R v General Television Corporation Pty Ltd
[2009] VSC 84
•16 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9342 of 2007
| R (on the Application of the PROTHONOTARY OF THE SUPREME COURT OF VICTORIA) | Applicant |
| and | |
| GENERAL TELEVISION CORPORATION PTY LTD | Respondent |
---
JUDGE: | Smith J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 August 2008 | |
DATE OF JUDGMENT: | 16 March 2009 | |
CASE MAY BE CITED AS: | R v General Television Corporation Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 84 | |
---
Contempt of Court – breach of suppression order – relevant considerations – disposition – penalty – costs.
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Caleo SC and Ms F Gordon | Victorian Government Solicitor |
| For the Respondent | Mr T Forrest QC and Mr S O’Meara | Minter Ellison |
TABLE OF CONTENTS
Introduction
The Proceeding
The suppression order
Content of the Originating Motion
The nature of the alleged contempt
The plea of the respondent and the issues remaining
The circumstances of the offence
The publication
State of respondent’s knowledge at the time of publication and subsequent actions
The explanation advanced for the respondent
Relevant considerations
Gravity of the type of contempt
Seriousness of the breach
Applicant’s submissions
Respondent’s submissions
Seriousness of actual breach – Analysis
The risks would eventuate anyway?
The system in place
Inadequacy of system
The explanation and what it reveals.Conclusion
Specific and general deterrence
The changes made
Applicant’s submission
Respondent’s submission
Specific and general deterrence – Analysis
Remedial measures
Prior convictions
The seriousness of the breach and lack of acceptance
The weaknesses in the system and their continuanceConclusion
Mitigating factors
Ultimate disposition of this matter and penalty
Submissions
Analysis
Conclusion
HIS HONOUR:
Introduction
The Proceeding
By originating motion[1] filed 9 November 2007, and subsequently amended, the applicant seeks a declaration that the respondent be adjudged guilty of contempt of court for broadcasting and publishing material on the television programme “The Catch-Up” on 6 March 2007 contrary to a suppression order made 28 February 2007.
[1]Under r.75.07 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).
The suppression order
In and between 30 August 2004 and 12 December 2004 presentments were filed in relation to the alleged murders of Jason Moran, Pasquale Barbaro and Michael Marshall. On 28 February 2007 a further presentment was filed before King J whereby Carl Williams was charged with the murders of Jason Moran, Mark Mallia and Lewis Moran and with conspiracy to murder Mario Condello. On that day Carl Williams pleaded guilty to the presentment. It was on that day and in that proceeding (No. 1602 of 2005) that King J made the suppression order forbidding publication disclosing the identity of six persons, including the four mentioned in the television programme.
At the time the order was made, the four people who were named in the broadcast were potential witnesses in outstanding criminal proceedings and, it appears, were in witness protection. It was for those reasons that the orders were made.
I note that the affidavit material filed in this matter records that individuals have given evidence in the preliminary stages of criminal proceedings. The evidence does not suggest, however, that those proceedings are completed.
Content of the Originating Motion
The Originating Motion when filed named two respondents;
(a)Nine Network Australia Pty Ltd (“the Network”), as the proprietor of the trademark “The Catch-Up”; and
(b)General Television Corporation Pty Ltd (“GTV”), as the body licensed to operate Channel Nine, the television channel on which the programme was broadcast and published.
The Amended Originating Motion was filed on 13 August 2008, naming only one respondent, GTV. The explanation given for this change was that the Network was ultimately thought not to be a suitable respondent. Counsel for the applicant stated that examination of the evidence revealed that the Network was merely a proprietor of the trademark for the programme, and could not be held liable for the offence. As a result the applicant has withdrawn the charges against the Network.
The nature of the alleged contempt
The applicant stated the following as the basis for seeking a declaration for contempt:
“The broadcast and publication of the programme was in breach of the terms of the Order, in that it disclosed the identity of each of the named persons, and constituted a contempt of the Supreme Court[2]”.
[2]It did not proceed with the original second basis – publication having a tendency to interfere with the due administration of justice.(T1)
The plea of the respondent and the issues remaining
GTV has pleaded guilty to the breach and its counsel apologised on behalf of his client at the first directions hearing on 28 March 2007. GTV has also undertaken to pay the applicant’s costs at the agreed amount of $37,500.00. The questions to be determined are the ultimate disposition of this matter and the penalty to be imposed in relation to the respondent that remains, GTV.
The circumstances of the offence
The publication
It appears that the programme “The Catch-Up” was a “live-to-air” programme which ran for one hour on a weekday afternoon. It had four co-hosts and was recorded in front of a live audience. The producers selected guests for each programme. At the time the producers were Mia Freedman, the Creative Services Director at the Network, and Tara Smithson, the Executive Producer. On this particular occasion, the producers had invited Judy Moran, the widow of Lewis Moran and mother of Jason Moran, to take part in an interview. She was seeking to promote her book “My Story”. The focus of the interview was to be on the book and her personal experiences. According to the affidavit material filed for the respondent, the interview was not scripted or pre-rehearsed.
