R v Australian Broadcasting Corporation
[2007] VSC 498
•3 December 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6756 of 2007
| THE QUEEN (on the application of the Registrar of the County Court of Victoria) | Applicant |
| v | |
| KELLIE WILSON and AUSTRALIAN BROADCASTING CORPORATION | Respondents |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 9 October, 13 November 2007 | |
DATE OF JUDGMENT: | 3 December 2007 | |
CASE MAY BE CITED AS: | R v Australian Broadcasting Corporation | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 498 | |
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CONTEMPT – News broadcasts on ABC regional radio – Suppression order forbidding reporting of the proceeding or any information derived from the proceeding – Broadcasts in breach of order – Pleas of guilty - Order not disseminated by the court in accordance with the courts’ protocol – Whether this a mitigating factor - Failure by ABC to instruct reporter to make inquiries before broadcasts – Failure to make inquiries – ABC therefore not aware that order had been made – Procedure to be followed by media before publication of items where a relevant suppression order might be in place although not disseminated in accordance with protocol – Pleas of guilty to further charges that broadcasts had tendency to interfere with due administration of justice – Applicable penalties – Effect of principle of totality.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Langmead SC with Ms F Forsyth | John Cain, Victorian Government Solicitor |
| For the Respondents | Mr P Flanigan SC with Ms R Orr | Australian Broadcasting Corporation Legal Services |
HIS HONOUR:
By the applications presently before me, the Crown seeks certain declarations. One is that the respondents be adjudged guilty of contempt of court for broadcasting certain news items. They went to air at 6.30 and 7.30 on one of the second respondent’s regional radio stations on the morning of Monday 5 February 2007. Another application is for the same declaration, but in respect of a different broadcast of much the same news at 8.30 that morning. A third is that the first two of the impugned broadcasts constituted a contempt because they had a tendency to interfere with the due administration of justice. Finally, the fourth is that the last of those broadcasts had a like tendency. The Crown seeks, in addition, that fines be imposed as punishment.
On Monday 29 January 2007, a judge of the County Court presided at a pre-trial hearing in a town outside Melbourne. Two men, father and son, were about to stand trial. Both lived in the region in which the trial was to be held. Each was charged with conspiracy to steal.
Notoriety surrounded the case. The prosecution alleged that father and son had been involved in the large-scale, illegal, removal of tree ferns. These constitute a beautiful and distinctive component of the flora of the temperate rainforests of south-eastern Australia. They are also a very popular garden plant, for which there was and is extensive demand. Their allegedly wrongful removal by the accused was, or so the authorities thought, accompanied not only by the desecration of the local environment, but also by a series of assaults by the accused on other persons. These assaults were the subject of separate charges. The need for the proceeding to be carefully managed by the trial judge was therefore plain.
In these circumstances, his Honour severed the assault charges from those alleging conspiracy to steal. As I understand it, the latter were to be heard first, with the trial of the assault charges to commence immediately upon the completion of the first trial. Any charges arising from the damage allegedly done to the environment were to be dealt with later again.
In order to meet the obvious possibility that publicity relating to the conspiracy trial would adversely impact upon that for the assaults, and perhaps later trials as well, the learned trial judge exercised the power conferred upon him by s.80(1)(c) of the County Court Act 1958. One of the purposes of the section is to protect the administration of justice. The means adopted is to confer on the County Court power to prohibit the publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding. Such an order may be general in its application. It may therefore bind not merely the parties to the proceedings, but the world at large.
The order pronounced by his Honour reflected the words of the section. It was in the following terms: “Order pursuant to s.80(1) of the County Court Act 1958, the prohibition of the publication of any report of the whole of the proceedings or any information derived from the proceedings until further order.”
Clarity should be an important characteristic of court orders. Thus, for example, an injunction “should be as definite, clear and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and, when practicable, it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling on him for inferences or conclusions about which persons may well differ.”[1]
[1]Collins v Wayne Iron Works (1910) 227 Pa.326, 76A.24,25. See also, in relation to suppression orders at common law, John Fairfax & Sons v Police Tribunal of NSW (1986) 5 NSWLR 465 at 477 per McHugh JA.
