Howe & Ors v Harvey; DPP v Quist & Ors

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

NOTE: This proceeding is subject to a suppression order concerning identification of a minor

No. 6851 of 2006 – 6855 of 2006
6892 of 2006 – 6896 of 2006
6957 of 2006

ALAN CHRISTOPHER HOWE & Ors	Appellants
v
PETER HARVEY AND	Respondent
Director of Public Prosecutions (on behalf of PETER HARVEY)	Appellant
v
JACQUELINE QUIST & Ors	Respondents

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 5 - 6 February 2007
DATE OF JUDGMENT:	8 May 2007
CASE MAY BE CITED AS:	Howe & Ors v Harvey; DPP v Quist & Ors
MEDIUM NEUTRAL CITATION:	[2007] VSC 130

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MAGISTRATES’ COURT – Appeals – Criminal law – Proceeding in The Children’s Court – Finding that ordinary reasonable reader or viewer of report of the proceeding would not know it had taken place in court named in s 26(1)(a) of Children and Young Persons Act 1989 (“the Act”) - Whether newspaper articles and telecasts were reports of the proceeding under s 26(1)(a) of the Act – Whether open on evidence to find that report likely to identify child or other party to the proceeding under s 26(1)(a)(ii) of the Act – Whether open to magistrate to find that report likely to identify witness in the proceeding under s 26(1)(a)(iii) of the Act - Whether picture published as being picture of child or other party to the proceeding under s 26(1)(b) of the Act - Whether open on evidence to find that matter published containing particulars likely to lead to identification of child as being the subject of an order made by The Children’s Court under s 26(1)(c) of the Act - Whether journalist lacking control over process of insertion of article in newspaper or content of telecast published a report under s 26(1)(a) of the Act

MAGISTRATES’ COURT – Costs – Whether error in exercise of discretion – Whether magistrate took into account irrelevant consideration – Whether acquitted defendant’s failure to act on warnings not to engage in behaviour the subject of charges was relevant consideration

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APPEARANCES: Proceedings No 6892-5 and 6897 of 2006 and 6957 of 2006	Counsel	Solicitors
For the appellants	Mr W T Houghton QC and Mr M Hoyne	Corrs Chambers Westgarth
For the respondent	Mr J Kennon SC and Ms F Ryan	Office of Public Prosecutions
Proceeding No 6896 of 2006
For the appellant	Mr T E F Hughes QC and Mr T D F Hughes	Corrs Chambers Westgarth
For the respondent	Mr J Kennon SC and Ms F Ryan	Office of Public Prosecutions
Proceedings No 6851-3 of 2006
For the appellant	Mr J Kennon SC and Ms F Ryan	Office of Public Prosecutions
For the respondents	Mr W T Houghton QC and Mr M Hoyne	Corrs Chambers Westgarth
Proceedings No 6854-5 of 2006
For the appellant	Mr J Kennon SC and Ms F Ryan	Office of Public Prosecutions
For the respondents	Mr T E F Hughes QC and Mr T D F Hughes	Corrs Chambers Westgarth

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TABLE OF CONTENTS

The charges.......................................................................................................................................... 2

The Magistrate’s decisions............................................................................................................... 2

Findings of guilt............................................................................................................................ 2
Acquittals....................................................................................................................................... 3
The refusal of costs....................................................................................................................... 3

Structure............................................................................................................................................... 3

The Act................................................................................................................................................. 4

The Magistrate’s findings of fact..................................................................................................... 6

The appeals relating to the findings of guilt under s 26(1)(a)................................................... 9

The Magistrate’s reasons.............................................................................................................. 9
Submissions................................................................................................................................. 12
Counsel for the appellants and counsel for Mr McPherson................................................. 12
A report of a proceeding in the Court..................................................................................... 13
The person by whom the proscribed identification is to be made...................................... 18
“Likely”........................................................................................................................................ 20
Charges relating to the stepfather............................................................................................. 21
Conclusions.................................................................................................................................. 21

The appeals relating to s 26(1)(b) and (c)..................................................................................... 24

The Magistrate’s reasons............................................................................................................ 24
Submissions................................................................................................................................. 24
Conclusions.................................................................................................................................. 25

The Director’s appeals..................................................................................................................... 26

The Magistrate’s reasons............................................................................................................ 26
Submissions................................................................................................................................. 28
Conclusions.................................................................................................................................. 32

The Tinkler costs appeal................................................................................................................. 34

The Magistrate’s reasons............................................................................................................ 34
Submissions................................................................................................................................. 34
Conclusion................................................................................................................................... 35

Conclusions....................................................................................................................................... 35

HER HONOUR:

The appeals

These appeals have been brought before the Court in a number of separate proceedings. They are appeals under s 92 of the Magistrates’ Court Act 1989 from final orders made on 15 May 2006 in the Magistrates’ Court at Melbourne. The orders were made in relation to charges under s 26(1) of the Children and Young Persons Act 1989 (“the Act”) arising out of an application to The Children’s Court by a child, “P”.

The charges

Charges had been laid against 17 defendants under s 26 of the Act. They arose out of newspaper articles in the “Sunday Herald Sun” on 20 June 2004 and 1 August 2004, respectively, (“the articles”), one internet article, three Channel Seven telecasts of the Melbourne “News” on 20 June 2004 (“the News”) and telecasts of the “Today Tonight” program on 21 June 2004 (“Today Tonight”) and the “Sunrise” program on 21 June 2004 (“Sunrise”).

The Herald and Weekly Times, its editor, Mr Howe, and reporter, Mr Tinkler, had been charged in relation to the articles. Channel Seven, its executive producer of the News, Mr Carey, and reporter, Mr Etchells, faced charges relating to the News. Channel Seven, its producer, Mr McPherson, and Ms Quist, a reporter, had been charged in relation to Today Tonight. And, finally, Channel Seven, along with the Sunrise producer, Mr Boland, a compere, Mr Koch, and Mr Etchells had been charged in relation to Sunrise.

The Magistrate’s decisions
Findings of guilt

On 15 May 2006, the learned Magistrate found the respective appellants in proceedings numbered 6892-7 of 2006 (collectively “the appellants” and otherwise individually named) guilty of offences under s 26(1) of the Act. Her Honour imposed convictions upon the Herald and Weekly Times and Channel Seven and ordered them to make donations to particular charities. She adjourned the proceedings against Mr Howe, Mr Carey and Mr McPherson without conviction, on their respective undertakings to be of good behaviour. She also ordered each of them to make donations to charities.

The appellants appeal against those orders. The appellants, other than Mr McPherson, are represented by counsel whom I will describe as “counsel for the appellants”. Mr McPherson is separately represented.

Acquittals

Her Honour also found the respondents in each of proceedings numbered 6851-5 of 2006 (collectively “the respondents” and otherwise named individually) not guilty of offences under s 26(1). She ordered that the charges against Ms Quist, Mr Tinkler, Mr Etchells, Mr Koch and Mr Boland be dismissed.

In these proceedings, which I will call “the Director’s appeals”, the Director of Public Prosecutions appeals against those orders under s 92(2) of the Magistrates’ Court Act 1989 on behalf of the informant, Mr Harvey.

The respondents, other than Mr Koch and Mr Boland, are represented in the Director’s appeals by counsel to whom I will refer as “counsel for the respondents”, to distinguish them from counsel for Mr Boland and Mr Koch.