In the course of the interview, on 6 March 2007, Mrs Moran was asked why her family had been murdered. She responded saying she would love to know, that she did not know the people responsible and then named Carl Williams. She then named the four individuals named in the suppression order. She described them all as “murderers”. A little later in the interview she again referred to one of the individuals named in the order saying that there had been a report prior to Jason Moran’s murder that he was going to burst into her house armed with an assault rifle but had not done so because he could not find proper bullets for it. She stated that he was in jail for three murders. The following exchange then occurred.
LIBBY GORR: “So the papers are full now of the Carl Williams story.”
JUDY MORAN: “Yes”.
LIBBY GORR: “Um, how do you feel about that, and punishment in terms of, let me just get this right, they have dropped one of the charges of murdering one of your sons”.
JUDY MORAN: “That’s right”.
LIBBY GORR: “In return for information about the Melbourne underworld in terms of drug supplier.”
Ms Moran then went on to argue for the return of the death penalty.
I note that prior to the question quoted above from Ms Gorr, what had happened was that the four had been named and thus the suppression order breached. Nothing had been said, however, that identified them as informers. The question concerning the dropping of charges, however, introduced the issue of information being supplied by persons not identified but connected to the murders. This link was provided by the questioner not Ms Moran. The imprecision and ambiguity of the quoted exchange created a real risk that the viewers of the programme would have thought, in the context of the whole interview, that there were at least five persons who may have supplied information and benefited from it – the four in question and Carl Williams. This gave the breach the potential to cause the adverse consequences against which the suppression order was directed. In particular, in combination, the naming of the individuals and the quoted remarks put the individuals lives at risk. What occurred, therefore, was more than simply the naming of the persons whose names had been suppressed.
State of respondent’s knowledge at the time of publication and subsequent actions
The respondent has admitted that it had notice of the suppression order and that, at the time the programme was broadcast, a copy of the order was in the suppression order files of the Network’s in-house lawyers and could have been accessed by the producers and hosts of the programme. No legal advice was sought prior to the programme and the suppression order file kept by the legal department was not checked. Following the interview, however, on 7 March 2007, Mr Browne, the Executive Director of the Network, met with the programme hosts, the producers and some researchers who had worked on the programme. This occurred because the producers and hosts realised that there could be a legal problem arising out of what Mrs Moran had said during her interview.
The explanation advanced for the respondent
The explanation for what occurred is offered by Mr Browne in his affidavit sworn 15 February 2008. He states
“The programme hosts and producers told me that the interview with Mrs Moran was not scripted or pre-rehearsed. They intended to focus upon her personal experiences and discuss her book. Although they appreciated that Mrs Moran’s husband and sons had died as a result of the Melbourne gangland wars, it had not been anticipated that Mrs Moran would discuss any matters relating to any criminal proceedings, nor say the words the subject of this proceeding. Nor had it been anticipated that Mrs Moran might say anything that would be in contempt of court, or would breach a suppression order, as she had published a book about her life which was presumably not in breach of the law. That was why pre-publication legal advice and other checks such as accessing the suppression order file available for legal department had not been considered or undertaken.”
I proceed on the basis that the above is a complete and accurate account of the explanation advanced by those involved and relied upon by the respondent. It is, strictly, however, Mr Brown’s perception of the explanation proffered by those involved.
Relevant considerations
It is common ground that in determining whether to punish a contemnor and, if so, the nature of the punishment, the court will take into account
· the gravity of the offence in question,
· the circumstances of the offence,
· the seriousness of the breach,
· any prior convictions for contempt,
· the need for specific and general deterrence and
· mitigating factors.[3]
[3]For a recent comprehensive consideration of the relevant law, I refer to and adopt the analysis of Kyrou J in R v Herald and Weekly Times [2008] VSC 251.
In weighing up these matters it is relevant to consider the culpability of the contemnor and the nature and extent of harm actually caused by the contempt. It is also relevant to consider the existence or otherwise of any system in the relevant organisation for the prevention of the contempt, whether legal advice was sought before publication and the general nature and purpose of the publication. It is also relevant to consider remedial action taken and whether the respondent has pleaded guilty and apologised and offered to pay costs.[4]
[4]R v Herald and Weekly Times Pty Ltd, above.