If this is true of injunctions, it is at least as apposite in relation to orders directed not only to the parties but to anyone anywhere in the entire jurisdiction. John Fairfax & Sons v Police Tribunal of NSW[2] is a case in point. For this reason, and while acknowledging that it is a matter of little significance, it would I think have been preferable to add the words “or any part” to the order. It would then have prohibited until further order the publication of any report of the whole or any part of the proceedings, or any information derived from them. At the same time, it could not seriously be argued here that the reader of this particular order is faced with “inferences or conclusions about which persons may well differ.” There is no room to suppose that publication of any part of the proceedings was permitted, while only publication of the whole was not. This is especially true given that there could be no publication of any information derived from the proceedings.
[2]See footnote 1, above.
The fact that this order bound, or at least purported to bind, not only the parties to the proceedings, but all within the jurisdiction of the court, gives rise to another, more important, point. It is of course true that very few of those theoretically bound are likely to be directly affected by it. Nevertheless, all who are possibly so affected should be able to discover its existence with minimal difficulty. The media falls into this class. It necessarily has an interest in suppression orders, because of the consequences of disobedience. No doubt mindful of this, the Australian Press Council in its Report on Free Speech Issues 2004-2005, noted that “[i]nadvertent publication of suppressed material must be prevented to the maximum extent”.
The courts too have an interest. Unless knowledge of the orders they make is adequately disseminated, unwitting disobedience is always a possibility, and always to be regretted if it happens. This is the reason for the requirement, imposed by s.80 itself, that an appropriate notice be posted on the door of the court. No more need be done to satisfy the statute. On the other hand, Victorian courts acknowledge that they have an additional responsibility (imposed not by law but by obligations of comity) to provide the relevant information to the very persons and organisations – the media and individuals connected with the media - to whom suppression orders are commonly directed.
It is an important general principle of litigation that those who are to be bound by the judgment or orders of the court should be given notice of the proceedings and, in the usual case, be made a party to them. Consistently with this, at common law “a court has no power to pronounce to the public at large such a prohibition against publication that all disobedience to it would automatically constitute a contempt.”[3] Indeed, McHugh JA has pointed out that such power is legislative, not judicial, because it purports to operate as a common rule and to bind people generally.[4]
[3]Attorney-General v Leveller Magazine [1979] AC 440 at 464 per Lord Edmund-Davies.
[4]John Fairfax & Sons v Police Tribunal of NSW (1986) 5 NSWLR 465 at 477.
It is likewise consistent with these principles that knowledge of the existence of a suppression order was an essential requirement of the offence of contempt based upon disobedience of that order.[5]
[5]Registrar, Supreme Court of South Australia v Herald & Weekly Times Ltd [2004] SASC 129.
It is against this background that Victorian courts have established a protocol which, when followed, ensures the dissemination to all significant media organisations, including of course the second respondent (according to the context, either “the ABC” or “the Corporation”), of relevant information about all suppression orders. In the case of the conspiracy trials with which I am here concerned, however, this protocol was not followed.
I do not know who, if anyone, is to blame. It is most likely that the responsibility for the failure lies with the courts. It did not lie with the ABC; and it would be unjust, as between this Court and the Corporation, to proceed on any basis other than that the courts are responsible. The evidence discloses that the courts’ liaison officer (now entitled the “strategic communications advisor”) was on holidays at the time the suppression order was made. Another senior member of the court staff was standing in for her as the temporary liaison officer. As soon as she was informed of the existence of the order of 29 January, she put the protocol into effect. No fault, therefore, lies with her. By then, however, it was too late. That was because she was not herself given the relevant information until Tuesday 6 February. It was therefore not until then that she was in a position to distribute the usual notice, albeit about an order made eight days before. In the meantime, the broadcasts which have given rise to these proceedings had gone to air.
The trial proper was set down to commence on Monday 5 February 2007. On Friday 2 February, the Department of Sustainability and Environment (“DSE”), which described itself as having “led” this “significant” trial, issued a media alert. It was circulated to journalists and media reporters that afternoon by the Department’s communications branch. It is headed “Embargo applies – Prohibition of Publication of Proceedings Order in force”.
The media alert then proceeds to publish information which, at least arguably, is as “derived” from “the proceedings” as that broadcast by the ABC and now the subject of complaint before me. The media alert identifies the accused. It states that they have been charged with conspiracy to steal large quantities of tree ferns and hardwood timber from native forests, the location of which is revealed. It further asserts that environmental damage has been done to approximately 50 hectares of Crown, plantation and private land, and that the accused “could face up to 10 years’ imprisonment and/or fines of up to $120,000.”
