R v Haley
[2012] TASSC 86
•20 December 2012
[2012] TASSC 86
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Haley [2012] TASSC 86
PARTIES: R
v
HALEY, Andrea Martine
DAVIES BROTHERS PTY LIMITED
FILE NO/S: 77/2012
DELIVERED ON: 20 December 2012
DELIVERED AT: Hobart
HEARING DATE: 17 April, 14 August 2012
JUDGMENT OF: Wood J
CATCHWORDS:
Procedure – Contempt, attachment and sequestration – Power of court to punish for contempt – Supreme Court – Generally – Newspaper article identified victim of sexual assault – Contravention of Evidence Act 2001 (Tas), s194K.
Evidence Act 2001 (Tas), s194K.
HL Bolton Engineering Co Ltd v TJ Graham & Sons Ltd [1957] 1 QB 159; Tesco Supermarkets Ltd v Nattrass [1972] AC 153, applied.
R v The Age Company Ltd [2000] TASSC 62; (2000) 113 A Crim R 181, referred to.
Aust Dig Procedure [701]
REPRESENTATION:
Counsel:
Applicant: T J Ellis SC
First and Second Respondent: J Quill
Solicitors:
Applicant: Director of Public Prosecutions
First and Second Respondent: Kelly Hazell Quill Lawyers
Judgment Number: [2012] TASSC 86
Number of paragraphs: 59
Serial No 86/2012
File No 77/2012
THE QUEEN v ANDREA MARTINE HALEY and
DAVIES BROTHERS PTY LIMITED
REASONS FOR JUDGMENT WOOD J
20 December 2012
The Crown applies for orders that Davies Brothers Pty Limited, publisher of The Sunday Tasmanian newspaper, be fined for contempt of court, and Andrea Martine Haley, the Acting Editor of the newspaper at the material time, be committed for contempt of court. The application relates to an article in The Sunday Tasmanian newspaper on Sunday, … January 2012.[1] The particulars are as follows:
[1] Some details that may lead to the identification of the rape victim have been excluded from these reasons.
"1 On Sunday, … January 2012, on page 9 of the Sunday Tasmanian newspaper edited by the first Respondent and published by the second Respondent, there was published or caused to be published by both of them an article headlined 'Rape Victim …' ('the article').
2 The article published:
(a) the name;
(b) the photograph or alternatively a picture purporting to be;
(c) the age;
(d) the suburb;
(e) and the type of housing and its ownership
of a person in respect of whom it was alleged the crime of rape contrary to Section 185 of the Criminal Code had been committed.
3 No court order had been made allowing or permitting such publication."
The particulars are admitted by the respondents. Publication of the information constitutes a contempt of court by virtue of the Evidence Act 2001, s194K, which provides in part:
"194K Publication of certain identifying particulars prohibited
(1) A person, in relation to any proceedings in any court, must not, without a court order, publish or cause to be published in any newspaper, journal, periodical or document or in any broadcast by means of wireless, telegraphy or television –
(a)the name, address, or any other reference or allusion likely to lead to the identification, of –
(i) any person in respect of whom a crime is alleged to have been committed under section 124, 125, 125A, 125B, 126, 127, 127A, 128, 129, 185 or 186 of the Criminal Code; or
(ii) any person in respect of whom an offence is alleged to have been committed under section 35(3) of the Police Offences Act 1935; or
(iii) any witness or intended witness, other than the defendant, in those proceedings; or
(b) any picture purporting to be a picture of any of those persons.
(1A) …
(2)A court is not to make an order under subsection (1) or (1A) unless satisfied that it is in the public interest to do so.
(3) A court may make an order under subsection (1) or (1A) subject to any specified conditions.
(4) A person who publishes or causes to be published anything in contravention of this section commits a contempt of court and is liable to punishment for that contempt as if it had been committed in the face of the court against which the contempt is committed."
The article appeared in The Sunday Tasmanian newspaper on page 9. The circulation of The Sunday Tasmanian, being the number of copies sold on an average Sunday, is 54,905. Readership of the newspaper is calculated to be approximately 120,000.
The headline read "Rape victim …", and beneath it "… [reference to government department excluded] … fails woman attacked in her home". In these reasons the rape victim to which the article refers is identified as Z. The text ran alongside and beneath a full colour photograph of Z. The caption to the photograph was: "FLASHBACKS: Z still lives at the unit in which she was attacked and has been on the priority housing list for two years".