Gravity of the type of contempt
Courts do not make suppression orders lightly. They are made to protect the integrity of a trial which, if compromised, will often require that trial to be aborted or delayed. This wastes considerable time and causes great inconvenience and stress to the participants, including the victim’s family, the accused, and his or her family, and the jury, if empanelled. Considerable cost can also be involved. Breach of a suppression order intended to protect witnesses can also put lives at risk.[5] The death of such a witness can also defeat a criminal prosecution. In that situation the victim’s family are denied closure. Breach can also seriously compromise the witness protection programme, a programme of critical importance in the prosecution of serious crimes. The relevant suppression order in this case was made to guard against all those adverse consequences. It did so simply by prohibiting the publication of the names of the four people. It is not unreasonable, in my view, to require high standards of the media when such issues are at stake.
[5]I note that under s.10(5) Witness Protection Act 1991 (by amendment that has operated as from 31 May 2000) disclosure of information about the identity of the person who is included in the Witness Protection Program is an offence carrying a maximum term of imprisonment of 10 years.
In the present case, the breach of the suppression order involved a direct contravention of a specific order of the court that the identity of particular individuals not be disclosed. In the context of the full interview, the breach had further consequences. For the reasons referred to above, it created a potential risk to the lives of the four people. It put any trial in which the four persons would be witnesses at risk and had the potential to prejudice the success of the witness protection programme. What occurred was a contempt of a serious kind.
Seriousness of the breach
Fortunately, none of the above serious consequences appear to have happened and that needs to be borne in mind in considering the seriousness of the actual breach. It is necessary, however, to consider the circumstances of the breach and what light that sheds on the nature and extent of the culpability of the respondent.
Applicant’s submissions
Counsel for the applicant accepts that there is no evidence of any actual harm. Counsel has submitted, however, that having regard to the
· timing of the interview in the context of current criminal proceedings,
· the obvious intention to explore the murders during the interview, and
· the content of the book which apparently prompted the interview,
those involved in the broadcast should have anticipated that there was a risk that Mrs Moran would discuss matters related to criminal proceedings and might say something in contempt of court or in breach of a suppression order.
Counsel drew attention to the content of Mrs Moran’s book which refers to the gangland murders. At different points in the book she notes that she is unable to discuss certain matters “for legal reasons”[6] and to protect police investigations.[7] Counsel submitted that from the transcript of the interview, the interview was plainly going to involve questions about the gangland killings, some of which were still the subject of criminal proceedings, and, in particular, the murder of her family members.
[6]152, 202, 240
[7]xi, 170, 256.
Counsel for the applicant argued that no effort had been made to
· consider whether any legal issues might arise from interviewing Mrs Moran, or
· obtain or consider legal advice.
Counsel submitted that the respondent showed extreme carelessness in the way it acted.
He further submitted that GTV had not adequately explained why it was not thought necessary by those involved in the programme to seek legal advice in respect of the programme or to have records of suppression orders checked. Counsel also put that there was no explanation as to why the programme could not have been pre-recorded. I note that that is one of the remedial steps that has been adopted.
Counsel for the applicant turned to the characteristics of the system in place and noted that there was no clear line of authority and no nominated person or persons who had the responsibility to consider whether to get advice or take precautions. He noted that, as the events in this case suggest, the efficacy of the system depended on the initiative and judgment of individuals responsible for particular programmes. Counsel also noted, however, that there did not appear to have been a system to alert editorial staff, producers or “on-air” talent to the existence of non-publication orders. Counsel also commented that there did not appear to have been any systematic vetting of programming by someone with knowledge of non-publication orders.
Respondent’s submissions
Counsel for the respondent submitted that the culpability of the respondent was towards the lower end of the scale – that in essence it involved a failure to advert to legal risk and to take appropriate precautions. Counsel submitted that the applicant’s concession that non-conviction was open confirmed the low culpability. Counsel emphasised that the offending statements by Mrs Moran were “barely responsive” answers to open-ended questions and made by a third party who was not an employee or agent of the respondent. It was put that whatever the question, Mrs Moran was determined to say what she said. It was, therefore, an inadvertent breach of the orders.
Counsel accepted that no consideration had been given to getting advice, that that showed a lack of care and that alarm bells should have rung prior to the telecast. Counsel submitted that it was simply a case of human error causing the system to fail. Counsel speculated that one of the reasons why that may have occurred was that the programme was recorded in Sydney and the gangland killing murder trials and the orders made in them may not have received the same attention or vigilance in Sydney. Counsel conceded, however, that the suppression order was held on the file of Ms Woods corporate counsel employed, inter alia, for the Nine Network. Counsel referred to the affidavit of Mr Browne where he said that the problem was “not anticipated”. In addition counsel referred to the programme as being part of the entertainment segment and that that may have affected the vigilance of those involved. Counsel submitted that notwithstanding the system in place, mistakes will always occur because of human error. No system can ever been foolproof.
