted).
In Murphy v R,[24] Mason CJ and Toohey J did not accept that instructions to a jury can secure impartiality:
It may be said that there can be no guarantee that directions given by a trial judge in an effort to counter the effect upon a jury of media publicity will be successful. That is true just as it is true that there can be no guarantee that a juror may not have been influenced by other matters of which he or she has heard before the trial.
[24](1989) 167 CLR 94, [16].
To accede to the proposition that I could entertain a reasonable doubt that the publication had a tendency to prejudice the accused’s right to a fair trial simply because of common judicial experience that the jury will follow the trial judge’s direction and dismiss the prejudicial material from their consideration would necessarily significantly undermine the law’s protection of the integrity of the jury process. It remains essential that the media respect the restraints imposed upon them by the law of contempt. Further, it is relevant that many of the authorities concerned pre-empanelment publication where the scope and timing of the publication and the extent of its dissemination into the community from which a jury pool would be chosen are material considerations that anticipate the fact, and effect, of jury instructions. That circumstance is materially different from publication after empanelment while the trial is running.
The notion of ‘overwhelming judicial experience’ is not a rule of law. The tendency or risk must be assessed in the circumstances of the particular case. The law is cognisant of natural human curiosity, and of the increased contemporary risk that the diligence and application of internet savvy jurors may be misdirected and result in extraneous research. The law also recognises both the very recent development of the ubiquitous accessibility of the internet and its popularity in the community as a source of apparently reliable information. That is precisely why such directions are standard. They are given in recognition that as a matter of practical reality there exists a real and definite temptation for jurors to conduct their own research over the internet.[25]
[25]R v Mokbel (2009) 26 VR 618, 636 [85].
It is also pertinent to observe that the judge did not direct the jury that they could not access the internet at all. A juror could become aware of the article without breaching the trial judge’s directions in at least two ways. First, a juror might go to the Yahoo!7 website for a reason unconnected with the trial and notice the headlined hyperlink to the article. However, because the offending material was located towards the end of the article, that juror would not become aware of the offending material simply by being aware of the existence of the article. The trial judge’s direction to ignore any media coverage of the trial would be breached if the juror was to follow the hyperlink to the article and read it.
Secondly, a juror might be informed about the content of the article by an unsolicited comment either through conversation with a friend or family member or through social media. Although the trial judge directed jurors not to participate in such conversations, such directions are very difficult to effectively enforce, particularly if a juror did not inform other members of the jury about the article or comment. Although the jury was directed not to initiate or participate in such discussions, no such direction could be given to family and friends or social media contacts to refrain from commenting to a juror.
Comment on social media could be, potentially, a much wider source of information to a juror than speaking with immediate family and friends. The example given by the trial judge in argument on the application to discharge the jury is apposite. His Honour postulated the following possible conversation with a juror in response to the article:
This fellow’s done it before, she predicted she was going to be killed.
I can’t talk to you about that.
Well that’s what the internet says.
I do not accept the respondent’s submission that there was, on the Crown’s proofs, no more than a remote possibility that a member of the jury would have disobeyed the warnings given by the trial judge and I do not accept the submission that it was only by disobedience to those warnings that a member of the jury might have learnt of the offending material that had been published by the respondents.
An empanelled jury
The second factor is that the jury had been empanelled and the trial was underway. What is significant is that the article had the capacity to have a real and definite tendency to prejudice the due administration of justice if considered by any one of the 12 empanelled jurors. Because a finding of contempt rests on the risk of prejudice, and not the actual prejudice occasioned,[26] the nature and extent of the readership to which the publication was directed, while relevant, is not a consideration that in the present circumstances deserves significant weight. The fact is that the article was published and available to be read.
[26]Attorney-General for New South Wales v John Fairfax & Sons & Bacon (1985) 6 NSWLR 695.
For the reasons I have already expressed, the instructions that had been given to the jury do not mean that it is certain, or beyond reasonable doubt, that the jury would not pay any regard to the prejudicial content of the publication if it in fact came to their attention. Although it is accepted that by reason of their qualifications, skills and experience, judges may dismiss irrelevant, prejudicial, or inadmissible material from their deliberations, the same capacity to dismiss preconceived prejudices and opinions is rightly not expected of jurors. Judges demonstrate that they have done so through transparent reasoning. The integrity of jury deliberations, which are not transparent, must be maintained. I am satisfied that the risk of prejudice from the circumstances of the publication is not removed by the jury instructions and that a real and distinct tendency to prejudice a fair trial cannot be said to be remote because of the trial judge’s instructions.
It did not matter that the article was only available on the website for a short period of time. Because the jury had been empanelled and the trial was running, the timing of the publication was critical. The period when the article was available on the website included the first two days of prosecution evidence and the following weekend. As a matter of practical reality, it was during this period that the risk of, or tendency for, a search for, accidental discovery of, or comment about the content of the article was most significant. These circumstances can be distinguished as not warranting factual enquiries of the kind commonly undertaken when the publication could only affect potential jurors.
The prospect of the article coming to a juror’s attention
The third factor is the nature of publication on the internet. Yahoo!7 is an organisation of apparent size and influence. It appears to claim connections to a major television network. The website is directed to users in metropolitan Melbourne, from where the jury was drawn, and is a potential news source for Melbournians.