Given its contents, the media alert may itself have been in breach of his Honour’s prohibition. There is a strong argument for the proposition that it was. Nevertheless, it was published only to the media, and was designed to restrict further publication. The Department is not to be criticised if this was done with the approbation of the judge, although it would I think have been preferable had the media alert been the subject of an express exception from the suppression order. The message conveyed was that:
…details of proceedings CANNOT be published or broadcast until completion [scil. of the trial]. The case is expected to be heard in open court at [a specified location], before [a specified judge]. Journalists will still be entitled to attend and take notes if they wish. Check directly with the County Court should you need any further clarification on the Order or are seeking transcripts. [T]he DSE Prosecutor … will be available for further comment only when proceedings in this case are concluded, and final sentencing handed down.
The first respondent, Ms Kellie Wilson, is a reporter based in the region in which the trial was to be held. The ABC is her employer. Ms Wilson had the responsibility of preparing at least part of the ABC’s regional morning news bulletins on Monday 5 February. She did not check her emails before the 6.30 a.m. bulletin went to air on that day. As a result, she did not see the message from DSE. She did not otherwise know of the suppression order. It was in those circumstances that the 6.30 a.m. bulletin contained the following item:
The trial of two [named local] men, charged with stealing $200,000 worth of protected tree ferns from the … Ranges, starts at [circuit town]today.
It’s alleged the father and son … stole tens of thousands of tree ferns from forests near [a particular locality] over a four year period. The men, along with two others, are alleged to have then sold the ferns to wholesale nurseries.
Previous court hearings have heard bulldozers were used to remove the ferns causing $12 million damage to the forest near the head waters of [a specified] River.
A relevantly similar, but not identical, item was included in the defendant’s 7.30 a.m. news bulletin. The most significant difference was that the reference in the first report to “tens of thousands of tree ferns” did not appear in the second. Then, at 8.30 a.m., the reference to previous court hearings was dropped; but, as the transcript of the broadcast shows, the 8.30 bulletin otherwise differed only incidentally from its predecessors. It contained the following:
The trial of two [named local] men, charged with stealing tree ferns from the … Ranges, starts at [circuit town] today. It’s alleged the father and son … stole $200,000 worth of protected ferns from forests near [a particular locality] over a four year period.
The men, along with two others, are alleged to have then sold the ferns to wholesale nurseries. It’s alleged bulldozers were used to remove the ferns causing $12 million damage to the environment.
When the attention of the judge was drawn to these news items, he was naturally concerned. As I understand his exchanges with counsel, he had four issues particularly in mind. First, that each of the relevant news bulletins misdescribed the conspiracy counts as counts of stealing. Secondly, that each referred to allegations of environmental damage, although these were not included in the relevant presentment. Thirdly, that by their reference to the extent of the environmental damage, the broadcasts introduced an emotionally charged element into their description of the trial that was then about to begin. This was compounded by a reference to the value - and (in the 6.30 broadcast) to the number - of the tree ferns allegedly stolen. Finally, his Honour was concerned that his s.80 order had been disobeyed, and that news about a trial to commence that morning had been broadcast without any attempt to ensure that it accurately described the charges, and only the charges, that the jury was about to consider. I share his Honour’s concern.
On 7 February, two days after the offending broadcasts, counsel for the ABC appeared before his Honour. The judge then, albeit inferentially, cast some doubt on whether there had, in strictness, been any infringement of the relevant order. He noted that “the material [used in the broadcasts] … did not come from this Court”. And, indeed, it did not. The ultimate source of the information in the several news items appears to have been not the pre-trial hearing in the County Court but the committal proceedings, which were not, so far as I am aware, the subject of any like order.
It is therefore at least debatable that the impugned news items did not constitute a report of the relevant “proceedings”, or contain any information derived from them. Indeed, the circumstances in which the order was made were, it might be said, enough to settle the point. This is especially so given the appearance of the number of the relevant presentment on the document on which the order was printed. Moreover, as the Court of Appeal of this Court said in Re Applications by Chief Commissioner of Police (Vic) for Leave to Appeal,[6] statutory provisions for suppression “ought ordinarily to be strictly construed”. So construed, the expression “the proceedings” as used in the order of 29 January would seem to encompass only the prosecution of the accused father and his accused son pursuant to the presentment then before the County Court.
[6](2004) 9 VR 275 at 286.
