Nationwide News Pty Ltd v Regina

[2008] NSWDC 8

Reported Decision: 6 DCLR (NSW) 293

District Court

CITATION:	Alan Belford Jones; Harbour Radio Pty Ltd; Nationwide News Pty Ltd v Regina [2008] NSWDC 8 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24/09/07, 25/09/07, 02/11/07, 19/12/07
JUDGMENT DATE:	11 February 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Finnane QC DCJ
DECISION:	I find the prosecution has established its case against each of the appellants and I find each case proved.
CATCHWORDS:	criminal - appeal - age of child - children - criminal proceeding - consent to publication of name of child - evidence - evidentiary burden - honest and reasonably mistaken belief - meaning of publication and broadcasting - offence of strict liability - protection of freedom of communication relating to government or political matters - publication of name of child - relevant issue at law
LEGISLATION CITED:	Broadcasting Services Act 1992 Children (Criminal Proceedings) Act 1987, s. 11 Constitution Act 1901 (Cth) ss7, 24, 5, 64, s128 Evidence Act 1995, ss 65(2), 135, 137
CASES CITED:	Hawthorne (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 Nationwide News v Wells (1992) 177 CLR 1 Australian Capital Television Pty Ltd v the Commonwealth (1992) 177 CLR 106 Attorney General v 2UE Pty Ltd [2006] NSWCA 349 Lange v ABC (1997) 189 CLR 520
PARTIES:	Alan Belford Jones Harbour Radio Pty Ltd Nationwide News Pty Ltd Regina
FILE NUMBER(S):	07/12/0534 (Alan Jones); 07/12/0533 (Harbour Radio); 07/12/0664 (Nationwide News)
COUNSEL:	Mr G O'L Reynolds S.C. with Ms N Mikhail for Alan Belford Jones Mr G O'L Reynolds S.C. with Ms N Mikhail fo Harbour Radio Pty Ltd Mr J Hmelnitsky for Nationwide News Pty Ltd: Regina: Mr M Hobart S.C. Mr M G Sexton S.C. Solicitor-General for NSW for Attorney-General for NSW (Intervening)
SOLICITORS:	Mr J Howard, Banki Haddock Fiora for Alan Jones Mr J Howard, Banki Haddock Fiora for Harbour Radio Pty Ltd Mr R Todd, Blake Dawson Waldron for Nationwide News Pty Ltd Ms M Carey for NSW DPP Mr P Buchburger for Crown Solicitor for NSW

JUDGMENT

Introduction

1 The law in New South Wales seeks to protect children, who give evidence in criminal proceedings from having their names exposed publicly unless the court before which the criminal proceeding is conducted, agrees or the child agrees.

2 This law is well known to those who publish newspapers, and those who broadcast on radio and television stations. If there is a publication or a broadcast of a child's name, contrary to law, the person or organisation, who or which publishes or broadcasts that name is liable on conviction to a penalty.

3 The obvious intent of this law is to protect children from being identified publicly and possibly humiliated, merely because they give evidence. The law does not prohibit publication or broadcast of the fact that a child has given evidence in criminal proceedings, nor does it prohibit publication of the nature of the evidence, unless that would cause the child to be identified.

4 Unfortunately, many children are required to give evidence in criminal cases in New South Wales. Frequently, this is because they are themselves the victims of crime, but quite frequently they are called to give evidence as witnesses.

Facts

5 On the 11th of July 2005 the trial commenced in the Supreme Court of a man named Hersh on a charge of murder. The Crown called as a witness, a brother of the deceased, who, on the Crown case, had witnessed the murder. This witness, who will be known hereafter as W gave evidence on the first day of the trial. One of the contentions in the current proceedings, is that W was a child.

6 On the 12th of July 2005, the Sydney Daily Telegraph, a newspaper with a wide circulation in the State of New South Wales, published a report of these proceedings in an early-morning edition and in that report named W and said that he was 14 at the time of the murder. The article named W by specifically setting out his first three names. The Sydney Daily Telegraph is a publication of the appellant, Nationwide News Proprietary Limited.

