Nicholls v Director of Public Prosecutions
[1993] SASC 3964
•21 May 1993
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE ACJ(1), PERRY(2) AND MULLIGHAN(3) JJ
CWDS
Courts and judges - contempt of court - punishment - The appellant, a journalist, during the course of giving evidence at his trial on charges of impersonation and forgery refused to identify the source of information which it was alleged he had obtained personally but which he maintained had been given to him by the unnamed source - subsequent plea of guilty to contempt in the face of the Court by refusing to comply with a direction by the trial Judge to answer a question as to the identity of the source - appellant justified his conduct by reference to an undertaking to the source to keep his identity confidential, and by reference to the Code of Ethics of the Australian Journalists Association - punishment of 4 months imprisonment imposed - appeal against the severity of the punishment - observations as to the lack of any absolute privilege attaching to information obtained by journalists - error by trial Judge in assuming that remissions would apply - held that committal to prison for contempt not the imposition of a sentence within the meaning of the Correctional Services Act 1982, and remissions did not apply. District Court Act 1991ss.47 and 48; District Court Rules 93.05 and 93.10; Correctional Services Act 1982 s.79 and s.22 and Criminal Law (Sentencing) Acts.5.
British Steel Corporation v Granada Television Limited (1981) AC 1096; Von Doussa v Owens (No 3) (1982) 31 SASR 116 and 117-8; John Fairfax and Sons Ltd and Anor v Cojuangco (1988) 165 CLR 346 at 354-5; Gannon v Harper (not reported) Bollen J 20.7.89 Judgment No 1627; R v Van Roosmalen (1989) 43 A Crim R 358; Re The Evening News (1880) 1 NSWLR 211 at 240; James v Robinson
(1963) 109 CLR 593 at 610; Allinson v General Council of Medical Education and Registration (1894) 1 QB 750; Attorney-General v Mulholland, Attorney-General v Foster (1963) 2 QB 477; Attorney-General v Clough (1963) 1 QB 773; Secretarv for State of Defence and Anor v Guardian Newspapers (1985) 1 AC 339; McGuinness v Attorney-General of Victoria (1940) 63 CLR 73; Attorney-General v Lundin (1982) 75 Cr App R 90; Yardley v Betts (1979) 22 SASR 108 at 113-4; Copley v Oueensland Newspapers Pty Ltd (unreported) 20.3.93, No 3107 of 1989; Weetra v Beshara (1987) 46 SASR 484; Chapman v Harries (unreported) Full Court 15.3.93, Judgment 3867 and The Oueen v Barrass (unreported) 7.8.90, Kennedy J, District Court of Western Australia, considered.
HRNG ADELAIDE, 12 May 1993 #DATE 21:5:1993
Counsel for appellant: Mr P Rice with
Mr G Gretsas
Solicitors for appellant: Australian Government
Solicitor
Counsel for respondent: Mr W. Chivell
Solicitors for respondent: Crown Solicitor for the
State of SA
ORDER
Appeal allowed, new sentence imposed.
JUDGE1 LEGOE ACJ This is an appeal from a sentence of four months' imprisonment imposed on the appellant for contempt of court. On Monday, the 19th of April 1993 the appellant was charged with contempt of court by the Judge who had presided over a trial which concluded on the previous Friday, the 16th of April. The appellant was the sole accused at that trial. The relevant facts and background relating to that trial are set out in the draft reasons for judgment of my brother Mullighan J and it is not necessary for me to repeat them. In so far as it may be necessary in the course of my own reasons I shall add to that summary of the facts. 2. As the learned sentencing Judge said in his remarks when sentencing the appellant for the contempt charge: "The purpose of all those offences were(sic) to obtain banking documents of J.M. Stitt in an endeavour to show improper dealings of the then Tourism Minister Wiese during debates in Parliament on (certain) legislation." 3. I also note that in so far as the charges of false pretences and forgery are concerned the fraudulent conduct complained of was for the purpose of obtaining from the respective banks copies of cheques and deposit forms and documents relating to various transactions made during a specified period of time on account of a named company at the Fremantle branch of a bank in Western Australia. 4. We were told that the appellant was at the time carrying out the occupation of what counsel have described as an "investigative journalist". He was employed by the ABC at the relevant time. It was in the course of that occupation that he was involved in the investigation referred to in the reasons of Mullighan J. 5. As Mullighan J has pointed out the main issue at the trial appears to have been the identity of the person who impersonated Mr Stitt on the occasion of the three telephone calls which were the subject of the three impersonation charges. The first of those charges was alleged to have occurred on the 26th of February 1992 at Stepney, the second on the 10th of March 1992 also at Stepney and the last charge of impersonation (count 5) was alleged to have occurred on the 18th of March 1992 at Adelaide or another place. The appellant was interviewed by the police at the Holden Hill CIB on Wednesday, the 25th of March 1992. On that occasion the basic allegation was put to him and after the usual warning he was asked whether he wished to say anything in relation to the allegation that he had been personally attending at the St Peter's branch of Westpac falsely pretending to be Mr Stitt. The appellant said "I had no hand in any illegal activities in any way in obtaining those bank documents. Now I am obliged to protect my sources of information which I will do". He was then asked if he wished to answer any more questions to which the appellant said he preferred not to answer any more questions on legal advice that "I should protect my sources of information". He also indicated that any answers to questions would depend upon whether the answers would be likely to disclose his sources of information. His solicitor, Mr Gretsas, indicated that the appellant could not provide the police with any further assistance in relation to thematter regarding the obtainingof bank statements. The appellant's counsel cross-examined the prosecution witnesses, particularly the bank officers, about the voice of the person who had made the telephone calls. The appellant is supposed to have had a distinctive American sounding accent. The numerous phone calls recorded on the ABC account were over 30 minutes in duration when added together. It would be highly unlikely that all bank officers who spoke to the caller would have failed to notice such an accent. The jury heard the appellant's accent during his lengthy cross-examination. As well as denying that he was the impersonator the appellant called other evidence including that from a Mr Brown, another employee of the ABC, who was in fact the appellant's boss at the time. Mr Brown verified the fact that the appellant had told him before the police interview on the 25th of March that he was operating on information and documents supplied to him by a confidential "source" which he had undertaken not to disclose. He kept Mr Brown abreast of the investigations as they progressed. Mr Brown never learnt the name and identity of that source. Mr Brown gave other evidence concerning the appellant's "investigation" which he was carrying out at the time in the course of his duties as an ABC journalist. This evidence confirmed the appellant's evidence on this aspect. 6. There was in these circumstances some evidence upon which the jury could assess the appellant's evidence and denials. Counsel for the appellant conceded, and it is absolutely clear on the evidence, that the crimes of impersonation and of false pretences and forgery were undoubtedly committed. The basis therefore upon which the jury could have acquitted the appellant was that they entertained a reasonable doubt as to whether it was the appellant who made the phone calls and who committed the act of false pretence (count 3) and forged the signature on the letter (count 4). 7. Reference was also made during the course of the evidence at the trial to a code of ethics. As there was considerable debate about the code of ethics relating to journalists during the course of the hearing of the appeal it was agreed between counsel that the court should be shown this code. We were given a copy of one sheet of the code of ethics for all members of the Australian Journalists Association who stated that they were pledged to stand by their fellow members in observing and enforcing the A.J.A. Code of Ethics which was adopted by the Federal Council in 1984. The preamble to that code reads:-
"Respect for truth and the public's right to information are
over-riding principles for all journalists. In pursuance of
these principles journalists commit themselves to ethical and
professional standards. All members of the Australian
Journalists Association engaged in gathering, transmitting,
disseminating and commenting on news and information shall
observe the following code of ethics in their professional
activities. They acknowledge the jurisdiction of their
professional colleagues in the A.J.A. judiciary committees to
adjudicate on issues connected with the code." 8. The relevant sub-paragraphs which were referred to by counsel on this appeal are clauses 3 and 7:-
"3. In all circumstances they shall respect all confidences
received in the course of their calling...
