Howe v Harvey

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 contained in s 534 of the new Act.

The publications

A 14 year old boy, his mother and step-father were in conflict. The boy applied to the Children’s Court under s 71 of the Act for a finding that there were substantial irreconcilable differences between himself and his mother, to such an extent that his care and control were likely to be seriously disrupted. As the Act required,[3] the boy and his mother were provided with conciliation counselling in an attempt to resolve their difficulties, but it was unsuccessful.
[3]Section 72.

On 28 May 2004 the Children’s Court made an order under s 106 of the Act giving the Secretary of the Department of Human Services guardianship and custody of the boy for 18 months and he moved to live with another family.

Mr Christopher Tinkler, a journalist with the ‘Sunday Herald Sun’, wrote an article about these events which was published under the headline ‘DIVORCED BY MY SON’ on 20 June 2004. The article included large portrait style photographs of the boy and his mother, and said (among other things) that:

A 14-YEAR-OLD Melbourne boy has won a divorce from his mother.
Authorities have granted [the boy’s full name] the split on the grounds of irreconcilable differences. …
The divorce was granted after counselling of the parties failed.

The article went on to name the boy’s school and to describe his achievements there. It also made reference to his living arrangements, his mother’s complaints about his behaviour and to statements made by commentators, including a family lawyer, who was reported as saying that ‘divorces were necessary because they protected children’.

A similar article was published in the ‘Sunday Herald Sun’ on 1 August 2004. That article again named the boy and said that ‘A Melbourne boy who divorced his mother on the advice of authorities is now asking her for “stuff” he left behind’. It said that ‘authorities granted [the boy’s first name] a divorce from his mother in May on the grounds of irreconcilable differences’. It was accompanied by a close up photograph of the boy’s mother.

A further news story on these events was broadcast on the 6:00pm news bulletin on Channel 7, on the evening of 20 June 2004. At the start of the story, the presenter said that:

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. …

A reporter then said that:

14 year old [the boy’s full name] has been granted a legal divorce from his mother on the grounds of irreconcilable differences.

and that
[The boy’s first name] is believed to be the youngest Victorian to win a parental divorce and family groups say that it sets a dangerous precedent.

The news story included a reference to the boy’s school and pictures of the boy, his mother and step-father.

Channel 7 broadcasts a morning programme called Sunrise, which contains both news and magazine segments. On 21 June 2004, prior to the news component of the programme, Mr David Koch and his co-presenter, Ms Melissa Doyle, spoke about the emails they had been receiving from their viewers. Doyle referred to the ‘14-year-old boy that has been allowed to divorce his mum’ and read out an email from a viewer which said ‘if the government insists on allowing child divorces the next logical step will be children suing their parents with a division of property… wake up Australia’. Koch said ‘exactly’ and raised another issue which would be discussed. The news component then began.

In the news component the news reader said that ‘a 14-year-old Melbourne boy has made legal history becoming the youngest person to legally divorce his mother.’ A reporter then said that ‘14-year-old, [the boy’s full name], has been granted a legal divorce from his mother on the grounds of irreconcilable differences.’ Later, he said that ‘[the boy’s first name] is believed to be the youngest Victorian to win a parental divorce’. Like the news report from the previous evening, the story included references to the boy’s school and pictures of the boy, his mother and step-father. His mother’s full name was referred to on two occasions during the news component. There was also a filmed copy of Tinkler’s article[4] which appeared on the front page of that paper.
[4]As referred to in paragraph [5] above.

In the magazine segment which followed, about 45 minutes later, reference was again made to the fact that a 14 year old boy, described by his first name, had divorced his mother. Koch alluded to the boy’s mother’s comments on the difficulty she had had with him and went on to say that:

[The boy’s first name] said he had been advised by authorities he could ask for a divorce. … mum’s trying to do her best then a whole bunch of do-gooders from the community services or whatever it is came and said: you’ll be divorced and we’ll back you with legal proceedings. …

He further said:
He’s a bright kid, he is Vice Captain of the school, the whole thing.

The show’s psychologist, Ms Jo Lamble, spoke of the role of ‘courts’ in dealing with family conflict. Although the boy’s surname was mentioned in the news component of the ‘Sunrise’ programme, Koch did not refer to it in the magazine component.

The ‘Today Tonight’ programme broadcast that evening on Channel 7, referred to

the remarkable story of a 14 year old boy who has successfully divorced his mother leaving his parents shattered...

During the programme, the reporter said:
Authorities were brought in, and it was later decided [the boy's first name] should not return home and his divorce was granted.

The boy was only ever referred to by his first name. However, a number of references were made to the family’s surname when describing and interviewing his parents. The programme also contained a number of pictures of the boy and his family as well as references to his school.

Brief summary of charges

Charges were brought against 14 different defendants in relation to these newspaper articles and television programmes.[5] After a hearing, the learned Magistrate found the charges proven against five of the defendants,[6] namely:
[5]Further charges were brought against three other defendants associated with the ‘Sunday Telegraph’ for a different article. Three of these charges were withdrawn and one was dismissed.
[6]The orders of the Magistrates’ Court do not appear to accurately reflect the charges which were found proven.

· The Herald and Weekly Times Pty Ltd (‘HWT’) in relation to the publication of the newspaper articles on 20 June and 1 August 2004.

· Channel 7 Melbourne Pty Ltd (‘Channel 7’) in relation to the news bulletin on 20 June and the ‘Sunrise’ and ‘Today Tonight’ programmes on 21 June 2004.

· Mr Howe, the Editor of the ’Sunday Herald Sun’, in relation to the newspaper articles on 20 June and 1 August 2004.

· Mr Carey, the Director of Channel 7 News in Melbourne, in relation to the Channel 7 news bulletin on 20 June 2004.

· Mr McPherson, the National Executive Producer of ‘Today Tonight’, in relation to the ‘Today Tonight’ programme on 21 June 2004.[7]

[7]It appears he was also charged in relation to a publication on 20 June 2004.

Both HWT and Channel 7 were convicted of multiple counts involving breaches of s 26(1) of the Act, whilst the charges against Mr Howe, Mr Carey and Mr McPherson were adjourned without conviction, on their undertaking to be of good behaviour.[8] The charges against the other nine defendants were either withdrawn or dismissed. A summary of the Magistrate’s reasons is set out in paras [22]–[31] below.
[8]It is unnecessary to particularise the separate counts. Each of the appellants was charged with breaches of ss 26(1)(a), (b) and (c).

Each of the five defendants who were found to have breached s 26(1) appealed against those findings to a Supreme Court judge.[9] The learned Judge dismissed all of those appeals.[10] A summary of the Judge’s reasons is set out in paras [32]-[41] below.
[9]On a question of law under s 92 of the Magistrates’ Court Act 1989.
[10]The Judge did uphold an appeal by another defendant, but that was in relation to an order for costs.

These five defendants now appeal against the Judge’s orders dismissing their appeals. We refer to these appeals collectively as the ‘media appeals’. We also refer to HWT and Mr Howe as the ‘newspaper appellants’ and to Channel 7, Mr Carey and Mr McPherson as the ‘Channel 7 appellants’. The respondent in each of the media appeals is Inspector Peter Harvey, the police informant.

The defendants against whom the charges were dismissed included Mr Tinkler (the reporter with the ‘Sunday Herald Sun’ who prepared the newspaper articles), Mr Boland (the Executive Producer of the ‘Sunrise’ programme) and Mr Koch (a co-presenter on ‘Sunrise’).

The Director of Public Prosecutions appealed against the Magistrate’s orders in relation to Tinkler, Boland and Koch. The Judge dismissed those appeals also (see paras [40]-[41] below).

The Director now appeals against her Honour’s orders dismissing those three appeals. We refer to these as the ‘DPP appeals’.

The legislation

Section 26(1) of the Act provided as follows:

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, other than the Koori Court (Criminal Division) and the Neighbourhood Justice Division, 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.

Section 3 of the Act defined ‘Court’ to mean ‘The Children’s Court of Victoria’ and ‘publish’ to mean:

(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 PROCEEDINGS BELOW

In both the Magistrates’ Court and the Supreme Court it was submitted on behalf of the media appellants that s 26(1) had not been breached because the publications were not a ‘report’ of a proceeding and because the references to ‘divorce’ and ‘irreconcilable differences’ would not have been understood by an ordinary reasonable reader to refer to proceedings in the Children’s Court. It was also submitted that, even if s 26(1) had been breached, Tinkler, Koch and Boland were not guilty of an offence under the Act as they had not ‘published’ a report within the meaning of the Act.

The Magistrates’ Court

The Magistrate found that the offences were strict liability offences, so that it was not necessary to establish an intentional breach of the section. That finding was not challenged on appeal.

Counsel for the defendants[11] relied on Hinchcliffe and Anor v Commissioner of Australian Federal Police[12] in which Kenny J said that ‘an account’ of proceedings for the purposes of s 121 of the Family Law Act1975 requires a communication which purports to ‘narrate, describe, retell or recite something that has happened in the proceedings, or about the proceedings’.[13] It was contended that a ‘report’ and ‘an account’ had a similar meaning and that neither the newspaper articles or the television broadcasts amounted to a narration or retelling of what happened in the Children’s Court.
[11]In the hearing before the Magistrate, all the defendants were represented by the same counsel.
[12](2001) 118 FCR 308.
[13]Ibid 324.

