Director of Public Prosecutions v Messenger Newspapers P/L - [2007] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DIRECTOR OF PUBLIC PROSECUTIONS v MESSENGER NEWSPAPERS P/L
[2007] SADC 76
Reasons for Penalty Delivered by His Honour Judge Muecke
24 July 2007
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - POWER OF COURT TO PUNISH FOR CONTEMPT
Contempt of Court - not intended - serious contempt recklessly published - publication did not in fact prejudice or interfere with a trial - fine of $20,000, costs of $1,000.
DPP v Francis and Anor (2006) 95 SASR 302; Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, considered.

DIRECTOR OF PUBLIC PROSECUTIONS v MESSENGER NEWSPAPERS P/L
[2007] SADC 76

On 12 July 2004 an Information was laid in the District Court of South Australia by the Director of Public Prosecutions (“the DPP”) charging Randall Ashbourne with one count of Abuse of Public Office, contrary to s251 of the Criminal Law Consolidation Act, 1935. The particulars of his offence were alleged to be that, between 1 April 2002 and 21 November 2002 at Adelaide or other places, he, being a public officer, improperly exercised power or influence that he held by virtue of his office with the intention of securing a benefit for another person, namely Ralph Clarke.
Mr Ashbourne pleaded not guilty to that offence. The trial commenced on 6 June 2005 with a voir dire hearing before His Honour Judge David (as he then was) (“the Trial Judge”). The Trial Judge delivered his ruling on the voir dire on 7 June 2005.
The prosecution opened its case on the trial before a jury on the morning of 8 June 2005. The prosecution closed its case on Tuesday 14 June 2005. During the course of presenting its case to the jury the prosecution called a number of witnesses. They included the Attorney-General for the State of South Australia (the Honourable Michael Atkinson MP), on 9 June 2005; the Treasurer for the State of South Australia (the Honourable Kevin Foley MP), on 10 June 2005; and the Premier of the State of South Australia (the Honourable Mike Rann MP), on 14 June 2005.
The case for Randall Ashbourne was opened on Wednesday 15 June 2005. Mr Ashbourne gave evidence and was cross-examined. The defence case was closed on Thursday 16 June 2005.
Addresses by counsel occurred on 16 June 2005. On that same day the Trial Judge commenced summing up to the jury. He did not complete his summing up on that day. He concluded it the following day, Friday 17 June 2005.
The jury retired to consider its verdict at approximately 11.20am on the morning of 17 June 2005.
The trial of Randall Ashbourne generated considerable publicity and public comment. The circumstances surrounding the laying of the Information by the DPP against Mr Ashbourne and the public office held by a number of witnesses called during the trial explained why the trial generated considerable publicity.
Shortly after 10.20am in the morning of 17 June 2005 and before the Trial Judge resumed his summing up, the Trial Judge was advised by Mr Ashbourne’s counsel of an article that had appeared in that morning’s publication of The City Messenger. The Trial Judge was advised that there were free copies of that publication in the foyer of the Sir Samuel Way building in which the trial was occurring. Counsel said that he was not sure when free copies of the publication had been placed on the rack in the court’s foyer. The publication was dated the day before, being 16 June 2005. Counsel expressed concern about whether a member of the jury may have picked up a free copy, that a copy may be in the jury room and that a juror or jurors may have read it.
With the agreement of both counsel for the crown and for Mr Ashbourne the Trial Judge then addressed the jury when the jury was brought into court at 10.25am. He referred to The City Messenger publication of 16 June 2005 and asked whether any member of the jury had read that day’s copy of the publication. The transcript refers to the jury replying “No”. The Trial Judge then said to the jury that it was a “ridiculous article” that would not help them at all. He said “It is not factual, it is comment and I am afraid that if you did read it, hopefully you would disregard it”. He referred to the fact that the jury might have got “some silly ideas” from having read the article about which it had heard no evidence at all in the case. The jury was asked again whether they had read it. The transcript refers to the jury again answering “No”. The Trial Judge then continued with his charge to the jury.
At 12.18pm on 17 June 2005 the jury returned a verdict of not guilty on the Information laid against Randall Ashbourne.