7. They shall use fair and honest means to obtain news, films,
tapes and documents." (the emphasis is mine.) 9. At the commencement of his cross-examination at the trial the appellant agreed that he believes that journalists should report information and news "with scrupulous honesty", and further that journalists should use fair and honest means to obtain news and documents. The appellant agreed that he did not condone journalists committing criminal offences for the purpose of obtaining information, nor that journalists should engage in any form of fraudulent behaviour for the purpose of obtaining information or documents. He did not agree that journalists should obtain documents that they know to have been obtained from a source by illegal means. He claimed that there was a code of ethics to which he adhered to during the course of his investigations into the financial affairs of the Minister and Mr Stitt. He denied throughout his cross-examination at the trial that he was aware of the criminal activities which had been used to obtain the documents. Clearly the documents were obtained illegally and, as I said earlier, by false pretences or fraud of the impersonator and forger of the signature on the letter to Western Australia. I shall come back to the legal position of the alleged undertaking given to the source and of the code of ethics referred to at the trial later in these reasons. 10. The charge of contempt to which he pleaded guilty was read to him from a charge written out by counsel for the DPP. That charge read:-
"Arthur Christopher Nicholls, on Monday 5 April 1993 before the
District Court sitting at Adelaide in the State of South
Australia upon being given a lawful direction of the court,
namely a direction given by His Honour Judge Taylor to answer a
question, namely: 'Who is your source?' did refuse, in the face
of the court, to obey the said direction, and was thereby guilty
of a contempt of the said court. Contrary to s.47(c) of the
District Court Act." 11. The terms of s.47 in particular 47(c) and of s.48 are set out in the reasons of my brother Mullighan J. 12. Counsel for the appellant addressed Judge Taylor on the appropriate penalty after an allocotus had been administered. Counsel's submissions followed the normal pattern of mitigation of penalty. These submissions included the appellant's unemployment status since leaving the ABC in October 1992. Due to his financial circumstances the appellant was not in a position to pay a fine. Counsel also informed the Judge the appellant was not prepared to purge his contempt although he apologised for not answering the question. I consider this submission was misconceived in view of the nature of the contempt and the circumstances in which the contempt occurred. This may have led to an error in the order which was proposed by the learned Judge. Section 48 provides the forms of punishment for contempt. Counsel repeated the reason for not answering the question referred to in the contempt charge, namely that the refusal "was to protect the identity of the source". That was an undertaking from which the appellant was not released during the course of the trial. Counsel outlined the consequences to the appellant if he had disclosed the source as "One would be that he, personally, would never be in receipt of information again because he has thereby failed to protect the identity of his source. Secondly, and more generally, other journalists would be less likely to receive information if one of their fellows breached an undertaking that was given". Counsel further put to the learned Judge that there was a benefit to the public from investigations by journalists and the court should not act so as to reduce the availability and effectiveness of what counsel called "whistleblowers on government and industry who act via journalists". 13. Another aspect of the submissions put by counsel related to the position in which the appellant had put himself in the eyes of the jury by refusing to name the source. Counsel submitted that it was much easier for the prosecution to ridicule and belittle his story in the face of his refusal than it would have been if he had named someone, perhaps someone who was in another jurisdiction who could not be called upon. During the course of argument on this appeal it was pointed out that there was another aspect to this point namely that the appellant may have in fact made himself out to be somewhat of a martyr by adhering to the undertaking and making out to the jury that he was courageously upholding the journalist traditions and ethics. In my judgment we cannot resolve this point. The jury made their assessment and I consider that this court should assess the punishment of four months on the clearly established facts. The learned Judge pointed out to counsel that in circumstances where the source is clearly committing offences in order to obtain the information then adherence to an undertaking or a code of ethics may not be in the public interest. At the same time the learned Judge appears to have accepted that the appellant was not aware of the illegality that was being perpetrated by the source in order to obtain the information and documents. However by the time he was asked the question in his cross-examination he was admittedly well aware of the criminal activity. In fixing the form of punishment for this contempt the learned Judge in his remarks observed that there were no relevant "tariffs". He referred to the well-known statement of Lord Wilberforce in British Steel Corporation v Granada Television Ltd (1981) AC 1096 where His Lordship referred to the national possession of "a free press". He added "But this case does not touch on freedom of the press even at its periphery. Freedom of the press imports, generally, freedom to publish without pre-censorship, subject always to the laws relating to libel, official secrets, sedition and other recognised inhibitions". In applying those statements the learned Judge observed that the person who committed the crimes of impersonation, false pretence and forgery was a party to "serious offences". Having observed that the appellant may well not have known of the illegalities involved at the time he gave the undertaking (that is on the 25th of February), His Honour added "I make it clear that this court will not accept an undertaking as sufficient reason in these circumstances not to disclose criminal behaviour, as in this case and so diminish the responsibility of the journalist, whoever he be; I believe this is consistent with all of the various freedoms the press is entitled to and to which I have referred". After referring to Von Doussa v Owens (1982) 31 SASR
116 the learned Judge concluded his sentencing remarks by imposing four months' imprisonment upon Nicholls. The learned Judge referred to this as "a sentence". He mentioned the alternatives of suspension but decided that would not be appropriate and further that it would not be appropriate to impose a fine. He concluded "I also considered that it was inappropriate to sentence you until you purged your contempt. You are therefore sentenced to four months' imprisonment. Of course, if at any time you wish to purge your contempt by disclosing your source, it is a part of this order that your term of imprisonment will be at an end". I shall come back to this point later in these reasons. The journalist's Privilege (if any) and the Code of Ethics The grounds of appeal are set out in the reasons of my brother Mullighan J. Like him, before considering the grounds of appeal I make some observations. First, I too would like to make some comments on the position of a journalist and particularly a so-called investigative journalist. This point has been raised in a number of cases both in England and Australia. As long ago as 1880 in the Supreme Court of New South Wales Martin CJ said "So far as the public are concerned, the writers in, or the publishers or proprietors of, a newspaper have no duties whatever upon them. They receive no appointment from the public, and they acknowledge no subordination to authority. The publication of a newspaper is a commercial speculation, just as much as the buying and selling of wool or tallow. The public are anxious to know certain facts that are daily and hourly occurring, and certain persons find it profitable to employ reporters and printers to satisfy this want. No question of duty whatever is involved. The journalist publishes whatever he thinks will be profitable to him, and the public pay him for his trouble. But he has no privilege" (the emphasis is mine); See Re The Evening News (1880) 1 NSWLR
211 at 240 referred to by Windeyer J in James v Robinson (1963) 109 CLR 593 at 610. Windeyer J in this case also refers to the more cynical comment of Lord Coke in 10 Reports 142 b that "Sometimes when the public good is pretended, a private benefit is intended" ibid. 14. In so far as any emphasis or reliance was placed on the code of ethics referred to above the remarks of Abbott J in Re Ward (1953) SASR 308 at 316 are apt where His Honour is talking of developments in new professions where a criterion of professional conduct in harmony with the definitions in the leading case of Allinson v General Council of Medical Education and Registration (1894) 1 QB 750 evolved by Lopes LJ is discussed. As Abbott J points out those rules or criteria are developed in conformity with the views of the professional brethren of good repute and competency, ibid. At p316 Abbott J said: "That is the standard which has been evolved by the three original learned professions of divinity, law and medicine, and to a member of one of those professions it is not without significance to observe that wherever the legislature establishes a new profession, the newly created board almost invariably publishes a 'code of ethics' containing rules for the guidance of the members of the new 'profession' by which they attempt to specify in ill-considered phraseology some forms of conduct which are to be deemed unprofessional. The framers of such a code quite fail to realise that a man who may desire to practise in an unprofessional way will usually find it possible to do so, although ostensibly complying with the few general rules in the 'code' which are the utmost that the members of the profession, with widely divergent views, can be brought to agree upon". Those remarks by Abbott J were made in the context of the so-called new profession, of physiotherapy. The physiotherapists had been recognised by the Physiotherapists Act of 1945. 15. In this case the journalists have no such policing or controlling legislation as the physiotherapists. Their code of ethics is not one that is apparently formulated by a group of journalists who are concerned with the reputation of the journalists, but rather are concerned that the code of ethics protects a right "in all circumstances" to respect all confidences received in the course of their calling. The code of ethics does not address the circumstances in which those confidences may be received. Martin CJ pointed out in 1880 that no privilege attaches to the journalist. This has been frequently affirmed by cases over the last century where the courts have said that a journalist is not privileged from disclosing the source of his information - see Attorney-General v Mulholland, Attorney-General v Foster
(1963) 2 QB 477; Attorney-General v Clough (1963) 1 QB 773; British Steel Corporation v Granada Television Ltd (supra) and Secretary for State of Defence and Another v Guardian Newspapers (1985) 1 AC 339. The first two cases were both concerned with refusal to disclose the source of information in the course of a tribunal hearing set up to inquire into breaches of security in the Navy. In the Mulholland case the Court of Appeal referred with approval to McGuinness v Attorney-General of Victoria (1940) 63 CLR 73. At p.492 Donovan LJ (as he then was) referred to the lack of privilege in the journalists entitling him to refuse to disclose the source but added "So I think the interrogator has no absolute right to require such disclosure. In the first place the question has to be relevant to be admissible at all; in the second place it ought to be one the answer to which will serve a useful purpose in relation to the proceedings in hand - I prefer that expression to the term 'necessary'. Both these matters are for consideration and, if need be, the decision of the Judge. And over and above these two requirements, there may be other considerations, impossible to define in advance, but arising out of the infinite variety of fact and circumstance which the court encounters, which may lead a judge to conclude that more harm than good will result from compelling a disclosure or punishing a refusal to answer". In Clough's case Lord Parker CJ referred to the judgment of Dixon J (as he then was) in McGuiness's case at p102 with complete approval. His Lordship regarded the decision in McGuiness as a most persuasive authority. The British Steel Corporation case was concerned with the practice and procedure for discovery of documents in civil proceedings where a journalist had declined to disclose the source of certain information. Those proceedings were taken for an order for delivery up of certain documents and copies. It was held by the House of Lords that the media and journalists who wrote or contributed for them had no immunity based on public interest which protected them from the obligation to disclose in a court of law their sources of information. The cases of Clough, Mulholland, Foster and McGuinness were all applied. The last case of Guardian Newspapers was concerned with the provisions of s.10 of the Contempt of Court Act 1981 which was introduced after the British Steel Corporation decision. For a discussion of these cases see the article in 1984 Cambridge Law Journal 266 headed Judicial Proceedings and Refusals to Disclose the Identity of Sources of Information, by Yvonne Cripps. 