The Magistrate said that:

In my view a “report” is wider than an “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.[14]

[14]Peter Harvey v Channel 7 Melbourne Pty Ltd, The Herald and Weekly Times Pty Ltd, Nationwide News Pty Ltd & Ors (Unreported, Magistrates Court, 15 May 2006) 12 (‘Magistrate’s Reasons’).

She went on to find that the newspaper articles and Channel 7 broadcasts satisfied the description of ‘a report of a proceeding in the court,’ despite the lack of reference to the Children’s Court in any of the publications. She said that:

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” 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 that “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.[15]

She therefore held that s 26(1)(a) had been breached by each of the media appellants.

[15]Magistrate’s Reasons 12-13.

The Magistrate also held that s 26(1)(b) had been breached by all the media appellants, because in each case, ‘when seen in context [the photographs] clearly identified a child and/or other party to proceedings within the meaning of the legislation’.[16]
[16]Ibid 13.

The Magistrate similarly held that there had been a breach s 26(1)(c) by all the media appellants. She said that ‘[t]here is no dispute that at the relevant time the child was the subject of a guardianship to secretary order’.[17] For the reasons already given she was satisfied that the reports identified the child as being subject of an order of the Children’s Court.
[17]Ibid.

It was conceded that HWT ‘published’ the Sunday Herald Sun. Further, Mr Howe, the editor of the Sunday Herald Sun, accepted that he bore ‘complete and comprehensive responsibility for what was published’ in that paper.[18] Accordingly, the Magistrate held HWT and Mr Howe responsible for the breaches. In contrast, the Magistrate held that the reporter, Mr Tinkler, had not caused the offending articles to be published by writing them and submitting them for publication. In her view there was an

absence of the necessary causal link. Mr Tinkler lacked any control and indeed it is Mr Howe’s evidence that he had no role in whether or not his stories were published.[19]

[18]Ibid 14.

[19]Ibid.

It was also conceded that Channel 7 had ‘published’ the News on 20 June 2004 and the Today Tonight and Sunrise programmes on 21 June 2004. The Magistrate held that Mr Carey, the Director of News, was responsible for publication of the offending news programme and the offending news component of the Sunrise programme. She held that Mr McPherson, the Executive Producer of Today Tonight, was responsible for publication of the offending segment of that programme.

However, the Magistrate held that neither Mr Boland, the Executive Producer of the Sunrise programme, nor Mr Koch, the presenter of the magazine segment of Sunrise, had breached the section. As we have said, the magazine segment, standing alone, did not mention the boy’s full name, though he was fully identified in the preceding news segment. The Magistrate said that ‘[i]t was the combination of broadcasts within the programme which caused the breach and this is a matter over which … Mr Koch had no control’.[20] Although Mr Boland was the executive producer of the magazine component he did not have any control over the preceding news segment. The Magistrate therefore considered that Mr Boland could not be held responsible for the combined effect of the news and magazine segment.
[20]Ibid 17.

In response to the prosecution argument that Koch and Boland had reached an agreement or understanding to commit a criminal act and should therefore be liable for acting in concert to breach the section, the Magistrate said she was not satisfied that there was any such express or implied agreement.

The Supreme Court

In the Supreme Court proceedings, counsel for the media appellants[21] unsuccessfully contended that the Magistrate should not have found that any of the publications were ‘reports’ of proceedings in the Court.[22]
[21]Although some of the media appellants were separately represented, we do not differentiate between their counsel or submissions as they shared the same solicitors and each counsel adopted the other counsel’s submissions.
[22]Howe & Ors v Harvey; DPP v Quist & Ors [2007] VSC 130, [40] (‘Judge’s Reasons’).

Counsel for the media appellants also argued that the Magistrate had applied an incorrect test in deciding whether there was a breach of s 26. Counsel’s primary submission was that the section was only breached if a publication expressly or impliedly conveyed to the ordinary reasonable reader that it was a report about proceedings in the Children’s Court.[23]
[23]Judge’s Reasons [28].

Counsel also argued that even if the Magistrate had correctly adopted that test, she erred in deciding that the publications breached the section, because such findings were not open on the evidence.[24]
[24]Judge’s Reasons [29].

Further, counsel submitted that even if the Magistrate had not erred in deciding that s 26(1)(a) might forbid a report which conveyed to the ordinary reasonable person that it related to a court proceeding, without conveying that it referred to a Children’s Court proceeding, the finding that the reports breached the section was not open on the evidence.[25]
[25]Judge’s Reasons [30].

After discussion of the authorities cited by counsel for the media appellants, to which we will refer in more detail below, her Honour concluded that the Magistrate had correctly interpreted the expression ‘a report of a proceeding in the Court’ in s 26(1)(a).

The Judge’s reasoning was as follows:[26]
[26]Reasons [65]–[71] (citations in original).

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.[27] In my opinion, a purposive approach should be taken in relation to the interpretation of s 26(1)(b).[28] 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.
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”[29] 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.
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[30]) to identify them as the parties to the proceeding to the ordinary reasonable reader or viewer armed only with general knowledge.[31]

[27]See Repatriation Commission v Vietnam Veterans Association of Australia NSW Branch Inc (2000) 171 ALR 523, 550 (Spigelman CJ).

[28]See Mills v Meeking (1990) 91 ALR 16, 30-1 (Dawson J).

[29]See Hinchcliffe and Anor v Australian Federal Police and Anor (2001) 118 FCR 308, 324 (Kenny J).

[30]Boughey v R (1986) 161 CLR 10, 21 (Mason, Wilson and Deane JJ); TSL v Secretary, Dept of Justice (2006) 14 VR 109, 112-3 (Callaway AP).

[31]Note that her Honour found that it was not open on the evidence to conclude that the boy’s stepfather had been identified as a witness in the court proceedings.

Her Honour also held that the Magistrate had not erred in finding that the media appellants had breached ss 26(1)(b) and (c). This was despite what her Honour took

to be [the Magistrate’s] 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.[32]

[32]Judge’s Reasons [79].

Her Honour commented as follows:

The words of … 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.[33]

[33]Judge’s Reasons [80]–[82].

Her Honour agreed with the Magistrate that ‘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’.[34] It followed that she upheld the Magistrate’s findings of fact relating to Mr Tinkler’s lack of control over the publication in the Sunday Herald Sun, and Mr Boland’s and Mr Koch’s lack of control in relation to the relevant Channel 7 broadcasts. Her Honour said that she was:

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; … 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.[35]

[34]Ibid [107].

[35]Ibid [114].

For these reasons her Honour dismissed the DPP’s appeals against the acquittals of the various journalists.

As we have said, the media appellants now appeal against the Judge’s decision that the publications breached s 26(1) and the DPP appeals against her Honour’s dismissal of the DPP appeals against the acquittals of the journalists Koch, Boland and Tinkler. We deal first with the five media appeals and the Notices of Contention filed by the respondent relevant to these appeals. We then go on to consider the three DPP appeals.

THE MEDIA APPEALS
Section 26(1)(a)

The grounds of appeal relating to the finding that there was a breach of s 26(1)(a) were essentially the same for all the media appellants. They were that:

1.(a) Her Honour erred in the construction of sub-section 26(1)(a) of the Children and Young Person’s Act 1989 (Vic) (“the Act”) by finding that a publication in a newspaper [or in the case of the Channel 7 appellants on television] may amount to a “report of a proceeding in the Court” (where “Court” is relevantly defined as the Children’s Court of Victoria) even where the publication did not convey to the ordinary reasonable [reader or viewer] that a proceeding in the Children’s Court of Victoria had taken place.
(b)Her Honour ought to have found that, for a publication in a newspaper [or, in the case of the Channel 7 appellants, on television] to be a report “of a proceeding in the Court” for the purposes of sub-section 26(1)(a) of the Act, the publication must convey to the ordinary reasonable [reader or viewer] that a proceeding in the Children’s Court of Victoria had taken place.

4.(a) Her Honour erred in the construction of sub-section 26(1)(a) of the Act by finding that the publication in a newspaper [or in the case of the Channel 7 appellants on television] of the outcome of a proceeding in the Children’s Court of Victoria could, without more, amount to a “report” of a proceeding of the Children’s Court of Victoria.
(b)Her Honour ought to have found that a “report” of a proceeding of the Children’s Court of Victoria, for the purposes of sub-section 26(1)(a) of the Act, required a narrative, description, retelling or recital of such a proceeding and that the communication of the outcome only of such a proceeding was not a “report” of such a proceeding.

5.Her Honour erred by determining that use of the terms “divorce” and “irreconcilable differences” in the relevant publications complained of were sufficient to identify a child and his mother as being parties to a court proceeding to an ordinary reasonable [reader or viewer] armed only with general knowledge when no such finding was available on the evidence.[36]

[36]The wording of the separate Notices of Appeal relating to the newspaper and television publications has been amended to cover both sets of appeals.

