Kamm v Channel Seven Sydney

[2005] NSWSC 699

CITATION:	Kamm v Channel Seven Sydney [2005] NSWSC 699
HEARING DATE(S):	8 July 2005
JUDGMENT DATE :	8 July 2005
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Interlocutory injunction refused

CATCHWORDS:	INJUNCTIONS - quia timet injunction to restrain television broadcast by reason on potential interference with pending criminal trial - availability of injunction to restrain contempt of court - whether serious question to be tried demonstrated - PROCEDURE - contempt, attachment and sequestration, availability of injunction in Supreme Court to restrain apprehended interference with course of justice in pending trial in the District Court - whether serious question to be tried made out
CASES CITED:	Ex parte Bread Manufacturers Limited Re Truth and Sportsmen Limited (1937) 37 SR (NSW) 242 Her Majesty's Attorney General in and for the State of New South Wales v Time Inc Magazine Company Pty Limited (7 June 1994, unreported) Hinch v Attorney-General for State of Victoria (1987) 164 CLR 15 New South Wales Law Association v Muirhead (1988) 14 NSWLR 173 Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716 Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 733 Witham v Holloway (1995) 183 CLR 525
PARTIES:	William Kamm - Plaintiff Channel Seven Sydney Pty Ltd - Defendant
FILE NUMBER(S):	SC 3913/05
COUNSEL:	G Stanton; McBride - Plaintiff KP Smark; ST Chrysanthou - Defendant
SOLICITORS:	Jack Rigg Solicitors - Plaintiff Mallesons Stephen Jaques - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

FRIDAY 8 JULY 2005

3913/05 WILLIAM KAMM v CHANNEL SEVEN SYDNEY PTY LTD

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application for an interlocutory injunction. The proceedings were begun only this afternoon and have been brought on with great urgency and commendable cooperation from the legal advisers on both sides.

2 The plaintiff has, until earlier today, been undergoing trial in the District Court of New South Wales on four counts of aggravated indecent assault and one count of sexual assault in aggravated circumstances. That particular trial related to assaults which were alleged by the Crown to have been committed upon the one victim. This afternoon, the plaintiff was convicted on all five counts.

3 The plaintiff appears, from the evidence before me, to have been the leader of a religious community, which operated near Nowra. The person who was the victim of the first group of charges was associated with that religious community.

4 The defendant in the proceedings is the licensee of television station Channel 7.

5 Another group of charges are still pending against the plaintiff. They involve sexual offences alleged to have been committed against a different victim. The District Court judge making decisions about the setting down of cases for trial decided that it would be inappropriate for the second trial to take place immediately after the first trial had occurred. The reason for this was because of an apprehension that publicity associated with the first trial might interfere with the fairness of the second trial, unless there were to be a gap between them.

6 During the course of the trial which has just concluded, various non-publication orders were in force, but those non-publication orders have come to an end now that the trial itself has come to an end.

7 The victim in the first trial at one stage gave a videotaped interview to a reporter from the program Today Tonight. That interview has not been broadcast up to now. The plaintiff fears that, now that the first trial is over, it might be broadcast. The proceedings before me have proceeded on a basis that I can assume that there is a real threat of publication of the interview in the fairly near future, perhaps in the next few days.

8 The injunction which is sought is against any publication of the interview happening, at least until the second District Court trial is concluded. The basis upon which it is sought is as an injunction to restrain an apprehended contempt of Court. The particular contempt of Court which is apprehended is interference with the course of justice concerning the second jury trial. While the plaintiff has not yet been sentenced in relation to his conviction for the first trial, and while there may well be an appeal to the Court of Criminal Appeal against the verdict in the first trial, Mr Stanton, for the plaintiff, does not rely upon any apprehended interference with the sentencing hearing or the appeal, being conducted as they will before either one judge, or a bench of judges, sitting without a jury.

9 The case before me has proceeded on the basis that this Court's jurisdiction to restrain a contempt of Court is not challenged. Notwithstanding that, in the traditional jurisdiction of equity, an injunction to restrain an apprehended crime is usually not available. In Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716 at 720-725 Young J held there was jurisdiction to restrain an apprehended contempt of court, but that in the circumstances of the particular case it was not appropriate to do so. An appeal from that decision (Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 733) was dismissed for reasons not depending on whether the jurisdiction exists. In New South Wales Law Association v Muirhead (1988) 14 NSWLR 173 at 182-3, 193-4 per Kirby P, 198 per Hope JA, 200-205 per Mahoney JA both the parties and the Court of Appeal proceeded on the basis that the Supreme Court has a jurisdiction to restrain apprehended contempts of courts over which it exercises supervisory jurisdiction. An injunction to restrain contempt by a threatened publication was granted by the Court of Appeal in Her Majesty’s Attorney General in and for the State of New South Wales v Time Inc Magazine Company Pty Limited (7 June 1994, unreported). The existence of the jurisdiction is accepted in Butler and Broderick, Australian Media Law, 2nd ed (2004) at para 5.505. When the defendant accepts that the jurisdiction exists I shall not examine the jurisdictional question any more closely than this.