Nevertheless, the ABC did not contend that, when so construed, no breach of the order had occurred. Nor has the ABC relied on the common law defence that knowledge of the existence of a suppression order was an essential requirement of the offence of contempt based upon disobedience of that order. On the contrary, the Corporation has pleaded guilty to four charges that it is in contempt of court. The first such charge is that, in breach of the suppression order, the ABC broadcast and published news items on ABC radio on 5 February 2007 at 6.30 am and 7.30 am. The second is in like terms, except that it refers to the news item broadcast at 8.30 am. The third alleges that the broadcasting of the 6.30 and 7.30 items “constituted a contempt of the County Court in that they had a tendency or were calculated to interfere with the due administration of justice in that [they] had a tendency or were calculated to prejudice the defence … of the criminal charges … and/or … to interfere with the rights of [the accused] to a fair trial.” The final charge refers to the 8.30 am broadcast, but otherwise is in like terms to the third.
In these circumstances, the ABC took the view that the committal was included in the definition of the expression “the proceeding” as employed in the order. Each broadcast was therefore, in effect, a report of the proceeding, because the information each contained was derived from the committal. A plea of guilty was for this reason appropriate.
I have already outlined the contrary argument. I have also pointed to the common law defence of ignorance of the existence of the order. Taking into account the very senior level of representation of the ABC at the hearing before me, I am nevertheless prepared to accept that the pleas of guilty were properly made.
It is also to be noted that the broadcasts can properly be impugned on other bases. As his Honour on 7 February told counsel for the Corporation, anyone with knowledge of the committal proceedings would appreciate that “there were multiple charges against the [accused] and that … there were likely to be severance issues and all sorts of admissibility problems.” His Honour added that “the conduct of your client … has put at risk the whole structure [including severance of the charges] that I was trying to put in place.”
This statement followed a series of questions and propositions put by the judge. Counsel for the ABC responded to them by expressing her client’s regret. She added that the ABC “merely seeks to explain the circumstances in which the broadcasts did go to air.” Then, immediately after his Honour’s reference to the structure that he was attempting to put in place, counsel told him that her client unreservedly apologised. She also stressed that the reporter did not know about the suppression order until after the 8.30 news. The item was not subsequently broadcast.
Although none of this amounted to evidence, his Honour did not question the accuracy of what was put to him from the Bar table. Neither did the applicant in the hearing before me. This of course is consistent with the long established, and very beneficial, ethical rule that a member of the Bar will never put to the court as fact that which is, to the knowledge of the barrister, false. I have no reason to doubt that counsel for the ABC accurately put her instructions to his Honour; that is, that the reporter did not know about the suppression order until after the 8.30 news, and that the item was then immediately dropped.
It was submitted for the applicant that the apology “was put in a context that perhaps detracts somewhat from it being without qualification and in the most robust terms that it could have been put.” This is not my view. In the circumstances of the exchanges initiated by his Honour, counsel articulated her client’s apology as soon as she could, while first respectfully dealing with the points that the judge was making. It was his Honour who established the context. That is what, in the proper discharge of their duty, judges generally do. I suggest no criticism of his Honour for doing it in this case. For the same reason, however, counsel cannot be criticised for engaging with appropriate deference to the bench, and for therefore not putting her client’s apology at some earlier point in the discussion.
His Honour did not accept that the reporter’s ignorance was an excuse. In those circumstances, the matter was referred to the Registrar of the County Court, who in turn referred it to the Prothonotary. Thus the present applications were initiated.
Each broadcast was couched in slightly different language. This is doubtless explicable by reference to the need to accommodate different stories with each edition of the news. One difference, apparently thought important in the framing of the originating motion, was that the first two news items referred to previous court hearings, while the third did not. For myself, I can nevertheless see no logical reason for combining the first and second in the formulation of two of the charges, and isolating the third in the formulation of the others. But no point was made of this in the hearing before me, and I make no point of it now.
When the hearing began in this Court, counsel announced that “the matter is proceeding as a plea” and that “by consent … the charges against Kellie Wilson are to be withdrawn”. I was also informed that the ABC had agreed to pay, on a solicitor/client basis, the applicant’s costs of the entire proceeding against both respondents. In those circumstances, I ordered that the proceeding against Ms Wilson be dismissed, with no costs orders being made against her.