During the hearing of the appeal, the Court granted leave to the respondent to file a Notice of Contention alleging that her Honour had erred in applying the ‘ordinary reasonable reader test’ during the course of proceedings.[37]
[37]Counsel for the media appellants conceded that this argument had been raised below and did not object to the late filing of the notice. Later, at para [76], we refer to the respondent’s second Notice of Contention.

The issues which must be determined in relation to grounds of appeal 1, 4 and 5 are as follows:

·Should the Judge have applied the ‘ordinary reasonable reader or viewer’ test in deciding whether s 26(1)(a) was breached? (Ground of appeal 1 and first Notice of Contention)[38]
[38]We refer to the terms ‘ordinary reasonable reader’ and ‘ordinary reasonable viewer’ interchangeably depending on their context.
·Is the section breached if the publication does not refer expressly or impliedly to the Children’s Court? (Ground of appeal 1)
·What is a ‘report’ of a proceeding for the purpose of s 26(1)(a)? (Ground of appeal 4)
·Was it open to the Magistrate and to the Judge below to decide that the publications were reports of proceedings in the Children’s Court? (Ground of appeal 5)

We consider each of these issues in turn.

Should the Judge have applied the ‘ordinary reasonable reader or viewer’ test in determining whether there has been a breach of s 26(1)(a)?

In essence, ground of appeal 1[39] alleges that her Honour ought to have applied an ‘ordinary reasonable viewer [or reader]’ test for the purposes of deciding whether s 26(1)(a) has been breached. As we have said, the Notice of Contention alleges that her Honour erred in applying the ‘ordinary reasonable reader test’. As we explain below, the resolution of this question is also relevant to the interpretation of s 26(1)(b) and (c).
[39]Grounds 2 and 3 replicate this argument in relation to s 26(1)(b) and s 26(1)(c).

Counsel for the media appellants[40] submitted that her Honour should have asked herself whether the evidence was sufficient to prove beyond a reasonable doubt that there was a real or substantial prospect that the articles or broadcasts identifying the boy would be recognised by an ordinary reasonable reader as a report of something that had happened in the Children’s Court. In that context counsel referred to the ordinary reader test which courts have applied to determine whether a publication contains a defamatory imputation.[41]
[40]Although the submissions were made by counsel for the newspaper appellants, they were adopted by counsel for the Channel 7 appellants. Throughout this judgment, unless otherwise indicated, a reference to counsel for the media appellants covers counsel for all the media appellants.
[41]Counsel cited Lewis v Daily Telegraph Ltd [1964] AC 234 and Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 as examples of defamation cases in which a similar test has been applied.

Counsel for the media appellants also said that R v West Australian Newspapers Ltd, ex parte Keating On Behalf Of The Attorney General For Western Australia[42] and Waters v Pacific Publications Pty Ltd[43] supported the application of the ‘ordinary reasonable reader test’ to determine whether there has been a breach of legislation prohibiting publication of material which identifies a child involved in Children’s Court proceedings. Counsel submitted that the ‘ordinary reasonable reader test’ would promote certainty and provide publishers with a benchmark for determining what could and could not be published. By contrast, an approach which treated the question of whether the section had been breached as a matter of fact would make it impossible for publishers to tell in advance whether or not the publication was contrary to s 26(1)(a).
[42](Unreported, Full Court of the Supreme Court of Western Australia, Kennedy, Murray and White JJ, 19 June 1997) (‘Keating’).
[43][1999] NSWSC 366 (‘Waters’).

Counsel for the respondent submitted that the ordinary reasonable reader test was an unnecessary gloss on the clear words of the legislation. An offence was committed under s 26(1)(a) if a publication identified a child in the context of court proceedings and those court proceedings were in fact in the Children’s Court.

We put to one side for the moment the question whether s 26(1)(a) is breached only if the publication refers expressly or impliedly to the Children’s Court. That question is dealt with in paras [68]-[95] below. At this point we focus solely on the question whether the ‘ordinary reasonable reader test’ should be applied in deciding whether the section has been breached.

We do not consider that s 26(1)(a) required the Magistrate or Judge to ask the question whether the ordinary reasonable reader would have regarded the report as a report of a proceeding in the Children’s Court. In our opinion, the question whether there has been a breach of s 26(1)(a) is a factual one, which does not require the interposition of a test based on the perception of an ‘ordinary reasonable reader.’ We reach that conclusion for the following reasons.

First, the use of the ordinary reasonable reader test to determine whether a statement carries a defamatory imputation does not require it to be applied in interpreting s 26(1).[44] It is true that there is some overlap between the factors taken into account in the context of defamation law and the factors relevant to the construction of s 26(1). Like some defences to defamation[45] s 26(1) strikes a balance between protecting individuals from relevant harms and permitting freedom of communication.[46] However this does not mean that the same balance must be reached in these different contexts, where the harms which may be caused by the relevant publication are quite different. The harm against which defamation is intended to protect is injury to reputation, whilst the harm against which s 26(1) is intended to protect is the stigmatisation and interference with the privacy of the child and his or her family caused by identifying them as participants in court proceedings.
[44]Note that applies also to the interpretation of s 26(1)(b) and (c).
[45]For example the defences of justification and of absolute and qualified privilege.
[46]Section 26(1) also strikes a balance between protecting children and achieving open justice. In relation to the public interest in open justice, see Keating (Unreported, Full Court of the Supreme Court of Western Australia, Kennedy, Murray and White JJ, 19 June 1997) 7.

Secondly, we do not consider that the decisions in Keating and Waters require Victorian courts to apply the ordinary reasonable reader test. In Keating, the newspaper had published two reports about a boy who had been injured by a bomb explosion at his 16^th birthday party. It was alleged that he had made the explosive device. The boy was named in both articles and the second article included his photograph. At the time these articles were published the boy had not been charged and no Children’s Court proceedings had been commenced. The issue in the case was whether two later reports published six weeks and two months later in the ‘West Australian’, which referred to subsequent Children’s Court proceedings, but did not name the boy, had identified him in breach of s 35(1) of the Children’s Court of Western Australia Act1988 (WA). There was nothing in the later article which linked it back to the previous ones.[47]
[47]Ibid 3.

Section 35(1) of that Act prohibited the publication of:

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 the proceedings –
(a)as a person against whom the proceedings are taken; …

The Full Court of the Western Australian Supreme Court held that the newspaper reports did not breach the section. Murray J, who delivered the primary judgment of the Court, referred to the tension between protecting children from ‘the harmful effects which may ensue following their public identification and exposure to the community’ and giving effect to the fact that ‘the court is a public place and its proceedings should be open to public scrutiny and be able to be reported to the community generally.’[48] He said that the purposes of s 35(1) were to resolve this tension:

in favour of affording to the child the degree of privacy which precludes that person's identification to the public. And it does so not only by proscribing reports of proceedings which do in fact identify the child, but also those which are likely to do so. The section should be construed so as to facilitate that purpose, whilst not losing sight of the fact that contravention of the section is constituted as a criminal offence in respect of which, before this Court, there are unlimited powers to punish an offender.
In that context, I would accept that the capacity for identification which is proscribed is generally by the public, rather than by private individuals who may, by reason of knowledge otherwise acquired, have a particular capacity to identify a child the subject of a report, which the general reader, viewer or listener would not otherwise have. In my opinion, the requirement that the content of the report must be likely to lead to the identification of the child means that, giving the word "likely" its ordinary meaning, but not forgetting the seriousness of the consequences of contravention of the section, it must be established that there was a real or substantial prospect that the report would lead the general reader, viewer or listener to identify the child. …
In judging the likelihood that the content of a report of proceedings may lead the general reader, viewer or listener to the identification of a child concerned in the proceedings, I see no reason why regard should not be had to what may be proved to be a 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.[49]

[48]Ibid.

[49]Keating (Unreported, Full Court of the Supreme Court of Western Australia, Kennedy, Murray and White JJ, 19 June 1997) 8–9.

Murray J said that he could not be satisfied beyond a reasonable doubt that the report would lead to the identification of the child, because it was unlikely that an ordinary reader would be sufficiently interested to recall the identifying details about the child which had been published some six weeks and two months previously.[50]
[50]Ibid, 10. Kennedy and White JJ agreed.

In Waters Studdert J held that a Magistrate had not erred in dismissing a charge under s 68(1) of the Children (Care and Protection) Act 1986, which provided that:

The name of any child:
(a)who appears before the Children’s Court in any proceedings under this Part, …

shall not be published or broadcast, whether before or after the proceedings are disposed of.

In that case the magazine ‘New Idea’ was prosecuted for breaching s 68, following publication of a story about a man who had killed his mother-in-law, wounded his father-in-law and held his child hostage. The story, which featured an interview with the child’s mother, spoke of the impact of the murder and the mother’s fears about her and her child’s safety when the murderer was released. It referred to the fact that the mother had found it difficult to look after the child after the shooting and said the child had been placed in foster care. The story also said that ‘the New South Wales Department of Community Service says it is unable to comment to protect the identity of some of the individuals involved’.[51]
[51]Waters [1999] NSWSC 366, [4].