7 Late on the same morning, at about 9:14 a.m., the appellant, Alan Belford Jones, a broadcaster on Radio Station 2GB, also referred to this trial, gave some details, and in particular, that W, a 14-year-old brother of the victim had attacked Mr Hersh, the accused in the criminal trial. The broadcast went on to allege that W and his brother, the deceased, had been described as two very violent and dangerous young men who were spoiling for a fight. Again, W was identified by his three names. The appellant, Harbour Radio Proprietary Limited owns radio station 2GB and it retained the services of Mr Jones as a broadcaster on one of its radio programmes.

8 The Children (Criminal Proceedings) Act 1987, section 11 is in the following terms:

“11 Publication and broadcasting of names
( 1) The name of any of the following persons must not be published or broadcast in a way that connects the person with the criminal proceedings concerned:
(a) any person who:
appears as a witness before a court in any criminal proceedings, or to whom any criminal proceedings relate, and
was a child when the offence to which the proceedings relate was committed,
(b) any person who is mentioned in any criminal proceedings in relation to something that occurred when the person was a child,
(c) any person who is otherwise involved in any criminal proceedings and was a child when the person was so involved,
(d) any person who is a brother or sister of a victim of the offence to which the proceedings relate, where that person and the victim were both children when the offence was committed.

(1A) The prohibition in subsection (1) applies to the publication or broadcast of the name of a person:
whether the publication or broadcast occurs before or after the proceedings concerned are disposed of, and
even if the person is no longer a child, or is deceased, at the time of the publication or broadcast.

(2) A reference in subsection (1) to criminal proceedings does not include a reference to proceedings held before a court other than the Children’s Court in respect of a traffic offence.

(3) A person who publishes or broadcasts the name of any person the publication or broadcasting of which is prohibited by subsection (1) is guilty of an offence.

Maximum penalty: 500 penalty units (in the case of a corporation) or 50 penalty units or imprisonment for 12 months, or both, in any other case.”

9 Proceedings were brought against each of the appellants in the Downing Centre Local Court, and on the 19th of March 2007, Deputy Chief Magistrate Syme convicted each of the (then) defendants of an offence against Section 11 of this Act. Each of the appellants has appealed to the District Court against the convictions and the appeals have come before me.

1. Did the Crown prove beyond reasonable doubt that W was at the relevant time a child?

2. If the Crown proved beyond reasonable doubt that W was at the relevant time a child, did any of the defendants discharge an evidentiary burden placed upon them such that the Crown had to disprove beyond reasonable doubt that the defendant acted under an honest and reasonably mistaken belief that he or it was entitled to publish or broadcast?

10 Nationwide News Pty Ltd called no evidence directed to the second question, and confined itself to arguing that the prosecution had not established that at all relevant times W was a child.

11 The other two appellants relied on the evidence of Mr Jones as discharging the evidentiary burden, placed upon them and contended that the prosecution had not proved beyond reasonable doubt that they did not act under an honest and reasonably mistaken belief that they had an entitlement to publish or broadcast. Harbour Radio Pty Ltd accepted that Mr Jones spoke on its behalf when broadcasting and he was its agent for the purposes of broadcasting. All parties accepted, as do I, that if Mr Jones was entitled to be acquitted, so was Harbour Radio Pty Ltd.

1. Does Section 11 prohibit only the first publication or broadcast, so that any subsequent publication is not caught by the section?
2. Is the section an effective burden on the freedom of communication about government or political matters, this being a freedom which is protected under the Australian Constitution?