The issues in dispute are narrow. First, the ABC does not contest the issue of liability. Secondly, the applicant accepts that the ABC was not dilatory in disclosing its intention to plead guilty to all charges. Those pleas carry with them an acknowledgment that the suppression order had been disobeyed, and that the impugned news items had a tendency to interfere with the due administration of justice. The end result is that the two sides differ only about the seriousness of the offending behaviour, and about whether there were mitigating circumstances. There is a degree of agreement even about the seriousness of the conduct of the ABC, since the applicant accepts that there was no intentional breach of the 29 January order. Indeed, there could not have been, given that the ABC did not know of its existence. On the other hand, one real point of difference between the parties is whether the failure of the ABC to obey the orders of 29 January is mitigated by the failure of the court to follow its own protocol.
I am satisfied that this latter failure was a cause of the problem. There is no evidence that Ms Wilson knew of the protocol. There is therefore no evidence that Ms Wilson relied on it. Nor, for that matter, is there any evidence that the ABC relied on it, in the sense that the Commission made a conscious decision to broadcast because nothing had been received from the courts. On the other hand, the ABC is on the list kept pursuant to the protocol. In the circumstances, I am prepared to accept the submission of senior counsel for the Commission that, if the protocol had been followed, the ABC would have been informed of the order made on 29 January, and that the offending broadcasts would not have gone to air.[7] I therefore accept the courts’ failure to give effect to the protocol as a mitigating factor.
[7]Transcript, 9 October 2007, p.48 lines 6 and 7.
It was common ground in the hearing before me that a contempt of court may be committed even though the guilty party had no intention to interfere with the due administration of justice. By like reasoning, an absence of intention to disobey a statutorily-based suppression order does not of itself negative the disobedience. It was also common ground that, in the present circumstances, ignorance of the existence of the order is no excuse. Both the applicant and the ABC accepted that the media nowadays has a duty to ascertain, in respect of any case that is intended to be the subject of an item of news, whether or not an applicable suppression or prohibition order, made pursuant to statute, is extant. The argument, as I understand it, also accepts that, while the duty may not be absolute, it does at the least require the media to take reasonable steps to discover the true position.
In a paper delivered at the Judicial Conference of Australia Colloquium held in October 2006, the director of the Centre for Media and Communications Law at The University of Melbourne, Associate Professor Andrew T Kenyon, stated that “South Australian litigation well demonstrates [that] it is no excuse for the media that it lacks knowledge of a statutory suppression order (because of breakdown in communications within that or other media outlets).”[8] This proposition is based upon the provisions of the Evidence Act 1929 of South Australia. That Act provides, by s.69A, that a court may in certain specified circumstances make a suppression order. Once made, the court must as soon as practicable forward a copy to the registrar, and (except in the case of an interim order) forward to the Attorney-General a report containing specified information and particulars of the reasons for which the order was made.[9]
[8]Andrew T Kenyon Justice Seen to be Done: Suppression Orders in Law and Practice – Paper delivered at the Judicial Conference of Australia Colloquium, October 2006.
[9]Evidence Act 1929 (SA) s.69A(8).
Immediately after receipt of a copy of the order, the registrar is in turn required to enter it in a register maintained for the purpose; and, immediately upon such registration, he or she must give notice of it to each authorised news media representative.[10] The register is to be available for inspection by members of the public free of charge during ordinary office hours.[11]
[10]Ibid, s.69(10).
[11]Ibid, s.69(11).
These legislative provisions set the context for a case heard by the Court of Criminal Appeal of South Australia. In The Herald & Weekly Times Ltd v DPP and Vlassakis,[12] the publisher of the Herald Sun, a Melbourne tabloid with a limited circulation in South Australia, was the appellant. It did not then (and may not now) have an “authorised news media representative” on the list kept by the registrar for the purposes of giving the notice required by s.69(10) of the Act. It sought leave to appeal against an order suppressing any pictorial image of Mr Vlassakis, who was the second respondent in that case. He had pleaded guilty to four counts of murder, and had subsequently been sentenced to life imprisonment. The suppression order had been made at the time of his plea. The Herald & Weekly Times was not then represented in court. Nor did the registrar inform it that the order had been made. Given that it was not on the registrar’s list, that is not surprising. It is perhaps also not surprising that it failed to take advantage of the right, given by sub-s.(11), to inspect the register. It explained to the Court that it was usually informed about suppression orders in South Australia either through its sister News Ltd publication, the Adelaide Advertiser, or through Australian Associated Press.
[12](2003) 86 SASR 70 at [300].