Studdert J held that the Magistrate had correctly held that while the article identified the child, it did not identify the child in connection with care proceedings, in breach of s 68(1). His Honour said that the section could not have been intended to make it an offence ‘simply to publish the name of a child who has been involved.’[52] His Honour accepted defendant’s counsel submission that the section must be directed to publishing a report of the proceedings. That would include ‘reporting on the evidence placed before the Children’s Court, the submissions made to that court and what the magistrate determined’.[53]
[52]Ibid, [40].
[53]Ibid.

As counsel for the respondent submitted, the nature of the publications in Keating and Waters differed from the content of the publications in this case. Even if Murray J in Keating was correct in applying a ‘general reader’ test for the purposes of determining whether a child was identified, in contravention of the section, it does not follow that the same test should be applied in deciding whether a report is a report of a proceeding in a court. We note also that contrary to the approach in that case, we are inclined to think that s 26(1) would be breached if the particulars which are published are sufficient to enable those who know a child (for example, his or her school friends or neighbours) to identify him or her as the child who had been involved in court proceedings, even though a general reader would not do so. It is, however, unnecessary to determine that issue for the purposes of this appeal.

The legislation considered in Waters was expressed quite differently to s 26(1)(a), since it referred to the name of a child ‘who appears’ before the Children’s Court. Further we note that Studdert J’s reference to ‘what the Magistrate determined’ applies to the publications in this case, which referred to the outcome of court proceedings – that is a ‘divorce’ on the grounds of irreconcilable differences. We return to the meaning of a ‘report’ of a proceeding in paras [96]-[107] below.

Thirdly, we note that in Bailey v Hinch[54] Gobbo J took the view that the question whether there had been a breach in applying s 4 of the Judicial Proceedings Act 1958, which prohibited the publication of particulars ‘likely to lead to the identification’ of complainants in sexual offence cases, was a matter of fact to be determined in the circumstances of the particular case.[55] His Honour held that the Magistrate had not erred by holding that in the particular case, where the issue was whether a husband could be found guilty of raping his wife, the publication of the name of the Judge presiding over the husband’s trial was likely to lead to the identification of the victim.
[54][1989] VR 78.
[55]Ibid 93.

Finally, we do not consider that there is any substance to the appellants’ submission that the ordinary reasonable reader test would provide greater certainty as to what is and what is not permitted under s 26(1)(a) than approaching this question simply as a factual issue.

For the above reasons, the ‘ordinary reasonable reader or viewer test’ should not be applied when determining if there has been a breach of s 26(1) of the Act. Accordingly, the Notice of Contention must be upheld.

Even if we are wrong in our view that the ‘ordinary reasonable reader or viewer test’ should not be applied, we consider that ground of appeal 1 would fail. This is because, in our opinion, the judge below did in fact apply the ordinary reasonable reader test. Her Honour said that the Magistrate had demonstrated:

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.[56]

Does the section require an explicit or implicit reference to the Children’s Court?

Submissions of the media appellants

[56]Judge’s Reasons [65]. See also Judge’s Reasons [66] and these reasons at [60] above.

Counsel for the media appellants submitted that s 26(1)(a) is not breached unless the publication expressly or impliedly refers to a proceeding in the Children’s Court.[57]
[57]If this submission were accepted, it would also be relevant to the interpretation of s 26(1)(b) and (c).

Counsel relied on the cases of Keating and Waters, to which we have already referred, as well as two English cases, Re B (a child) (disclosure)[58] and Kelly v BBC,[59] and the decision of the Ontario Divisional Court in Children’s Aid Society of Hamilton-Wentworth v D-G,[60] in support of that argument. Each of these cases dealt with the application of legislation which limited publication of information about court proceedings involving children.
[58][2004] EWHC 411 (‘Re B’).
[59][2000] 1 All ER 323.
[60](1995) 21 OR (3d) 643 (‘Children’s Aid Society’).

Counsel submitted that if the section did not require an express or implied reference to the Children’s Court it would prohibit publication of identifying details of any person who had ever been before that Court. For example, the publication of a report about a child who was the member of a winning football team would breach the section simply because the child had previously been before the Children’s Court. Likewise, an article referring to the fact that a successful person had had a difficult childhood and had been before the Children’s Court many years previously, would breach the section.

Counsel also contended that both the Magistrate and Judge below had erred by failing to weigh the competing goals of freedom of speech and open justice against the protection of the privacy of children. It was said that they had interpreted s 26(1) as if the only purpose of the legislation was to protect the privacy of children. Counsel relied on the comment of Gleeson CJ in Carr v Western Australia that:

Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose. [61]

Counsel said that the approach taken by the Judge below pursued the goal of protection of children at all costs and did not take account of the competing considerations.[62]

[61](2007) 239 ALR 415, 418.

[62]Counsel also referred to the comments of Spigelman CJ in Director General, Department of Education and Training v M.T. (2006) NSWLR 237, 248 [49].

Finally, counsel referred to the fact that her Honour had said that s 26(1) was ambiguous.[63] In these circumstances, counsel submitted that because the provision was a penal one it should be construed in favour of the defendants.[64]

Submissions of the respondent

[63]Judge’s Reasons [69].

[64]Counsel cited Beckwith v R (1976) 135 CLR 569, 576 (Gibbs J).

Counsel for the respondent submitted that s 26(1)(a) did not require the publication to convey that a Children’s Court proceeding had taken place, so long as there had in fact been proceedings in that Court. It was not necessary for the Children’s Court to be expressly or impliedly named in the article.

Counsel said that Waters and Keating were distinguishable. In Keating the newspaper article did not identify the child, whilst in Waters the Court held that no link was made between the child and court proceedings.

Counsel said that, in this case, the references to the child having ‘divorced’ his mother because of ‘irreconcilable differences’ identified him in the context of the precise proceedings which had in fact occurred in the Children’s Court. There was not just a marginal link between the report and the proceedings in the Children’s Court – the outcome of the proceedings in the Children’s Court was the whole point of the story.

Counsel said that this interpretation of the section did not mean that any reference to an identified person who had in fact been before the Children’s Court would be a breach of the section, as the media appellant’s counsel contended. The section applied only where there was in fact some connection or link between the court proceedings and the identification of the child.

Counsel contended that this interpretation was consistent with the statutory purpose of protecting the privacy of children and other parties to Children’s Court proceedings. Counsel submitted that the interpretation for which the media appellants contended would encourage media outlets to avoid the protection of the section, either by failing to mention the Children’s Court or even by wilfully attributing the proceedings to another court.

The respondent filed a Notice of Contention alleging that the Judge should not have found that the legislation was ambiguous.[65] Instead, it was submitted on behalf of the respondent, that the meaning of those words was clear - that they did not require an express or implied reference to the Children’s Court -and that therefore the principle that penal legislation should be interpreted in favour of the defendants was inapplicable.

Conclusion

63Judge’s Reasons [69].

In our opinion the respondent’s Notice of Contention cannot succeed. The legislation was ambiguous, in the sense that the phrase ‘a report of a proceeding in the Court’ is capable of referring to a proceeding which was, in fact, in the Court, or to a proceeding identified in the report as being in the Children’s Court.

However, the cases relied upon by counsel for the appellants do not require the conclusion that s 26(1) applies only if the publication expressly or impliedly refers to the Children’s Court.

For the reasons given in [60]-[61] above, Keating and Waters are distinguishable.

Both Re B[66] and Kelly v BBC[67] were concerned with the interpretation of s 12(1)(a) of the Administration of Justice Act 1960 (UK), which makes it a contempt of court to publish information relating to proceedings before any court sitting in private:

where the proceedings –
(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii)are brought under the Children Act 1989; or
(iii)otherwise relate wholly or mainly to the maintenance or bringing of a minor…

[66][2004] EWHC 411.

[67][2000] 1 All ER 323.

It will be observed that the section does not prohibit the identification of witnesses or a child involved in such proceedings. However s 97(2) of the Children Act 1989, makes it an offence to:

publish any material which is intended, or likely, to identify…any child as being involved in any proceedings before [a family court] in which any power under [the Act] may be exercised by the court with respect to that or any other child…

In Re B, the issue before Munby J was whether a mother who claimed to be the victim of a miscarriage of justice in care proceedings in which her daughter had been removed, should be permitted to disclose certain ‘facts’ and documents which had been in evidence in the proceedings to two government ministers and to her member of parliament. She also sought permission to disclose material to the General Medical Council for the purposes of pursuing her complaint against doctors who had given evidence in the case.[68] Counsel for the local authority contended that the proposed disclosures (and presumably some of the disclosures which the woman had already made) breached s 12(1)(a) of the Administration of Justice Act 1960.
[68]It was held that she and her solicitor had, in fact made various disclosures to politicians and the press, before seeking the order, although this only became apparent after the matter was heard.

Munby J said:

In the first place it is quite clear that the effect of s 12 is to prohibit the publication of accounts of what has gone in front of the judge sitting in private, as also the publication of documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment.[69]

[69]Re B [2004] EWHC 411, [66].

In a passage relied upon by the media appellants in the present case, Munby J went on to say that the provision did not prohibit the publication of the fact that an identified child was a ward of court or the subject of proceedings under the Children Act or of proceedings relating wholly or mainly to his maintenance or upbringing.[70]
[70]Ibid [82](v)(a).