As to the issue raised that there was no-one with the responsibility to ensure mistakes did not happen, counsel for the respondent submitted that it was not feasible to directly address that issue. Counsel argued that the TV medium differs from other media and the system developed is based on a collaborative responsibility amongst the production team together with a system of continuing legal education. Counsel argued that there were six people in this instance who shared the responsibility who had the appropriate legal training and access to the Legal Guide – four hosts, the Executive Producer and the Creative Designer. Counsel submitted that to have a legally qualified person overseeing every piece that goes to air was quite impractical, having regard to the number of pieces produced daily and the number of suppression orders operating at any given time. Counsel argued that it was important that the six involved in the programme should apply their minds to these issues rather than have the responsibility pass to a lawyer. Counsel argued that it was part of the Executive Director’s role and senior production staff to be alert to these problems. Counsel submitted that it should be accepted that the defendant has shown that it is serious and conscientious in dealing with the problem and its solution should be accepted to be the best available.
Counsel emphasised the lack of any actual harm and submitted that one trial had been concluded that was relevant and one remained. While accepting that breach of the suppression order forbidding the identifying of individuals has the potential to put the lives of those individuals at risk, in this instance, so far as a breach was concerned, counsel submitted that any accused persons against whom they were to give evidence was likely to know at least by the conclusion of the committal proceedings with the hand up brief, who they were. Counsel argued that even if names were removed from the material, the content of their statements was likely to identify them when they were alleged accomplices. While conceding that in some circumstances a breach could pose a very serious risk to any individual – for example, someone who is not an accomplice – counsel submitted that, in the circumstances of this case, it did not add to the risks facing the individuals.
Seriousness of actual breach – Analysis
The risks would eventuate anyway?
As to the argument that the identity of the people who are to give evidence were likely to have been exposed to the accused in the course of the committal, there is no evidence before me that their identities were revealed and, if so, when and how or of the timing of relevant events. The situation was one, in any event, where it was important to conceal the identity as long as possible. But accepting the respondent’s suggested scenario, the publication put the safety of the individuals and future trials at risk at least for some time and it cannot be accepted that the breach did not add to the risks facing the individuals. I note that the risk also remained that disclosure of the identity of a witness under protection had the potential to damage the witness protection programme.
The system in place
The organisation and chain of authority appear to have been complex. The evidence about it is difficult to follow. Mr Browne deposed in his affidavit of 15 February 2008 that he was the then Executive Director of the Network responsible for executive management and maintenance of its commercial operations including its key personnel. Mr Browne also deposed that he was then responsible for the administration of the Network in Melbourne, and Managing Director of GTV. He reported to the then Chief Executive Officer David Gyngell. The parent company of the Network was PBL Media Pty Ltd. GTV was a licensee of the Network. Mia Freedman was at the time of the programme Creative Services Director at the Network and responsible, with the then Executive Producer, Tara Smithson, for creating and producing the programme “The Catch-Up”. GTV had no direct involvement in its production. There were four female co-hosts, Libby Gorr, Zoe Sheridan, Mary Moody and Lisa Oldfield. While it is not expressly stated, I infer that they were probably, like everyone else appeared to be, engaged by the Network. The legal advice and training given to the Network and its licensee was provided by PBL Media Pty Ltd which employed Ms Kiah Wood as corporate counsel for the Network and ACP Magazines Ltd. She was expected, among other things, to give pre-publication advice to staff everyday or practically everyday. There was also another experienced internal lawyer available to give such advice. The Network’s internal lawyers also used external lawyers and barristers to advise them. Mr Browne deposed that the Network’s lawyers were readily accessible to staff and staff were encouraged to consult with them whenever they had a concern and to consider them “as part of the programme preparation process”.
There were, at the time, several aspects to the system in place to guard against contempt risks. One aspect was annual legal training by internal lawyers of editorial staff, producers and “on-air” talent involved in the Network programmes. This training had in fact been received by the hosts of “The Catch-Up” not long before the programme in January and February of 2007. The training was directed to defamation, court reporting, contempt of court, suppression orders, legislative reporting restrictions and copyright and trespass. It was tailored to areas of work – news, sports or entertainment. The training had been given by Ms Kiah Wood and Ms Amanda Lang. The producers of the show had received similar annual training. Additional training was also given under their training system usually before a new show commenced. There was the facility to give additional and more in-depth training to executive producers tailored to their area.