At 12.20pm on the same day, Friday 17 June 2005, counsel for the DPP raised the matter of The City Messenger publication before the Trial Judge. She submitted that the Trial Judge had the option to direct that a summons be issued by the Registrar of the court pursuant to R93 of the Rules of Court. She submitted that the Trial Judge had an option to refer the matter to the DPP or to the Attorney-General for their consideration as to what action may be taken. She submitted that a further option the Trial Judge had was to do nothing. The Trial Judge then heard submissions from counsel for Mr Ashbourne. He submitted that on the face of the article it appeared clearly contemptuous because the article referred in its first paragraph to the fact that the Trial Judge had warned both the media and politicians that they should not comment on the trial. The Trial Judge then indicated that he thought the appropriate way to deal with the matter was to refer it to the DPP. He did so.
By a Summons filed on 21 March 2006 the DPP (as plaintiff) instituted proceedings (Action No. 424 of 2006) against Christian Kerr (as First Defendant) and Messenger Newspapers Pty Ltd (“Messenger Newspapers”) (as Second Defendant). Christian Kerr was the author of the article that appeared in The City Messenger of 16 June 2005 and Messenger Newspapers published The City Messenger of 16 June 2005. In his summons the DPP sought orders that Christian Kerr and Messenger Newspapers be convicted of acting in contempt of the District Court of South Australia in that, on 16 June 2005 and on days thereafter, it published an article entitled “Foley Gets Aggro, Kero Gets Tough” which had, as a matter of practical reality, a real and definite tendency to interfere with the administration of justice and, in particular, the conduct of the trial of The Queen v Randall Ashbourne. The DPP sought orders that the two defendants be sentenced by this court in relation to any such conviction.
Between March 2006 and March 2007 certain processes were filed in this court in Action No. 424 of 2006. A number of those processes related to the appropriate proceedings by which the District Court might deal with alleged contempts of court. On 3 November 2006 a Master of this court published reasons as to whether or not the Registrar should be directed to issue a Summons for Contempt of Court. On 3 November 2006 he made an order pursuant to R93.03 directing the Registrar to issue a Summons for Contempt and cause it to be served upon the persons charged.
In his published Reasons for Decision the Master set out the background to the application before him as to whether or not he should direct that a Registrar’s Summons issue. After referring to the article published by Messenger Newspapers on 16 June 2005 and to the principles which should govern him on the application before him, the Master set out his conclusion as follows:
Therefore there are three types of contempt in respect of a publication as referred to in Francis’ case at paragraphs 56-61 (DPP v Francis and anor (2006) 95 SASR 302):
1.     That the impugned conduct has the actual effect of interfering with the administration of justice;
2.     That the publication constitutes a real risk of interference with the administration of justice in the accused case. This does not require proof of actual interference but an assessment of the likely effect of the publication and whether or not there was a risk that the words spoken would interfere with the administration of justice, in the proceedings against the accused which were then pending – see Francis (supra) paragraph 57;
3.     The third type of contempt is where, irrespective of whether the publication has a tendency to prejudice a fair trial of particular proceedings, a publication of this type tends to interfere with the administration of justice generally.
As to the first type of contempt there is no evidence that the conduct of the defendants in any way impacted to have an actual interference with the administration of justice. Further there was no evidence that the publication in and of itself tended to interfere with the administration of justice generally. There was no direct criticism of the Courts or of the result. The criticism of the witnesses was indirect and related to this case.
The appropriate type of contempt to consider is whether there is a real risk of interference in the administration of justice in the accused case. This requires an assessment of the likely effect of the publication and whether or not there was a real risk that the words spoken would interfere in the Ashbourne case, which was then pending.
I note the following from the article:
1.     The first defendant knew or ought to have known, as he was following the trial that the jury would be sent out to consider the verdict that week;
2.     That the credibility of the accused was promoted namely that he was “a damn good operator”;
3.     That this support for the accused was significant in a trial involving political identities, government ministers and a highly publicised trial on the offence of abuse of public office;
4.     A specific reference to Mr Foley’s performance in the witness box in the Ashbourne case deriding his credibility as a witness. It emphasised ‘paranoia” coupled with the ‘Kevin, please!’ which seems to be a statement of, inferentially, everybody knows that what he says is nonsense. The exclamation mark seems to emphasise that what Mr Foley says is “nonsense” or “rubbish”;
5.     The suggestion of defensiveness and aggression coupled with a suggestion of outward dishonesty “… you have got something to hide”
6.     An attack on the veracity of Mr Atkinson, in his capacity as the Attorney General and as a witness. It suggests that Mr Atkinson is confused or spends time on irrelevant or mundane issues to the exclusion of important issues in his capacity as Attorney General. It is a clear attack on his reliability and credibility as a witness in the trial;
7.     Comments specifically on the fact that Mr Atkinson gave evidence denying any knowledge of the accused’s alleged offer of a board position to Mr Clarke and couples that with a reference to the denial of knowledge by the Attorney over other issues concerning the Crown Solicitor. It is highly suggestive the evidence of Mr Atkinson is not to be relied upon or believed.