The opening paragraph, omitting reference to the suburb where the victim lives, states that: "A … woman has been on a priority public transfer list for more than two years after being raped in her unit". The article focussed on the fact that she had been taken off the transfer list for failing to provide adequate documentation about the rape and its impact, even though the perpetrator had been gaoled in June 2010 and police reports and reports from her doctor and psychologist had been sent to Housing Tasmania. It covered the personal angle of the victim having to continue to live in the unit where the crime had been perpetrated. It contained a number of quotes from the victim such as, "I've got to walk out here every morning, into the room I was raped" and, another which revealed where in the room the sexual attack occurred. The article published the name of the perpetrator, his sentence for the rape, that he was a neighbour, and that she had been subject to bullying and harassment from his friends, including damage caused to her property. Other quoted statements expressed her concern that she could not move on from the rape until she was transferred. It disclosed that she suffered flashbacks, post-traumatic stress disorder, depression and anxiety. The article included the response of Housing Tasmania and unscheduled visits made by staff in the last week, during which she had been told that she could expect a new unit to be found in under six weeks. It also included a quote from the acting Director of Housing Tasmania explaining the situation, sympathising with the victim, and expressing an assurance that the transfer would be treated as urgent.
The article was lengthy involving approximately 600 words. The tone was sympathetic to the victim and persuasive in prompting incredulity about Housing Tasmania's handling of her situation.
In larger font than the text of the article was a quote from Z: "I can't move on from [the rape] until I'm actually removed from the situation".
The article and accompanying photograph featured prominently on page 9. As for the prominence of the photograph, the following is noted:
· The border dimensions of the photograph of Z are 230mm x 122mm. Most of the photograph is taken up with portraying Z from the waist up.
· Z is looking directly at the camera and her face is clearly shown.
· The part of the photograph showing her face is 52mm x 38mm; about one and a half times larger than in the case of a passport photograph.
As for the prominence of the article, the following is noted:
· The font of "rape victim …" was in Arial black font, effective as headlines. The font size was approximately 70 point.
· The article, together with the photograph, was approximately the size of an A4 sheet of paper. It occupied approximately 65% of the page.
The article gave emphasis to Z as a rape victim. Having regard to the headline, the caption to the photograph, and the text, the word rape appears 10 times, and the name of Z nine times, her full name on two of those occasions.
To a casual observer without reading the body of the article closely, or even at all, Z was clearly identified as a rape victim. The article also provided further identifying information such as her age and the suburb where she lived, that she received a disability pension, that she lived in public housing, and had previously experienced a period of homelessness.
It is not contended that the respondents were not liable for the publication of the article. There is nothing in the affidavits relied upon by the respondents suggesting that they are not responsible. I find that Davies Brothers Pty Limited ("Davies Brothers") published information in contravention of the Evidence Act, s194K(1)(a)(i), and a photograph in contravention of subs(1)(b), and that as the Acting Editor, Ms Haley caused the material to be published. Both respondents have committed a contempt of court and are liable to punishment for their contempt as if it had been committed in the face of the court.
The hearing proceeded on two dates some months apart as a consequence of a development after the first hearing date. Essentially, what occurred was that as a consequence of a check undertaken by Mr Ellis SC of matters submitted during the initial hearing, further information was provided to the Court by affidavit. Then, answering affidavits were provided. By the time the matter was relisted, another article had been published by the second respondent, giving rise to questions about an aspect of their submissions regarding improvements said to have been made to the second respondent's systems directed to preventing similar contraventions. At the second hearing date, an objection was made on behalf of the respondents to some of the new evidence sought to be admitted, and there were further submissions on behalf of the Crown and the respondents. The ruling was reserved in relation to the evidence under objection and is contained within these reasons. It was anticipated that further affidavit material would be filed on behalf of the respondents, and a timetable was set, although ultimately that did not occur. It is not necessary for me to detail the course of these proceedings and the stage at which the various affidavits were provided and particular submissions were made. These reasons refer to the facts as they now stand, having emerged from the affidavits provided in this staggered fashion. I turn first to detail the facts surrounding the publication of the article.
Ms Andrea Haley is employed by Davies Brothers as the Deputy Editor. She was appointed to that position on 9 January 2012. Prior to that date she was employed by Davies Brothers as Day Editor. During the period from 6 January 2012 to 29 January 2012 she assumed the additional responsibility of being the Acting Editor of the The Mercury and The Sunday Tasmanian. It is her role as Acting Editor that gives rise to her liability in these proceedings. She has 28 years of experience as a journalist and has worked for Davies Brothers for a period of approximately ten years.
Davies Brothers' legal adviser is Mr Daniel Zeeman. The company has a retainer with his firm of solicitors to provide prepublication advice as and when required. The usual process is that, when draft articles and, where necessary, graphics and pictures, are sent to Mr Zeeman, they are provided by email. He then provides legal advice, either by email or by telephone as to any legal issues arising from the draft article. Legal advice is usually sought by senior personnel such as the Editor, Deputy Editor, News Editor, Chief of Staff, or direct from journalists.