The refusal of costs

Finally, the learned Magistrate rejected Mr Tinkler’s application for costs in relation to his successful defence of the charges laid against him. Mr Tinkler appeals against the order that his application for costs be dismissed.

Structure

After setting out the relevant statutory provisions, I will refer to the Magistrate’s findings of fact. I will then address the appeals against the orders which followed the findings of guilt, before turning to the Director’s appeals and, finally, to Mr Tinkler’s costs appeal.

The Act

The purposes of the Act were set out in s 1 as follows:

1. Purposes
The main purposes of this Act are—
(a)to establish The Children's Court of Victoria as a specialist court dealing with matters relating to children and young persons; and
(b)to provide for the protection of children and young persons; and
(c)to make provision in relation to children and young persons who have been charged with, or who have been found guilty of, offences; and
(d)to amend and consolidate for the purposes of the new Court the law relating to the jurisdiction and procedure of children's courts.”

Section 26(1) described the proscribed behaviour :

26. Restriction on publication of proceedings
(1) A person must not publish or cause to be published—
(a)except with the permission of the President, a report of a proceeding in the Court or of a proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of—
(i)the particular venue of The Children's Court, in which the proceeding was heard; or
(ii)a child or other party to the proceeding; or
(iii)a witness in the proceeding; or

(b)except with the permission of the President, a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or
(c)except with the permission of the Secretary granted in special circumstances in relation to a child who is the subject of a custody to Secretary order or a guardianship to Secretary order, any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court.

Penalty:
(a) In the case of a body corporate—500 penalty units;
(b)In any other case—100 penalty units or imprisonment for 2 years …”

Definitions of words and phrases in s 26 (1) were provided in s 3. I shall quote relevant definitions in the order in which they appeared in the sub-section. Section 3 defined:

·“publish” as —
“(a)     insert in a newspaper or other periodical publication; or
(b)     disseminate by broadcast, telecast or cinematograph; or
(c)     otherwise disseminate to the public by any means;”
·the “President” as the President of The Children’s Court for the time being;
·the “Court” as The Children’s Court of Victoria;
·the “Secretary” as the Secretary to the Department of Human Services; and
·a “guardianship to Secretary order” as an order referred to in s 85(1)(a)(vi) of the Act.

Section 71 of the Act allowed P to make an application to The Children’s Court for a Protection Order on the grounds of irreconcilable differences between himself and the person who had custody of him :

71. Application if there is an irreconcilable difference
…
(2) A child who believes that there is a substantial and presently irreconcilable difference between himself or herself and the person who has custody of him or her to such an extent that the care and control of him or her are likely to be seriously disrupted may, subject to section 72, make an application to the Court for a finding that such a difference exists.

Section 84 permitted The Children’s Court could make a “protection order” in relation to P under Division 6 of the Act :

84.      When Court may make order under this Division
The Court may make an order under this Division in respect of a child if the Court finds—
(a)     that the child is in need of protection; or
(b)     that there is a substantial and irreconcilable difference between the person who has custody of the child and the child to such an extent that the care and control of the child are likely to be seriously disrupted.

Section 85 sets out a number of different types of order which The Children’s Court could make after making a finding of an irreconcilable difference under s 84.:

85.      Types of order
(1)     If the Court makes a finding under section 84, it may make—
(a)     any one of the following protections orders—
…
(vi)    a guardianship to Secretary order; …

The Magistrate’s findings of fact

The learned Magistrate’s reasons contain the findings of fact summarised in the following subparagraphs.

(a)On 14 April 2004, P, a 14 year old child, made an application to the Melbourne Children’s Court under s 71 of the Act. He sought a finding that there was an irreconcilable difference between himself and the respondent to the application, his mother.
(b)On 28 May 2004, The Children’s Court made a guardianship to Secretary order on the basis of its finding that there were substantial irreconcilable differences between the child and his mother, to such an extent that his care and control were likely to be seriously disrupted.
(c)P did not obtain an order for a “divorce” and such an order would be unavailable to a child.
(d)Having requested information and comment on 19 June 2004, Mr Tinkler was separately advised by media advisers from the Departments of Premier and Human Services that no comment could be made because the child was the subject of a guardianship order and his identification could breach s 26. Mr Tinkler told each adviser that the story had been “legalled”. Caution was urged by the representative of the Department of Premier. The media adviser from Human Services suggested that he seek further legal advice.
(e)After seeing the 20 June 2004 article in the Sunday Herald Sun, the Department of Human Services media adviser rang all metropolitan television stations in Melbourne, telling them of her concerns in relation to potential breaches of the Act. She spoke to the chief-of-staff at Channel Seven on that day.
(f)The Sunday Herald Sun article on 20 June 2004 was written by Mr Tinkler. It was headed, “Divorced By My Son” and stated that: “[a] 14 year old Melbourne boy won a divorce from his mother. Authorities have granted [P] the split on the grounds of irreconcilable differences”. The article went on to say that P had stated that “he had been advised by authorities that he could ask for a divorce”. Both the child and his mother were named in the article and it contained photographs of them.
(g)Mr Tinkler appeared also to be the author of an article on the internet entitled “Boy gets divorce from mum” which contained a picture of the child. It identified by name the child, his mother and his step-father, a witness in the proceedings. The internet article stated that “the split was sanctioned by the Children’s Court last month”.
(h)On Sunday, 20 June 2004, the News contained a report stating that P had divorced his parents. The broadcast included visual images. A reporter said:
“A Newport teenager has made history becoming the youngest person to legally divorce his mother, the separation was granted after just four hours of counselling.”
Mr Etchells subsequently made the statement during the broadcast that: “[P] has been granted a divorce from his mother on the grounds of irreconcilable differences”.
(i)Sunrise went to air on the morning of 21 June 2004. The program contained a news component and what is described as “a magazine” component. During the news component, a reporter read a piece which included an excerpt from Mr Etchells’ report from the night before. The reporter stated that “a 14 year old boy made legal history becoming the youngest person to legally divorce his mother”. Mr Etchells’ report named both the boy and his mother and stated “[P] has been granted a legal divorce from his mother on the grounds of irreconcilable differences”. Mr Etchells also said “for legal reasons the government won’t comment on this case”.
(j)The report was the subject of discussion between Mr Koch and his co‑compere, Melissa Doyle, and a psychologist during the magazine component of the program. The transcript included the following passage:
David Koch: ‘this kid is a brat obviously …’
David Koch: ‘Now this seems to me – maybe I’m too harsh there, a whole bunch of do-gooders, this kid needs a kick up the back side because – you know – mums (sic) trying to do her best and then a whole bunch of do-gooders from the community services or whatever it is, came in and said: you will be divorced and we will back you with legal proceedings.’
Melissa Doyle: ‘We are in focus and we were talking about the 14 year old boy who has divorced his family.

(k)On 21 June 2004, Today Tonight broadcast a report referring to the child divorcing his parents. The child, his mother and step-father were identified by name and by photograph. A reporter said that “the boy had successfully divorced his mother”. Ms Quist said in her report that “[a]uthorities were brought in and it was later decided that [P] should not return home and his divorce was granted.”
(l)On 1 August 2004, the Sunday Herald Sun published the second of the articles by Mr Tinkler. The article identified the boy, his mother and his step-father. It published a photograph of his mother. The article said that “[t]he Sunday Herald Sun revealed that authorities granted Peter a divorce from his mother in May on the grounds of irreconcilable differences.”