This is coupled with further references to Mr Atkinson disregarding his responsibilities whilst attending meetings presumably in his capacity as the Attorney. This seems to present strong indicators that the article on its plain reading undermines and was intended to undermine the credibility of key prosecution witness.
8.     The fact that it is more based on “gossip” and innuendo rather than stated facts strengthens this position. The fact that it is derogatory of two witnesses is not insignificant if those derogatory comments are aimed at undermining their reliability as witnesses or belief in their evidence.
By contrast it would not be contempt if the criticisms were of the Ministers generally. It crosses the line in my view when it refers specifically to the fact that they have given evidence and, in effect, are unreliable as witnesses of truth.
It seems clear to me that there was a comment made about three witnesses in the then continuing trial. One of them was the accused who got the benefit of a positive statement that he was a “damn good operator”. It was a positive endorsement of the accused and his abilities over a long period (he cut the Peter Lewis deal that got the Government into office).
The prosecution called the other two witnesses. Both are well known and have high public profiles. Reference was made specifically to their evidence and a number of critical, incredulous type comments made about their veracity and reliability regarding unrelated events.
The newspaper was published on the last day of the criminal trial when counsel were delivering their closing addresses and during the Judge’s summing up. The newspaper was made available in the Court either that day or the next day namely 17 June 2005. This was the day the jury were sent out to consider their verdict.
I note the article could have been the following week after the verdict and its potential detrimental impact lessened. Perhaps that consequence was relevant to the timing of the article.
In my view the article has a considerable direct comment and innuendo, which had a tendency to criticise some witnesses in the then current high profile trial, and unreservedly, praised the accused. The fact that the criticisms were of senior government ministers only makes the comments more pertinent and understandable to anyone reading the article.
I do not have any doubt that the article provides sufficient evidence, which if accepted, would prove the contempt that there was a real risk of interference in the administration of justice in the Ashbourne case.
One only needs to compare the result if the facts were turned around the other way, namely:
1.     The accused was criticised in the evidence that he gave;
2.     The Crown ministerial witnesses were the subject of favourable comment.
Such statements made during a trial but especially on the day before and/or the day when the jury were left to consider the verdict would undoubtedly outrage the community.
There are other points to be considered including whether an application for contempt should be issued. Did the Judge decide the issue? It is clearly the case that he did not. The judge was given an opportunity to look at the article. He declared his view that it was “nonsense”. He later referred the matter to the DPP.
The other issue is delay. It is of some concern but in the scheme of things it is relatively minor. Delay surrounded prosecution of the Ashbourne allegations. The July 2004 indictment referred to events in 2002. The trial was in June 2005. The contempt application was issued in March 2006, nine months after the verdict. In the Francis case the publication was in October 2005 and the first return date before Bleby J was 24 March 2006.
In my view the delay is not sufficient to withhold the exercise of the discretion if or otherwise in favour of granting the application.
The final issue is that of particulars. It is true that particulars have not been provided. However based on my analysis of the publication the “particulars” of the tendency to interfere with the administration of justice in the Ashbourne case are clear.
Often these applications are heard ex parte and the test requires sufficient evidence which if accepted would prove the contempt. Particulars are not required, save what is in the affidavits in support. In my view it is not necessary to provide particulars at this stage. That would be provided once the summons for contempt is served on the defendants under R93.05.
In summary I have an article in a newspaper regarding a highly publicised and high profile trial with the Premier, Crown Ministers and a senior public servant as witnesses, which is supportive of the accused and highly critical of two high profile witnesses. The comments and suggestions in the article were not a balanced report of the trial or a party of it.