16. In Attorney-General v Lundin (1982) 75 Cr App R 90 a journalist investigating the unlawful activities of certain casinos particularly in relation to the misuse of confidential police information, gave evidence at the trial of a police officer who was charged with an offence under the Prevention of Corruption Act. The prosecution case depended on a document, a photostatic copy of which was handed to the police by the witness. Counsel for the defendant challenged the admissibility of the copy of the document on the ground that the Crown had failed satisfactorily to account for the non-production of the original. The prosecution attempted to provide an explanation for the non-production by calling other witnesses but that proved vague and unsatisfactory. Thereupon the respondent was asked by prosecuting counsel and ordered by the trial Judge to reveal the source of the photostatic copy of the document. He refused to do so on the ground that it would be a breach of confidence and contrary to his professional ethics as a journalist. As the document was crucial to the prosecution case the trial Judge was forced to direct the jury to acquit the defendant. The Attorney-General sought an order that the respondent journalist be committed to prison for contempt of court. The Divisional Court held that in refusing to answer the respondent would be in contempt of court if the question was relevant and necessary. However in the present case the court held that at the time the question was asked the relevance of its source would not have assisted the prosecution case because every witness had failed to say anything significant and, in the absence of other related and essential evidence, the answer could have served no useful purpose; accordingly, the court held that the respondent was not guilty of contempt of court and the application would be refused; see pp 97 and 99 in the joint judgment of Watkins LJ and Glidewell J. 17. I turn now to consider what was the course of justice interfered with in this case by the appellant's refusal to answer the question. The Course of Justice - the refusal to disclose. The prosecution led circumstantial evidence such as the tracing of some phone calls to a mobile telephone which had been allocated by his employers the ABC to the appellant. Other phone calls were traced to a room in the ABC building. The phone calls were numerous. The three charges of impersonation were only as to a selective number of those phone calls. The total time recorded for those phone calls was over 30 minutes. The appellant gave an explanation as to why some of the phone calls were from a room in the ABC. He said that having disclosed to his source that he had spoken to the Commissioner of Police suggesting that a police investigation be held into the matters that he the appellant was himself investigating, he said that the source had then become concerned by continued meeting in public and had suggested that they meet somewhere else. The appellant himself by virtue of his knowledge of the ABC building arranged for a room to be made available for the source so that the investigations could be continued and the source had available the use of a telephone in that room. The appellant maintained that he was not present when phone calls were made from that room and he had no knowledge of the illegalities at that time. 18. Counsel for the appellant submitted that the appellant was keeping his distance to some degree from what the source was in fact doing in order to obtain information and documents. It was said that the appellant did not want to trespass upon the relationship that the source may have with bank officers or other persons he contacted. The appellant was obviously happy to receive the information but he was not aware of the illegalities. The appellant was consistent in that he told the police that he was not aware of the illegalities when interviewed on the 25th of March. Nevertheless it must have been obvious that he had suspicions as to why the source wanted his identity kept from publication. The appellant said that the source had asked for the undertaking when he first met the source on the 25th of February. 19. In these circumstances it was both "relevant and necessary" for the prosecutor to ask the appellant in cross-examination to name his source; cf Attorney-General v Mulholland and Foster, supra, and Attorney-General v Lundin, supra. As the learned Judge observed the appellant then knew of the manifest serious nature of the crimes that had been committed to obtain the documents and financial records. He was properly directed by the learned trial Judge that there was no privilege attaching to his undertaking not to disclose the identity. See McGuinness, Mulholland, Clough and Lundin supra. It was part of the course of justice to require this question to be answered so that the jury would have all relevant evidence before it to bring down a true and considered verdict on all known material facts. The existence and identity of a source was a crucial material fact. In the words of the well-known hymn the day had come "in whose clear shining light all wrongs shall stand revealed". The ancient remedy of the law to enforce the revelation of truth is to punish for contempt of court those who prevent it emerging. 20. In my opinion this refusal was in the circumstances of this trial, and at that stage of the trial, a particularly serious contempt. It was a defiant refusal when told and directed by the learned Judge to answer the question. The court's direction upon a correct analysis of the relevance and necessity for the disclosure of the source is clearly correct in this case and is not challenged by the appellant. The appellant then knew that the interests of justice far outweighed any undertaking or code of ethics that could possibly apply to circumstances such as these. His plea of guilty recognises the obligation, but the appellant's continued resistance on the grounds that he had given this undertaking disclosed that he has totally failed to recognise the seriousness of the contempt. The grounds of appeal The first ground of appeal complains of an error in the learned Judge's remarks when he did not accept the undertaking as sufficient reason in the circumstances not to disclose criminal behaviour. What I think the learned Judge had in mind was that a journalist can not legally rely on the undertaking and thus avoid responsibilities which co- exist in such circumstances and override any right to obtain information where the journalist must have realised the extent of the criminal behaviour. On this basis I am of the opinion that the learned Judge was perfectly correct in the context when he said "and so diminish the responsibility of the journalist". 21. Particulars of Ground 1 of the appeal allege two specific errors. First it is alleged "the question giving rise to the contempt was directed towards the identity of the source, not whether there was criminal behaviour that required disclosure". That is strictly correct. But the contempt arose because the question was directed to be answered when the appellant must have realised and knew that the "source" had engaged in serious criminal activity in order to obtain the personal records and financial statements. Further at the time of the trial it was known to the appellant that the person had not authorised the disclosure of the information and documents. The appellant was told at the time of the police interview that the illegalities had been reported to the police. Secondly it is alleged in the particulars to Ground 1 that the undertaking giving rise to the failure to answer the question was not intended to "diminish the responsibility of the journalist". No doubt that is also true. But it is not the responsibility of the journalist that is in issue to determine the contempt, but rather the issue on this appeal is the extent to which punishment is appropriate when an order or a direction has properly been given by the court to the alleged contemptor in the course of proceedings which order or direction is "relevant and necessary". That is the sense in which I understand the learned Judge's remarks relating to diminishing the responsibility of the journalist. I have already indicated that in these circumstances the journalist's responsibility was not to his occupation but rather to the law. In my opinion this ground has not been made out. 22. Ground 2 is answered by the fact that the journalist has no privilege or immunity in these circumstances. Therefore the consequences to the particular journalist are essentially irrelevant to the obligation to answer the question, the failure to do so rendering the refusal a contempt of court. Clearly the learned Judge had been told about the consequences by the appellant's counsel and I can not say that in so far as it may be relevant to the appropriate punishment that the learned Judge failed to have proper regard to those consequences. This ground has not been made out either in my opinion. 23. Ground 3 raises the question as to whether the provisions of the CriminalLaw (Sentencing) Act so far as they specify the guidelines to be followed in sentencing apply to an order pursuant to s.48 of the District Court Act. The alternative forms of punishment are set out in s.48. 'Sentence' is defined in s.3 of the Sentencing Act in that it may include "punishment" in some of the alternatives stated in s.48 of the District Court Act. However, in my opinion, an order under s.48 that a contemptor be imprisoned until the contemptor has purged the contempt is not a "sentence" that can be fashioned by the provisions of the Sentencing Act, and particularly s.11. Section 11 says that imprisonment shall not be imposed unless certain matters are considered and apply. An order committing a contemptor to prison until the contempt is purged is clearly a complete stranger to the Sentencing Act but not the case here as not going to prison until purged. Finally and most significantly s.5 of the Sentencing Act says that nothing in that Act shall affect orders for contempt of court. Counsel for the appellant argued that this section does not totally exclude punishment for contempt from the Sentencing Act. I do not accept that submission for the reasons I have just expressed. In my opinion the District Court is limited to the alternatives in s.48 and the guidelines for the sentencing of prisoners as set out in s.11 of the Sentencing Act do not apply to contempts. Therefore, I would reject Ground 3 of the Notice of Appeal as the learned sentencing Judge did not err in failing to have sufficient regard to the accused's personal circumstances and the consequences of imprisonment on his family. 24. The fourth ground of appeal complains that the four months' imprisonment imposed by the learned Judge was manifestly excessive. The learned Judge has reported to this court that he set the sentence "so that approximately three months should be served having regard to usual remissions". We are informed by both counsel that this would result in a period of imprisonment slightly under three months from the 19th of April. He is due to be released on that basis some time early in July. I have already indicated that in my opinion the provisions of the Sentencing Act do not apply. Nor in my opinion do the provisions of the Correctional Services Act. In particular s.79 which specifies the right to remissions for prisoners serving sentences longer than three months. Accordingly, in my opinion, there was an error of law when the learned Judge imposed a 'sentence' on that basis. This error gave rise to an application at the end of the hearing by counsel for the appellant to amend the grounds for appeal by adding a fifth ground to the effect that the sentence, so-called, should be set aside. Counsel for the respondent conceded that this "sentence" had been an error of law but submitted that the term of imprisonment for just under three months was an appropriate punishment and should not be interfered with by this court. CONCLUSION
25. In my judgment by reason of this error of law the whole issue as to what was the appropriate sentence has been opened up for reconsideration by this court. Therefore I proceed to assess the period of imprisonment for the contempt afresh. 26. In my judgment the course of justice which rendered the question put to the appellant relevant and necessary during the trial, was no longer on foot after the jury returned its verdict of not guilty. The issues at the trial were finally resolved. The plea of guilty for contempt on the 19th of April (a few days after the verdict of the jury) was an act of contempt committed as the charge stated on the 5th of April 1991. It was not a continuing contempt. In my opinion the learned trial Judge was not correct when on the 19th of April he indicated in his remarks that he considered that he had an alternative to wait for fixing the punishment under s.48 until "you purged your contempt". That is an alternative under s.48(1)(b) cf. Von Doussa v Owens, supra, where the contempt was continuing right up until the third occasion when the matter came before the Full Court. But as the order which was drawn up in this case does not disclose any reference to "purging the contempt" I am doubtful that any particular error can be isolated on that ground. 27. The learned Judge had the advantage of having seen and heard the witnesses particularly the appellant at the trial. His Honour never said, nor implied in his remarks, that the appellant be punished on the basis that he refused to disclose a source which the learned Judge considered on the whole of the evidence did not exist. His Honour may have been very suspicious, as indeed I am, as to whether there was a source. But in the light of other evidence at the trial, and of the advantage that the learned trial Judge had of having heard all the evidence, and in particular having seen and heard the appellant under cross-examination, I consider that the punishment for contempt must be reassessed on the basis that the appellant refused to disclose the identity of a source, which could probably have existed. He was not entitled to refuse to answer. He committed a contempt of court by so declining. He should be punished for what was a serious contempt. The contempt should be punished on the ground that he must have known that the actions of the source were grossly illegal at the time he was directed to disclose their identity. There are no yardsticks. I do not regard the decision of Von Doussa v Owens as any precedent. Indeed the remarks of Wells J at the final hearing of that case indicated just that. His Honour said (Von Doussa v Owens, supra, at p120):-
"On the deterrent aspect (to which obviously some attention must
be given): a particular term of some 10 weeks has been deemed to
be adequate in the present case and in all the very special
circumstances that relate to it. But I should not want it to be
thought that that necessarily sets a precedent for the future;
rather, I should regard it as a warning for the future, and, if
any similar cases of contempt of court arise, I should think
that the court would start to move from the period of 10 weeks
into something much greater. It is not to be supposed that so
short a sentence as that would inevitably be awarded." (the
emphasis is mine.) 28. His Honour then agreed with the view of the presiding Judge at the last hearing, Mitchell J (as she then was), who thought that the period of ten weeks which Owens had spent in custody would be appropriate and ordered his release forthwith. 29. This is the first such case known to this court where a journalist has claimed immunity by virtue of personal undertaking given to an informer. 30. In so far as any warning may be appropriate for first offenders I am of the opinion that the remarks in the well-known case of Yardley v Betts (1979) 22 SASR 108 at 113-114 per King CJ and at 116 in my own reasons do not apply to contempts of court. I would respectfully adopt the approach of Wells J in Owens case as to the appropriate cases where warnings may be appropriate. In my judgment the only warnings for contempt of court should come from a Full Court rather than individual courts of first instance. In my opinion the appropriate sentence for this particular appellant would be a period of nine weeks' imprisonment. I am of the opinion that the provisions of the Sentencing Act relating to suspension of that sentence do not apply. Where Rule 93.10 states "Where a person in contempt is committed to prison for a specified term, the court may order his discharge before the expiry of that period". In my judgment that rule does not give the court the power to suspend a term of imprisonment imposed as a punishment for contempt of court. Without finally deciding the point, as it was not fully argued before this court, I am of the opinion that Rule 93.10 relates to situations where the contemptor may still be able to purge his contempt after a term of imprisonment has been imposed on that contemptor for the relevant contempt. Accordingly the period of imprisonment which in my opinion is appropriate is a finite term of imprisonment in respect of which there is no entitlement to an order for discharge before the expiry of that period. The appellant was taken into custody on this order on Monday, the 19th of April. In my judgment if he were to be released on Monday the 28th of June, that is nine weeks imprisonment, I would be of opinion that that would be a sufficient deterrent to him and to other journalists who may be in a similar position and a sufficient warning to persons who are obliged to disclose information in circumstances such as they arose in this case. 31. I would allow the appeal, set aside the order of the learned trial Judge and substitute an order that the appellant be imprisoned for his contempt for a period of nine weeks.
