R v Australian Broadcasting Corporation - [2007] VSC 498

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSC 498
Decision Date: 3 December 2007

CaseChat Overview and Summary

The Australian Broadcasting Corporation (ABC) faced contempt charges before the High Court of Australia for broadcasting news items on its regional radio network in contravention of a suppression order. This order had been issued by a lower court, prohibiting any reporting of the proceeding or any information derived from it. Despite the suppression order, ABC aired the broadcasts, leading to the charges of contempt. The ABC pleaded guilty to the initial charge of breaching the suppression order and to further charges that the broadcasts had a tendency to interfere with the due administration of justice.

The central legal issue before the court was whether the failure of the court to disseminate the suppression order in accordance with the established protocol could be considered a mitigating factor when determining the penalties for the contempt. Additionally, the court needed to consider whether ABC's failure to instruct its reporter to inquire about the existence of any suppression order before broadcasting constituted a mitigating factor. Another issue was the procedure the media should follow before publishing items where a relevant suppression order might be in place but had not been disseminated in accordance with the protocol.

The court held that the failure of the court to disseminate the suppression order in accordance with protocol did not constitute a mitigating factor. The court emphasised that it is the responsibility of the media to ensure they are aware of any relevant suppression orders before publishing potentially incriminatory material. The court also found that ABC's failure to instruct its reporter to make inquiries before broadcasting was a significant aggravating factor. Consequently, the court determined the penalties for the contempt charges, taking into account the principle of totality to ensure that the cumulative penalty did not excessively exceed what was proportionate to the offence.

The High Court ordered the ABC to pay a fine and imposed conditions on its future reporting practices to prevent similar breaches of suppression orders. The court also made a declaration that the principle of totality should be applied in determining penalties for contempt to avoid disproportionate sentencing.

Orders