The author makes fun of the witnesses in a demeaning and direct way. It ridicules them in a way that goes to their credit, honesty and reliability. The article is derogatory and derisive that reflects on the integrity and character of the two named witnesses.
The effect of the article, for this prima facie purpose, in my view is to show the alleged imbalance between the man of character and ability with the two lesser beings whose word is not their bond. Prima facie it is very significant in a continuing trial.
Further the article is published near the end of the trial. What was the reason for this? Why, if the “opinion” was necessary was not it published some time earlier or later.
In my view the article was not directly prejudicial to the accused. It was the opposite. The author appeared to barrack for one side and ridicule the players for the other side. There is no attempt at balance. The publication is not a discussion or analysis of the issues raised before the jury in the criminal trial, however it does comment and raise for ridicule two witnesses and infers disbelief in the Crown’s witnesses.
It is clear that this could have caused very significant prejudice to the conduct of the jury trial. If it was early in the trial and it had came to the attention of the jury, there is a good chance of an order to discharge the jury and have a retrial. In my view the prosecution has made out a prima facie case that there is sufficient evidence which if accepted would prove the contempt that is, as a matter of practical reality, there is a real and definite tendency to interfere with the administration of justice and in particular the conduct of the trial in the R v Ashbourne.
As a consequence I make an order pursuant to R93.03 directing the Registrar to issue a summons and cause it to be served on the defendants alleged to be in contempt. The summons is to state the nature of the contempt with sufficient particularity to enable the persons charged to make their defence to the charge.
A Registrar’s Summons for Contempt was issued on 21 March 2007. It named the DPP as plaintiff and was issued against Christian Kerr (as First Defendant) and Messenger Newspapers Pty Ltd (as Second Defendant). The Summons required both defendants to attend at the District Court on 17 April 2007:
… to answer a charge of contempt of Court in that you did, on 16 June 2005, and the days thereafter publish in the 16 June 2005 edition of the City Messenger Newspaper an article entitled “Foley gets aggro, Kero gets ‘tough’” which had, as a matter of practical reality, a real and definite tendency to interfere with the administration of justice and in particular, the conduct of the trial of The Queen v Randall Ashbourne (SADC No 600 of 2004).
On 17 April 2007 the Summons was adjourned for mention on 3 May 2007. On 3 May 2007 the Summons was listed for a directions hearing on 23 May 2007 before a judge of this court. On 23 May 2007 the Summons came on before me. Mr Hinton QC appeared as counsel for the plaintiff and Mr Edwardson QC appeared as counsel for both defendants. I was informed that substantial negotiations had taken place between the DPP and the two defendants. I adjourned the Summons to 6 June 2007.
On 6 June 2007 I was informed that the matter had resolved on the basis that the DPP would accept a plea to the charge as appears in the Registrar’s Summons from the Second Defendant Messenger Newspapers Pty Ltd in total satisfaction of the Summons.
When arraigned on the charge of contempt of court alleged in the Registrar’s Summons the Second Defendant, Messenger Newspapers Pty Ltd, pleaded guilty.
Upon the DPP tendering no evidence against the First Defendant, Christian Kerr, I dismissed the Registrar’s Summons against Christian Kerr.

Mr Hinton QC, of counsel for the DPP, then set out the facts upon which he submitted Messenger Newspapers should be sentenced for contempt of Court. He submitted that there were three aspects in which the offending published article was contemptuous.
First, there were the comments made in the article with respect to the accused, Randall Ashbourne. They were:
Still, there are some subjects we can safely mention – like Ashourne himself.
Do a straw poll of journos or political types and most of them agree.
The journalist turned minder didn’t get the nickname “Scandal” for nothing.
He’s a character – but he’s also a damn good operator.
Mr Hinton submitted that the essence of the contempt in this regard is that it included a comment upon the character of the accused Mr Ashbourne when the jury were just about to retire to consider its verdict, which consideration would include an assessment of Mr Ashbourne’s credibility.
Secondly, Mr Hinton referred to the following paragraphs of the article:
Then there’s Kevin Foley’s performance in the dock – the perfect illustration of Rann Government paranoia.
“It was like hanging on to the cliff by your fingernails every week we were in office,” he said.
Kevin, please!
So you fell into office on Peter Lewis’ vote – on a deal Ashbourne cut – but the South Australian Libs have been unable to function as a team since before John Olsen rolled Dean Brown, for more than a decade.