JUDGE2 PERRY J The appellant appeals to this Court against the order of a Judge of the District Court made on 19 April 1993 committing him to prison for four months for contempt of Court. 2. Before committing the appellant for contempt, the learned Judge had presided over a trial by jury of the appellant on an information alleging three counts of impersonation in order to obtain property, one count of false pretences and one count of forgery. The appellant was acquitted on all five counts. 3. The appellant is an investigative journalist who was at the relevant time employed by the Australian Broadcasting Commission. The charges arose out of investigations which he was conducting into the affairs of a Mr Stitt and of a company with which Mr Stitt was associated, namely, IBD Public Relations Pty Ltd ("IBD"), and of another company, Nadine Pty Ltd ("Nadine"). 4. The investigations were aimed at ascertaining whether a Minister of State, Ms Weiss, who associated with Mr Stitt, had put herself into a position where there was a conflict of interest with respect to her duties as a Minister. 5. IBD held an account with the St Peters branch of the Westpac Banking Corporation. Nadine held an account with the Fremantle branch of the RandI Bank of Western Australia Pty Ltd. 6. Two of the counts of impersonation related to telephone calls to employees of the Westpac Bank at St Peters during the course of which the appellant was said to have impersonated Mr Stitt with the intention of fraudulently obtaining statements of transactions conducted within IBD's account with the bank. The third count of impersonation related to an alleged telephone call to the R. and I. Bank during which it was said that the appellant had unlawfully impersonated Mr Stitt, with a view to obtaining documents relating to transactions conducted by Nadine recorded in its account with that bank. The impersonation charges were alleged to be representative of a number of similar telephone calls to the banks in question. 7. The count of forgery arose out of an allegation that the appellant had forged an authority in the name of Mr Stitt addressed to the R. and I. Bank with the object of securing the delivery of certain documents relating to transactions with the bank. The letter of authority alleged to have been forged was faxed from the GPO in Adelaide to the R. and I. Bank in Fremantle, and it bore what purports to be the signature of Mr Stitt. 8. The count of false pretences related to an occasion upon which the appellant was alleged to have personally attended at the St Peters branch of the Westpac Bank, and by falsely pretending that he was Mr Stitt, had obtained copies of cheques and deposit forms. 9. The appellant's defence was that while he admitted that he had personally collected the papers from the Westpac Bank and had received the documents from the R. and I. Bank, the arrangements which enabled those things to happen had been effected by a third party, who was described during the trial as his "source". The appellant maintained that it was the source who had made all of the phone calls, notwithstanding the fact that some of them were made from a mobile telephone which the appellant used during the course of his employment, and that others were made from a telephone at the ABC headquarters at Collingswood. 10. The appellant gave evidence at the trial, during the course of which he maintained that account of the matter. Although by the time of the trial he must have realised that the "source" had acted illegally, he maintained throughout that he was not aware at the time he was dealing with the source, that the latter was guilty of any illegal conduct. 11. He further maintained that he knew nothing of the alleged forgery. 12. The appellant said that he knew that phone calls were being made by the source to various people, in some instances from the appellant's mobile telephone, but in most instances out of the presence of Mr Nicholls. The appellant's evidence was that he had arranged for a room to be made available at the ABC offices so that the source could continue investigations into the matter after the source had become concerned about continued meetings in public, and had suggested that the two might meet elsewhere. 13. As to the appellant's admitted attendance at the Westpac Bank at St Peters, his evidence that he had not on that occasion claimed to be Mr Stitt, was in conflict with evidence given on behalf of the prosecution by a bank employee that the caller, who was the appellant, had identified himself as Mr Stitt. 14. Putting the false pretences count on one side, there was little doubt that the offences were committed, and the issue for the jury was whether it was the appellant who was responsible. 15. The appellant gave evidence that from the time he first met the source, he undertook to keep the identity of the source confidential. Because of that undertaking, and because of what was described during the trial as a code of ethics applying to journalists, when questioned by police during the course of their investigations leading up to the laying of the charges upon which he stood trial, and during the course of the trial, he refused steadfastly to name the source, or to give any evidence which might lead to the identity of the source being revealed. 16. Matters came to a head at the trial, when not only did the appellant refuse to answer questions in cross examination designed to elicit the identity of the source, but he refused to comply with a direction by the trial Judge that he do so. 17. The refusal to obey the direction of the trial Judge constituted a contempt in the face of the Court pursuant to s.47 of the District Court Act which provides:
"A person who-
(a) interrupts the proceedings of the Court or misbehaves before
the Court;
(b) insults a Judge, Master, assessor or other officer of the
Court who is acting in the exercise of official functions;
(c) refuses, in the face of the Court to obey a lawful direction
of the Court, is guilty of a contempt of the Court." 18. Quite properly, the learned trial Judge ruled that the question of contempt should be dealt with after the conclusion of the trial. On the next sitting day after the verdict of acquittal had been returned, the learned Judge caused the appellant, who was then brought before him, to be dealt with in accordance with Rule 93.05, which provides that where a person is brought before the Court in such circumstances, the Court may:
"(a) cause him to be informed orally of the contempt with which
he is charged, with sufficient particularity and direct him to
make his defence to the charges;
(b) upon hearing the person's defence proceed forthwith, or
after an adjournment, to determine the matter of the charge; and
(c) after hearing any submissions in mitigation make such order
for the punishment or discharge of the person as is just." 19. In accordance with that rule, the charge of contempt was read out to the appellant, the substance of it being that he had refused in the face of the Court to obey a lawful direction of the Court, namely, a direction given by the learned trial Judge to answer the question, "Who is your source?". The appellant thereupon pleaded guilty to the charge and the learned trial Judge heard submissions from his counsel on penalty. 20. In proceeding to punish the appellant, the learned Judge is reported as having observed, inter alia:
"Mr Rice, in making submissions on penalty, asked me to have
regard to the public interest in journalists having available to
them informers who require their identity to be kept secret.
Neither counsel was able to assist me on relevant 'tariffs' and
no submissions were made for the suspension of any penalty I
imposed. I gained some help from the case of British Steel
Corporation v Granada Television Limited (1981) AC 1096 where
Lord Wilberforce in the House of Lords said:
'First, there were appeals, made in vigorous tones to such broad
principles as the freedom of the press, the right to a free flow
of information, the public's right to know. In Granada's
printed case we find quotations from pronouncement (sic) of
Sheridan in Parliament and from declarations of eminent judges
in cases where the freedom of the press might be involved. I
too would be glad to be counted among those whose voice had been
raised in favour of this great national possession, a free
press; who, indeed, would not? But this case does not touch on
the freedom of the press even at its periphery. Freedom of the
press imports, generally, freedom to publish without
precensorship, subject always to the laws relating to libel,
official secrets, sedition and other recognised inhibitions.'
I would adopt what the learned judge said in that case. I note,
following on, that in the United Kingdom an amendment was made
to s.10 of the Contempt of Court Act which provides in the
United Kingdom that: 'No court may require a person disclose,
nor is any person guilty of contempt of court for refusing to
disclose, the source of information contained in a publication
for which he is responsible, unless it be established to the
satisfaction of the court that disclosure is necessary in the
interests of justice or national security or the prevention of
disorder or crime.'
I wonder whether that is any different from the common law that
espoused (sic), in the matter I referred to. In the subject
case, the independent informer, that is, the source, had clearly
committed or been party to serious offences. This puts him in a
different class to most informers. I accept that at the time
the undertaking was given, Mr Nicholls may well not have known
of the illegalities involved. At the time of the trial, he did.
I make it clear that this court will not accept an undertaking
as sufficient reason in these circumstances not to disclose
criminal behaviour, as in this case and so diminish the
responsibility of the journalist, whoever he be; I believe that
is consistent with all of the various freedoms the press is
entitled to and to which I have referred." 21. His Honour then went on to refer to s.48 of the District Court Act which deals with punishment for contempt. That section provides:
"(1) The Court may punish a contempt as follows:
(a) it may impose a fine; or
(b) it may commit to prison for a specified term or until the
contempt is purged.