(m)Neither the President of the Children’s Court nor the Secretary had given permission for the challenged publications.

Her Honour considered evidence relating to police interviews of Mr McPherson, Mr Boland, Mr Carey and Mr Howe. She made further findings that:

(a)Mr McPherson had stated that he was the national executive producer of Today Tonight, with ultimate responsibility for what went to air and had acquiesced in the use of the term “divorced” in the program;
(b)Mr Boland had said that he was the executive producer of Sunrise, responsible for the comments of the presenters;
(c)Mr Carey had stated that he was the director of News at Channel Seven, with direct control of news broadcasts in Victoria; and
(d)Mr Howe had stated that he was the editor of the Sunday Herald Sun with complete editorial responsibility in respect of every word published in the Sunday Herald Sun and that he had written the word “divorce” used in the articles.

The appeals relating to the findings of guilt under s 26(1)(a)
The Magistrate’s reasons

The Magistrate noted the statement of legislative purpose in s 1(b) of the Act. She concluded that Parliament intended that s 26(1) should protect children from harm resulting from the publicising of Children’s Court proceedings.

Her Honour considered the prosecution’s submission that, in each case, there had been a “report of a proceeding” within the meaning of s 26(1)(a), notwithstanding the use of the “colloquial” expression “divorce”. The prosecution had argued that the only reasonable conclusion to be drawn from the use of the term “divorce” in relation to a 14 year old child was that a Children’s Court proceeding had occurred.

Because I am going to set out passages from her Honour’s reasons, I note at this point that she had been referred to authorities which included a decision of Kenny J in Hinchcliffe & Anor v Commissioner of Australian Federal Police & Anor[1] relating to the similarly worded provisions of s 121 of the Family Law Act 1975 (Cth).
[1](2001) FCA 1747.

Section 121 relevantly provided:

121Restriction on publication of court proceedings
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:-
(a) a party to those proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

In Hinchcliffe, Kenny J had considered the meaning of “an account”, stating:

I accept … that an ‘account’, for this purpose, is a narrative, description, retelling, or recital of such proceedings … There is no account of proceedings merely because some allegations made in the proceedings are reiterated outside the Court. Before there can be an account of proceedings in the relevant sense, a communication must purport to narrate, describe, retell or recite something that has happened in the proceedings, or something about the proceedings.”[2]

[2](2001) FCA 308 at 323-4.

The learned Magistrate said that she had had particular regard to Kenny J’s decision. Nevertheless, her Honour concluded, with regard to s 26(1), that:

… a ‘report’ is wider than a ‘account’ in the sense that it does not require the same element of narration. I say finally that it must in my view be kept in mind that disclosure in relation to the proceedings need not be direct it can be implied.

Her Honour then considered the publications before her. She found that each of the two newspaper articles and three broadcasts fell within the description of a “report of a proceeding” under s 26(1).

As it is argued that the learned Magistrate erred in law in her interpretation of the phrase “report of a proceeding in the Court” and in relation to her findings that the various publications were reports within the meaning of s 26(1)(a), I will set out in full the relevant passage from her reasons:

Turning to what was published here. In my view in relation to the 2 newspaper articles and 3 broadcasts complained of each satisfies the description of a ‘report of a proceeding’. I find that in each case the reference to the word ‘divorce’ as between the child and his mother together with clear identification of the parties and the boy’s age (Additionally (sic) and where applicable to the use of the words ‘legally’ and ‘authorities have granted’ in the context in which they were used) necessarily discloses that there have been court proceedings and that this is what is being reported. There was after all no story without the orders made by the Children’s Court. No reasonable person (which I take to include an ordinary reasonable viewer) would come to the view ‘divorce’ as it was termed could occur in any setting other than a Court. One cannot simply say, the court was not specifically identified and as viewers are or may not be aware of the nuances of the Court system so we can assume they won’t know what really happened is the Children’s Court made orders so that reporting will not offend the section. To allow such an approach would be to defeat the section.
It has been argued before me that because the press used the word divorce, which I comment was unfortunate at best, there has been no breach because the Children’s Court does not have power to grant a divorce. In my view this inaccurate, colloquial style of reporting cannot be used as a shield. The substance of what is being reported is the same. That is, a 14 year old boy is no longer in the legal custody of this mother because the Court has ordered this be so. It is the harm or potential harm in these matters becoming public that the section seeks to guard against. It is good public policy that we protect our children from exposure of this kind which almost inevitably makes the future reunification or rectification more difficult. The reporting of the parties, witnesses, subject matter and outcome could hardly be considered otherwise. In my view any other interpretation would in effect defeat the section by creating an artificial shield that could be employed to avoid the section while at the same time perpetrating the harm that the section seeks to avoid. In my view what was reported in each case falls within the description of something that happened in the proceeding or something about the proceeding. It was a report of the proceeding.”[3]
[3]Peter Harvey v Channel Seven Melbourne Pty Ltd, The Herald and Weekly Times Pty Ltd, Nationwide News Pty Ltd & Ors, decision, 15/5/06 at pp.12-13.

Submissions
Counsel for the appellants and counsel for Mr McPherson

I note at the outset that counsel for Mr McPherson adopt the submissions of counsel for the appellants and make some more of their own.

Counsel for the appellants argue that the learned Magistrate erred in failing to conclude that a “report of a proceeding in the Court” within the meaning of s 26(1)(a) had to expressly or impliedly convey to the ordinary reasonable reader or viewer (as the case might be) that it was a report about a proceeding in The Children’s Court, before it could fall foul of any of the prohibitions in the subsections of s 26(1)(a). The appellants do not argue that any of the words in the expression “report of a proceeding in the [Children’s] Court” has a meaning different from its ordinary English meaning. However, they submit that the Magistrate erred in law in finding that s 26(1)(a) prohibited a report which referred to a court proceeding, but did not convey to the ordinary reasonable reader or viewer that that proceeding took place in The Children’s Court.

The appellants also argue in the alternative that, even if the Magistrate did correctly conclude that, to offend, the subject reports must expressly or impliedly convey to the ordinary reasonable person that the proceedings took place in The Children’s Court, then she erred by deciding in each case that they did so, when such findings were not open on the evidence.

I understand counsel for the appellants to go further and to argue that, even if her Honour had not erred in determining that s 26(1)(a) might forbid a report which conveyed to the ordinary reasonable person no more than that it related to a court proceeding, as opposed to one in The Children’s Court, she erred in making a finding not open on the evidence that the subject reports might be so described.

A report of a proceeding in the Court

Counsel for the appellants submit that the learned Magistrate erred in concluding that any of the subject material was properly described as a “report” within s 26(1).

They seek to support their submission about the ordinary meaning of the word “report” by reference to dictionary definitions. They also rely upon decisions in other jurisdictions in respect of what they argue are similar legislative provisions.

They cite definitions of the nouns “account” and “report” and the verb “report” in the tenth edition of The Concise Oxford Dictionary:

account • n.1 a description of an event or experience …[4]
report • v.1 give a spoken or written account of something. ð convey information about an event or situation …
• n.1 an account given of a matter after investigation or consideration. 2 a piece of information about an event or situation. ð talk; rumour. …
-ORIGIN ME : from OFr. reporter (v.), report (n.), from L reportare ‘bring back’.”[5]

[4]The Concise Oxford Dictionary, 10^th ed, Oxford University Press at p 8.

[5]The Concise Oxford Dictionary, 10^th ed, Oxford University Press at p 1214.