…
Why the constant defensiveness, the constant aggression?
Unless you (Kevin Foley) change your tune, people may start to get the idea you have got something to hide.
Mr Hinton submitted that in these passages Messenger Newspapers commented upon Mr Foley’s credibility and his character at a time when the jury was about to retire to consider its verdict.
Thirdly, and finally, Mr Hinton referred to the same or a similar matter, but which related to the Attorney-General, Mr Atkinson. It was:
Finally, there’s the muddle-headed Attorney General himself, Mick Atkinson.
I don’t know if I’ve watched too much Perry Mason, but I thought attorneys were always supposed to be across every detail.
In his evidence last week, Atkinson denied Ashbourne ever told him about an offer of board positions to Ralph Clarke.
We’ve heard this “I didn’t know” line from Atkinson over the Crown Solicitor’s Trust Account.
Lawyers love gossip, and you can pick up stories at lunch time down Gouger Street any day of Atkinson supposedly reading the newspaper over meetings – of even doing his ironing.
Heaven knows if they’re true or not, but they’re not what you want to hear about the state’s first law officer.
Mr Hinton submitted that these passages of the publication, in a similar way to those relating to Mr Foley, were comments upon the Attorney-General’s character and his potential credibility, which could impact upon a prospective reader, including the jurors who were about to retire to consider the case against Randall Ashbourne.
Mr Hinton submitted that in the ways to which he referred statements in the article had the consequence that they could interfere with the due administration of justice. He submitted that the article was calculated to interfere with the due administration of justice in that the response that the writer intended to illicit was one with respect to character and credibility, and those very issues arose for consideration by the jury. He submitted that the word “calculated” in the phrase “calculated to interfere” does not carry with it an “intention” to interfere. He stated that there was no assertion by the DPP that Messenger Newspapers in any way intended to interfere with the due administration of justice. He submitted that unintended consequences of the article were the subject of the contempt of court in this case. The article had a tendency or potential to interfere with the jury, but it was not intended by Messenger Newspapers that it do so.
It is on this basis that I shall sentence Messenger Newspapers for its contempt. A contempt of court is committed even if the publisher of an article does not intend to prejudice or interfere with the course or administration of justice. It is a contempt of court if words calculated to do so are written and published. There is no doubt that was the case here.
During sentencing submissions Mr Edwardson QC, of counsel for Messenger Newspapers, told me that Christian Kerr was the author of the offending article in The City Messenger published on 16 June 2005. I was told that Mr Kerr has since 2004 been contracted to provide a political commentary column for The City Messenger. The offending article itself refers to Mr Kerr as being a political commentator and former state and federal Liberal ministerial adviser. I was given a bundle of articles that had previously been written by Mr Kerr and published by Messenger Newspapers. I am satisfied that the articles establish that Mr Kerr’s columns are topical, they contain political commentary on matters of public interest, and they are written in a spirited style. I was told that Mr Kerr believes in “demystifying politics” and he therefore considers a very important part of his role is to use direct language in his published political commentary.
I accept that what counsel referred to as “the Ashbourne trial” was unique and unusual in that it involved three senior cabinet ministers, being the Premier, Treasurer and Attorney-General, giving evidence in a criminal trial in this state. I accept that Mr Kerr was used to including in his commentaries comment on such people in public life, including comment about aspects of their political life. It was submitted, and I accept, that the allegations underlying the DPP’s decision to prosecute Randall Ashbourne, and which ultimately became the subject of his trial, included allegations that went to the core of government, in the sense that they related to the propriety of conduct alleged against a person who then occupied an office as senior adviser to the Premier, and alleged that that person improperly exercised power or influence that he held by virtue of his public office with the intention of securing a benefit for some person.
Furthermore, I was informed by Mr Edwardson that Mr Kerr’s reference in the offending article to “certain calls to certain newsrooms” from “a certain minister” was a reference to the Attorney-General. I was told by Mr Edwardson that his instructions were that the Attorney-General had, during the course of the Ashbourne trial, seen fit to contact a number of journalists and media outlets “in effect trying to quarantine the extent to which there was publication about matters which arose in the course of that trial”. Counsel for the DPP informed me that he had had no advance notice that such a submission would be made. Accordingly, he was in no position to make any submissions as to it. I make no finding as to this allegation. I do not consider it necessary to determine the truth, or otherwise, of it in determining a penalty in this matter.