(2) This section applies both to contempts committed in the face
of the Court and contempts arising from non-compliance with an
order, direction, summons or other process of the Court." 22. After referring to Von Doussa v Owens (No 3) (1982) 31 SASR 116, the learned Judge proceeded:
"It seems that an appropriate range of sentence in these
circumstances is somewhere between three to six months. General
deterrence is significant in this matter. I therefore sentence
you to four months imprisonment. I have considered whether it
is appropriate to suspend the sentence, and I have decided that,
in these circumstances, it is not appropriate and I have
considered whether it is appropriate to impose a fine, counsel
for the contemptor asked that I not do that, in any event I
don't consider that is appropriate. I also considered that it
was inappropriate to sentence you until you have purged your
contempt. You are therefore sentenced to four months
imprisonment. Of course, if at any time you wish to purge your
contempt by disclosing your source, it is a part of this order
that your term of imprisonment will be at an end." 23. Before dealing with the grounds of appeal, I note that it is doubtful whether the learned Judge had power to make an order containing the terms identified in the last sentence of his reported remarks as set out above. In fact the sealed order committing the appellant for contempt did not include the rider there mentioned, namely, that the term of imprisonment would "be at an end" if at any time he disclosed the source. The sealed order only directs that the appellant be imprisoned for four months. It is true that under Rule 93.10 "where a person in contempt is committed to prison for a specified period, the Court may order his discharge before the expiry of that period". But to bring that rule into operation, a separate application would be necessary, which would need to be considered on its merits, or possibly the Court could act on its own motion, if there had been a change of circumstances. The learned Judge had power to commit to prison "until the contempt is purged", having regard to the terms of s.48(1)(b) of the DistrictCourt Act, but the power to do so is expressed as an alternative to committal to prison for a specified term, and it would not appear that the section authorises a combination of both, that is, an order committing for a specified term which would terminate upon the contempt being purged. 24. While it is true that the order appealed from is the order in the form that is sealed, at least, unless it is corrected under the slip rule, it seems to me that it is doubtful whether, as expressed, the order is a valid order. But, as will appear, in my opinion, the order should be quashed for other reasons. It is, therefore, unnecessary further to deal with that aspect of the matter. 25. The learned trial Judge furnished to the Court a report in accordance with the Criminal Appeal Rules. The substance of the report reads:
"I understood my remarks on sentence to be read in the context
of the conduct of the trial (perhaps could be likened to an
alibi situation) and on the discussion and submissions on the
contempt matter. I set the sentence so that approximately 3
months should be served having regard to usual remissions. I
also understood the appellant continues before me in accordance
with Rule 93.10 of the Rules of Court." 26. As to the last sentence in the report, with respect to the learned trial Judge, I do not think it correct to say that the appellant in any sense "continues before" him, unless by that is meant that the Court, upon an application under Rule 93.10, or as I have said, perhaps by its own motion, might, if circumstances change, order the appellant's discharge. 27. More importantly, the report indicates that the learned Judge anticipated that the appellant would be entitled to remissions. In my opinion, the procedure for remissions on sentence does not apply in a case such as this where there has been a committal to imprisonment for contempt of court. 28. The entitlement to remissions arises, if at all, pursuant to s.79 of the Correctional Services Act 1982. Relevantly that section provides:
"(1) This section applies to-
(a) a prisoner who is serving a sentence of life imprisonment
and in respect of whom a non- parole period is fixed whether
before or after the commencement of this Act; and
(b) a prisoner who is serving a sentence of imprisonment for a
term exceeding three months, or a number of sentences under
which the prisoner is liable to imprisonment for more than three
months.......
(2) The Chief Executive Officer must, at the end of each month,
consider the behaviour during that month of each prisoner to
whom this section applies and may, if of the opinion that a
prisoner has been of good behaviour, credit the prisoner with
such number of days of remission, not exceeding 15, as the Chief
Executive Officer considers appropriate......." 29. S.22 of the same Act provides in part:
(1) .........
(2) Subject to this section, a person who is sentenced to
imprisonment or committed to prison will be imprisoned in such
correctional institution as the Chief Executive officer may
determine.
(3) ......." (The emphasis is mine.) 30. In my opinion, the distinction drawn in s.22(2) between a person "sentenced to imprisonment" and a person "committed to prison" is an indication that the words "a sentence of imprisonment" where they appear in the Act, and in particular in s.79, apply to a situation other than where there has been a mere committal to prison. 31. S.12(1) of the Criminal Law (Sentencing) Act obliges a court in fixing the term of a "sentence of imprisonment" to have regard to any remissions of sentence to which the prisoner may become entitled under the CorrectionalServices Act. S.5 of the same Act provides:
"Nothing in this Act affects the powers of a Court to punish
a person for contempt of that court." 32. In my view, that section of the Criminal Law (Sentencing) Act should be construed so as to render the Act inapplicable to punishments imposed for contempt. 33. It must follow that the learned Judge fell into error in that he fixed a term of imprisonment of four months, mistakenly thinking that after allowing for remissions, the appellant would serve an effective term of about three months. 34. The Notice of Appeal to this Court in the form in which it was lodged initially did not raise that point. However, during the hearing the appellant was permitted to amend the grounds of appeal to assert "that His Honour erred in fashioning a sentence that took remissions into account". 35. In my opinion, that amended ground of appeal succeeds, with the result that, quite apart from the other grounds advanced, it is necessary for this Court to reconsider the sentence. 36. That conclusion makes it strictly unnecessary to consider the remaining grounds of appeal. However, I will proceed to deal with them, in deference to the arguments put by Mr Rice, and the fact that they give rise to questions of concern in the community as to whether journalists may keep confidential the identity of their sources. Ground 1 This ground reads: "In imposing the sentence of four months imprisonment, the Learned Sentencing Judge erred in characterising the circumstances of the commission of the contempt as '...to disclose criminal behaviour, as in this case and so diminish the responsibility of the journalist...'" 37. In my opinion, this ground is not made out. It is true, in one sense, that the question giving rise to the contempt was directed towards the identity of the source, rather than the source's conduct. But the words used by the learned Judge when he referred to the disclosing of criminal behaviour, were simply descriptive. I do not read the words as suggesting that if the undertaking related only to non- disclosure of the identity of someone who had not been involved in criminal behaviour, the court would, in those circumstances, have accepted the undertaking as sufficient reason for not answering the questions the subject of the contempt. The words "diminish the responsibility of the journalist" refer to the undoubted fact that if the giving of such an undertaking was to be regarded as sufficient reason for not answering questions at a criminal trial, this would have the effect of extinguishing a responsibility which the journalist as a witness would otherwise have. 38. Ground 2 The learned sentencing Judge erred in failing to have regard to the consequence to the contemptor as a journalist, if he answered the question During the course of his submissions Mr Rice for the appellant made much of the fact that the appellant was an investigative journalist. He put it that the undertaking alleged to have been given by the appellant was given in the course of his occupation as a journalist, and that there was an element of public interest involved in obtaining information of this kind, albeit at the price of such an undertaking. He further submitted that it was not unreasonable for the appellant to take into account, in adopting the stance that he did, that potential sources of information for journalists might decline to give information which it was otherwise in the interest of the public to know if they thought that such an undertaking having been given, it might not be honoured. 39. Mr Rice called in aid of that submission the "code of ethics" to which, as I have indicated, the appellant asserts that he took into account in adopting the stand which he did. 40. The text of the so-called code of ethics was not before the learned trial Judge, nor was its status as a document in any sense binding upon the appellant proved. However, both parties agreed to its tender before this Court on the hearing of the appeal. 41. The document is headed "Code of Ethics" and commences with the statement: "All members of the Australian Journalists Association are pledged to stand by their fellow members in observing and enforcing the AJA Code of Ethics." 42. After a general introductory paragraph, the code proceeds to set out ten separate precepts. Of particular relevance to this case, so it was suggested, are those numbered 3 and 7. They read: "3. In all circumstances they shall respect all confidences received in the course of their calling. 7. They shall use fair and honest means to obtain news, films, tapes and documents." 43. Mr Rice's arguments with respect to this aspect of the matter must be considered against the background of the fact that the law in this country, and in most other common law jurisdictions, does not recognise that any privilege, or at least any absolute privilege, attaches to evidence which might identify the source of information given to journalists, or for that matter, to any material which might be obtained by them when, in the interests of justice, it is necessary for such information to be divulged. 44. Even in the United Kingdom it is doubtful whether s.10 of the Contempt of Court Act, which was cited by the learned Judge in the remarks made by him when he imposed the punishment now in question, altered the common law rule. The rule has been affirmed by courts in Australia for many years. 45. The most that the courts have been prepared to do is to express the rule in negative terms, that is to say, to act on the principle that disclosure of a source will not be required unless it is necessary in the interests of justice. To put the rule in that way accords some recognition of the desirability in certain circumstances of permitting non- disclosure of the identity of a source, but at the same time makes it plain that the interests of justice are paramount; see the decision of the High Court of Australia in John Fairfax and Sons Ltd and Anor v Cojuangco (1988) 165 CLR 346, and in particular per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ at 354-5:
"No doubt the free flow of information is a vital ingredient in
the investigative journalism which is such an important feature
of our society. Information is more readily supplied to
journalists when they undertake to preserve confidentiality in
relation to their sources of information. It stands to reason
that the free flow of information would be reinforced, to some
extent at least, if the courts were to confer absolute
protection on that confidentiality. But this would set such a
high value on a free press and on freedom of information as to
leave the individual without an effective remedy in respect of
defamatory imputations published in the media. That is why the
courts have refused to accord absolute protection on the
confidentiality of the journalist's source of information,
whilst at the same time imposing some restraints on the
entitlement of a litigant to compel disclosure of the identity
of the source. In effect, the courts have acted according to
the principle that disclosure of the source will not be required
unless it is necessary in the interests of justice. ......