1. W was under the age of 18 at the time he gave evidence in the criminal proceeding and at the time of the publication of his name by each of the appellants.
2. The prosecution has proved its case against Nationwide News Pty Ltd. No defence of honest and reasonable belief exists in relation to this appellant.
3. The appellants Mr Jones and Harbour Radio Proprietary Limited, called evidence aimed at discharging the evidentiary burden placed upon them to raise material showing that Mr Jones held an honest and a reasonably mistaken belief that he was entitled to broadcast the name of W. The Crown must prove that he did not hold an honest and reasonably mistaken belief. To the extent to which she says that there is an onus of establishing this placed on Mr Jones, the learned magistrate is wrong.

4. I have also held, and I repeat, that the Crown has not established that Mr Jones did not have an honest belief. However, in my opinion, he had no reasonable basis for holding this belief.

5. Section 11 is intended to prohibit all publications and broadcasts of the names of children who give evidence in criminal proceedings. The section is not directed only to those persons who first publish a name.
6. This section does not burden the freedom of communication of the press, to the extent to which that freedom is protected by the Australian Constitution.

Consequences of my decision

12 I find the prosecution has established its case against each of the appellants and I find each case proved.

Consideration of the evidence

13 The learned magistrate has had the benefit of seeing a number of witnesses give evidence. I recognise the advantage she had in seeing and hearing the witnesses. I have read the transcript of the evidence of those witnesses. I have seen Mr Alan Jones sitting in the court but I have not heard any evidence from him nor from anyone else. There was no application that I should.

14 Notwithstanding that the proceeding before the learned magistrate took some time, that there were many objections to evidence which the Crown was seeking to lead, and there was much dispute about the way in which the evidence should be interpreted, the only really controversial witnesses were the mother of W, the statement which the Crown sought to tender of the evidence of W 's father, some annexures to that statement and the evidence of Mr Jones.

(a) The evidence of W's mother.

15 She gave evidence that she was married in Pakistan, that her husband was a medical practitioner and that the date of the marriage was the 4th of May 1975. She said that her husband had died on the 22nd of November 2006. She said that she was the mother of seven boys and one girl, the first of whom was born in 1978. She gave evidence that because of her culture, birthdays were not important.

16 She gave evidence that the children were born, as I set out hereunder in this table:

Mohammed Sayam	1978
Mohammed Ari	1980
Mohammed Tariq	1982
Mohammed Rihan	1984
Mohammed Muswa	1986
Datar Zah	1988
Mohammed Wisal	1990
Mohammed Sarjun	1994

17 The names in this table are the first two names of each of the persons mentioned. No surname is included.

18 In her evidence in chief, W 's mother did not specify 1990 as the year in which W was born, but said that he was with her in Pakistan for 10 years, until the year 2000. At that point, one of his brothers brought him to Australia. This must have meant that he was born in the year 1990 and accordingly I have shown 1990 on the table as his date of birth.

19 Much was made by counsel in the proceedings before the learned magistrate, and in the proceedings before me of the fact that the mother could not give the date of birth of each of the children, but only the year and submissions were made that she could have been mistaken and calculations were put before the learned magistrate, to show that it was possible that W was 18 at the time he gave evidence on the 12th of July 2005.

20 The learned magistrate pointed out that W's mother was not cross-examined to suggest that she was wrong in her claims as to the years in which each of her children were born, nor was it put to her that she was wrong or possibly mistaken about W being with her for 10 years until the year 2000. The learned magistrate was entitled to place weight on these matters and was entitled to accept the mother as a witness of credit.

21 The learned magistrate also gave consideration to the evidence of the father of W because she admitted his evidence. Objection was taken before me to the admission of this evidence and I looked carefully at it. W’s father had made a statement in the form of an affidavit and there was also evidence of his giving evidence about the age of W in a trial in the Supreme Court in 2003. However, when he was called to give evidence in the Local Court, he did not give it when he was first available and by the time of the adjourned hearing he was dead. It was urged on the learned Magistrate, as it was urged on me, that the evidence of this man, i.e. his affidavit, should not be admitted because it could not be said to have been made in circumstances that made it highly likely that the statements in it were reliable (see Evidence Act, 1995 sec 65(2)).