The appellants rely upon Kenny J’s interpretation of the meaning of the word “account” in s 121 of the Family Law Act 1975 (Cth) in Hinchcliffe. They contend that the learned Magistrate erred in law in concluding that the meaning of “report” in s 26(1)(a) of the Act was wider than that of “account” in s 121 of the Commonwealth legislation and did not require the same element of narration. They submit that her Honour erred in distinguishing Hinchcliffe.

They go on to contend that, even if that the word “report” requires a lesser element of narration than the word “account”, her Honour erred because she failed to find that there was any element of narration of the proceedings in the Children’s Court in the material published.

Counsel for Mr Harvey respond that the words “account” and “report” have different meanings, but that, nevertheless, the allegedly offending publications in this case would each fall within the definition of “account” adopted by Kenny J in Hinchcliffe. They submit that each publication was a statement of either something that happened in The Children’s Court proceedings or something about the proceedings.

Counsel for Mr Harvey argue that the prohibition in s 26(1)(a) is not restricted to some kind of narrative or a report of any particular length. A “report” does not need to contain a narrative of the evidence or to otherwise amplify the details of the proceeding. It is sufficient that its result be recorded in “lay terms”.

Counsel for Mr Harvey rely upon the Court’s decision in Bailey v Hinch[6], in which Gobbo J held that the power to prohibit “a report of any proceedings or part thereof” in s 80(1) of the County Court Act 1958 included the power to order that the name of the judge in particular proceedings not be disclosed. Counsel for Mr Harvey contend that Gobbo J found that the expression “a report” was the equivalent of “any report”.
[6][1998] VR 78 at 85.

Counsel for the appellants concede, by way of reply, that a statement expressly referring to the particular order made in relation to the child by The Children’s Court would contain sufficient narrative to be characterised as a report which would infringe the section. However, they resist the suggestion that her Honour reached her conclusion on the basis of an implicit finding that the publications were reports under s 26(1)(a) because they did describe the outcome of the proceedings in The Children’s Court. They argue that the fact that her Honour stated that The Children’s Court proceeding was the genesis of the story did not make that story a “report” in each case. An offending story must expressly or impliedly refer to the order of The Children’s Court.

The appellants then maintain that, even if there is some slight difference in meaning between the words “report” and “account”, any offending report must “identify” that there is a proceeding in The Children’s Court and say something about it. There must be an express or implied reference to The Children’s Court proceeding, as a proceeding in The Children’s Court, rather than in any other.

They refer to Waters v Pacific Publications Pty Ltd[7] in which Studdert J of the New South Wales Supreme Court considered the meaning of s 68(1) of the Children (Care and Protection) Act 1986 (NSW) which prohibited the publication or broadcast of the name of a child to whom any proceedings in the Children’s Court related. His Honour took into account the statutory context and held that the s 68(1) prohibition applied to a report by a person engaged in preparing a report on the proceedings for dissemination through a public news medium, [8] although its operation was not restricted to the media.
[7][1999] NSWSC 366.
[8][1999] NSWSC 366 [41]-[42].

The appellants seek support for their argument as to what would constitute a “report” under s 26(1) of the Act from Studdert J’s acceptance of the proposition that the s 68(1) prohibition was directed at the broadcast of a report of the proceeding, including one reporting on the evidence before the Children’s Court, the submissions made and the court’s determination.[9] They also cite his Honour’s conclusion that s 68(1) was not to be construed as creating an offence where there was no specific reference to the “care proceedings” under the New South Wales provision.[10]
[9][1999] NSWSC 366 [40]-[42].
[10][1999] NSWSC 366 [44].

Counsel for the appellants then refer to cases from other jurisdictions in support of the submission that provisions in terms similar to those of the Act do not prohibit any identification of a child or other designated person who has been involved in certain proceedings, in the absence of some material linking that person with those proceedings.

They cite decisions of Munby J in the Family Division of the High Court in Re B; Kent County Council v The mother, The father and B (by her Children’s Guardian)[11] and Kelly v BBC[12]. In Re B, Munby J considered s 12(1)(a) of the Administration of Justice Act 1960 (UK) prohibiting the publication of “information relating to any proceedings before any court sitting in private … where the proceedings … relate to the exercise of the inherent jurisdiction of the High Court with respect to minors”. Munby J held that the section did not prohibit any publication which related to a child who might have been the subject of a proceeding covered by the provision. Rather, it proscribed a publication which linked the child to that proceeding. Kelly concerned a ward of court. There, Munby J noted that it was no longer thought to be a contempt of court to publish any information about such a person, referring to the Court of Appeal decision in Re X (a minor)[13].
[11][2004] EWHC 411.
[12][2001] 1 All ER 323.
[13][1975] 1 All ER 697.

Counsel for the appellants also refer to Re: Children’s Aid Society of Hamilton- Wentworth and Evan D.-G. et al[14], a decision of the Ontario Court (General Division) Divisional Court in an appeal by the Canadian Broadcasting Commission against the grant of an interlocutory injunction restraining the publication of a documentary about children who were to be the subject of a court proceeding. They argue that case is instructive because of the similarity between s 45(8) of the Child and Family Services Act, R.S.O. 1990 and s 26 (1). Section 45(8) provided :

45(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

[14](1995) 21 O. R. (3d) 643.

It was held that the subsection did not absolutely ban the identification of a child or other participant or witness to a proceeding; rather, it prohibited their identification as people involved in the proceeding. In a passage relied upon by the appellants as a statement of the proper approach to the construction of s 26(1) of the Act, the court said:

There are two possible interpretations of s. 45(8). One, that it is an absolute ban against identifying the child or the family who are participants in a hearing or the subject of a proceedings. Secondly, that it is not a ban against identifying anyone unless it is coupled with identifying them as people who are involved in the proceedings.
The second interpretation is the only logical one. The impugned publication must make reference to the proceedings or be contrary to some other provisions of the Act to justify an injunction based on the Act. If the prohibition were against identifying any of the persons listed, then it would be an offence to publish anything about the mother even if no reference is made to the fact that she is involved in any proceedings. It must, to offend the Act, require disclosure that here are proceedings either directly or impliedly and couple the person identified with those proceedings.[15].

[15](1995) 21 O.R. (3d) 643 at 652 per Rosenberg J delivering the judgment of the court.

Counsel for the appellants further contend that, in any event, it was not open to the Magistrate to conclude that the ordinary reasonable viewer would understand from the use of the words “divorce” “authorities” and “legally” that a court proceeding was the subject of the report.

Counsel for Mr Harvey respond that the obvious legislative purpose of the protection of children from publicity would be defeated if the relevant proceedings could be described, so long as there was no specific reference to the court. The provisions are aimed, in their submission, at protecting the privacy of the individuals concerned. They submit that it would have been sufficient that it was established in the Magistrates’ Court that the proceedings in The Children’s Court took place and that what was reported was the result of those proceedings.

Indeed, counsel for Mr Harvey go so far as to argue that the publication of a report wrongly attributing the order to another court, such as the Family Court, might also constitute an offence under s 26(1)(a). However, I note that that particular point is not in issue before me.

The appellants also rely on the decision of the Full Court of the Supreme Court of Western Australia in R v West Australian Newspapers Ltd, Ex parte Keating [16] to argue that the Magistrate should have considered whether the relevant material identified the child, the party or the witness as being a child party or witness in The Children’s Court proceeding.
[16]Unreported, 19 June 1997, Full Court of Supreme Court of Western Australia; BC 9702713.