The liability of the media and of journalists to disclose their
sources of information in the interests of justice is itself a
valuable sanction which will encourage the media to exercise
with due responsibility its great powers which are capable of
being abused to the detriment of the individual. The
recognition of an immunity from disclosure of sources of
information would enable irresponsible persons to shelter behind
anonymous, or even fictitious, sources." (The emphasis is mine.) 46. Notwithstanding the apparent belief on the part of the appellant that the code of ethics operated to reinforce what he regarded as an absolute obligation which bound him relentlessly to adhere to the stand which he had taken, I have some doubt that it was intended that the code operate in such an absolute fashion, even though principle 3 of the code uses the words "in all circumstances". I find it hard to believe that those words were intended by the Federal Council of the Australian Journalists Association to elevate the preservation of confidences received by a journalist in the course of his or her calling to a position in which they should be regarded as binding irrespective of the law of the land. If the code of ethics was intended to operate in that way, it could only be regarded as a mischievous instrument framed in defiance of the many pronouncements of the courts over the years, which have refused to recognise an absolute privilege in favour of journalists. 47. If the intent of the code of ethics, notwithstanding its expression, was not to create a code operating beyond the law, it is unfortunate, to say the least, that it was not worded in a fashion which said so plainly, in which event, Mr Nicholls may not have regarded it as having the effect upon his mind which he asserts that it did. 48. I must say that I have considerable hesitation in accepting the proposition that obliging journalists to disclose their sources of information has a tendency to restrict the flow of information which otherwise might reach them. The law has been so clear for so long that it is a reasonable assumption that potential sources of information already realise that any such undertaking must yield to the requirements of the interests of justice where those interests are regarded by the courts as paramount. 49. In my opinion, the learned Judge could not have failed to be well aware of the appellant's position as a journalist. But for the reasons which I have indicated, this clearly did not give to the appellant an immunity not available to other citizens. It is likely that the learned trial Judge accepted that the appellant had a genuine but misguided sense of loyalty to his source of information, and to the code of ethics. That it as far as it was necessary for him to go on this issue. In my opinion, there is nothing to indicate that the learned Judge failed to allow due weight for whatever considerations arose by reason of the appellant's occupation. 50. Ground 3 The Learned Sentencing Judge erred in failing to have any or sufficient regard to the contemptors personal circumstances and consequences of imprisonment on his family. Referring to s.11 of the Criminal Law(Sentencing) Act 1988, Mr Rice argued that the imposition of a custodial term of imprisonment was a step to be taken as a last resort, and that if proper weight had been accorded to the personal circumstances of the appellant, and the effect of a prison term upon his family, some other punishment should have been imposed, or the prison term suspended. 51. As I have indicated, in my opinion, the Criminal Law (Sentencing) Act is not of application to this case. However, the courts have always treated imprisonment as a last resort, and the matters which find expression in ss.10 and 11 of the Act do no more than reflect principles which have always guided the courts. (See Gannon v Harper (unreported) Bollen J, 20.7.89, Judgment No 1627, and R v Van Roosmalen (1989) 43 A Crim R 358.) 52. It is true that the appellant, who is aged 32 years, is a married man with a young family, and appears to have had an unblemished record. But the contempt was serious and the appellant refused to purge it, notwithstanding that he became aware, if not before the trial, certainly during the course of the trial, that his informant had been acting illegally. In a case such as this, the adverse effect upon the appellant's family, the seriousness of which in this case cannot be doubted, is largely of the appellant's own making. The learned trial Judge made it abundantly clear that if he purged his contempt he would not be confined to prison. Even at this stage, it is clear from the learned Judge's remarks that he would exercise his power to discharge the appellant from gaol if he purges his contempt. Rather than suggesting that the learned Judge erred in failing to have sufficient regard to the consequences of imprisonment on his family, it is the appellant who perhaps should ask himself whether he has given sufficient weight to those consequences in resolving, as he has, to defy the law. 53. The learned trial Judge clearly considered the question of suspension of the committal order, a course which was open under Rule 93.09, even although he was not invited to do so, but did not consider it appropriate to take that course. In my opinion, he has not been shown to have been in error in reaching that conclusion. 54. In my view, this ground of appeal is not made out. 55. Ground 4 The Sentence imposed by the Learned Sentencing Judge was manifestly excessive In considering this ground of appeal, it is necessary, amongst other things, to consider the seriousness of the contempt. The contempt occurred during the course of the trial of a serious criminal charge. The appellant was legally represented. He made a considered and deliberate decision to elevate his perceived obligations to his source above the requirements of the interests of justice. As a result, the prosecution was denied the opportunity to present to the jury the full picture, that is, evidence which might have been given by the alleged source. The practical effect was that the appellant succeeded in securing an acquittal on incomplete evidence. The stand which he took had the effect of providing him with the means to raise a reasonable doubt in the minds of the jury as to the involvement of the source, without running the risk that to have to name his source, or if the source did not exist, to admit as much, would destroy his defence. The question of the existence of the source went to the very heart of the case and was not related to some peripheral or incidental matter. The stand taken by the appellant clearly had a tendency severely to impair the ability of the jury to arrive at the truth of the matter. 56. I do not think that the seriousness of the contempt lay in the fact that the appellant was deliberately concealing the identity of somebody who, if the appellant's account of the matter was true, was guilty of serious offences. The seriousness of the contempt lies in the interference with the trial process, and in particular the interference with the processes which, if they had been allowed to take effect, would have enabled the adjudication of the charges to have proceeded with the benefit of a full investigation of the relevant circumstances. 57. Mr Rice invited this Court to approach the question of the appropriateness of the penalty upon the basis that "this was not a case where the refusal to answer the question was because there was no source". He invited this Court to approach the matter on the footing that a source did exist, but that for the reasons which he gave in his evidence, the appellant felt obliged not to reveal it. 58. In my opinion, that puts the matter too highly. It would be wrong in principle to reach a conclusion as to the evidence when that evidence has been left in such an unsatisfactory state by reason of the deliberate refusal of the appellant to give the information which would have allowed the complete picture to emerge. On the contrary, the most that can be made of the facts for the purposes of determining sentence is that the verdict of the jury indicates that there is a reasonable doubt as to whether or not the source exists. 59. Insofar as the appellant calls in aid his position as a journalist, for the reasons which I have given, in my opinion, that fact alone did not operate to justify a lesser penalty being imposed than would be imposed upon any other member of the community who might think it right to take a stand which seriously interferes with the administration of justice. No doubt, if the appellant had a genuine but misguided belief that the undertaking obliged him to conceal the identity of his source, that is a matter to which regard could be had in fixing penalty. But when the contempt is so serious, and when it has clearly been brought home to the appellant that such a stand cannot in law be maintained against the requirements of justice, thereafter to persist in defying the law makes it difficult to give much weight to any such consideration. 60. The same might be said of the suggestion apparently accepted by the learned trial Judge that at the time the undertaking was given "Mr Nicholls may well not have known of the illegalities involved". As the learned trial Judge pointed out, at the time of the trial he did know. In any event, it should not be thought that the gravamen of the contempt lay with any such consideration. It would be as much an affront to the administration of justice if a journalist was to refuse to identify a potential witness who was not guilty of illegal conduct, if the conduct of a fair trial were to be jeopardised by such a refusal. It is not unimportant to observe that it would equally be a contempt of court for a journalist, who was not on trial, to refuse to divulge the identity of a witness whose evidence might exculpate a third person facing a criminal charge. 61. The learned trial Judge referred to the need for general deterrence. In my opinion, he was not in error in doing so. What needs to be made clear in the community is that neither journalists, nor for that matter, medical practitioners, priests, accountants, or any of the many other groups in the community who from time to time assert the perceived desirability of maintaining a cloak of secrecy over the communications which they receive from persons with whom they deal, have in law any such right, at least when it would operate against the interests of justice. Members of any of those other professions or occupations may well put forward a case which might appear to be as strong as the case put forward on behalf of journalists for the grant of such a right. But for any such right to be accorded in absolute terms, so that it might operate even where the interests of justice require disclosure, would operate so as to strike at the very foundations of the system of justice. As was observed by King CJ in Von Doussa v Owens (No 3) (supra) at 117-8:
"... the obligations imposed on citizens by the law are
paramount to any private undertakings which may be given. The
effectiveness of the administration of justice depends upon
compliance by witnesses with the legal obligation to answer
relevant questions.... No private undertaking can be regarded
as an excuse for failure to comply with that legal obligation." 62. As King CJ in that case went on to say, the continuing non-compliance in that case with the Court's order that Mr Owens purge his contempt, amounted "to a deliberate and considered persistent defiance of the authority of the law", which in the view of the Chief Justice could neither be condoned nor tolerated. 63. Of course, in this case, while there has been reference to the appellant having the opportunity even now to purge his contempt, that is capable of fulfilment only in a limited sense. This is because once the verdict of the jury was returned, he is immune from further prosecution for the offences upon which he stood trial, whether or not he was now to name the source. The most that could now happen if the source exists and was to be identified, is for the source to be prosecuted if there was evidence justifying that course. 64. At one stage it was suggested by Mr Rice that in some way the punishment should bear some relationship to the likely penalty which would have been imposed if the substantive offence had been made out. In fairness to him, it should be observed that this was a submission which was but faintly pursued. In my opinion, it is untenable. In the first place, this was a serious offence, and to suggest, as he did, that a non-custodial sentence might have been appropriate if the appellant had been convicted is entirely speculative. 65. More importantly, it cannot possibly be a legitimate process of reasoning to measure the severity of the punishment for a contempt in the face of the Court during the course of a criminal trial against the possible sentence which might have been imposed if the substantive offence had been made out. The hearing of a charge of the most minor of criminal offences might be punctuated by a gross contempt of court, for example, an attack upon the life of the trial Judge. It could not possibly be suggested that in those circumstances the penalty for the contempt should, in some way, be measured against the possible penalty for the substantive offence. 66. However the matter is approached, in my opinion, it simply cannot be concluded that the sentence imposed was manifestly excessive. I reach that conclusion, however, with the qualification that the clear intent of the learned trial Judge was that the appellant serve approximately three months in custody. As I have already concluded, there was an appealable error in the learned trial Judge's belief that the punishment which he was imposing would be subject to remissions. 67. In those circumstances, I think it proper that the order appealed from be quashed, and that there be substituted an order that the appellant serve a term of imprisonment which approximates the term which the learned trial Judge intended that the appellant serve. I would substitute an order that the appellant be committed to prison for a term of twelve weeks, to date from 19 April 1993.