I have no doubt that there was a real and definite risk that the article could come to the attention of an empanelled juror. In publishing the article, the respondents took that risk preferring their commercial objectives. I accept that, unlike publication in a major mass media source, the jurors were not likely to simply be confronted with the prejudicial material. On the other hand, I cannot assume that all jury members would use the mass media for their sources of news. Social media has become significantly more prominent as a news source for many in our community. The evidence demonstrates that the article came to the attention of at least 4123 persons who opened the article directly from the Yahoo!7 website. It was displayed with some prominence when first uploaded. As I have noted, the article could have been further disseminated over social media, accompanied by comment that conveyed the gist of the prejudicial material, obviating the need to open the original article at the website.
The respondents submitted that these statistics suggested a ‘particularly small readership’. That submission might have carried some persuasion if the issue was whether members of a potential jury pool had been prejudiced prior to empanelment. There was a distinct possibility that a member of the jury could have innocently discovered the article and read it with immediate effect. There is no evidence that the impact of the article may have been diluted by the presence of a significant volume of prejudicial material from other sources.[27] As a matter of practical reality, that possibility cannot in my view be characterised as fanciful or remote by adopting the reasoning that applies pre-empanelment.
[27]Compare The Queen v Hinch [2013] VSC 520, [101], [114].
As already noted, there was plainly a possibility that a family member, friend, or work colleague of a member of the jury could have discovered the article, read it, and made an unsolicited comment to a juror. That unsolicited comment, as the example given by the trial judge that I have set out above demonstrates, could have been sufficient to prejudice the fair trial of the accused. Again, as a matter of practical reality, that consequence cannot in my view be characterised as fanciful.
Further, the article could have readily been discovered by a search, albeit that a search would most likely be in breach of the trial judge’s instructions. The law’s confidence in the integrity of juries is not absolute. As a matter of policy, it does not yield to the fundamental requirement that a criminal trial be conducted fairly. Such a search will usually be completed in private and no one, including fellow jurors, might learn of it. Not all searches might be thought by a juror to contravene the instructions. A search for images, perhaps out of a curiosity to see what the victim looked like rather than to research the case, would have revealed the image reproduced above, which communicates the gist of the prejudicial information.
I am satisfied there is a realistic possibility that a juror might learn of the information from the article without breaching the directions in one of the two ways discussed above. Perhaps more to the point, I am not persuaded that the risks of a juror disobeying the trial judge’s instructions, or ‘surfing the net’, or discussing the case with others are remote risks, with the consequence that the tendency to prejudice the administration of justice is not real or practical.
Other published material
Finally, the respondents submitted that a number of other articles containing prejudicial material from different news sources could have been accessed online at the same time as the article. All had been published online some 12 to 15 months prior to the trial. The Director had sent warning letters to the publishers of four other articles, but has laid no charges arising from those publications.
In contrast to the article, the respondents contended that prejudicial material is apparent in the headlines of three of these articles. For example, the headline for an article published on the Daily Mail website contained a direct quote from the Facebook posts in question, while another stated ‘Mother of two killed by teenager boyfriend; predicted death on Facebook’. Even if a juror, contrary to the warnings given, had searched for material about the case, it may have also revealed these other articles which contained the prejudicial material in the headline, while the article did not.
The respondents submitted these publication were significant when considering the question of a practical tendency. In TheQueen v Hinch,[28] Kaye J (as he then was) considered a like submission in respect of a charge of sub judice contempt arising out of a website article published about Adrian Bayley. The article was first uploaded earlier on the day that Bayley pleaded guilty to one count of rape and one count of murder. There was a considerable volume of published media material that was substantially prejudicial to Bayley, which Kaye J concluded must be taken into account in determining whether the article published by Hinch, in that context, had the relevant tendency to prejudice the fair trial of the charges against Bayley.[29] His Honour also noted that this factor alone would not suffice to preclude a finding, beyond reasonable doubt, that the article published by Hinch had a tendency to prejudice the fair trial of the first proceedings.[30]
[28][2013] VSC 43.
[29]Ibid, [105], [113].
[30]Ibid, [114].
This other material bears some weight in my deliberations as to whether a reasonable doubt exists that the article had the relevant tendency. It is a relevant feature of the circumstances of the publication by the respondents, but its significance is reduced, although not eliminated, by the historical nature of the publications (at the time of the death) when compared with a report of proceedings at trial. Those other articles, although discoverable by an internet search, were not new material being disseminated to the public. The article, which in respect of the prejudicial passages may have been sourced from the earlier articles, was a fresh statement of the prejudicial material in the context of a trial running before an empanelled jury. It had the capacity, in that context, to revive and reinforce any prejudicial effect lingering in the minds of those who read the other article when they were published. Moreover, publication of the article occurred at a time of substantial focus on the issue of the guilt of the accused as opposed to the death of the victim.
Taking all of these factors into account, I am satisfied beyond reasonable doubt that the article had the relevant tendency.
Order
I will declare that the respondents are adjudged guilty of contempt of court by the publication of the article, which had a real and definite tendency to prejudice the fair trial of Mataio Jordan Aleluia on one count of murder of Brittany Harvie that commenced on 17 August 2016.
I will hear further from counsel on the question of penalty and costs.
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[2016] VSC 699

28 NOVEMBER 2016