One issue before the Court of Criminal Appeal was whether an entity in the position of the Herald Sun had a right of appeal. Assuming that it did, the short point of the appeal was whether an order of the kind made in relation to Mr Vlassakis was a “suppression order” within the meaning of s.68 of the Act. The mechanisms established by s.69A were therefore of incidental relevance. In these circumstances, the only judge to consider the point with which I am concerned was Bleby J. In the course of his examination of that issue, his Honour said:
Plainly, it is not possible for the court or parties involved to arrange for service of a suppression order on any person who might wish to publish information the publication of which is proscribed by the order. That is why sub-sections (10) and (11) [of section 69A] require the court immediately to forward to the registrar a copy of the order and notification of any variation or revocation of it. The registrar maintains a register of all suppression orders … and that register is to be made available for inspection by members of the public free of charge during ordinary office hours. There is plainly an obligation on a media organisation, before publishing material which might be the subject of a suppression order, to search the register to ensure that no such order has been made. This is particularly so in a case such as this which is likely to attract, and does indeed attract, a high media profile.
There is no suggestion that the appellant ever searched the register of orders or caused it to be searched. It chose to rely on the goodwill of others to inform it of any suppression order. In my opinion, this shows a lack of diligence between the time of the making of the relevant orders and the apparent breach of the order by the appellant.
His Honour therefore implicitly approved the proposition that lack of knowledge of the existence of a statutory suppression order is no excuse for disobeying it where that ignorance was caused by a breakdown in communications within that or other media outlets.[13] The other submissions put forward by the appellant likewise failed. The legitimacy of the relevant orders as suppression orders was therefore upheld.
[13]This proposition was propound by Associate Professor Kenyon in the paper he delivered to the Judicial Conference of Australia in 2006: see footnote 5, above.
The Herald & Weekly Times was subsequently found guilty of contempt. In the meantime, Nationwide News Ltd and The Age Company Ltd had pleaded guilty of offences committed in similar circumstances to those of the unsuccessful appellant: each had published a photograph of Mr Vlassakis in breach of the suppression order about which the Herald & Weekly Times had complained. Accordingly, all three organisations came before Gray J for sentence.[14] Each offered an unreserved apology.
[14]Registrar of the Supreme Court v Nationwide News and Others (2003) 89 SASR 113.
In the course of giving his reasons for fining The Herald & Weekly Times $30,000, and Nationwide News and The Age $22,500 each, his Honour referred to the judgment by which The Herald & Weekly Times had been found guilty.[15] As I understand his Honour, that judgment was cited as authority for two propositions. [16] First that, at common law, knowledge of the existence of the relevant order had been treated as an essential requirement of the offence of contempt; and, secondly, that the statutory regime imposed by the Evidence Act 1929 of South Australia altered that position. His Honour later[17] returned to the earlier judgment[18], quoting the following passage from it:
It is important that the court make clear and express directions about what material is available for publication and what is to be suppressed. Once an order has been made the burden shifts to the person seeking to publish material to ensure that the material is not the subject of a suppression order.
It is the duty of the court to inform the wider community of the existence and terms of a suppression order. This duty is satisfied by compliance with the legislative requirement to notify the sheriff [sic] and by maintaining a complete and up to date suppression order register. From that point, it is the obligation of the media and others to make inquiries to ensure the material they intend to publish is not subject to any suppression orders.
[15]Registrar of the Supreme Court v Herald & Weekly Times Ltd [2004] SASC 129.
[16]Registrar of the Supreme Court v Nationwide News and Others op. cit. at [14].
[17]Ibid, at [16].
[18]Registrar of the Supreme Court v Herald & Weekly Times Ltd [2004] SASC 129.
In the South Australian case, no disobedience was intended. I accept that the same position obtains in the case before me. Unless it was willfully ignorant, the ABC could not intentionally disobey an order the existence of which it was unaware. And I am satisfied that no element of willfulness intrudes here.
I am also of the opinion that counsel were correct in accepting that, in the circumstances of this case, ignorance of the existence of the order of 29 January is no excuse for disobeying it. As the statutory position in South Australia has implicitly altered the common law on this point in that jurisdiction, so the enactment of s.80 of the County Court Act and like statutory provisions, at least when put together with the establishment of the protocol, has had like effect in Victoria. I now turn to my reasons for adopting this view, first touching upon some relevant background.