JUDGE3 MULLIGHAN J On 19th April 1993 the appellant pleaded guilty to the allegation that he was in contempt of court in refusing to obey a direction of the Judge presiding at his trial upon charges of serious criminal offences in the District Court. 2. The appellant was a journalist employed by the Australian Broadcasting Commission. He described himself as an investigative journalist. He was investigating a Minister of State, whom he claimed may have had a conflict of interest with respect to her official duties and which arose, at least in part, because of the Minister's association with a man I shall call S. During February and March 1992 someone impersonated a Mr. S when contacting, by telephone, a bank at St. Peters and a bank at Perth. The impersonator sought bank statements and other documents with respect to certain financial transactions on the accounts of companies in which S had an interest. The bank at Perth required an authority in writing signed by S before disclosing information and making available various documents which had been requested by the impersonator. Such an authority was provided but it was a forgery. It had never been signed by S and he had no knowledge of it or of the many enquiries made of the two banks by the impersonator. On 12th March 1992 the appellant went to the bank at St. Peters and obtained various statements and documents following arrangements made by the impersonator with the bank. 3. It was alleged that he is the impersonator. He then used these statements and accounts in various ways when making allegations of serious impropriety against S and the Minister. 4. He was charged with three counts of impersonation of S in order to obtain property, which counts relate to telephone calls to the banks, one count of false pretences, which relates to his collecting statements and documents at the bank at St. Peters, it being alleged that he falsely pretended that he was S, and one count of forgery which relates to the authority in writing. He denied those allegations and upon his arraignment pleaded not guilty to each charge. His trial proceeded before the learned Judge and a jury. 5. The appellant gave evidence at the trial. He denied that he was the impersonator. According to him he had a source who may have been the impersonator. He made his mobile telephone available to his source and he also permitted him to use a room in the premises of the Commission. That evidence, if accepted as a reasonable possibility, could provide an explanation for the evidence of the telephone calls being made to the banks through the appellant's mobile telephone and from the telephone at the premises of the Commission. The appellant told the jury that he knew telephone calls were being made to various people by those means, but they were not made in his presence and he was not aware of what was being said or that there was any illegal conduct by the source. He explained that he had made these facilities available because the source had become concerned at meeting the appellant in public. The appellant also denied any knowledge of, or involvement in, the forgery and denied that he had impersonated S or made any false pretence when he went to the bank at St. Peters and collected the statements and documents. His version was that he merely collected a parcel that was handed to him and he did not say that he was S. 6. Clearly the evidence in the Crown case established that there was an impersonator and that it is very likely that he was also the forger. The only substantial issue at the trial was whether the appellant was that person or whether he did have a source who was the offender. As might be expected, the appellant was asked about the alleged source. He declined to answer any questions which he considered might identify, or tend to identify, the source, although he did say that the person was male and lived in Adelaide. 7. He was pressed by the prosecutor to name his source but maintained his refusal claiming that he was bound by an undertaking given to the source that he would not disclose his identity. The prosecutor requested the learned Judge to direct the appellant to answer the question and he did so on 5th April 1993. Relevant passages of the transcript are as follows:-
"Q. Who is your source.
A. I cannot identify him.
(HH) Q. Mr. Nicholls, you are required to answer the question.
It is not a privilege matter and I direct you to answer the
question.
A. Your Honour, I am very sorry about the position, but I have
not been released from that undertaking I gave during the course
of this, my investigations. I contacted the source in the first
week of this trial, to ask if I would be released and I was
informed I wouldn't be released from that and I am sorry, but I
can't.
Further cross-examination
Q. I take it that if I ask any questions which are designed to
at least determine the nature of that person's job or profession
or with whom that person worked, you would refuse to answer it.
A. That is correct.
Then (HH) put to Mr. Nicholls the following:
Q. Mr. Nicholls, you refuse to answer the question. Do I
understand your reasons are two fold; that you have given this
person an undertaking that you will not divulge his identity,
and as Mr. Millsteed said, notwithstanding that on the evidence
before us, it seems he has committed offences and put you in
this invidious position and if that were all, you might consider
answering, I don't know whether you would or not. Is it further
that you consider that if you answer the question, it is a
breach of what you consider is the proper practice of
journalists and if you answer the question in this case, then
journalists as a whole will not have available to them sources
which may be legitimate.
A. That is correct.
Q. Of course that doesn't release you. There is no reason for
not answering the question I have asked you. I wanted you to
understand on what basis you were refusing. As a matter of law,
you are still required to answer the question, but you refused.
A. That is correct." 8. The trial proceeded and the appellant was acquitted of all charges on 16th April 1993. On the 19th April 1993 the appellant was brought before the learned Judge. The prosecution alleged that the appellant was in contempt of court by not complying with the direction to name the alleged source. The learned Judge had the clerk of arraigns read to the appellant the allegation and he pleaded guilty. S.47(c) of the District Court Act 1991 provides that any person who refuses, in the face of the Court, to obey a lawful direction of the Court, is guilty of a contempt of the Court. S.48 provides as follows:-
"48.(1) The Court may punish a contempt as follows:
(a) it may impose a fine; or
(b) it may commit to prison for a specified term or until the
contempt is purged.
(2) This section applies both to contempts committed in the face
of the Court and contempts arising from non-compliance with an
order, direction, summons or other process of the Court." 9. After hearing submissions the learned Judge proceeded to punish the appellant by committing him to prison for a period of four months, but he went on to say: "Of course, if at any time you wish to purge your contempt by disclosing your source, it is a part of this order that your term of imprisonment will be at an end." 10. The order of the District Court as drawn up and sealed does not contain this rider. 11. The learned Judge regarded the conduct of the appellant as a serious contempt of court. He appears to have dealt with the appellant on the basis that the appellant did have a source. In his remarks on committing the appellant to prison he said:-
"On Friday last 16th April, the jury returned with majority
verdicts of Not Guilty on all counts. It is consistent with the
verdict and the evidence that the Crown had proved the three
offences of impersonation and one of forgery by someone and on
the evidence, as consistent with the jury and with the evidence
of the contemptor committed by his source whom he refused to
disclose." 12. And later:
"In the subject case, the independent informer, that is, the
source, had clearly committed or been party to serious offences.
This puts him in a different class to most informers. I accept
that at the time the undertaking was given, Mr. Nicholls may
well not have known of the illegalities involved. At the time
of the trial, he did. I make it clear that this court will not
accept an undertaking as sufficient reason in these
circumstances not to disclose criminal behaviour, as in this
case and so diminish the responsibility of the journalist,
whoever he be; I believe this is consistent with all the various
freedoms the press is entitled to and to which I have referred." 13. It would be quite inappropriate, in the circumstances, for a different basis for punishment to be accepted on appeal. True it is that there appear to have been two possibilities open on the evidence. One possibility is that the story about a source was a fabrication and invented to meet the inculpatory evidence in the Crown case of the origin of the telephone calls and to provide an explanation for the appellant's attendance at the bank at St. Peters. The other possibility is that adopted by the learned Judge which is consistent with the verdicts of the jury. He heard the evidence at the trial and it cannot be suggested that he has taken an incorrect view of the evidence or of the significance of the verdicts. 14. The grounds of the appeal are:-
1. The learned Judge erred in characterizing the commission of
the contempt as "to disclose criminal behaviour, as in this case
and so diminish the responsibility of the journalist", because
(a) the question giving rise to the contempt was directed
towards the identity of the source, not whether there was
criminal behaviour that required disclosure;
(b) the undertaking giving rise to the failure to answer the
question was not intended to "diminish the responsibility of the
journalist".
2. The learned Judge erred in failing to have regard to the
consequence to the appellant as a journalist, if he answered the
question.
3. The learned Judge erred in failing to have any or sufficient
regard to the contemptor's personal circumstances and the
consequences of imprisonment on his family.
4. The "sentence" was manifestly excessive. 15. In his report the learned Judge explained that he fixed the period of imprisonment at four months so that the appellant would be imprisoned for approximately three months having "regard to usual remissions". No doubt he was referring to remissions granted to prisoners serving sentences of imprisonment pursuant to s.79 of the Correctional Services Act 1982. Upon that report becoming available and in view of an issue which arose on the appeal, an additional ground of appeal was permitted to be added which may be expressed as follows:-
5. The learned Judge erred in having regard to remissions. 16. Before considering each of the grounds of appeal, it is appropriate to make some observations. The learned Judge obviously regarded the appellant's contempt of court as a very serious matter and, in my view, he was obliged to do so. It has long been established that no privilege attaches to journalists which entitles them to refuse to disclose at a trial their sources of information. It is necessary only to refer to McGuiness v. The Attorney-General of Victoria (1940) 63 CLR 73 per Dixon J. at pp 102-103:-
"No one doubts that editors and journalists are at times made
the repositories of special confidences which, from motives of
interest as well as of honour, they would preserve from public
disclosure, if it were possible. But the law was faced at a
comparatively early stage of the growth of the rules of evidence
with the question how to resolve the inevitable conflict between
the necessity of discovering the truth in the interests of
justice on the one hand and on the other the obligation of
secrecy or confidence which an individual called upon to testify
may in good faith have undertaken to a party or other person.