22 What was put was that W’s father had given evidence for other brothers of W, who had been charged with serious offences of sexual intercourse without consent, and during that evidence, he had committed perjury. Before me the Crown Prosecutor conceded that the father of W had been charged with perjury and this charge was pending at the time of his death. The learned magistrate was told the very same thing. She took the view that the perjury charge was just an allegation and there was no reason not to admit the evidence.

23 I disagree with that. In my opinion, the Crown was offering the father of W as a credible and honest witness of truth in relation to this matter, but he was a man whom they regarded as a liar and a man of no credibility. In my opinion, his statement could not be said to have been made in circumstances that made it highly likely that it was reliable (Sec 65(2) of the Evidence Act 1995) and I declined to admit it. I am further of the opinion that this evidence should be rejected by me pursuant to the provisions of secs 135 and 137 of the Evidence Act 1995. In my opinion, the learned magistrate should also have rejected this evidence.

24 However, she was entitled to rely on the evidence of the mother and she had the advantage, denied to me, of seeing W give evidence in the witness box.

25 The learned Magistrate found it was proved that W was a child. I agree with that conclusion, which, in my opinion, the Crown has established beyond reasonable doubt. Whilst W's mother may not have known the actual date of birth of each of the children, she was in no doubt as to the year in which each was born. I see no reason to doubt what she said. In my opinion, the evidence establishes that W was 15 or 16 years old on the 12th of July 2005. Clearly, W was a child at the time he gave evidence.

26 Nationwide News Pty Ltd, the Publishers of the Daily Telegraph did not lead any evidence before the learned magistrate, designed to show that any of its employees had any belief that W was other than a child. Indeed, the article in that newspaper made plain that the newspaper considered he was a child. The finding I have just made that W was a child at the relevant time, means that the case against Nationwide News Pty Ltd has been made out.

27 I should add here that counsel for this defendant conceded that the only issue to be decided in relation to his client was whether W was at the relevant time a child. During the Local Court proceedings, issues were raised as to whether the Crown had proved that the article in question was in fact published. However, that issue was decided against the appellant by the learned Magistrate. She was clearly correct in deciding it and Nationwide News Pty Ltd did not seek to argue against the correctness of that finding.

(b) The evidence of Mr Jones.

28 Mr Jones gave evidence before the learned magistrate, and I have considered that evidence and the findings of the learned magistrate.

29 In his evidence, Mr Jones said that he had been a broadcaster for 21 years and that he broadcast on radio 2GB between 5.30a.m. and 10 a.m. five days a week on the breakfast programme. Mr Jones has staff members assisting him, particularly to get factual material to him on which he can make comments. He alone decides what comments to make and the manner of making them. He gets up at 2:30 a.m., is at the radio station at a quarter past three and he then tries to read everything that might be relevant to his programme. On each day, he reads the Daily Telegraph, The Sydney Morning Herald, the Australian and the Financial Review. He gives particular attention to the Daily Telegraph because the demographic he represents is the same as the demographic represented by the Daily Telegraph.

30 He then holds a conference with his staff at 4.30 a.m. so that he is ready to go to air at 5:30 a.m. At this conference he allocates to two staff members, the task of bringing up to date any stories in the newspapers that have caught his interest. Those staff members are required to produce a document in point form with a black notification at the top entitled "this matter is before the courts" if the subject matter concerns something in a court case currently being heard.

31 Broadcasts about matters currently before the courts were covered by an internal radio manual setting out in detail the behaviour expected of broadcasters and twice a year Mr Jones and his staff were briefed on current obligations he had to meet under the Broadcasting Act, and under the criminal law.

32 On the 12th of July 2005, the article published by the Daily Telegraph concerning W and the evidence he had given on the day before was drawn to the attention of Mr Jones. He noticed that someone about the age of 14 was involved and that meant to him that he could not, other than in exceptional circumstances, publish the name of the minor, unless there were court permission or the minor consented. This was something stressed at the twice yearly briefing.