10 The jurisdiction which is sought to be invoked is of a quia timet nature. The plaintiff’s case suffers from a particular difficulty, in that the text of the interview which is likely to be broadcast is not before me, nor are the sound and images of the tape of that interview. It is accepted that it deals with the same broad topic as has been investigated in the recently concluded criminal trial.

11 There is evidence of fairly extensive publicity in the media of the jury trial itself while it was proceeding. That publication seems to have occurred in media widely scattered in Australia, including Western Australia, the ACT, the Northern Territory, Tasmania and Victoria, as well as in The Australian and in Sydney based media.

12 The allegations of the Crown against the plaintiff are reported, in the specific examples of media publicity before me, in quite some detail, becoming as specific as reporting specific conversations which the plaintiff is alleged to have had with the victim, of a sexual nature.

13 Before it would be appropriate to restrain by interlocutory injunction an apprehended publication, it would be necessary for the Court to decide that there is a serious question to be tried about whether the publication would indeed be likely to result in an interference with the course of justice, if it were to occur. I recognise that the decision in Witham v Holloway (1995) 183 CLR 525 establishes that, for the purpose of a trial of contempt of Court occurring after the contempt has occurred, a criminal standard of proof is appropriate. There may be some question about how the principle in Witham and Holloway ought be applied to the situation now before me. I shall not decide that question, but shall assume for the purpose of this application that the question of whether there is a serious question to be tried concerning whether it is likely that there will be a contempt of the Court should be decided on the ordinary civil standard of balance of probabilities.

14 Even on that basis, I am not satisfied that there is any such serious question to be tried. There has, as I have said, already been extensive publicity concerning the sexual activities of the plaintiff. The jury verdict this afternoon makes it likely that there will be a fresh burst of publicity relating to the conviction. All I know about the proposed publication is its general topic, which is the same general topic as the publicity which has already taken place, and the same topic as the publicity which is likely to occur this evening and over the next few days relating to conviction. I am not persuaded that there is a serious question to be tried about whether the publication of the interview is likely to be such that it makes the difference, when the plaintiff faces his second trial, between a trial which is fair, and a trial which is not fair. Nor am I persuaded that, given the background of other publicity against which it would occur, there is a serious question to be tried about whether it could fairly be characterised as having a tendency to make the trial unfair. I should stress that this conclusion is one which is based upon the limited material which is before me this afternoon. It is at least an abstract possibility that the material, in its detailed content, or in the colour it is given by its images and text and sound track, might be one which prejudices a fair trial. However, it is at the moment mere speculation whether that is so. If it turns out that it is so, presumably Channel 7 will face the consequences in another Court. For the purpose of today's application, though, I am not persuaded that there is a serious question to be tried about whether the broadcast will have the tendency to prejudice the trial.

15 Mr Smark, for Channel 7, drew my attention to the fact that in deciding whether a contempt of Court has been committed at some time in the past, the Court takes into account the principle expounded by Jordan CJ in Ex parte Bread Manufacturers Limited Re Truth and Sportsmen Limited (1937) 37 SR (NSW) 242, and restated by the High Court in Hinch v Attorney-General for State of Victoria (1987) 164 CLR 15. That principle is, in summary, that there are other interests besides the administration of justice which need to be taken into account in deciding whether a publication amounts to a contempt, and that there is importance in the discussion of public affairs and the denunciation of public abuses. I recognise that principle, but do not invoke it in the decision I have come to. The failure to discharge the onus of proof about whether there is a serious question to be tried concerning whether the publication is likely to have a tendency to prejudice the second trial is, in my view, enough.

16 As well, Mr Smark points out that the time for the second trial is still not known. I am informed that the plaintiff is not to be sentenced in connection with today's convictions until September of this year, and that in the ordinary course of the listing arrangements of the District Court it would be unlikely that the second trial comes on before December of this year, and that it might come on later than December. Mr Smark submits, and I accept, that the occurrence of the broadcast, assuming for the moment it does occur, is a matter which the District Court will be able to take into account in fixing an appropriate date for the second trial to occur.

17 I mention that no undertaking as to damages was offered, but I do not take that into account as a reason against granting the injunction. I say nothing about whether it is appropriate to require an undertaking as to damages in the context of an application such as the present.

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18 For these reasons, I dismiss the application.

19 There being no reason advanced why the proceedings should not be dismissed, when today’s interlocutory injunction application has been dismissed, I also dismiss the proceedings. I order the plaintiff to pay defendant’s costs of the proceedings.

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