Counsel for Mr Harvey respond by noting the absence of the words “as a” in relation to the identification of a child or other party or witness in s 26(1)(a). Nevertheless, they concede that, before a report could breach s 26(1)(a), it would have to be likely to identify the child, other party or witness to the proceedings as such, as opposed to merely identifying that person. They contend that the decision in West Australian Newspapers turned on its own facts.

The person by whom the proscribed identification is to be made

The appellants submit that s 26(1) requires a consideration of what the articles and the broadcasts would have conveyed to an ordinary reasonable viewer or reader. They rely in this regard upon the interpretation of s 35 (1) of the Children’s Court of Western Australia Act 1988 (WA) in West Australian Newspapers.

Section 35(1) of the Western Australian provision relevantly provided:

35(1) Except where done in accordance with an order made under s 36A, a person shall not publish or cause to be published in any newspaper or other publication or broadcast or cause to be broadcast by radio or television a report of any proceedings in the Court, or in any other court on appeal from the Court, containing any particulars or other matter likely to lead to the identification of a child who is concerned in those proceedings –
(a)       as a person against whom the proceedings are taken;
(b)      as a person in respect of whom the proceedings are taken;
(c)       as a witness; or
(d)as a person against or in respect of whom an offence has or is alleged to have been committed.

In West Australian Newspapers, the publisher faced a charge under s 35(1) in relation to a newspaper article which identified a boy who had allegedly made a bomb which had exploded at his 16^th birthday party. Subsequently, he had pleaded guilty to an offence in relation to the incident and was made the subject of an intensive corrections order. A report of the sentencing remarks by the President of the Children’s Court was published in the newspaper, without reference to the boy’s name, some six weeks after the first article. The court held that the publication of the original report did not breach s 35(1), because no proceedings had then been commenced. It also concluded that there was no breach by the second article. Significantly, for present purposes, according to the appellants, the court was not satisfied that the report of the sentencing in the Children’s Court was likely to lead to the identification of the boy as a child who was “concerned in those proceedings” by a reader who was an ordinary member of the public.

Murray J held that the issue as to whether the report was likely to identify the child to such an ordinary reader was to be determined taking into account the “general substratum of knowledge, relevant to the report and the proceedings which may be available to the general reader, viewer or listener as an ordinary member of the public”[17].
[17]Unreported, 19 June 1997, Full Court of Supreme Court of Western Australia; BC 9702713 at 8-9.

Counsel for Mr McPherson refer to the Privy Council’s decision in Jones v Skelton[18] in support of the proposition that the ordinary meaning of words includes any implication to be derived by an ordinary person, armed with general rather than special knowledge and not constrained by legal rules of construction. They submit that the law strives for uniformity and that an important characteristic of the ordinary reasonable reader or viewer is that such a person has a uniform view of the words used, citing Reader’s Digest Services v Lamb[19].
[18](1963) SR (NSW) 644 at 650.
[19](1981-1982) 150 CLR 500 at 505-6 per Brennan J.

Counsel for Mr McPherson contend that her Honour failed to address the question as to whether special knowledge outside the realm of general knowledge was a factor to be taken into account in determining whether or not charges under s 26(1)(a) had been made out. They submit that the Magistrate identified the issue as one raised by the defence, but ultimately failed to address it, resorting instead to what they describe as a floodgate argument.

Counsel for Mr McPherson go on to submit that it was not open to the Magistrate to conclude that a reasonable viewer, armed only with general knowledge, would infer from the ordinary and natural meaning of the words used in Today Tonight that it was a report of the proceedings in The Children’s Court.

“Likely”

The parties also address the issue as to the meaning of the word “likely” in s 26(1). Counsel for Mr McPherson argue that the word “likely” should mean better than a 50% chance[20].
[20]Referring to Jones v Sutton (2004) 61 NSWLR 614 at 624 ff.

Counsel for Mr Harvey respond that the word implies the existence of a substantial or real and not a remote risk, citing the High Court’s decision in Boughey[21].
[21](1986) 161 CLR 10.

Counsel for Mr McPherson contend that it was not open to the Magistrate to conclude that Today Tonight contained particulars likely to identify the child or an adult as a party or witness to the proceeding, because it did not deal with the status of either person in relation to the proceeding. They contend that the program did not address the question of the identity of the parties.

Ultimately, counsel for the appellants urge the Court to give the words of the subsection their ordinary and natural meaning. They argue that no inconvenient or impolitic or improbable result would follow if their construction were to be adopted. They also contend that counsel for Mr Harvey have argued primarily for a construction quite different from that given to s 26(1) by the learned Magistrate.

Charges relating to the stepfather

As far as the charges relating to the child’s stepfather are concerned, the appellants argue additionally that there was no evidence to support findings either that he was a witness in The Children’s Court proceeding or that he would have been identified as such to an ordinary reasonable person in any of the reports.

Conclusions

I am not persuaded that the learned Magistrate erred in her construction of the expression “a report of a proceeding in the Court” in s 26(1)(a) of the Act.

At the outset, I note that I am not persuaded by the argument by counsel for Mr McPherson to the effect that her Honour failed to deal with a defence argument that the appropriate test to apply is that of the ordinary or general reader or viewer, unassisted by special knowledge and armed only with general knowledge of notorious facts in the public domain. In my opinion, the passage from the reasons I have set out above demonstrates that she approached the issue as to whether any of the subsections of s 26(1) had been contravened on the basis that any proscribed communication must convey the relevant information to such a person. In those circumstances, this appeal does not raise the issue as to whether s 26(1) would prohibit communications which would only convey the proscribed information to a reasonable person with special knowledge.

I understand the learned Magistrate’s reasons to state her factual conclusions that each of the subject publications would have disclosed to an ordinary reasonable person, equipped with only general knowledge, that what was being reported was the result or outcome of a proceeding, which had in fact taken place in The Children’s Court, without conveying the additional information that the proceeding took place there. In my opinion, she did not err in what I take to be her legal conclusion that such a report might be caught by the prohibition in s 26(1)(a).

I also understand her Honour to have concluded that such a communication might tell the ordinary reasonable person “something about the proceeding” and could constitute sufficient “narrative” to be properly characterised as a “report” under the sub-section. I agree. I am not persuaded to the contrary either by the appellants’ references to the Concise Oxford Dictionary or to the authorities relating to similarly worded statutory provisions. Indeed, I consider that the quoted definitions support the Magistrate’s view.

I am also persuaded by the submissions made on behalf of Mr Harvey to the effect that both the statutory purposes described in s 1 of the Act and the authorities to which the Court was referred support a construction of s 26(1)(a) as a prohibition of express or implied statements of the outcome of proceedings in the relevant court which are likely to lead to the identification of a child or other party or a witness to the proceeding. I note, in this regard, that it would seem to be the logical extension of the appellants’ arguments that even a report specifically stating that the Secretary had become the guardian of an identified child would not be prohibited by s 26(1)(a)(ii), because the ordinary reasonable person might not know that such an order could only be made in The Children’s Court or in another court of the type described in the subsection.