Similarly, in Kelly v BBC, Munby J held that it would not be a contempt of court for the media to interview a child who was a ward of court, or to publish the interview, although they would have to take care not to breach the prohibition on reporting information about the court proceedings.[71] For example, Munby J said that a newspaper report of the fact that a ward had just won a scholarship to Oxford, would not breach s 12 (1)(a) of the Administration of Justice Act. [72]
[71][2001] 1 All ER 323, 342.
[72]Ibid 344. The example cited was given by Lord Denning MR in Re F (a minor) (publication of information) [1977] 1 All ER 114, 119–120.

Re B and Kelly v BBC are clearly distinguishable from this case. The prohibition in s 12(1)(a) of the Administration of Justice Act differs substantially from the prohibition in s 26(1) of the Act. It is narrower, in the sense that it does not prohibit identification of a child involved in court proceedings.[73] It is broader, in the sense that it prevents publication of information relating to those proceedings, though not necessarily some discussion of the issues raised by the proceedings.
[73]That gap was filled by the enactment of Children Act 1989, s 97(2), as amended by the Access to Justice Act 1999. See Kelly v BBC [2001] 1 All ER 323, 339.

We note also that in the context of Re B Munby J said that:

Every case will in the final analysis, turn on its own particular facts. The circumstances of the human condition, and thus of litigation, being infinitely various, it is quite impossible to define in abstract or purely formal terms where precisely the line is to be drawn.[74]

[74][2004] EWHC 411, [79].

As we have said, counsel for the media appellants also relied on the decision in Children’s Aid Society.[75] In that case the Canadian Broadcasting Corporation produced a documentary about parenting problems which included video footage obtained by placing cameras in the home of various families, with their consent. After the documentary was broadcast, the children were taken into care. A number of educational and professional organisations then expressed an interest in buying the tape of the programme. The issue in the case was whether an injunction should be granted to prevent publication of the tape in the future.
[75](1995) 21 OR (3d) 643.

Some of the argument in the case appears to have turned on the question of whether interlocutory relief should have been granted, in the absence of evidence about whether the children would be harmed by the showing of the video. However the Ontario Divisional Court, on appeal from an interlocutory decision of the Unified Family Court, held that the CBC had not breached s 45(8) of the Child and Family Services Act which provided that:

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.

The Court held that the initial broadcasts of the programme did not breach the provision because at that time there were no proceedings on foot. The Court held that the section did not cover the showing of a video which re-identified the child after the care proceedings were instituted.

Counsel for the media appellants said that this supported the contention that reference to the Children’s Court was required. He relied on a passage in the judgment holding that the section was not intended to prevent any reference to a child or party who happened to be involved in proceedings ‘unless it is coupled with identifying them as people who are involved in the proceedings’.[76]
[76]Ibid 652.

We are not persuaded by the submission of the media appellants, that an interpretation of s 26(1)(a) which does not limit its operation to publications which make express or implied reference to the Children’s Court, means that the identification of a child in a report which is unconnected with the court proceedings, for example a report of their footballing prowess, would breach the section if the child had previously been before the Children’s Court. In our opinion, the operation of the section is confined by the requirement that the particulars likely to lead to the identification of the child are contained in a ‘report of a proceeding’ which was in fact in the Court. An article about the child’s academic or sporting success would not be caught, because it would not amount to ‘a report of a proceeding’. Those words require a link between the proceedings which have in fact occurred in the Court and the identifying particulars, which did not exist in the legislation considered in Children’s Aid Society.

Further, s 35 of the Interpretation of Legislation Act 1984 requires the court to prefer a construction of the provision which furthers its purpose or object rather than one which does not. Section 1 of the Act enumerates its purposes, which include providing for ‘the protection of children and young persons’. The Act also limits the extent to which the fact that a child has previously committed an offence or has been the subject of an application for a protection order can be used in evidence in other court proceedings, more than 3 years after the child has been before the Children’s Court.[77]
[77]Children and Young Persons Act 1989, s 274. See also the principle of public policy articulated by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 483.

Contrary to the submission of the media appellants that the Judge’s approach pursued the goal of protection on children at all costs, we consider that her Honour’s interpretation of s 26(1) provides an appropriate balance between protecting children and promoting freedom of speech and open justice. Section 26(1)(a) does not prevent debate about the power of the Children’s Court to make Guardianship to Secretary orders to deal with a child who has ‘irreconcilable differences’ with his parents. Proceedings under the Children and Young Persons Act 1989 must be conducted in open court,[78] unless the Court makes an order to the contrary. There is no restriction on publishing details of those proceedings, such as exists under the Administration of Justice Act in the United Kingdom. Section 26 only prohibits the reporting of particulars likely to lead to the identification of children, other parties and witnesses in those court proceedings. To interpret s 26 so as to require an express or implied reference to the Children’s Court, would undermine its purpose of preventing children who come before the Court from being stigmatised and protecting their privacy, and give complete and unnecessary primacy to freedom of the press.
[78]Children and Young Persons Act 1989, s 19.

We do not consider that the appellants are assisted by the fact that s 26(1) is a penal provision. The rule of construction relating to penal provisions ‘is perhaps one of last resort’, which applies only if the ‘ordinary rules of construction’ cannot otherwise resolve the ambiguity. [79] In our opinion that is not the case here.

Did the publications amount to a ‘report of a proceeding’?

[79]Beckwith v R (1976) 135 CLR 569, 576; see also Deming No 456 Pty Ltd v Brisbane Development Corp Pty Ltd (1983) 50 ALR 1, 15-16; Waugh v Kippen (1986) 64 ALR 195, 200-201.

So far we have concluded that it was unnecessary for her Honour to apply the ‘ordinary reasonable reader’ test and that a publication may breach the section even if it does not expressly or impliedly refer to the Children’s Court. It is now necessary to consider the fourth ground of appeal, which alleges that the publications did not amount to ‘a report of a proceeding.’

Counsel for the media appellants relied on Kenny J’s statement in Hinchcliffe & Anor v Commissioner of Australian Federal Police & Anor,[80] that an ‘account of proceedings’ for the purposes of Family Law Act 1975 was ‘a narrative, description, retelling or recital of such proceedings.’[81] He submitted that a report of the outcome of a proceeding in the Children’s Court was not a ‘report’ of a proceeding of the Children’s Court, because it did not ‘narrate, describe or retell’ what had happened in the Children’s Court.
[80](2001) 118 FCR 308 (‘Hinchcliffe’).
[81]Ibid 323–324.

Counsel for the media appellants also said that defamation cases such as Burchett v Kane[82] and Cornwall v Rowan[83] supported the view that a ‘report required a factual recounting of an event’ and that this approach should be applied by analogy to the interpretation of s 26(1). In response to a question from the Court, counsel said that the provision did not prohibit the publication of a list of the names of children convicted in the Children’s Court and an account of the offences of which they had been convicted, because such a list did not narrate or describe what had happened in the court.
[82](1980) 2 NSWLR 266.
[83](2004) 90 SASR 269.

Counsel for the respondent submitted that there was a breach of s 26(1)(a) if there had in fact been proceedings in the Children’s Court, and if the report identified the child or other witness in the proceedings in the context of those proceedings. He submitted that Hinchcliffe did not assist the media appellants, because the meaning of the word ‘report’ was broader than the meaning of the word ‘account.’ Further, even if ‘account’ and ‘report’ meant the same thing, Kenny J had accepted that ‘an account’ included a communication which recited ‘something that has happened in the proceedings, or something about the proceedings’.[84] The articles and television programmes came within that description.
[84]Hinchcliffe (2001) 118 FCR 308, 324.

In our opinion, her Honour correctly concluded that the newspaper articles and television stories were ‘reports’ for the purposes of s 26(1)(a).

Hinchcliffe dealt with s 121 of the Family Law Act 1975 (Cth), which prohibited the publication of ‘any account of any proceedings, or of any part of proceedings, under [the Family Law Act] that identifies … a party to the proceedings’. Kenny J held that a husband and wife had not breached s 121 by making false statements about each other to their friends, which reiterated allegations contained in documents filed in divorce proceedings. Her Honour said that these statements made were not accounts of proceedings because they did not purport to ‘narrate, describe, retell or recite something that has happened in the proceedings, or something about the proceedings’.[85] In this case, by contrast, we consider that the publications purported to ‘recite something that has happened in the proceedings, or something about the proceedings’.[86] They did so by describing the outcome of proceedings which had actually occurred in the Children’s Court and explaining that the ‘divorce’ was granted on the grounds of irreconcilable differences.
[85]Ibid 323–324.
[86]Ibid.

In our opinion the defamation cases relied upon by counsel do not assist the media appellants. In Burchett v Kane[87] the issue before the New South Wales Court of Appeal was whether the trial Judge should have left it to the jury to decide whether the article ‘was a fair report published for the information of the public of proceedings in the Senate’.[88] The Court dismissed the plaintiff’s appeal because of the way the case had been run below,[89] but in the course of doing so considered whether the article was capable of being a ‘report’ of proceedings in the Senate. The relevant article quoted directly from evidence given to a United States Senate Committee and did not purport to refer to a document before the Australian Senate.[90] Samuels JA, with whom Mahoney JA agreed, said that the article was not capable of constituting a report because: [91]

for the purpose of s 14(1) [of the Defamation Act 1958(NSW)], a report, as Asprey JA observed in Anderson v Nationwide News Pty Ltd[92] is a factual recounting of an event or situation. It is essentially descriptive of an event or a series of events and, since it is limited to an account of events which have happened, it cannot properly include the independent comments or opinions of the reporter. In Anderson’s case[93] Mason JA repeated with approval the terms of Brereton J’s charge to the jury in Thom v Associated Newspapers Ltd[94] that is, that a fair report is a substantially accurate summary of the proceedings, neither more nor less, and that the question is whether it substantially records what was said and done.