33 What attracted his attention to this story was that there was a public concern about attacks on taxi drivers, and this story said that W had given evidence that the taxi driver was in fact the attacker. He gave his process of thinking, as being that the Daily Telegraph was a reputable newspaper, which;

".. has many gatekeepers, through which stories must pass before they read the printed page and so given that this was on the printed page, and given that those gatekeepers would have been active, I came to the conclusion that either the court or the boy himself, must have given permission for his name to be mentioned."
(Local Court Transcript p. 35)

34 A series of questions and answers, then appear, and I set them out in full:

“Q. You've used the term "gatekeepers", can you tell your Honour what you mean by the term "gatekeepers" in the context of the Daily Telegraph?
A. Well, as I understand it, and I have not worked with newspapers, but I'm aware of the process when someone writes a story. Then, that goes through a range of editors to check both the veracity of the story, the appropriateness of its compilation and its relevance to the space available to the paper on that day so that there would be four or five people senior to the writer of story, across whose desk this would pass before it got to the editor-in-chief, who then ticks both the substance of the story and its placement.

Q. Now you've told the court that the basis for your conclusion that the appropriate consent to the publication of the name of a witness who was a minor had been given, but was there anything else apart from the standing of the Daily Telegraph, which affected your conclusion that the appropriate consent had been given either by the court or by the minor himself?

A. Yes.
Q. What was it for what were they?
A. Well, my immediate reaction, on reading the story, and seeing that a minor had been mentioned and the name was there you obviously thought well, this is, this is odd., and then I immediately thought, well, I know why approval’s been given because the whole case was about defiance of the taxi driver and this minor would have been at that stage, I think about 16. I think he was 14 when this happened, and I thought, this is part of one of the strongest elements of the story that they are so defiant of authority I am going to stand in the public place, and I'm -- I don't care if they know I'm 14, 16 years of age, I want everyone to see, my mates and everybody, that I'm standing up for my brother. And it's the cabbie that was the person responsible for all this and I want everyone to know that that's my opinion, and that was the conclusion, I drew from the story itself, that was the reason I believed that this boy would have been happy to have his name mentioned with the story and would have given his permission”
(Local Court transcript p. 36)

35 During cross examination before the Local Court, Mr Jones made it clear that he was not only a broadcaster of some 21 years experience, but he was also very aware of the need to be careful about what he said during his broadcasts, since it could get him and the radio station involved in litigation. He had a financial interest in the radio station. His programme was a “ratings leader” in New South Wales and his audience was a large one.

36 He also said that he read the article in the Daily Telegraph, but did not read anything about the trial in any other newspaper. He did not ask any of his staff to ring the Daily Telegraph and ask if it had permission from the court or W to print the story. He did not, himself check with anyone at the Daily Telegraph and in fact, did not know anyone at that newspaper that would have been on duty at the time. He did not contact or seek to contact, either himself or through one of his staff, any of the lawyers involved in the trial, or the police or the court. He did not seek any legal advice before broadcasting about W.

37 The Crown prosecutor in the Local Court then asked a series of questions about what Mr Jones did rely on when deciding to make this broadcast. I set out hereunder the questions, and the answers in full;

"Q. You relied solely and entirely on what was in the Daily Telegraph?
A. No.

Q. What else did you rely upon?
A. As I've said, I relied on the fact that I was aware of the processes involved at the Daily Telegraph, and I came to the conclusion that they were a very responsible newspaper and would not be, in my opinion, knowingly breaking the law, and those circumstances were sufficient for me on that occasion, to continue with the broadcast.

Q. What made you-sorry, I withdraw that. You concluded that somebody had given consent to the Daily Telegraph to publish the name of that person?
A. Correct

Q. What made you think that that consent extended to you?
A. Well, I didn't. I am simply saying that I am simply saying that the Daily Telegraph are fastidious as we all try to be about getting it right on a matter involving the criminal code. I know the Daily Telegraph there, and the people there well enough in terms of the standards they apply to use as I said, the gatekeeper analogy that this would have gone through many sources before it was printed.