The words are ambiguous or unclear, in the sense that they are also open to the construction for which the appellants contend.[22] In my opinion, a purposive approach should be taken in relation to the interpretation of s 26(1)(b)[23]. I do not think that the statutory purpose of the protection of children would be promoted if the protection from disclosure offered by the subsection were to be so confined and its operation could then be so easily circumvented.
[22]See: Repatriation Commission v Vietnam Veterans Association of Australia NSW Branch Inc (2000) 171 ALR 523 at 550 per Spigelman CJ.
[23]See: Mills v Meeking (1990) 91 ALR 16 at 30-1 per Dawson J.

In my opinion s 26(1)(a) is properly construed as a prohibition of the communication of information about “something that has happened in the proceedings or something else about the proceedings”[24] which have taken place in The Children’s Court (or in another court, arising out of such a proceeding) in a way which is likely to convey the proscribed information. Whilst the authorities support the conclusion that s 26(1)(a) would not prohibit the mere identification of a child or other party or witness, without conveying the requisite connection with the proceeding, it will, in my opinion, be a question of fact in each case as to whether the publication of the subject report does breach the subsection. I do not consider the presence or absence of an express or implied reference to The Children’s Court (or other relevant court) in the report to be necessarily decisive.
[24]See: Hinchcliffe and Anor v Australian Federal Police and Anor (2001) 118 FCR 308 at 324 per Kenny J.

I am satisfied that it was open to her Honour, on the evidence in this case, to conclude that the child and his mother were parties to the proceeding which had taken place in The Children’s Court. I am also satisfied that it was open for her to conclude that each of the reports of the “divorce” and “irreconcilable differences” between the child and his mother was likely (in the sense of there being a real or substantial and not remote chance of it happening[25]) to identify them as the parties to the proceeding to the ordinary reasonable reader or viewer armed only with general knowledge.
[25]Boughey v R (1986) 161 CLR 10 at 21 per Mason, Wilson and Deane JJ; TSL v Secretary, Dept of Justice (2006) 14 VR 109 at 112-3 per Callaway AP.

I am not, however, satisfied that it was open on the evidence to the Magistrate to find that the step father was a witness in The Children’s Court proceeding and that he was a witness likely to have been identified by the particulars in the report under s 26(1)(a)(iii). Those conclusions were not open on the relevant evidence to which my attention was drawn, which related to the service of the relevant materials upon the man. Nor have I been able to find any other evidence before the Magistrate to support those findings (implicit in her Honour’s conclusions that of s 26(1)(a)(iii) had been breached).

The appeals relating to s 26(1)(b) and (c)
The Magistrate’s reasons

The Magistrate dealt with the charges under s 26(1)(b) and s 26(1)(c) as follows:

26(1)(b)
In relation to the publication of photographs. It is of course important to note the position and context in which the photographs were published. In each case they were clearly associated with the report of proceedings which I have referred to above and in my view when seen in context clearly identified a child and/or other party to proceedings within the meaning of the legislation.
26(1)(c)
Sec 26(1)(c) relevantly provides:
“a person must not publish or cause to be published except with the permission of the secretary granted in special circumstances in relation to a child who is the subject of a custody to secretary order or guardianship to secretary order, any matters that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the court”
There is no dispute that at the relevant time the child was the subject of a guardianship to secretary order.
For the reasons stated above I am satisfied that the reports identify the child as being the subject of an order of the Children's Court.

Submissions

Counsel for the appellants concede that there were images of the child, his mother and his step father in the material before the Magistrate.

Counsel for the appellants submit, however, that it was not open on the evidence to the learned Magistrate to conclude as she did that s 26(1)(b) was breached by the publications of the photographs in their contexts: in association with the proscribed reports of the proceeding in The Children’s Court.

The appellants place particular emphasis upon the words “as being” in each of s 26(1)(b) and (c). They argue that the effect of these words is that the publication of a photograph will only breach s 26(1)(b) if the identified child, other party or witness, respectively, is identified as being a child, other party or witness to a proceeding in the Children’s Court. In the case of s 26(1)(c) again, the child must be identified as being the subject of an order made by The Children’s Court.

The appellants contend that s 26(1)(b) would not be breached if a child in a photograph published in the context of a report would not be identified as a party to a proceeding in The Children’s Court to an ordinary reasonable person armed with general, as opposed to special, knowledge. In light of what they submit were the learned Magistrate’s findings that such a person might not make the connection between the child and The Children’s Court, they argue that she erred in her conclusion that s 26(1)(b) was breached. They make submissions to similar effect in relation to the findings in relation to breaches of s 26(1)(c).

Counsel for Mr Harvey respond that the Court should give effect to the legislative intention of protecting the privacy of the nominated individuals by construing the subsections in a way which did not make the identification of the court a necessary element of the offences.

Conclusions

I am not persuaded that the learned Magistrate erred in law by concluding that there had been breaches of s 26(1)(b) and (c), notwithstanding what I take to be her findings of fact that the contents of the reports might not convey to an ordinary reasonable reader or viewer, armed only with general knowledge, that the subject proceedings were in The Children’s Court (or other designated court) as opposed to any other court.

The words of the s 26(1)(b) are, in my view, capable of being interpreted as banning the publication of a picture which indicates to that ordinary reasonable viewer that it is a picture of a child or other party in a proceeding in The Children’s Court (or in another court described in subs 26(1)(a)), without necessarily conveying to that person the additional information that the proceeding has taken place in that particular court.

Once again, I am of the view that the legislative purpose would be better promoted by an interpretation which does not require the communication of the identity of the court as a necessary element of the offence. It will be a question of fact in each case as to whether the publication of a picture, in its context, would convey information as to the necessary connection between its subject and the proceeding which has taken place in that court.

I take a similar view of the operation of s 26(1)(c) for the similar reasons.

My conclusion about the evidence relating to the step father’s status as a witness also applies to the charge under s 26(1)(b). There was no evidence, in my opinion, upon which the learned Magistrate could have concluded that he was a witness to the proceeding in The Children’s Court or depicted as such.

The Director’s appeals

The Director challenges the learned Magistrate’s conclusions that those who could not control the publication process could not be said to have “published or caused to be published” the offending material within the meaning of s 26(1) and the definition of “publish” in s 3 of the Act. He also contends that the findings of fact underpinning her Honour’s conclusion that those acquitted were not acting in concert with those convicted of the relevant offences were not open to her on the evidence.

The Magistrate’s reasons

The learned Magistrate adopted the definition of “publish” in s 3 of the Act as an exclusive definition for the purposes of the Act. Her Honour noted at the outset the concessions that the Herald and Weekly Times and Channel Seven had published the relevant material within the meaning of the legislation.

Her Honour approached the interpretation of the prohibition against publication on the basis that it should be construed narrowly, in accordance with its character as penal legislation. She stated that the evidence must establish a causal link between the act of the alleged offender and the insertion or dissemination of material said to constitute publication. She took the view that criminal liability would only attach to those who had what she described as “the necessary degree of control” over the processes described in the subparagraphs of the definition of “publish” in s 3.

In the case of Mr Tinkler, her Honour accepted Mr Howe’s evidence that, after her had submitted a story, he had no control over it or in relation to its insertion in the newspaper. She found that the evidence did not establish the requite causal nexus between his actions and the insertion of the articles in the newspaper.

In relation to the electronic telecasts, her Honour considered the New Shorter Oxford Dictionary definition of the word “disseminate” which she stated included : “spread, disperse, diffuse, promulgate (opinions, knowledge etc)”. She went on to say:

In my view to satisfy the definition in sec 3(b) the dissemination must, relevant for my purposes, be via a broadcast or telecast that is via means of technology capable of satisfying that description. The use of the technology is fundamental to the definition. Thus in my view to be responsible for it one must have the necessary degree of control over it. The question put another way is who puts the material to air and thus publishes it?