Except in a few relations where paramount considerations of
general policy appeared to require that there should be a
special privilege, such as husband and wife, attorney and
client, communications between jurors, the counsels of the Crown
and State secrets, and, by statute, physician and patient and
priest and penitent, an inflexible rule was established that no
obligation of honour, no duties of non-disclosure arising from
the nature of a pursuit or calling, could stand in the way of
the imperative necessity of revealing the truth in the witness
box." 17. Dixon J. went on to note that in the course of the Parnell Commission in 1889 Sir James Hannen P. ruled that no such privilege existed. 18. No person or class of persons is above the law and no private undertaking can be regarded as an excuse for failure to comply with the legal obligations imposed upon all witnesses to answer relevant questions: von Doussa v. Owens (No.3) (1982) 31 SASR 116 per King CJ at pp 117-118. Refusal to answer relevant questions strikes at the very heart of the administration of justice. Unless witnesses comply with their obligations, justice is likely to be frustrated, a consequence unacceptable to all right-minded citizens. 19. The second observation which should be made is that the crimes of impersonation and forgery as disclosed by the evidence at the trial were undoubtedly very serious. Mr. Rice sought to have them categorized at the bottom end of the scale of seriousness as they involved no more than the impersonation to obtain bank statements and documents which, in themselves, had no financial value. However, the gravamen of the conduct of the impersonator was that he was seeking to obtain documents of another from a financial institution which owes a duty of confidence to its customers and which they are entitled to expect will be observed. These crimes were serious because they caused the banks to unwittingly breach that confidence due to wilful deception. Consequently it may be seen that the appellant was on trial on serious charges. 20. His refusal to disclose the source was likely to have serious consequences at the trial. One such consequence was described by Dowsett J. in Copley v. Queensland Newspapers Pty. Ltd. (unreported, Supreme Court of Queensland, 20th March 1993, No. 3107 of 1989) as follows:-
"It is very easy for a witness to say that he made inquiry of an
unknown source, a source whom he cannot now remember or whose
name he is not willing to disclose. It compels an additional
level of honesty upon him if he has to disclose a name even if
the plaintiff is not now in a position to call evidence to rebut
that allegation. A witness who identifies the name of the
person from whom he derived information is put at risk of that
person coming forward and denying the fact with whatever
consequence that may have. Thus it seems to me to be more than
a reasonable way of testing credibility to insist upon
identification of source." 21. The jury were deprived of relevant evidence which may have assisted them in their deliberations to arrive at the truth of the matter. Furthermore, the prosecution was deprived of the opportunity of testing important features of the appellant's story and of carrying out investigations with the view to seeking leave to adduce evidence in rebuttal. 22. It appears that the learned Judge was prepared to accept that the refusal to answer the question cast the appellant in an unfavourable light in the eyes of the jury. I confess to considerable difficulty in understanding how that could be so. I would have thought it quite likely that the appellant may have cast himself as a person of high principle who was prepared to sacrifice his own interests in obedience to the confidence which he claimed existed. If that is so, then the learned Judge took a view which was unduly favourable to the appellant. However, as the trial judge he was in the best position to make an assessment and his view must be accepted. 23. I turn to the first ground of appeal. The appellant contends that the learned Judge was in error because there was no suggestion that the appellant gave an undertaking not to disclose criminal behaviour. The undertaking was not to disclose the identity of the source and was given at a time when the appellant says he was not aware that criminal behaviour had occurred or was intended. Strictly speaking the appellant's contention was correct. However, I think it is likely that the learned Judge did not express accurately what he intended to say. He was probably referring to a consequence of adhering to the alleged undertaking, namely that the identity of the perpetrator of criminal conduct was not disclosed. At all events this observation of the learned Judge was not a finding of fact upon which the punishment which he imposed was based. He was doing no more than expressing the true legal position; the courts cannot accept an undertaking as an acceptable reason not to answer questions and the existence of an undertaking does not diminish the responsibility of the journalist. There is no substance in this ground. 24. In support of the second ground of appeal, it was contended that if the appellant had named his source the consequences to him as a journalist, indeed to all journalists, would be far reaching as they could expect that their sources of information would diminish, if not dry up. The learned Judge did not advert to this contention which, in my view, is not surprising. There was no evidential basis for such a contention. It could not be assumed without evidence. There was no reason for the learned Judge to suppose that if the appellant disclosed his source no other journalist would ever receive information or that he would not, any more than it may be supposed that upon a police officer being required by a court to disclose the identity of an informer will have the consequence of informers never supplying information to police. 25. As to the third ground of appeal, there is no reason to suppose the learned Judge did not have regard to the personal circumstances of the appellant. The appellant is aged 33 years and is married with four young children. His employment with the Commission ceased in August 1992. Since then he has been unemployed. The learned Judge heard the appellant's evidence and he was aware of his personal circumstances, at least in a general way. He knew that he had not committed any criminal offences. In his remarks, the learned Judge said that general deterrence is significant. Obviously he took the view that the seriousness of the contempt and the need for general deterrence outweighed the personal circumstances of the appellant, a view which I share. This ground must fail. 26. Mr. Rice contended, in support of the fourth ground and his argument generally, that the learned Judge did not have regard to s.11 of the CriminalLaw (Sentencing) Act which provides as follows:-
"11(1) A sentence of imprisonment must not be imposed for an
offence unless, in the opinion of the court -
(a) the defendant has shown a tendency to violence towards other
persons;
(b) the defendant is likely to commit a serious offence if
allowed to go at large;
(c) the defendant has previously been convicted of an offence
punishable by imprisonment; or
(d) any other sentence would be inappropriate, having regard to
the gravity or circumstances of the offence.
(2) This section does not apply in relation to a sentence of
imprisonment imposed in default of payment of a fine, or for the
enforcement of some other sentence." 27. He argued that there were other options which should have been utilized rather than committal to prison. Section 11 expresses a well known sentencing principle that a court entrusted with a sentencing discretion should regard imprisonment as a sentence of last resort: Weetra v. Beshara (1987) 46 SASR
484 and Chapman v. Harries (unreported, Supreme Court of South Australia, Full Court, 15th March 1993, S3867). In my view the Criminal Law (Sentencing)Act has no application to punishment for contempt of court. It is an Act, as stated in the preamble, "to consolidate and amend the law relating to sentencing and the enforcement of sentences ...". Section 5 of that Act provides:- "5. Nothing in this Act affects the powers of a court to punish a person for contempt of that court." 28. Nevertheless the "last resort" principle is of application when punishing a person for contempt of court. Courts must always explore other forms of punishment before deciding upon committal to prison. There is no reason to suppose that the learned Judge did not do so. In his remarks he referred to the decision of the Full Court in von Doussa v. Owens (supra) as being "of considerable interest in the scope of penalties". He also said:- "I have considered whether it is appropriate to suspend the sentence, and I have decided that, in these circumstances, it is not appropriate and I have considered whether it is appropriate to impose a fine, counsel for the contemptor asked that I not do that, in any event I don't consider that is appropriate." 29. Pursuant to r.93.09 of the Supreme Court Rules 1987 which apply to proceedings in the District Court, see R.11-1 of the District Court Rules 1992, the learned Judge was empowered to direct that the execution of the order of committal to prison be suspended for such period and on such terms and conditions as he thought fit. Clearly, the learned Judge had regard to this power and rejected that approach as inappropriate. In my view he was obliged to take a serious view of the appellant's contempt. He did have a discretion to suspend the execution of his order but he declined to do so. It was his discretion to exercize and the court on appeal will not interfere unless the discretion was wrongly exercized. I am unable to detect any error. In the fourth ground of appeal the appellant complains that the period of imprisonment for four months was manifestly excessive. Mr. Rice pointed to decisions in two other cases, interstate. Copley's case (supra) and The Queen v. Barrass, a decision of His Honour Judge Kennedy of the District Court of Western Australia, 7th August 1990. In Copley's case a journalist, called as a witness in a civil action, refused to disclose his source of information and was committed to prison for two weeks for contempt of court. In Barrass's case (supra) a journalist, who also refused to disclose his source when called as a witness in criminal proceedings, was committed to prison for seven days by a magistrate, the maximum period pursuant to the relevant legislation. When called at the trial, he again refused to disclose his source and he was taken into custody by order of the court and fined $10,000 with the direction that he remain in custody until the fine was paid or until he had spent nine months in custody, whichever first occurred. This case is an example of the very serious view taken by a court of a contempt of this nature. 30. In his remarks, the learned Judge referred to von Doussa v. Owens (No.3) (supra). He said:-
"I have had some help from ... the decision of the Full Court
in von Doussa v. Owens ..., which I discussed with counsel in
submissions, although I don't rely on that, but it is of
considerable interest in the scope of penalties. It seems that
an appropriate range of sentence in these circumstances is
somewhere between three to six months. General deterrence is
significant in this matter". 31. In that case the defendant, the managing director of a newspaper proprietor, refused to answer questions asked by an inspector appointed under the Securities Industry Act 1979 to investigate and report on certain matters concerning dealings in securities of a public company. He was committed to prison for contempt of court in failing to comply with an order of the Full Court requiring him to answer the questions. He maintained that he was prevented from doing so because of an undertaking to overseas interests that he would not disclose their identity. Mitchell J. thought that a punishment of imprisonment for three months was appropriate but took the view that he should be released after being in prison for about ten weeks. Zelling J. would have committed him to prison for six months and Wells J. agreed with Mitchell J. but thought that in future if any similar cases of contempt arose, the Court should move to greater punishment. 32. Much was made of these cases during argument. However, they do not establish a tariff and it is pointless to try and distinguish or apply any of them for the purpose of determining an appropriate level of punishment for cases of this nature. They are useful only because they demonstrate that the courts do regard contempts of this nature very seriously, so much so that imprisonment is justified. The circumstances in which contempts of this nature occur vary enormously. My view is that the best person to assess the gravity of a contempt of this kind where it occurs during a criminal trial is the trial judge who best understands, in a practical way, the issues at the trial and the consequences of the contempt. There should be no interference with his decision unless it is plainly wrong. I am unable to detect any error in the approach of the learned Judge and the punishment which he intended to impose was fully justified in the circumstances. 33. The learned Judge did err when he had regard to remissions as claimed in the fifth ground of appeal. Section 79 of the Correctional Services Act provides, inter alia, that a prisoner who is serving a sentence of imprisonment for a term exceeding three months is entitled to remissions for good behaviour. The practical effect of this provision is that a prisoner under sentence who is of good behaviour may earn remissions up to about one-third of his sentence. No doubt the learned Judge assumed that the appellant would earn maximum remissions and that is why he committed him to prison for four months expecting that he would serve about three months. 34. In my view the appellant is not a prisoner who is serving a sentence of imprisonment within the meaning of s.79. He has been committed to prison for a specified term. S.48 of the District Courts Act does not provide for a sentence of imprisonment but for the punishment of a contempt by committing to prison. This distinction is to be observed in s.22(2) of the CorrectionalServices Act which provides that "a person who is sentenced to imprisonment or committed to prison" will be imprisoned in such correctional institution as the Chief Executive Officer of the Department of Correctional Services determines. Section 39 provides for the release from prison of a contempt prisoner who purges his or her contempt. A contempt prisoner is defined in s.4(1) as a person committed to prison, or sentenced to imprisonment, for failure to comply with an order for payment of a pecuniary sum, or for contempt of court. Where fines are imposed it is common for a sentence of imprisonment to be imposed in default of payment of the fine. The distinction between a person sentenced to imprisonment and a person committed to prison is necessary. A sentence is a final order of a court which, usually, may only be varied on appeal. Committal to prison for contempt of court even for a fixed period is always subject to variation. R.93.10 provides that where a person, such as the appellant, is committed to prison for a specified period, the court may order his discharge before the expiration of that period. No doubt the learned Judge had this power in mind when he made the rider to his order. It was inadequately expressed but it clearly meant that if the appellant was prepared to disclose the source, an application under R.93.10 would be favourably received. 35. For those reasons the appellant cannot be regarded as a prisoner serving a sentence of imprisonment and is not entitled to remissions for good behaviour. Consequently, the learned Judge erred in fixing the period of four months intending that the appellant remain in prison for three months. In view of that error, the order cannot stand and the discretion of the learned Judge must be exercized by this Court on the appeal. I would exercize the discretion so as to give effect to the stated intention of the learned Judge. I expect that the appellant would have earned full remissions if available and would have served a few days more than twelve weeks had the basis of the order been correct. I would allow the appeal and substitute an order that the appellant be committed to prison for a period of twelve weeks to commence on 19th April 1993.
5
0