Q. Are you saying that you considered that either the court or this young man had given consent for anyone to publish or broadcast his name?
A. Well, I don't know about anyone giving consent.

Q. Well, your first assumption was that the Telegraph had obtained consent?
A. My first assumption was that the Telegraph is a responsible newspaper and would not be knowingly breaking the law. Therefore, what I'd read as the reportage of the Daily Telegraph would, in my opinion, have been consistent with the limitations placed on them by the law, and I regard that as a sufficient proof for me.

Q. What I'm getting at is, why do you think that because the Daily-why did you think that because the Daily Telegraph had consent, you had consent?
Q. What was there, that made you think that the consent that you assumed had been given extended to yourself?
A. Well at the time, and indeed if it were to happen now, and I may be wrong, I wasn't of the view that consent had to be given to every particular person that might want to broadcast that material. I'm still of the view that if the court gave consent it did not give particular consent. It was consent to those who were broadcasting that matter.

Q. But as I understand it, your thought processes was that it was either the court or the boy himself?
A. Yes.

Q. Well, what made you think if it was the boy that he had given some sort of general consent, to all the radio stations and all the newspapers to publish his name?
A. Because I believe that the boy-my view, then was, and my view now was that the boy would want the public, and his mates to know that he had stood toe to toe with his brothers, and therefore when I saw his name printed it didn't surprise me that he would have given consent.

Q. You didn't know this boy?
A. No not at all.

Q. You knew nothing about him except what you'd read in the Daily Telegraph that morning?
A. No. I knew as a broadcaster, a bit about the family.

Q. But about this boy himself. You knew nothing more --
A. No. --

Q. -- than what you'd read in the newspaper? So, you made a judgment about what sort of person he must be, is that what you're saying?
A. I think that's-yes, that's what I'm saying.

Q. From what, what you read in the newspaper?
A. And from other information I had about his family.

Q. You agree that there were avenues of inquiry that you could have made or had made on your behalf, to check whether or not consent had been given?
A. Yes.

Q. You did not take any of those opportunities?
A. No."
(Local Court transcript, pages 41 to 43)

38 This offence is one of strict liability. The prosecution and the legal representatives of each of the appellants agree that that is so and in my opinion, it is clearly so. Mr Jones has given evidence in which he has put forward his beliefs, and his action before the broadcast was made. As he has done this, it is incumbent on the prosecution to prove beyond reasonable doubt that he did not honestly and reasonably believe in the existence of a state of facts, which if it existed, would provide a defence to the charge (See Hawthorne (Department of Health) v Morcam Pty Ltd (1992) 29 NSW LR 120 at 122, per Mahoney JA].

39 What the prosecution must prove is that at the time Mr Jones broadcast the name of W he did not honestly and reasonably believe that the Supreme Court or W had given consent to the publication of the name.

40 The learned magistrate found that the prosecution had proved both of these matters, and in particular decided that the evidence enabled her to be satisfied that Mr Jones did not hold, an honest belief of the giving of consent.

41 I have come to a different conclusion on the question of honesty. The cross-examination of Mr Jones, in my opinion, was directed to establishing that he did not have a reasonable basis for believing that the consent had been given. It was not directed to establishing that his belief was dishonest. No question was put to him to suggest that his belief was dishonest. However, the questions that were put to him, elicited answers that clearly establish, in my opinion, that his belief was not reasonable. My reasons for coming to this conclusion are as follows:

1. He knew persons, who worked at the Daily Telegraph and he regarded that newspaper as responsible, but he did not know who was working at the paper in the early hours of the morning and did not know what steps any of those working at the paper had taken to ensure that they had permission to publish the name. He had never worked at the Daily Telegraph and had not attended any meetings at which discussions of the publication of witnesses’ names was discussed. He assumed that there were layers of people checking stories and that there were “gatekeepers” at the newspaper, but could not identify who they were.
2. He had no reason for believing that W would have consented to his name being published.
3. His beliefs were based on conjecture, largely on the assumption that the Daily Telegraph had such procedures that it would not publish something for which no consent had been obtained. He took no steps to check whether his conjecture was correct, and his decision to publish the name of W without having made these checks, was clearly mistaken, but the mistaken belief was not a reasonable one. I am satisfied that the Crown has proved beyond reasonable doubt that his belief, though mistaken, was not reasonable.

