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Howe v Harvey

Howe v Harvey

Case [2008] VSCA 181 23 September 2008

Appeal

Statutory Interpretation

Media & Entertainment Law

Defamation

Family Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

Nos 6892 of 2006–6896 of 2006
6852 of 2006
6854 of 2006–6855 of 2006

ALAN CHRISTOPHER HOWE & Ors	Appellants
v
PETER HARVEY	Respondent
and
DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of PETER HARVEY)	Appellant
v
CHRISTOPHER TINKLER & ORS	Respondents

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JUDGES:	NEAVE and KELLAM JJA and FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 and 4 April 2008
DATE OF JUDGMENT:	23 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 181

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Appeals from decision of Trial Division Judge dismissing appeals against decision of Magistrate under s 92 of the Magistrates’ Court Act1989 – Interpretation of s 26(1) of the Children and Young Persons Act 1989 (‘Act’), prohibiting publication of a report of a proceeding in the Children’s Court containing particulars likely to lead to identification of those involved in proceedings - Whether newspaper articles and television broadcasts were reports of proceedings under s 26(1)(a) of the Act – Whether ordinary reasonable reader test applies to section - Whether open on evidence to find breach of section - Whether newspaper or television journalists were responsible for publication in breach of section - Whether journalist and producer of television program acted in pursuance of a common purpose to publish a report in breach of s 26(1) of the Act - Appeals dismissed

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APPEARANCES:	Counsel	Solicitors
Proceedings No 6892 of 2006–6893 of 2006 and 6895 of 2006
For the appellants	Mr W T Houghton QC with Mr M Hoyne	Corrs Chambers Westgarth
For the respondent	Mr J Kennon SC with Ms F Ryan	Ms A Cannon, Solicitor for Public Prosecutions
Proceeding No 6894 of 2006 and 6896 of 2006
For the appellants	Mr T E F Hughes QC with Mr T D F Hughes	Corrs Chambers Westgarth
For the respondent	Mr J Kennon SC with Ms F Ryan	Ms A Cannon, Solicitor for Public Prosecutions
Proceedings No 6852 of 2006
For the appellant	Mr J Kennon SC with Ms F Ryan	Ms A Cannon, Solicitor for Public Prosecutions
For the respondent	Mr W T Houghton QC with Mr M Hoyne	Corrs Chambers Westgarth
Proceedings No 6854-6855 of 2006
For the appellant	Mr J Kennon SC with Ms F Ryan	Ms A Cannon, Solicitor for Public Prosecutions
For the respondents	Mr T E F Hughes QC with Mr T D F Hughes	Corrs Chambers Westgarth

NEAVE JA
KELLAM JA
FORREST AJA:

BACKGROUND

This appeal is concerned with the interpretation of s 26(1)[1] of the Children and Young Persons Act 1989 (‘the Act’), and its application to several newspaper articles and television programmes.
[1]Set out at para [19] below.

In broad terms this section prohibited publication of a report of a proceeding in the Children’s Court which contained particulars likely to lead to identification of those involved in the proceedings.[2]
[2]On 23 April 2007, the Act was repealed by section 601 of the Children, Youth and Families Act 2005, No. 96/2005. A provision restricting publication expressed in similar terms is now…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Howe v Harvey

Details

AGLC: Howe v Harvey; Director of Public Prosecutions v Tinkler [2008] VSCA 181
Case: [2008] VSCA 181
Decision Date: 23 September 2008

CaseChat Overview and Summary

In Howe v Harvey, the appellants appealed against the decision of a magistrate who found that two journalists had breached a specific statutory provision. The case concerned the interpretation and application of section 26(1) of the Children and Young Persons Act 1989, which prohibits the publication of reports from Children's Court proceedings that might lead to the identification of those involved. The appellants, journalists from a newspaper and a television program, published articles and broadcasts that allegedly breached this provision. The magistrate found them in breach and the Trial Division Judge upheld the magistrate's decision, dismissing the appeals. The appellants now sought to appeal the decision of the Trial Division Judge.

The primary legal issues addressed by the court were whether the articles and broadcasts constituted reports of proceedings within the meaning of section 26(1)(a) of the Act, whether the ordinary reasonable reader test applies to this section, and whether it was open on the evidence to find a breach of the section. Additionally, the court needed to determine whether the journalists were responsible for the publications in breach of the section, and if the journalist and the producer of the television program acted in pursuance of a common purpose to publish a report in breach of section 26(1) of the Act.

The court found that the articles and broadcasts were indeed reports of proceedings under section 26(1)(a) of the Act. The court applied the ordinary reasonable reader test to determine whether the publications contained particulars likely to lead to the identification of those involved in the proceedings. The court held that it was open on the evidence to find that the publications breached section 26(1) of the Act. It was determined that the journalists were responsible for the publications in breach of the section, and that the journalist and the producer of the television program acted in pursuance of a common purpose to publish a report in breach of the Act.

The appeals were dismissed by the court, affirming the decisions of the magistrate and the Trial Division Judge. The court upheld the finding that the publications were in breach of section 26(1) of the Children and Young Persons Act 1989 and that the journalists were responsible for the breach. The court rejected the arguments of the appellants and confirmed that the ordinary reasonable reader test was appropriately applied in this context.

Orders