There was also a 58 page Legal Guide made available to all employees in hard copy and electronically. Mr Browne deposed that its aim was to assist staff in identifying potential legal issues and direct staff to seek advice if in doubt. The Legal Guide was exhibited to the affidavit of Kiah Wood, corporate counsel for the Network. It is directed particularly to journalists and is generally a good practical guide of some detail for journalists as such, identifying the areas of the law that they need to consider in preparing stories for delivery in television programmes. The areas covered included defamation, contempt, copyright and statutory restrictions on publicity and other matters. The Guide also has a useful checklist format in relation to most, if not all, of the topics. It is noticeable, however, that there is only a very brief reference to suppression orders. The checklist for contempt on page 3 is primarily concerned with sub-judice contempt but includes the following
“.check whether any suppression orders are in place with regard to the identity of any person or any evidence mentioned in any proceedings. Call the Court Media Officer”
The checklist refers to page 15. On that page, three types of contempt are listed, the second being “refusal to comply with an order of the court (including a suppression order)”. That issue received separate treatment on page 19 as follows
“2. REFUSAL TO COMPLY WITH COURT ORDER[8]
A journalist may be held in contempt for refusing to reveal a confidential source of information.
The broadcasting of information which contradicts a suppression order or ignores an injunction is a contempt.”
By comparison, the material included to inform and alert people to the sub judice form of contempt comprised some five pages. [9]
[8]The emphasis in the heading on “refusal to comply” is unfortunate, carrying the implication that the material below it only concerns situations where the journalist chooses not to comply.
[9]Pp.15-19 and a one page guide at p.43.
I note that in the contempt checklist[10] journalists who are “preparing a story” are told to check with the Court Media Officer concerning suppression orders in place relating to the identity of persons or evidence material in any court proceedings that they might be reporting. Counsel emphasised this aspect as part of the system. As noted above, however, in dealing with contempt, the primary emphasis in the guide is on sub‑judice contempt by journalists.
[10]Page 3.
Editorial staff, producers and “on-air” talent were also provided with 24 hour access to in-house and external legal advisers. The in-house lawyers also had 24 hour access to external solicitors and senior counsel.
Finally, Mr Browne deposed to the existence at the time of a suppression order file which comprised hard copies of orders emailed by the relevant court media liaison officers. His affidavit states that it
“is kept by responsible news staff, and electronic copies kept by legal and by other relevant editorial staff”.
He further deposed that the particular order in this case was in the suppression order file of the Network’s in-house lawyers at the time. It could have been accessed by staff including the producers and hosts of the programme and legal staff.
Inadequacy of system
The response and explanation offered by Mr Browne indicates that, at the time, while there were systems in place to ensure breaches did not occur, they relied on individuals to think to activate them or take the initiative in doing so. They were inadequate to ensure that simple measures were taken in a situation where it should have leapt out to those involved that there were considerable potential dangers of sub judice contempt and of contempt through breach of possible suppression orders. Plainly the respondent’s systems were inadequate to guard against carelessness. They were also inadequate to guard against unscripted breaches caused by third parties.
The explanation and what it reveals.
Mr Browne’s attempt to explain what occurred, quoted above, is expressed in terms that describe what happened. The explanation does not excuse. Plainly what occurred was not “anticipated” but the risk of it occurring should have been obvious. Mrs Moran was going to talk about her book and the gangland murders of her husband and sons. The likelihood of her discussing criminal proceedings was high as was the risk of her going beyond what she had been allowed to publish in her book. The possibility of suppression orders being in place was obvious and the risk of breaching any such suppression orders should also been obvious. There was also the obvious risk of sub judice contempt in discussing the murders, the pending murder charges and the connection of individuals with the drug world. Ms Gorr herself spoke of the dropping of “one of the murder charges”. From the full programme itself it was clear that the gangland murders were notorious in Sydney. It should have been obvious that publication of anything relating to the gangland murders was something requiring great care. Such knowledge should have been reinforced for the staff because of the many suppression orders that would have been received and kept on file relating to the gangland murders.
The failure to anticipate any of the matters listed by Mr Browne points to no thought having been given by anyone involved in the programme to the potential risks in interviewing Mrs Moran. If someone in the team had read the book before the interview, the references to legal reasons for caution, and to ongoing police investigations, should also have alerted that person to the risks. The content of the interview raises the inference, however, that no research was done. That conclusion is supported by the comment made by Mr Browne suggesting that an assumption had been made that because Mrs Moran had a book published there was not a problem with the law. A cursory examination of the book, however, reveals that there was much that Mrs Moran would have liked to have written and, therefore, much that she might reveal in an interview which she had not been allowed to deal with in the book.
The fact that the naming of the four people occurred in non-responsive answers to non-leading questions does not excuse. As already noted, there were obvious risks associated with the interview. That being so, the interview needed to be tightly controlled and open-ended questions avoided.
The conclusion that should be drawn is that, at that time, the need to guard against contempt had not been given the required priority in the organisation’s culture.