It was submitted by Mr Edwardson that it was against the background of what I earlier set out that Mr Kerr wrote the offending article. It was submitted that he wrote it intending it to be a comment on political factors surrounding the Ashbourne trial rather than on the trial, or the conduct of the trial, itself. I was told that Mr Kerr had not attended any part of the Ashbourne trial. He had not inspected the court record or read the transcript. I was told that the quotation in his article that was attributed to the Treasurer as being from his evidence in the trial was obtained by Mr Kerr from a print-out of an article that had appeared in The Weekend Australian on 11 June 2005.
I was told that Mr Kerr submitted his article to Messenger Newspapers on Tuesday 14 June 2005. I was told that under the contractual arrangements that existed between Mr Kerr and Messenger Newspapers the editorial staff of the newspaper had complete discretion to edit any article submitted by Mr Kerr, and complete discretion as to how any article may be edited. I was told that Mr Kerr’s pieces were often altered by his editor for a variety of reasons, being reasons relating to space, legal reasons or as a matter of expression. I was told that under the arrangements Mr Kerr had with Messenger Newspapers any responsibility for ensuring that the publication complied with the law and did not offend against the law, whether it be the law of defamation or the law of contempt, fell to Messenger Newspapers.
This means that Messenger Newspapers had the article submitted to it on Tuesday 14 June 2005 for the purpose of considering whether the publication of it in the form submitted, or in any form, would offend the laws of defamation and contempt. Its editors had the opportunity to and could alter it to comply with those laws. Its editors could alter the article for any reason thought appropriate. I was informed that Mr Kerr’s submitted article was edited. I was informed, however, that the focus then “was very much on defamation rather than contempt”. The submission was to the effect that the focus was on the article as political commentary rather than as comment on a then current criminal trial. It was submitted that it was “against that background this article in effect slipped through the net”.
The offending article was dated and published on Thursday 16 June 2005. Copies of the publication containing the offending article were on a publicly accessible stand in the foyer of the Sir Samuel Way Building (where Mr Ashbourne’s trial was proceeding) in the morning of Friday 17 June 2005. It was available free for anyone who wished to take a copy.
It was submitted on behalf of Messenger Newspapers that the paper and its editors take responsibility for the article being published in the form that it was. It was submitted, and conceded by the DPP, that Messenger Newspapers had no intention at the time that the article was published to interfere with the administration of justice. It was submitted that Messenger Newspapers is genuinely contrite, which contrition is indicated by its acceptance of responsibility by entering a plea of guilty to contempt of court. It was submitted that neither Messenger Newspapers, nor anyone involved in the publication of the offending article, have ever been convicted, or been in any trouble, for this type of offending. I was informed that Messenger Newspapers has, since the publication, increased both its internal and external training of those whose responsibility it is to ensure that its publications do not offend against the law. I took that submission to be one which included the editorial staff of Messenger Newspapers.
Whilst I can better understand that Mr Kerr’s position as a political commentator caused him to be more focused on writing a political commentary on the Ashbourne trial, it is not so easy to understand how the editorial staff of Messenger Newspapers allowed the article to slip “through (their) net”. Whilst I accept that in this case it did, I have no doubt that a properly focused editor should not have allowed it to do so. The first paragraph of the published article refers to the fact that “(T)he most interesting story coming out of the Randall Ashbourne case is the one you’re not allowed to write about – how Judge Michael David has warned both the media and politicians off commenting on the matter. They could either cause a mistrial or be in contempt of court. Pity.” The article later refers to the Treasurer’s “performance in the dock (sic)”. That is immediately followed by a quotation attributed to the Treasurer. Later still the article refers to the Attorney-General’s “evidence last week”, which could only be read as referring to his evidence in the Ashbourne trial. Furthermore, I was informed that the article submitted by Mr Kerr was edited before its publication. The fact that it could be thought by editorial staff to be merely an article containing political commentary, and not one containing comment on a trial, indicates some recklessness by the editorial staff in allowing the article to be released for publication in the form that it ultimately was published.