That background includes my having been told by counsel for the ABC that steps have been put in train to avoid a repetition of the present problem. Journalists will be instructed that the absence of a relevant communication from the strategic communications advisor or her office must not be the basis for an assumption either that no suppression order has been made, or that no other restriction on reporting has been imposed. Rather, in such absence, journalists must (in the words of senior counsel for the ABC) “contact an appropriate court officer to ensure that no suppression orders affect any proposed publication.”[19]
[19]Transcript, 9 October 2007, p. 77 at lines 10-12.
It seems to me that this course is appropriate. The Court takes seriously its self-imposed obligation to inform the media of the existence of suppression orders, and to do so as soon as possible after they are made. But court resources are limited, and sometimes it will not be possible to get the right information to the right people at the right time unless the media itself initiates the process. It is, it seems to me, appropriate that the law impose such an obligation on the media.
Difficulties may occasionally arise. They can generally be overcome if both the courts and the media recognise and respect the proper roles which each play in maintaining a system of justice, particularly criminal justice, which is both fair and open. Restrictions on reports of criminal proceedings should not be imposed unless, and then only to the extent that, they are necessary to ensure a fair trial or to adequately protect the proper interests of children and the victims of crime. The protection of these interests must be balanced against the media’s right to publish, and the public’s right to know. Sometimes the former must prevail over the latter, and sometimes the consequence must be the making of orders that restrict publicity.
Wherever possible, media representatives including legal representatives should be notified before an application for a suppression order is made. If the application is successful, the media is to have ready access to the resultant orders. The courts must facilitate both aspects of the process. Hence the general requirement that the applicant for the order should, before the application is made, appropriately notify media representatives; and hence, too, the protocol. If the protocol fails because the wrong information is provided, and if the media through no fault of its own accepts that information as accurate, then I would accept that no disobedience had been shown. Likewise, if the existence of a suppression order is not disseminated in accordance with the protocol, but the right inquiries are made, and then acted upon, again the media would not be at fault if those inquiries did not reveal the existence of the order.
Generally speaking, the appropriate source of information would in the first instance be the associate to the presiding judge. The office of the strategic communications advisor, or its equivalent in the particular court, would be the place of second resort, because that office is merely the conduit between the judge (or, rather, his or her associate) and the media. It may at times be necessary to contact both the associate and the office, and to make any further inquiries suggested by either. For the reasons I have given, publication in conformity with the information thus obtained would not, it seems to me, constitute a contempt unless there were some indication that that information was wrong. In the absence of such indication, the information provided by the court could be relied upon as being correct without the necessity for further inquiry.
In this case, with a criminal trial of notoriety about to commence, the media ought to have realised that publication without precaution was fraught with danger. Yet the ABC did nothing to ensure that its publicity of the proceeding would not infringe a suppression order or prejudice the fairness of the proceeding. An inquiry of the associate to the judge would have been sufficient to avoid the problem. The failure to make that inquiry was a careless mistake. The applicant submits that it verged on the reckless. It was certainly a mistake that no reporter should make.
I have already expressed my conclusion that, had the court adhered to its own protocol, the offending broadcasts would not have gone to air. On the other hand, had the reporter, Ms Wilson, been given proper training or instruction, she would have made inquiries that would have revealed the existence of the suppression order, and she would have realised, independently of any suppression order, that:
members of the media would be well advised to proceed on the basis that other than reporting the actual proceedings in the court, nothing should be stated in the media concerning the trial, the court, the accused or witnesses. If it is thought that a fact or comment concerning the trial should be published then legal advice from those experienced in media law should be obtained. [20]
[20]R v Nationwide News Pty Ltd, unreported, Supreme Court of Victoria, 18 February 1998 per Gillard J at p.4.
Had such training and advice been acted upon in this case, the present difficulty would have been avoided. Had it been ignored, it would have resulted in a finding of recklessness in allowing the broadcasts to go to air. As things stand, it seems to me that the ABC failed to ensure that Ms Wilson was adequately instructed; and that that failure warrants punishment.
The ABC having pleaded guilty to two counts of disobedience to a suppression order, I must impose an appropriate penalty. Before I do so, however, I should say something about the other two charges, to each of which the ABC has also pleaded guilty: namely, the charges that the broadcasts in question had a tendency or were calculated to interfere with the due administration of justice.