Her Honour found that Mr Etchells had no control over what went to air in the News. Similarly, she concluded that Ms Quist lacked any control over what was ultimately telecast on Today Tonight.

The Magistrate found that the news component of Sunrise provided the context in which the material in the program’s magazine component might be interpreted as material the publication of which might contravene s 26(1). As a result of her findings that neither Mr Boland, the executive producer, nor Mr Koch had control over the news component, she concluded that neither of them had breached the subsection. Her Honour also found, more generally, that Mr Koch had no control over what was broadcast as Sunrise.

The learned Magistrate then considered the meaning of ”cause to be published” in s 26(1). She referred to the High Court’s decision in O'Sullivan v Truth and Sportsman Ltd[26] as follows:

With regard to the question of what constitutes “cause(ing) (sic) to be published” I have had regard to the High Court decision in O'Sullivan v Truth and Sportsman Ltd (1956) 96 CLR 220 which I have taken as authority for the proposition (at 228) that "It should be confined to cases where the prohibited act is done on the actual authority express or implied, of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or law to control or influence the acts of the other. He must moreover contemplate or desire that the prohibited act will ensue".

[26](1956) 96 CLR 220.

Her Honour also addressed the issue as to whether the respondents had relevantly acted in concert so as to attract liability. She was not satisfied that there was any agreement to commit a criminal offence in the case of any of the accused. She stated her conclusions relevantly as follows:

In relation to the matters before me I am not satisfied that there was any such agreement either express or implied in relation to any accused. Such finding is in my view not open on the facts established before me.

Submissions

Counsel for the Director submit that her Honour erred in her interpretation of the meaning of “publish or cause to be published” in s 26(1). They argue that she failed to adopt the ordinary meaning of the words after a close analysis of the provisions[27], notwithstanding the penal consequences of breach[28]. In their submission, the learned Magistrate engaged in the impermissible process of adding a “gloss” to the meaning of the subsection[29], importing an unwarranted consideration as to the control of the technological process.
[27]Citing CSR Limited v Della Maddelena [2006] HCA 1 at [19] per Kirby, J; Stingel v Clarke[2006] HCA 37 at [17] per Gleeson CJ, Callinan, Heydon and Crennan JJ.
[28]They refer to Pearce and Geddes, Statutory Interpretation in Australia, 5^th ed (2001) at [9.9] and Scott v Cawsey (1907) 5 CLR 132 at 54-5 per Isaacs J.
[29]A practice of which Kirby J expressly disapproved, in their submission, in reasons for the refusal of a special leave application in DPP v Navarolli [2006] HCA T 764-6.

They seek to support this argument by pointing out that there was no reference to such a consideration in the Court’s decisions relating to the operation of s 4 of the Judicial Proceedings Reports Act 1958 in DPP v Hinch[30] and Hinch v DPP[31]. The Hinch cases related to alleged breaches of s 4(3) of the legislation by Mr Hinch and the operator of a television station by the identification of a child victim of a sexual assault during a telecast of an interview conducted by Mr Hinch of the child’s father. The Director had appealed to the Court against the dismissal of the charges in the Magistrates’ Court. The issues raised in the appeal and a further appeal to the Court of Appeal did not include any relating to the degree of control which Mr Hinch might have had over the telecasting process. In effect, counsel for the Director argue that, if the issue of control were relevant to liability under s 26(1), it would be remarkable that it was not raised in these cases.
[30]Unreported, 5 August 1994, Supreme Court of Victoria.
[31][1996] 1VR 683.

Except in the cases of Mr Boland and Mr Koch, counsel for the Director do not appear to challenge the Magistrate’s findings of fact about the acquitted journalists’ lack of control of the technological processes.

Counsel for the Director refer to the evidence that Mr Tinkler wrote the articles and put them into the computer system. They submit that he should, therefore, have been regarded by the Magistrate as having “inserted” them in the newspaper, within the meaning of paragraph (a) of the definition of “publish” in s 3. They make submissions in similar vein in respect of the television journalists, arguing that their actions, in each case, should have been characterised as “dissemination by … telecast” within the meaning of paragraph (b) of the definition.

In the case of Mr Koch, however, counsel for the Director refer to the learned Magistrate's finding that the broadcast went live to air and argue that it was not open her to find that Mr Koch lacked the requisite control over the process of dissemination of the material on Sunrise. They also contend, with regard to both Mr Koch and Mr Boland, that her Honour erred in viewing the magazine component of Sunrise separately from the news component, rather than finding that the magazine component incorporated the news.

The Director further contends that, even if it couldn’t be said that the acquitted individuals had “published” the offending material, they had at least “caused” its publication within the meaning of s 26(1), by playing their respective parts in the publication processes (albeit under direction from others), intending that their words would be inserted or disseminated and believing that they would be.

Counsel for the Director go on to argue that her Honour erred in stating that it was not open on the evidence to find that there was the requisite agreement to found liability on the basis of acting in concert. In each case, they submit, the evidence established the existence of an express agreement that publication would occur and that it was not open to the Magistrate to find that there was no such agreement. In other words, she was constrained to find that there was, in each case, an agreement to “publish” the offending material.

In the case of Mr Tinkler, counsel for the Director argue that the evidence established that he wrote the articles at the direction of Mr Howe, that he was the only journalist working on the story and that he knew and believed that it would be put in the newspaper.

The Director argues that there was evidence of an agreement between Mr Carey and Mr Etchells that Mr Etchells should prepare a story for telecast. Counsel for the Director refer to the evidence as to the process in which Mr Etchells prepared the report which he ultimately read during a pre-recording session. They rely, in particular, upon evidence from Mr Carey to the effect that there was an “understanding” between him, Mr Etchells and what was described as Mr Carey’s “organisation” that after Mr Carey had read the articles in the Sunday Herald Sun, he was interested in running a television story on the News that evening.

The Director argues that it was not open for the Magistrate to find that there was no relevant agreement to publish between Ms Quist and Mr McPherson because Ms Quist prepared the report which appeared on television. Her Honour should have drawn an inference that such an agreement had been made.

Counsel for the respondents respond that the learned Magistrate was correct to find that they had not published or caused the publications to be published when they did not control the publication process. They rely upon the exhaustive definition of “publish” in s 3 of the Act and the learned Magistrate’s findings of fact in relation to the control of the respective insertion and dissemination processes.

Counsel for the respondents submit that, if the word were accorded a wider meaning, it would catch numerous people involved in the chain of events by which the subject material was inserted in a newspaper, disseminated by broadcast or otherwise. Although, in their submission, the court was not obliged to give the provision a narrow construction[32], they contend that it was quite proper for her Honour to do so in the case of any ambiguity in the relevant provisions.
[32]They refer to DPPv Hore; DPP v Asquith [2004] VSCA 192 at [64] per Hansen AJA.

Counsel for the respondents argue that the learned Magistrate’s findings that there was no joint common purpose between any of the respondents and those who had control over the respective processes were correct. They rely upon the absence of any findings of agreements to commit the offences which were committed[33]. They argue further that there was no evidence of any such agreements.
[33]They refer to R v Lowery & King [1972] VR 560; McAuliffe v R (1995) 183 CLR 108 and Gillard v R (2003) 219 CLR 1

Counsel for Mr Boland and Mr Koch also argue that the learned Magistrate’s findings of fact were clearly supported by the evidence in each case. In addition, they characterise as factual her Honour’s findings that the magazine segment material only fell within the proscription in s 26(1) when understood in the context of the news segment (over which neither man had any control).