42 Section 11 of the Act is expressed in such a way as to prohibit any publishing or any broadcasting of the name of a child witness. Mr Guy Reynolds S.C., Senior Counsel for Mr Jones and Harbour Radio Pty Ltd, has submitted that I should give the word “publish” in sec 11 a restricted meaning. In his submission, the Section strikes at the first publication of the name only. In his submission, once the name has been put about in the public arena, subsequent publications are not prohibited. This submission was not raised in the Local Court proceedings.

43 I would accept that in some contexts, this argument would have considerable force. However, I do not accept that it has any force in the construction of this Statute.

44 In my opinion, the mischief which the Statute seeks to prevent is the public revelation of the names of child witnesses to criminal proceedings. There is a clearly expressed legislative intention of penalising anyone who publicises the name of a child witness. There is nothing to indicate that any restricted meaning should be given to the word “publish” and it would make little sense to give such a restricted meaning.

45 Many examples could be given of the consequences of such a construction. For example, if a person watching the trial revealed the name of W to someone he or she knew, that would amount to a publishing of the name. If the argument advanced by Mr Reynolds were correct, then the subsequent publication of the same name by the journalist who was following the trial for a newspaper to his sub-editor, would be a blameless publication, as would the sub-editor’s publication to those printing the newspaper. The newspaper itself, even if it consciously decided to publish the name, believing a crime was being committed, would commit no offence and so on down the chain of publishers.

46 In this Statute, what is prohibited is “publishing or broadcasting”, not merely publishing. In my opinion, even if there were some substance in the argument advanced by Mr Reynolds about “publishing”, it is an argument which can succeed only if “broadcasting” means nothing more than publishing. I do not accept this is so.

47 In the context of the legislation under consideration, “broadcasting” in my opinion, should have the same meaning as is given in the Broadcasting Services Act, 1992, i.e.

“broadcasting service means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means………”

48 The section also prohibits broadcasting. Mr Jones broadcast the name. It was also a publication of the name. In my opinion, the Statute intends to penalise publishers and broadcasters who publish or broadcast, no matter whether others may also have done it.

49 What was put here by Mr Reynolds S.C. on behalf of Mr Jones, was that the prohibition on the publishing and broadcasting of the name of W effectively burdened freedom of communication about government or political matters because many matters the subject of criminal proceedings would relate to government or political matters. It is also argued that the law was not reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative government. Reference was made to a number of well known authorities (Nationwide News v Wells (1992) 177 CLR 1; Australian Capital Television Pty Ltd v the Commonwealth (1992) 177 CLR 106; Attorney General v 2UE Pty Ltd [2006] NSWCA 349; Lange v ABC (1997) 189 CLR 520.

50 I have read the written submissions of both Mr Reynolds SC and of the Solicitor-General for NSW, Mr Michael Sexton S.C. I accept as being correct what Mr Sexton has submitted. Clearly, freedom of communication about government and political matters is not burdened because there is a prohibition on the publication of the name of a child witness in criminal proceedings. There is no prohibition on the publication of the substance of what the child witness says and the suppression of his name could hardly be said to be a burden on the freedom to communicate about government and political matters.

51 Furthermore, the giving of evidence by a child in criminal proceedings has nothing to do with government or political matters. I am unable to accept that this legislation is in any way to be read down so that it would not apply to Mr Jones or Harbour Radio Pty Ltd.

52 I find the case against each appellant proved.

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12/02/2008 - Name of appellant repeated in citation - Paragraph(s) 0