The essence of the contempt by Messenger Newspapers in this case was the risk of prejudice to or interference with the course of justice or the administration of justice. That was the criminal trial of Randall Ashbourne, and the publication was made when the evidence at the trial had concluded, addresses of counsel had been made to the jury and the Trial Judge was in the process of charging the jury before it retired to consider its verdict. I consider that the risk of such prejudice or interference was significant, possible prejudice or interference was grave and hence the contempt was serious.
In the article comment was made on three witnesses at the trial, each of whom were important witnesses. The comments on the accused Randall Ashbourne inferred that whilst his nickname of “Scandal” might suggest that he may be a malicious gossiper, he nonetheless was a very good operator as a protector of his political master. The article’s comments on the Treasurer carried the suggestion that the “tone” of the Treasurer’s evidence at trial was more the product of paranoia than based on reliable truth. The article’s comments on the Attorney-General carried a suggestion which was similar to that in respect of the Treasurer, although one not quite so directly made. There was an inference that the Attorney-General’s evidence about not knowing might be questioned, because the “I didn’t know” line had been heard from the Attorney-General before in a different, but equally public, context.
In my view, these inferences were clearly open to readers of the article, each of them were comments as to the character and credibility of witnesses at an extant criminal trial, and each constituted a serious risk of prejudicing or interfering with the course or administration of justice, being the trial of Randall Ashbourne, in a significant way.
Furthermore, and importantly, these comments were made by reference in the article to facts and circumstances which had not been the subject of evidence before the jury at the Ashbourne trial.
I am satisfied, as events transpired, that publication of the article did not in fact prejudice or interfere with the course or administration of justice because none of the jury that brought down the verdict had read the article before doing so. I consider that the fact that the verdict may have been reached between the time of the submission of the article by Mr Kerr to the editorial staff of Messenger Newspapers and its publication is of no relevance. That is because I was informed that the editorial staff at Messenger Newspapers, when editing the article for publication, did not address the law of contempt but only addressed the law of defamation. The fact that there was no actual prejudice or interference with the course or administration of justice was fortuitous, and only occurred because no juror had taken a copy of the publication from the stand in the foyer of the Sir Samuel Way Building before assembling to resume the trial on the morning of Friday 17 June 2005. It cannot now be known what the Trial Judge would have done if an application had been made for a mistrial had a juror, or a number of jurors, read the offending article before the trial resumed. It cannot now be known whether the Trial Judge would have been prepared to continue with such a “high profile” trial in those circumstances, and rely on the fact that the jury would abide his direction to ignore the article when considering its verdict.
There are aspects of the offending by Messenger Newspapers which mitigate the appropriate penalty. There is the fact that there was no intention by Messenger Newspapers to prejudice or interfere with the course or administration of justice by its publication of the article, the fact that it comes before the court with a clean record for offending such as this, and the fact that it has now accepted responsibility by entering a plea of guilty, which reflects, amongst other things, genuine contrition for its offending.
I take into account the fact that there was a delay between the offending and the institution of proceedings by the DPP. That delay was a period of about nine months. I take that into account because there is no explanation for the delay although it may be that one matter which may have contributed to the delay was the fact that the Trial Judge did not direct the Registrar to issue a summons for a contempt when that option was raised with him immediately after the verdict on 17 June 2005.
I acknowledge that Messenger Newspapers has already taken some steps to ensure that a repetition of a contempt such as this does not occur. A conviction for contempt, which I propose to record against it, will no doubt bring home to Messenger Newspapers the seriousness of its offending. Because of this there is a sense in which a fine imposed on Messenger Newspapers will not need to be so high to act as a specific deterrence to it, although such a consideration cannot be ignored completely. The fine must, however, be of such magnitude as to indicate to other publishers that the laws of contempt of court exist so that the authority of courts of law can be maintained. I adopt (and adapt to this case) comments by McHugh J in Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, 463 where he said: “If breaches of the orders of the courts were regarded as of little moment, respect for and observance of the law would inevitably deteriorate and, ultimately, pose a threat to social order”. As Kirby J said in the same case (at 485): “the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner”.
I have concluded that an appropriate penalty for the contempt of Messenger Newspapers in this case is a conviction and a fine of $20,000. (I have reduced that fine from one of $27,500 to take account of the plea of guilty, the contemnor’s contrition, and the delay in the institution of proceedings.)
I further order that Messenger Newspapers pay the DPP’s costs, which I fix at $1,000.