[87](1980) 2 NSWLR 266.

[88]Ibid 266. This was a defence to libel under Defamation Act 1958(NSW), s 14(1)(a).

[89]Ibid 267 (Moffit P).

[90]Ibid.

[91]Ibid 273.

[92](1970) 22 NSWLR 313, (35a).

[93]Ibid (35b).

[94](Unreported, New South Wales Supreme Court, Brereton J, 26 April 1963), 64.

In Cornwall v Rowan[95] a report of a review committee discussing the management and administration of women’s shelters was tabled in the South Australian Parliament. The report identified deficiencies in the running of a particular shelter, of which Ms Rowan was the administrator. The ABC and another television station broadcast a programme on the funding of women’s shelters, which included an interview with Mrs Roberts, the chair of the review committee, discussing the alleged financial mismanagement of Ms Rowan’s shelter and making various allegations against staff members. Ms Rowan claimed damages for defamation against Mrs Roberts, the ABC and the other television station.
[95](2004) 90 SASR 269.

One of the issues which arose on appeal was whether the ABC could rely on the defence that the programmes were fair and accurate reports of proceedings in parliament. The Full Court of the Supreme Court of South Australia said that ‘in order to be a report a publication must be a factual recounting of an event or situation’, although it was not necessary for a report to be a factual recounting of the whole of the proceedings or to be a word for word account.[96] The Court held that the defence was not available because the ABC programme was an ‘attempted debate about allegations involving [the women’s refuge] between “opposing” parties, rather than a report of what had occurred in the Legislative Council the day before’.[97]
[96]Ibid 405.
[97]Ibid.

Neither of those cases considered whether a reference to the outcome of proceedings in a court could amount to a report of those proceedings. The requirement that there be a ‘factual recounting of proceedings’ was applied in a context where the relevant statements did not describe what had happened in the Senate (Burchett v Kane) or attempt to summarise what had happened in the South Australian Legislative Council (Cornwall v Rowan). In Cornwall the Court remarked that a publication could be a report of parliamentary proceedings even if it did not ‘announce itself as a report of proceedings in Parliament’ and that the question whether the publication was a report of proceedings ‘is probably a question of degree, and … there are no “bright line” rules’.[98]
[98]Ibid 406.

In Cornwall the Court noted that the defamation defence was

based on public policy considerations and in the case of reports of Parliamentary proceedings the nature of Parliament’s activities “is treated as conclusively establishing that the public interest is forwarded by publication of reports of their proceedings”.[99]

[99]Ibid, citing Perera v Peiris [1949] AC 1, 21 (Lord Uthwatt).

As we have already observed (see para [52]), a different balance of public policy considerations applies when a court is determining whether a defamation defence based on public policy reasons is applicable, and when a court is interpreting legislation which is intended to prevent the identification of children who have been involved in Children’s Court proceedings.

Were the findings against the media appellants reasonably open?

The fifth ground of appeal alleges that:

Her Honour erred by determining that use of the terms “divorce” and “irreconcilable differences” in the relevant publications complained of were sufficient to identify a child and his mother as being parties to a court proceeding to an ordinary reasonable viewer armed only with general knowledge when no such finding was available on the evidence.

Counsel for the media appellants submitted that it was not reasonably open to the Magistrate to find that the media appellants had breached s26(1)(a) of the Act.

It was submitted that in the circumstances of this case, the relevant reports could not have been regarded as relating to court proceedings at all. Further, even if the reference to a ‘divorce’ could be regarded as referring to court proceedings, an ordinary reasonable reader would be likely to conclude that the reports referred to proceedings in the Family Court rather than the Children’s Court, and in these circumstances the section did not apply.

In support of that argument, counsel referred to the well known principle in Woolmington v DPP[100] which was accepted by the High Court in Ryan v R[101] and Thomas v R.[102] Counsel said that the equivocal nature of the reference to proceedings in the articles and television programmes precluded a finding beyond reasonable doubt that an ordinary reasonable viewer would have understood the reports as referring to proceedings in the Children’s Court.
[100][1935] AC 462.
[101](1967) 121 CLR 205, 214 ( Barwick CJ).
[102](1960) 102 CLR 584, 605 (Windeyer J).

In light of our view that the ‘ordinary reasonable viewer’ test does not apply to s 26(1), this contention either falls away or become less persuasive. However, if we are wrong as to the test which the Magistrate should have applied, we consider that the Judge correctly concluded that it was open to the Magistrate to find that it was established beyond reasonable doubt that an ordinary reasonable reader would have understood that the report referred to proceedings in a Court which was, in fact, the Children’s Court.

As counsel for the respondent submitted, the essential component of the reports was that the child had been ‘divorced’ from his mother as a result of court proceedings. This is apparent when terms of the various reports are examined.

In the case against HWT and Mr Howe the reference in the Sunday Herald Sun article of 30 June 2004 to the fact that the boy had ‘won a divorce from his mother’, the statement that ‘authorities have granted [the boy’s full name] a split on the grounds of irreconcilable differences’ and the reference to the divorce being granted after counselling failed, were sufficient to justify a finding by the Magistrate that the ordinary reasonable reader would have understood that the report was concerned with court proceedings, in which the boy was involved. Similar observations can be made about the article dated 1 August 2004, which contained similar references, including a statement that the boy’s mother had ‘fought the divorce’.

So far as the case against Channel 7 and Mr Carey (arising from the Channel 7 News programme) is concerned, the same can be said of the statement that the boy had made history by becoming the youngest person to ‘legally divorce’ his mother and the reference to ‘a legal divorce’ being granted on the grounds of irreconcilable difference.

In the case against Channel 7 arising from the ‘Sunrise’ programme, the fact that court proceedings were involved was reinforced by the reading of an email from a viewer in a segment preceding the broadcasting of the news which said:

I think if the Government insists on allowing child divorces the next logical step will be children suing their parents with a division of property, with the Government allocating percentages to allow for future divorces.

In the segment which followed the news component of the ‘Sunrise’ programme, Mr Koch said that:
So he makes a complaint, four hours of counselling and then a Government department says okay, mate, we’ll support you and fund the legal proceedings for you to divorce your parents.

Shortly afterwards, Ms Doyle said:
What else are the courts and government going to interfere with?

A number of references to the approach of the ‘courts’ in family conflicts were also made by the show’s psychologist, Ms Lamble.

So far as the case against Channel 7 and Mr McPherson in relation to the Today Tonight programme is concerned, there were also references to the boy ‘successfully divorcing’ his mother and to the fact that authorities had granted a divorce.

As her Honour noted, it is common knowledge that divorces are granted by courts, on the basis of particular grounds.

Contrary to the submission made by counsel for the media appellants, we do not regard the reference to ‘authorities’ or to the fact that the ‘divorce’ was granted after counselling, which appeared in some of the stories, suggested that the ‘divorce’ was an administrative proceeding rather than one conducted in a court. Indeed in the Family Court orders relating to children can usually be made only after the parties have participated in a conciliation process.

It follows that, even if the Magistrate was correct in applying the ordinary reasonable viewer test, the Judge correctly found that the Magistrate’s findings of fact were open to her.

The media appeals in relation to Section 26(1)(b)

Section 26(1)(b) prohibits a person from publishing or causing to be published ‘a picture as being or including a picture of a child or other party to, or a witness in, a proceeding’ of the kind referred to in s 26(1)(a).

As we have said, the two questions set out in para [149] were conflated in the reasons of the Magistrate and the Judge below. If those reasons are to be read as meaning that Mr Koch could not be held to have breached s 26(1) because his remarks went live to air we would consider they were incorrect. While Channel 7 retained control in the sense that it could have cut off Mr Koch’s comments, there was no evidence that it could withdraw live to air remarks after they were actually made. At the hearing before the Magistrate, Mr Boland gave the following evidence:

If a presenter says something that the network immediately, for example, think is grossly outside protocol or appropriate conduct, what could happen? Would there be – is there a delay that – can it be deleted? Is it too late?---We are live to air, Your Honour. There is no delay. The producer can certainly immediately get into the ear of the given presenter and suggest that we depart from that topic fairly quickly. The – on – on that given morning, my understanding is that didn’t happen.

In our view , given the live to air nature of Mr Koch’s comments, he clearly, to use the words of the Oxford Dictionary, spread or promulgated his opinions to those watching the broadcast. It is not necessary to descend to an analysis of who had control over what went to air, as the evidence clearly disclosed that, given the nature of the broadcast, once Koch had expressed his opinion, it was promulgated without any interference or control by any other person at Channel 7. We readily conclude that the words used by Koch throughout the segment were published within the meaning of the Act.