Conclusion
What occurred was not, as counsel for the respondent sought to argue, at the lower end of the scale of culpability. Obviously the cause was human error. But I am satisfied that error occurred because of a failure within the organisation to give due priority to the prevention of contempts, the inadequacy of its systems and extreme carelessness on the part of those involved in the production and conduct of the show.
The respondent has taken some steps to address that situation, steps relevant to the next issue.
Specific and general deterrence
The changes made
Very shortly after the event, Ms Laing and Ms Wood met with the programme hosts and researchers and addressed a number of issues which staff and producers were advised they would need to address in the future. As deposed by Mr Browne, this discussion was comprehensive and included -
· an explanation of the principles behind the law of contempt and suppression orders, their seriousness, the need to comply with them and their importance to the administration of justice,
· discussion of the suppression order in question, the seriousness of Mrs Moran’s comments and “the need to be vigilant “as to legal issues, particularly in relation to events the subject of numerous suppression orders, such as the Melbourne ganglands trial,
· discussion about the need for vigilance in identifying and pre-empting potential legal exposure prior to broadcast and the need to seek legal advice when that exposure is identified and the need for producers to ensure that legal issues are identified and referred to legal advisers prior to broadcast.
Practical training has also been provided to assist in dealing with a variety of matters including managing problematic interviews “including pre-recording interviews with any potentially contentious guest or subject matter”. This particular incident is used as a specific case study.
Mr Browne referred to other steps that were taken. He deposed that following the meeting, at his instigation and after advice from Ms Laing and Ms Wood, the Network changed the procedure for the programme by directing the producers and hosts to conduct more thorough research prior to interviews and to ensure that guests whose interviews might involve legal risk were presented with a form of document to be signed which would cause them to consider or raise with the Network any legal issues prior to interview and broadcast. The producers and hosts were also directed to ensure that all interviews which could involve legal risk were pre-recorded so they could be assessed for legal risk and be edited if necessary to avoid such risk prior to broadcast. Mr Browne deposed that he believed this change in procedure had been implemented more generally in respect of other Network programmes. Ms Wood in her affidavit does not specifically address that matter but generally confirms what he has said.
Applicant’s submission
Counsel for the applicant conceded that the steps taken since the incident have resulted in an improved system. Counsel also conceded that the changes made could be treated as evidence of contrition on the respondent’s part.
Counsel for the applicant submitted, however, that specific deterrence remained a significant issue because the breach occurred as a result of extreme carelessness on the part of the respondent. Counsel also submitted that general deterrence was always a significant consideration but particularly so when the contempt was breach of a suppression order. Counsel argued that it will be important to record a conviction if general deterrence is to be served.
Respondent’s submission
Counsel for the respondent submitted that specific deterrence was an unnecessary concern. Counsel pointed to the actions taken immediately following the events by the respondents, including systems changes, which demonstrated that it viewed the matter seriously and that the lesson had been well learned. In addition, counsel referred to the absence of any prior convictions and submitted that there had been a prompt and unreserved apology before King J on 28 March 2007. Counsel also relied on their client’s agreement to pay costs.
Counsel put again that the breach was not intentional or reckless and was the result of unscripted and not directly responsive answers. The breach was inadvertent. Counsel also relied on the argument that the responses were not anticipated. Reliance was placed on the plea and the respondent’s acceptance of liability for the breach.
Counsel for the respondent submitted that the applicant’s argument that the lack of attention to the risk at the time of the programme indicated extreme carelessness was putting the matter too high. Counsel submitted that the issue was whether action is needed to deter similar conduct in the future and argued that, given the extent and seriousness of the action taken following the incident, the seriousness with which the respondent had approached the matter, the immediate apology and the absence of prior convictions, there was no need for further specific deterrence.
As to other possible changes, counsel for the respondent submitted that it is not practical to make any major changes to the system other than those carried out after the programme. Counsel argued that any system will ultimately depend on the people involved and there can never be a guarantee that human error will not occur.
As to general deterrence, counsel for the respondent conceded that it needed to be considered but argued that regard should be had to the low level of culpability which in essence was a failure to advert to legal risk and to take appropriate precautions. Counsel submitted that in a situation where there was no intentional breach of the order and the responses that caused the difficulty were unresponsive statements from a third party, the significance of general deterrence was low.
Specific and general deterrence – Analysis
Remedial measures
The respondent is to be commended for the speed and extent of its response when it was appreciated that legal issues may have arisen as a result of the broadcast. Further, the action taken has been directed to relevant areas. The prompt and unqualified apology must also be borne in mind.
Prior convictions
As to prior convictions, it is common ground that the respondent has no prior convictions for contempt of court. Counsel for the respondent also submitted that there had been no cases where it had been charged with contempt of court and the charge had been found to be proved but no conviction entered. Counsel put that in a company that has been operating for more than 50 years in television, this was a significant feature of the case. Counsel conceded that there were four convictions in other jurisdictions[11] involving companies connected indirectly with the respondent through the Network companies but submitted that the respondent should be treated as a first offender.