Each news item was broadcast on the early morning of the first day of the trial – the day the jury was to be empanelled. Any one or more of the broadcasts may have been heard by any one or more of the persons summoned for jury service that day. Each identified the accused. Each also contained material which painted an adverse picture of them, a picture which had a tendency to prejudice their defence or interfere with their right to a fair trial not only in the proceeding about to commence but also in any subsequent allied proceeding. Each contained, in addition, an inaccuracy in the description of the immediately relevant offence; but I put that aside, because I do not think that, in context, the inaccuracy increased the tendency of any of the broadcasts to interfere with the due administration of justice.
The ABC apologised at what I accept was the first available opportunity. It has pleaded guilty to each charge, and will submit to an order that all the costs of these proceedings, including those associated with the claims against Ms Wilson, be assessed as between solicitor and client, and then be paid by the Corporation. The trials went ahead as planned in the County Court, largely if not entirely because no member of the jury had heard any of the offending broadcasts. So the ABC is not to be punished for any actual interference with the due administration of justice, save that the judge was required to take time, otherwise better employed, to investigate the matter.
One mitigating factor not yet mentioned, however, is that the Crown opened the case with references to environmental damage. Those references were at least as emotionally charged as anything in the impugned news items.
In deciding upon the appropriate penalty in each case, I have taken into consideration all the mitigating circumstances to which I have earlier referred. These include (the list is not exhaustive) the guilty pleas, which were made at the earliest opportunity; the early apology and expression of contrition; my conclusion that, had the protocol been followed, the contempts would have been avoided; and the undertaking given by the ABC to the court that it will from 10 October 2007 be Corporation policy that “any journalist reporting on a court or court-related matter will not rely on the absence of communication by the [office of the strategic communications advisor] but be required to contact an appropriate court officer to ensure that no suppression orders affect any proposed publication.”[21] Another mitigating circumstance is that the ABC has never before been convicted of disobedience to a Victorian suppression order.
[21]Transcript, 9 October 2007, at p. 77 lines 8-12.
As against these mitigating factors, the ABC was careless in putting to air news items about a case about to begin, which items contained material with a tendency to interfere with the due administration of justice. It was also careless in not giving Ms Wilson instructions to make inquiries which would have resulted in her learning of the suppression order.
In my opinion, the Crown is entitled to the declarations it seeks. I must also impose appropriate punishment. It seems to me that, taken as a separate contempt, the broadcasting of the first two news items in breach of the suppression order warrants a fine of $10,000. That sum seems to me properly to reflect the seriousness of the failure by the ABC to ensure that its reporters (or at least Ms Wilson) make adequate inquiries before proceeding to publish on the basis that no applicable oppression orders are in force. But that conclusion must be seen in its context. Had the courts not failed to implement the protocol, the fine would have been much greater. In fixing a lesser sum than would otherwise have been imposed, I have also taken into account, together with the other considerations to which I have already referred, the fact that this judgment modifies the common law principle (albeit that it is a modification recognised by the plea of guilty) that notice is an element in establishing a contempt of the nature of that with which I am presently concerned.
The same punishment is, on the same (separate) basis, appropriate for the other (8.30 am) broadcast.
The contempt constituted by the tendency to interfere with the due administration of justice warrants, when each of the two instances to which the ABC has pleaded guilty are taken separately into account, a fine of $20,000 in respect of each. Each of these instances constituted a contempt quite independently of the suppression order. In other words, the offence constituted by each would have been committed even in the absence of a suppression order. The failure of the protocol is therefore irrelevant to their commission, save that I take into account the fact that - had the protocol been observed - the ABC would not have broadcasts any of the impugned news items. That failure is, therefore, no more than a minor mitigating circumstance. On the other hand, the tendency of the broadcasts to interfere in the course of justice was considerably less than was the case in other instances that resulted in convictions for contempt.
When added together, the total of the fines thus imposed is $60,000. But the offences were closely related in time. Moreover, each broadcast constituted both (a) a breach of the suppression order and (b) the closely related contempt of tending to interfere with the due administration of justice. The closeness of that relationship must, in my opinion, be reflected by the application by the Court of the principle of totality. In the particular circumstances of this case, the amount that appropriately takes that principle into account is in my opinion the sum of $30,000.
I make the declarations sought by the applicant, and order that the second respondent be fined the sum of $10,000 in respect of each of the two charges of disobedience to the relevant suppression order, and the sum of $20,000 in respect of each of the two charges of interference with the due administration of justice. By application of the principle of totality, the total amount to be paid by the ABC in respect of these offences taken together as a whole is $30,000.
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