Conclusions

In my view, the learned Magistrate did not err in her interpretation of the expression “publish or cause to be published” in s 26(1). I do not take her reasons to have stated more than that, in order for criminal liability under the subsection to be attracted, the ordinary meaning of the words in the definition of “publish” in s 3 requires that an alleged offender effect the “insertion” or “dissemination” of subject material or cause someone else to do so. I agree.

In my view, her Honour was correct to conclude that only someone whose actions could be causative, in the sense that they had some power to effect the insertion or the dissemination, could contravene the proscription in s 26(1). Had the legislature intended to include within the ambit of the prohibition all those whose actions might be said to have resulted in the processes of insertion or dissemination, being causative in a wider or sine qua non sense, it could have done so. There is, for example, no express reference in the definition of “publication” to the writing, filming, stating or preparation of the material ultimately inserted or disseminated.

In Beckwith v R[34] Gibbs J stated that in the event of ambiguity or uncertainty as to the meaning of legislation with penal consequences, “the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences”, noting, nevertheless, that “[t]he rule is perhaps one of last resort”[35].
[34](1976) 135 CLR 569.
[35](1976) 135 CLR 569 at 576.

As far as the conclusions as to the interpretation of the material telecast in the magazine component of Sunrise and Mr Boland and Mr Koch’s respective control over the publication process relating to the News, are concerned, I consider that her Honour’s findings were findings of fact open to her on the evidence.

Further, I am not persuaded that her Honour erred in her reliance upon the High Court’s decision in O’Sullivan v Truth and Sportsman Ltd. Indeed, she would appear to have correctly adopted the approach approved by the court in the passage from the joint judgment of Dixon CJ, Williams, Webb and Fullagar JJ which preceded that quoted in the extract from her reasons set out above. Their Honours cited a summary of relevant authorities in the third edition of Halsbury”s Laws of England before explaining that :

This appears to mean that when it is made an offence by or under a statute for one man to “cause” the doing of a prohibited act by another the provision is not to be understood as referring to any description of antecedent event or condition produced by the first man which contributed to the determination of the will of the second man to do the prohibited act. Nor is it enough that in producing the antecedent event or condition the first man was actuated by a desire that the second should be led to do the prohibited act. The provision should be understood as leading to a less indefinite inquiry to the sequence of anterior events to which the prohibited event may be ascribed.

Given her findings that the acquitted respondents lacked any control over the process of insertion or dissemination and her findings that they had not entered into agreements that the material should be inserted or disseminated, it was, in my opinion, clearly open to her Honour to conclude that they had not “caused” that material to be inserted or disseminated[36].
[36]See: R v Dimmock (G) et al. (1999), 211 NBR(2^nd) 138. in which the New Brunswick Court of Queen’s Bench Trial Division held that where a reporter had no control over what was published, the reporter did not cause material to be published and that merely presenting an article for publication did not constitute aiding and abetting publication.

I note that I am not dissuaded from my conclusions by the absence of any consideration of the issue of control of the process of dissemination in the Hinch cases. It suffices to note the broader definition of “publish” in s 4 of the Judicial Proceedings Reports Act 1958 and the absence from the reports of any reference to evidence relating to the extent or nature of Mr Hinch’s role in the telecasting process.

Further, I am not persuaded by the Director’s argument that it was simply not open on the evidence to the learned Magistrate to conclude that no relevant agreements had been made between the journalists and the producers who had control over what was inserted in the newspaper or telecast. In my view, the findings she made were open to her and, accordingly, she did not err in law as alleged; see: S v Crimes Compensation Tribunal[37]. Notwithstanding the evidence as to what might be characterised as agreements by the journalists to follow directions to prepare the relevant material for insertion or dissemination, I do not agree with the submissions to the effect that the Magistrate was constrained to infer that agreements that the material should be “inserted” or “disseminated” had been made.
[37][1998] 1 VR 83 at 90-91 per Phillips JA.

The Tinkler costs appeal
The Magistrate’s reasons

The learned Magistrate refused Mr Tinkler his costs notwithstanding his acquittal. Her Honour referred in her ruling to Latoudis v Casey[38] as authority for an award of costs in favour of Mr Koch. However, she went on to deal with Mr Tinkler’s application as follows:

In relation to the matter of Mr Tinkler, I have come to a different conclusion. In my view the conduct of Mr Tinkler can properly be described as “reprehensible” within the meaning of the cases. In my view, Mr Tinkler embarked upon and continued a course of conduct despite being warned on numerous occasions, he in effect took the risk.
There is an element also of Mr Tinkler having brought the charges upon himself. The charges were dismissed against Mr Tinkler but the basis upon which that ruling was made related to a technical point in relation to the publication rather than any finding that he had not engaged in the conduct described by the prosecution. In the exercise of my discretion, and costs are always a discretionary matter, I decline to order costs in relation to the matter of Tinkler.
[38](1990) 170 CLR 534.

Submissions

Counsel for Mr Tinkler argue that the learned Magistrate took into account irrelevant considerations relating to the alleged offending behaviour of Mr Tinkler, rather than the matters which the authorities indicate are relevant to the exercise of the discretion. In their submission, she erred.

Counsel for the Director deny that she erred and rely upon the broad discretionary nature of the power to award costs.

Conclusion

I am persuaded that the Magistrate did err in the exercise of her general discretion under s 131 of the Magistrates’Court Act 1989.

In my view, she took into account what was an irrelevant consideration, in the circumstances, of Mr Tinkler’s failure to act upon warnings not to engage in the behaviour which was later to be the subject of the charges laid against him. That behaviour was not held to be criminal and he was ultimately acquitted of the offences with which he was charged.

In Latoudis v Casey[39], the High Court held that the conduct of a defendant before a charge was laid could justify the refusal of costs, although the reasonableness of the informant’s conduct in instituting the proceedings could not[40]. It would seem to follow that a prospective defendant’s failure to heed advice not to engage in the foreshadowed conduct upon which the charges were to be founded could, similarly, be irrelevant.
[39](1990) 170 CLR 534.
[40](1990) 170 CLR 534 at 544 per Mason CJ; 570 per McHugh J; and 564 per Toohey J.

Indeed, in Redl v Toppin[41], a prospective defendant’s failure to heed warnings to desist from conduct ultimately held not to support charges brought against him was held irrelevant to the exercise of the magistrate’s discretion with regard to the award of costs after his acquittal[42].
[41]Unreported, 1 April 2003, Supreme Court of Victoria.
[42]See : Unreported, 1 April 2003, Supreme Court of Victoria, at 2-3 per Brooking J; 3-4 per Eames J.

Conclusions

The appeals as to the orders following findings of guilt in respect of offences under s 26(1)(a) and (b) relating to the step father should be allowed, the Magistrate’s orders set aside and the relevant charges dismissed.

Mr Tinkler’s costs appeal should also be allowed and the Magistrate’s order set aside. Mr Harvey should be ordered to pay Mr Tinkler’s costs of the hearing in the Magistrates’ Court.

The appeals should otherwise be dismissed.

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[2007] VSC 130

8 May 2007