[11]1990 (New South Wales); 2003 (Queensland); 2001 and 2007 (South Australia).
The respondent should be treated as such. But in addressing deterrence we are dealing here with a corporate entity and the cultures of corporate entities change and the past behaviour and experience is not as compelling a guide to future behaviour as it might be for an individual person.
The seriousness of the breach and lack of acceptance
Looking at what occurred, the potentially serious consequences of the breach, the failure to give the issue due priority in the organisation and the extreme carelessness of the respondent, there is a strong need to address specific and general deterrence. The attempt by the respondent to downplay the degree of carelessness involved, rather than acknowledge it, serves to reinforce the need to address specific deterrence. The steps that have been taken for the future provide some reduction of that need, but it still remains significant because of what I see as weaknesses in the past and weakness that are likely to continue. In addition, it needs to be borne in mind that, for the respondent, and television media generally, there will always be very strong and competing forces which will tend to assume primacy, namely the content and style of the programme, getting it to air, producing a successful performance and, ultimately, the pursuit of good ratings.
The weaknesses in the system and their continuance
As to past weaknesses in the systems, two features appear to me to stand out. One discussed above is that guarding against breach of the law of contempt was, at the time, a low priority in the organisation. In my view, while steps have been taken to address that problem, the downplaying by the respondent of the carelessness involved and the seriousness of what occurred raises concerns about its present commitment to addressing the problem. The other weakness, reflecting that situation, was that there were no designated persons in the production team who had the ultimately responsibility to ensure that potential legal issues in relation to any programme or broadcast were checked. That still appears to be the case even though the issue was canvassed at the abovementioned meeting when, among other things, the point was made of “the need for producers to ensure legal issues are identified and legal advice sought”. They are not, however, formally vested with that responsibility and the situation continues that the production staff and hosts are expected to consider these matters and it is hoped that one of them will do so. In that situation, and bearing in mind the competing pressures on them, there remains a high risk that each will be likely to leave it to the others to address contempt issues.
I raised this concern with counsel for the respondent. A discussion took place in the context of the suggestion that an individual should have been designated as having that ultimate responsibility. That suggestion was strenuously resisted.
Counsel for the respondent made a number of points. Counsel submitted that the better approach was to have the six involved in the production and presentation of the programme alive to the issues and with each of them having responsibility to consider the issues. In the relevant affidavits, the deponents do not assert that those persons had any responsibility as such – rather, there is an expectation of them that is to be shared by them. Counsel did not put that approach forward as part of any plan for the future. Counsel submitted that if you designate one person as having the responsibility, the others will cease to think about the issues. Counsel argued that the present approach best suits the medium of television because the organisation of the television operation was collaborative rather than hierarchical. Counsel also argued that if you relied solely on in-house counsel, for example, or external lawyers, then you would inevitably lose the benefit of the involvement of the production and hosting team. Counsel had to concede, however, that it would be up to the organisation to prevent such results.
As to these points, it may be said that if giving one person, such as a producer, the ultimate responsibility to ensure that precautions are taken to avoid contempt were to cause the other staff not to think about the issue, the situation would still be an improvement because the designated person with that responsibility will be more likely to look out for such issues and take precautions. That person will also have authority over the others. In any event, placing the ultimate responsibility on one person need not exclude others also having a responsibility to look out for contempt issues. It should be possible and practical to have a system in which the producers and the hosts have a collegiate responsibility and approach to the issue with all expected to be on the lookout for possible contempt issues while one of them - such as the executive producer of the programme - would carry the ultimate responsibility to ensure that possible contempt issues are not overlooked.
Counsel for the respondent submitted it would be wrong for this court to seek to impose its own solutions upon the respondent and should not impose its own views as an aggravating factor. I agree and do not seek to do so. Plainly, any solutions need to be practical and most likely to maximise the prospects of compliance with the law and any court orders. If, for example, the executive producer of the programme and the in-house counsel had the ultimate responsibility to consider whether there may be any legal issues in a programme, that would be a significant improvement. At the same time, however, the respondent could ensure the continuation of present attempts at education and training and the developing of a collegiate sense of responsibility at all levels to avoid breaking the law.
I proceed, however, on the basis of the respondent’s position, that the suggested additional steps are not practical, and the best system that can apply is that put forward for the respondent. On that basis, the weaknesses referred to will continue to exist in their system and this is an additional reason for ensuring that the issue of specific deterrence is adequately addressed.