The situation is different for print journalists,[117] whose stories may be withdrawn or changed by the editorial staff up until the time the newspaper is printed.
[117]The finding that Mr Tinkler did not publish the material directly was not challenged on appeal, though it was said that he was criminally liable because he acted in pursuance of a common purpose with Mr Howe.

We repeat that the plain meaning of the words ‘disseminate by telecast’ covers the speaking of words live to air. In our opinion, therefore, Mr Koch’s comments were published, at the moment that he made them.

Did the publication of the relevant words live to air breach the section?

It is however necessary to consider the more difficult question of whether Mr Koch’s live to air comments amounted to the publication of a ‘report’ of proceedings containing ‘particulars likely to lead to the identification of the child.’ Each of these matters adverted to had to be proved beyond reasonable doubt by the prosecution.

Of the seven charges brought against Mr Koch only counts 1 and 7 are referable directly to the words spoken by him when live to air. Each of the other counts depended upon the findings that Mr Koch acted in concert with Mr Boland or that his statements were incorporated by reference to other parts of the Sunshine program. Because of the Magistrate’s ruling concerning publication she did not deal with the specific elements of these counts.

Count 1 reads as follows:
publishing or causing to be published a report of a proceeding in the Children’s Court of Victoria … that contained certain particulars likely to lead to the identification of (the child).
Count 7 reads as follows:
published or caused to be published a report that contained particulars likely to lead to the identification of [the child] who was the subject of a Guardianship to the Secretary Order granted by the Children’s Court … has been the subject of the said Order.
As we have already said, Mr Koch did not use the boy’s surname. He referred to his first name, said he was vice-captain of his school and had set fire to his room. His segment of the program did not include photographs of the boy or his mother or refer to his mother by name.

Counsel for the DPP submitted that the content of the news programme, including the identification of the boy as the child who had divorced his mother, was ‘incorporated by reference’ in Mr Koch’s live to air comments. In our opinion, that submission should not be accepted. It is particularly inconsistent with the definition of “publish” within s. 3 of the Act which requires dissemination of the words by the person charged, not by some other person.

It is true that when Mr Koch referred to the boy by his first name he knew that the boy had been identified by his full name and other identifying details in the preceding newscast. He also referred to him having been advised by Authorities that he could ask for a divorce. Critically, however, Mr Koch did not himself cause to be published or publish any particulars likely to lead to the identification of the boy. However his words are construed, they did not contain particulars likely to lead to the identification of the boy. As the Magistrate recognised, Mr Koch had no control over the broadcasting of the news or over the broadcasting of the combination of material which identified the boy.[118] It was Channel 7 which was responsible for publishing the segments of the program which, in combination, had that effect.
[118]O’Sullivan v Truth and Sportsman Ltd (1956) 96 CLR 220.

For these reasons we do not consider that grounds 1 and 2 of the DPP appeals against the dismissal of the charges against Mr Koch are made out.

Though brief, the reasons for the Judge’s dismissal of grounds 1 and 2 are quite clear. Her path of reasoning is clearly discernible, though we have disagreed with some aspects of it. It follows that ground 4 should also be dismissed.

Was there a common purpose between Mr Koch and Mr Boland?

Ground of appeal 3 in the DPP appeal relating to Mr Koch alleges that:

3.(a) Her Honour erred in holding, in the face of evidence about an agreement between [Mr Koch] and Mr Boland as to the content of the magazine component of the Sunrise programme, that it was open to the Magistrate to find that no common purpose existed between [Mr Koch] and Mr Boland to broadcast or telecast the words used by the respondent in relation to the proceedings in the Children’s Court.
(b)Her Honour ought to have held, in the face of evidence about an agreement between [Mr Koch] and Mr Boland as to the content of the magazine component of the Sunrise programme, that it was not open to the Magistrate to find that no common purpose existed between [Mr Koch] and Mr Boland to broadcast or telecast the words used by the respondent in relation to the proceedings in the Children’s Court.

The first ground of appeal in the DPP appeal against the dismissal of charges against Mr Boland, the Executive Producer of the Sunrise programme, is expressed in identical terms.

It is unnecessary to consider these grounds of appeal, in light of our finding that her Honour correctly held that Mr Koch could not be convicted of a breach of s 26(1). Since Mr Koch did not breach s 26(1), Mr Boland cannot be found guilty of breaching the section by virtue of his agreement to engage in a common purpose with Mr Koch. Nor can Mr Koch be found liable for a breach which Mr Boland did not commit.

However even if her Honour should have held that Mr Koch breached s 26(1) we do not consider that Mr Boland could also be found liable for that breach because of the common purpose principle.

Counsel for the DPP submitted that her Honour ought to have held that it was not open to the Magistrate to find that no common purpose existed between Mr Boland and Mr Koch to broadcast or telecast the words used by Mr Koch in relation to the proceedings in the Children’s Court. The basis of this submission is the evidence which was given by Mr Boland in the course of the proceedings before the Magistrate. The following evidence was given by Mr Boland in the course of cross-examination:

QUESTION:You were interviewed by Inspector Harvey in relation to this matter, is that right?

ANSWER: I was.
QUESTION:You were asked whether or not you agreed that the term “divorce” was made throughout the Sunrise program, or at least the presenter’s commentary. Do you remember being asked that question?

ANSWER: I don’t remember the question.
QUESTION:But do you remember agreeing that the term “divorce” had been used in the program?
ANSWER:I, if I was asked the question no doubt I would have answered that way.
QUESTION:You are asked this “Did you acquiesce to the use of the word or term ‘divorce’?” And you said “It’s a colloquial term which we agreed to use”. Do you remember giving that answer to Inspector Harvey? “It’s a colloquial term which we agreed to use”?

ANSWER: I don’t but I have no problem with the answer.
QUESTION:What I wanted to ask you about that was this. There had been some discussion about what term to use had there?
ANSWER:No there hadn’t been. Essentially you had – well, there is a discussion about anything that we put in to a script quite clearly and there was a, the, term “divorce” had been used more widely in the media before it came to the attention of Sunrise. Therefore it made sense that within that wider mainstream context that we would continue to use that word.

QUESTION: When you say “we agreed to use” who do you mean by we?
ANSWER:I mean me and if I misspoke, I apologise, but clearly I mean me.
QUESTION: You were there on the morning of the broadcast of this program.
ANSWER:I wasn’t on that morning. The decisions about that particular story were made the afternoon before.

QUESTION:   You were there for those decisions.
ANSWER:      I was.
QUESTION:   Was Mr Koch or Ms Barr or Ms Doyle there too?
ANSWER:Mr Koch and – Melissa Doyle would have been on a teleconference that we do the afternoon before.

QUESTION: So you would have discussed with them what term to use?
ANSWER:I would have discussed with them the – the general basis of the story, as part of that I assume that the word would have perhaps come up.
QUESTION:Was it agreed between the three of you that the story about the boy divorcing his mother would be aired on the Sunrise program.
ANSWER:There was no opposition to my suggestion that that story would be aired.

QUESTION: Yes, well, they agreed to it.
ANSWER:Well they certainly didn’t protest and – and – but if they had reason to protest we would have discussed it, but they trusted my – my – my decision on that.
QUESTION:Yes, I’m not suggesting they protested, I’m just asking you whether or not the three of you agreed, but – this subject the divorce of the boy from his parents to be ventilated on the program in the morning.

ANSWER:      There was no disagreement, so yes that’s agreement.
QUESTION:   Particularly in the light of the fact that it was run.
ANSWER:      It was certainly run.
QUESTION:You suggested, do you say, in the afternoon using the word “divorce”.
ANSWER:There was no general discussion about the word, but there was a discussion about the story. See, I’d certainly suggested we do the story. The story in the context of being reported in the mainstream was about a boy divorcing his mother. So, you know, the inference is yes.
QUESTION: Well that was the term used in the Herald Sun article, is that right?

ANSWER: That’s where it was first reported, yes.
QUESTION:And you had access, you read that as at the afternoon discussion.

ANSWER: Yes.
QUESTION:Now it must have been apparent to you that there had been some sort of legal proceedings in a court.

ANSWER:      No, that wasn’t clear to me.
QUESTION:   Did you make any enquiries about that?
ANSWER:      No.
HER HONOUR: How did you think that divorce was achieved other than in a court?
ANSWER:The – well, it wasn’t an issue for us in the – in the Sydney production office. Essentially we saw this as a story that had been reported out of Melbourne. Clearly we were of the impression that the people who had reported the story in Melbourne had drawn suitable conclusions. The reason for our interest in the story was simply a discussion point about parental rights.
QUESTION:Well, the, Mr Koch the next day said “Peter said he had been advised by authorities he could ask for a divorce”. Did that – did you listen to the program on that morning.

ANSWER: I did.
QUESTION: Did that take you by surprise that he said “Peter said he had been advised by authorities he could ask for a divorce”?

ANSWER: It didn’t take me by surprise.
QUESTION:And he then said, Mr Koch then said “You’ll be” – this is, well I should read the whole section, or part of the introduction. “You know mum’s trying to do her best and then a whole bunch of do-gooders from the Community Services or whatever is – came and said, ‘you’ll be divorced and we’ll back you with legal proceedings’”. Do you recall him saying that?