Conclusion
For the foregoing reasons, specific deterrence is an important matter to be addressed. As to general deterrence, the issue was succinctly summed up by Kyrou J in R v Herald and Weekly Times [12]
“The penalty to be imposed in this case should also serve as a general deterrent for other media groups. The media need to be reminded that they must not only have appropriate systems in place to avoid contempt, but they must ensure compliance with those systems in all cases, even when pressures … are acute”.
[12]Above at [41].
Mitigating factors
As to mitigatory factors, counsel submitted that the prompt and unreserved apology[13] was an important matter, as was the plea of guilty and the agreement to pay costs, which counsel submitted was punishment in itself which was sufficient. I accept these submissions save for the alleged sufficiency as a complete punishment of the agreement to pay costs.
[13]Made on 28 March 2007.
Ultimate disposition of this matter and penalty
Submissions
Counsel for the applicant conceded that in appropriate cases where contempt is established it is open to the court to decline to enter a conviction. It was common ground that the power to do so is to be found in the Sentencing Act. Counsel for the applicant also conceded that this case may be one of those rare cases where a conviction is not required. Counsel described that such a result was “within the range of possible disposition”.
Counsel for the respondent submitted that this was a significant concession and was to be borne in mind when assessing the relevant criteria. Counsel for the respondent also submitted that the Court should consider whether to impose any specific penalty. Counsel submitted that the making of a public finding of contempt and an order for the payment of costs was sufficient to serve the purposes of any penalty that might be imposed in this matter. Counsel submitted that appropriate alternatives are either not to convict and impose no penalty or not to convict and impose a modest fine. Counsel re-emphasised the argument that there was low culpability and a high level of contrition.
Analysis
As to whether a conviction should be recorded, I do not agree[14] with the concession made by the applicant. I am satisfied that a conviction should be recorded.
[14]Hinch v Attorney-General [1987] VR 721, 751; Malvaso v R (1989) 168 CLR 227, 233.
For reasons explained above, I consider the contempt to be of a kind that is serious and the breach itself to be serious. The breach not only involved the identification of the individuals who were in a witness protection program. It occurred in the context of the whole interview including the question by Ms Gorr which introduced the possibility of a link between the individuals named and the providing of information about the Melbourne underworld drug supply and the dropping of charges of murder. Fortunately, the impact of her question was reduced by its lack of precision and ambiguity.
As to culpability, to summarise points already made, the situation was one where the need for care should have been obvious to the producers and the hosts. The breach resulted from extreme carelessness. If the six staff directly involved had given any thought to what they knew and what might be said in the interview, they would have realised that legal advice was needed and care was required. This situation reflected the failure of the respondent to ensure that the necessary priority was given in the organisation to guard against breach of the law of contempt.
This situation has been only partially addressed and accordingly specific deterrence is also a requirement. As stated above, I am also concerned, notwithstanding the prompt plea and apology and the genuineness of them, that there is still an unwillingness to fully face up to the failure that occurred, and the nature and extent of the respondent’s responsibility for it. There is also, as I have said, ongoing weakness in the systems. A strong need to address specific deterrence is therefore shown. So also is the need to address general deterrence.
In all the circumstances a conviction is required.
As to penalty, I have considered past sentences. A weighing up of the matters to which I have referred, requires the imposition of a penalty. The issue raised is whether the costs that the respondent has undertaken to pay to the applicant is sufficient. They have been agreed at $37,500.
The suppression order in this case was particularly significant. Its purpose was not only to protect the integrity of future criminal trials, it was also to protect the integrity of the witness protection scheme and the lives of the people named in the order. All its purposes were challenged by the breach when considered in the context in which it occurred. Notwithstanding, the fortunate outcome and the mitigatory circumstances, I consider that the recording of a conviction and the payment of the costs will not constitute a sufficient and proportionate penalty. A fine of $15,000.00 should also be imposed.
I note that, in my view, the proposed orders do not have the result that specific deterrence is adequately addressed. But I am limited by the requirement of proportionality.
Conclusion
I have considered a parity issue that appears to me to arise. In the matter of R v Herald and Weekly Times Pty Ltd[15] I considered a breach of the same suppression order. It concerned the publication of an article which revealed the identity of one of the individuals the subject of the same suppression order. It also identified him as an informer. I recorded convictions in that case and imposed a fine of $25,000.00. I also made a costs order against the respondent that would result in a payment of something less than $50,000.00 by the respondent to the applicant.
[15][2009] VSC 617
A major factor requiring heavier penalties in that case was the higher level of culpability of the respondent and its staff. It is true that in the present case the names of four people were published as opposed to one in the other case but, fortunately, the consequences were the same. But for the significant community service of the Herald and Weekly Times the fine imposed upon it would have been higher.
For the foregoing reasons in the present case, a conviction should be recorded. The respondent should be ordered to pay a fine of $15,000.00 and the applicant’s costs agreed at $37,500.00.
---
2
0