ANSWER: I do.
QUESTION:Well, you see, it must have been apparent to you when you had the discussion in the afternoon before that this divorce involved legal proceedings.
ANSWER:You’ve got to understand, in the context of live television when there isn’t scripted material people will say things that may not necessarily have been properly considered or thought out. It doesn’t mean that there is an intention involved.
QUESTION:So Mr Koch, that would have been Mr Koch just saying that of his own volition.
ANSWER:It would have been Mr Koch summarizing the story as he saw it.

QUESTION: So summarizing the story …
ANSWER: From his general point of view.

The DPP’s submission was that the above evidence establishes that there was an agreement or understanding between Mr Boland and Mr Koch that Mr Koch would publish a report of the proceedings in breach of s 26(1) of the Act. Thus it was submitted that it was not reasonably open to the Magistrate or to the Judge to find that there was no common purpose.

In order to establish that Mr Boland and Mr Koch were acting in concert it would first have been necessary for the prosecution to prove, beyond reasonable doubt, that Mr Boland and Mr Koch had reached an agreement or an understanding to engage in acts which constituted a criminal offence. In this case it would have been necessary to prove beyond reasonable doubt that the agreement was to publish a report of a proceeding in the Children’s Court that contained particulars likely to lead to the identification of a child or other party to the proceeding. Secondly, it would have been necessary to prove beyond reasonable doubt that whilst the agreement or understanding was on foot, one or other of them did all the things necessary to constitute the offence in question.

The prosecution submitted that the evidence of Mr Boland demonstrated that on 19 June 2004 he and Mr Koch discussed the story ‘in the context of being reported in the mainstream media about a boy divorcing his mother’. It was argued that the fact that Mr Koch had the authority of Mr Boland to discuss the story on the Sunrise program and the fact that what Mr Koch said came as no surprise to Mr Boland was evidence of the agreement or understanding between them.

However counsel for Mr Boland and Mr Koch submitted that not only was there no evidence of any agreement to do something which would infringe s 26(1) of the Act, but there was no evidence of any agreement whatsoever between them.

The respondent’s submissions in this regard are correct. Although Mr Boland was subjected to a thorough cross-examination about what had occurred on 19 June in the course of discussions with Mr Koch, he was not asked whether the parties had ever agreed as to exactly what was to be put to air the next day. The highest point that the evidence of Mr Boland reached was that on the day before the broadcast there had been a discussion in the course of a teleconference between him (Mr Boland), Mr Koch and Ms Doyle to the effect that a story which was being referred to in the ‘mainstream media’ as a ‘divorce’ between a boy and his parents be the subject of a story on the Sunrise program. There was no evidence that would establish beyond reasonable doubt that agreement had been reached at that meeting to perform acts which would contravene s 26(1) of the Act. The fact that an understanding was reached whereby discussion would ensue on air about the story in question does not prove such an agreement. It is obvious that such a discussion could well take place in circumstances which did not breach the section. Mr Boland gave evidence that statements made on the live to air program are not scripted and that what Mr Koch said ‘would have been Mr Koch summarizing the story as he saw it’. The fact that what Mr Koch said came as no surprise to Mr Boland cannot elevate the discussion of the previous day into an understanding or an agreement to engage in conduct which would have been in breach of the Act. Clearly it was open to the Magistrate to conclude as she did.

Simply put, it could not have been inferred to the requisite criminal standard of proof that there was an agreement between Mr Boland and Koch to perform the acts which formed the subject of counts 1 to 7.

During the proceedings counsel for the DPP applied to amend the grounds of appeal relating to the issue of common purpose. It is necessary to say very little on this issue. Having dealt with the factual background to the Sunrise story the Magistrate concluded that she could not be satisfied that there was ‘any such agreement either express or implied in relation to any accused’. She said ’such finding is in my view not open on the facts established before me’. Her Honour dealt with that finding but briefly in relation to Mr Boland and Mr Koch, but it is clear that she considered that the finding of the Magistrate was open. Although reasons were not provided for this conclusion, it was a conclusion which was, to use the words of senior counsel for Messrs Boland and Koch, irrefragable. It would be pointless to uphold the appeal on the ground that reasons were inadequate. Accordingly, leave should not be granted to the DPP to amend his notice of appeal.

Mr Tinkler

In addition to the above ground of appeal relating to Mr Boland and Mr Koch the DPP has appealed against the order of the Judge dismissing the cross-appeal from the decision of the Magistrate to dismiss the proceedings brought against Mr Christopher Tinkler, the journalist who wrote the article published in the Sunday Herald Sun on 20 June 2004.

The grounds of appeal are in essence that her Honour erred in finding that it was open to the Magistrate to find that no common purpose existed between Mr Tinkler and Mr Howe, the executive editor of the Sunday Herald Sun. As in the case of Messrs Boland and Koch, the DPP has sought leave to amend his notice of appeal to include a ground of appeal that the Judge’s reasons for dismissing the appeal from the decision of the Magistrate were inadequate.

It was submitted by the DPP that the evidence before the Magistrate compelled a finding that there was an agreement or understanding that the words written by Mr Tinkler would be published in the newspaper and thus Mr Tinkler and Mr Howe had a common purpose to do an act which breached s 26(1) of the Act. The evidence relied upon by the DPP in this regard is as follows.

First there was the evidence before the Magistrate that Mr Tinkler had ‘prepared for publication’ the words which appeared in the Sunday Herald Sun of 20 June 2004. Mr Howe gave evidence that the process is that a reporter submits a story to the editor. The editor may make changes to the story and those changes may be made without the approval of the reporter. The editor takes full responsibility for the decision to publish or not to publish the material. Mr Howe conceded that in this case Mr Tinkler had ‘largely’ prepared the words which were used in the Sunday Herald Sun article.

Secondly it was argued that the evidence was that Mr Tinkler had prepared the story at the request of Mr Howe. There was evidence given by Mr Howe that he had discussed the story with Mr Tinkler, but there was no evidence of any such request. The evidence was that Mr Howe sought legal advice on the story before it was published.

In reply, the respondent submitted that the argument that Mr Tinkler acted in concert with Mr Howe was not raised against Mr Tinkler at the hearing in the Magistrates’ Court. This contention appears to be correct. There was no suggestion in the charges laid against the respondent that the charges were laid on the basis of common purpose. At a contest mention hearing conducted before a Magistrate on 13 September 2005 the Magistrate stated that he ‘wanted to be clear that each defendant had, inter alia, been advised of their individual culpability in relation to the charges’. On 5 October 2005 the solicitors acting for HWT, Mr Howe and Mr Tinkler, requested a response to a request for further and better particulars which had been sent earlier to the DPP. On 27 October 2005 the DPP wrote to the solicitors for the respondent attaching a response which was stated to ‘identif[y] the totality of the matters on which we will rely at trial’. This document did not suggest that the DPP was asserting that Mr Tinkler had a common purpose with Mr Howe. On the other hand the document did state that other defendants, Jennifer Keyte, Stephen Carey, Melissa Doyle, Natalie Barr and Naomi Robson were each ‘charged as principal in acting jointly with the other defendants in relation to the publication of the subject of this charge’.

Furthermore, upon the hearing of the proceeding before the Magistrate, although submissions were made by the DPP relating to the assertion that Mr Koch had a common purpose in relation to things said by him on the Sunrise program, no submission was made to the Magistrate as to any case the DPP put against Mr Tinkler in common purpose.

We consider that the respondent’s submission, that the matter was not raised against Mr Tinkler in the Magistrates’ Court and for that reason should not be ventilated before us, is correct. However, there is no need to determine this issue finally as the argument that the Magistrate was bound to conclude that Mr Tinkler was acting in concert with Mr Howe has no basis.

The evidence was that Mr Tinkler was the reporter who investigated and prepared the story and submitted it into the Sunday Herald Sun computer system. The evidence was that the story could be altered without reference to him. As was submitted by the respondent, this does not lead inevitably to the conclusion that there was an agreement reached with Mr Howe. There was no evidence of any such agreement. Rather the evidence was that it was entirely the responsibility of Mr Howe to determine whether the story was to be published. Upon obtaining legal advice he determined that the story written by Mr Tinkler should be published. Although Mr Tinkler may well have hoped that his story would be published, the evidence was that Mr Howe was entirely responsible for the decision to publish and was entitled to alter the story as he saw fit before doing so. The evidence amounted to no more than a common situation where an employee of the newspaper submits a story to management for publication on the basis that management may alter the story and decide whether or not to publish it or part of it at all. In this case it published the story. The inference of criminal liability in such circumstances on the basis of common purpose was not open. On no reasonable view could it be inferred beyond reasonable doubt that Mr Tinkler had entered into an agreement with Mr Howe to do something which was in breach of s 26(1) of the Act.

As in the case of Mr Boland and Mr Koch the DPP seeks leave to amend his notice of appeal so as to argue a ground that the Judge’s reasons as to common purpose were inadequate. In all these circumstances, and even if the matter was properly before the Magistrate, it would be futile to permit the amendment in question.

For the above reasons we would dismiss the DPP appeals.

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[2008] VSCA 181

23 September 2008