On 13 January 2012, a staff member at Davies Brothers emailed a draft of the story, the subject of these proceedings, to Mr Zeeman. The photograph, headlines and caption accompanying the photograph were not provided to Mr Zeeman. In fact it was not revealed to him that there was a photograph.
The covering email said simply, "I believe this story needs your eye. It claims friends of the rapist have been harassing the victim. What do you think?" The matter drawn to his attention was a concern about defamation; nothing to do with a concern about the publication of the victim's name.
During the evening of Friday, 13 January 2012, Mr Zeeman received a telephone call alerting him to the draft story that had been emailed to him. Mr Zeeman provided some advice about one line of the article. It was responsive to the query raised about defamation. The advice was that a sentence which identified the residence of individuals who were friends of the man convicted of rape be removed because of possible defamatory imputation. The enquiry and the point of the advice were completely unrelated to the question of s194K of the Evidence Act. The shared expectation and understanding of the second respondent and Mr Zeeman is that if he detected any problems, other than those drawn to his attention, he would alert the company to those. He overlooked that the draft story named a rape victim in contravention of s194K of the Evidence Act. He is at a loss to explain why. In these proceedings I am not concerned with the question of why the matter may have been overlooked. I merely note that the most experienced lawyers are not immune from human error.
The story was published on Sunday, … January 2012.
Ms Haley had not read a copy of the draft article prior to publication and was unaware of the story until the morning of Sunday, … January, when she read the article in the newspaper.
Notably, the circumstances surrounding the publication of the article and photograph in question have not been detailed in evidence. There is a lack of information about the genesis of the article and the background to the publication of the article. I do not have the benefit of information from the journalist who wrote the article, or editorial staff other than Ms Haley, who provides some scant information about what she believes happened. Presumably the journalist did not know about s194K of the Evidence Act and no one checked the article, or anyone who did also did not know about s194K of the Evidence Act.
The mind-set of the second respondent in respect of these proceedings seems to be that the failure of Mr Zeeman to detect the contravention is all the explanation that is needed. If that is so, it is in itself a matter of concern.
It is believed by Ms Haley that the draft article was submitted for publication on 13 January 2012. It was finalised and approved for publication on Saturday, 14 January 2012, after Mr Zeeman had provided legal advice.
Relevant to Ms Haley's culpability is the following information. The day the article was finalised and approved for publication was her day off, and she was not in the office. However, she was contactable by telephone and available if journalists or the News Editor had wished to contact her about any draft articles. She had been contacted in the past when needed. If she had been contacted she would not have allowed the article to be published in the form it appeared in the newspaper. She was aware that it was an offence to name the victim of a rape within Tasmania without first obtaining permission from the Court.
On reading the article she was "immediately concerned" that the article named the victim of a rape. She was not aware of any application being made to the Court for permission to name the victim. Concerned that the article had been published in breach of the law, she took steps to limit the ongoing publication of the article until she was able to verify the position. At approximately 7.45am she telephoned the editorial administration manager to make sure that the article was not put on Newstext, a text-only archive of news articles from News Corporation newspapers worldwide. She was informed that the article was not uploaded onto Newstext. At approximately 8am she contacted the online editor to ensure that, if the article had not yet been uploaded on the website, it was not uploaded, or if it had been uploaded, it was immediately taken down. She was informed by the online editor that the article had been uploaded but would be immediately removed.
Later she telephoned the News Editor of The Sunday Tasmanian at home. She spoke to him at approximately 8.45am and enquired as to why Z had been identified. He said the story had been "legalled" by Daniel Zeeman.
That is the extent of the information provided in these proceedings about why the article was published. Information has not been provided as to whether the person who approved the article for publication gave any consideration to the prohibition in s194K.
Ms Haley contacted Mr Zeeman by telephone on Sunday morning at about 9am. She told him she was shocked by her discovery of the publication of the story. Ms Haley said, "Since when do we publish the names of rape victims?" Mr Zeeman informed Ms Haley that he had provided advice in respect of the article prior to publication and he apologised for his oversight. During the telephone call, Mr Zeeman informed Ms Haley that he would immediately attempt to contact the Director of Public Prosecutions to explain what had occurred. Mr Zeeman did that. In an email he stated that he regretted to say that the story had been published in the form that he approved and that, "responsibility for having breached the Evidence Act therefore rests with me".
The knowledge of Ms Haley about the prohibition in s194K, as demonstrated by her remark to Mr Zeeman, is also revealing about the corporate knowledge of Davies Brothers. The company is to be attributed with knowledge of the law regarding the prohibition. Indeed, the only reasonable view open is that the company knew the state of the law is that the identity of victims is not to be published unless there was a court order. Ms Haley's remark to Mr Zeeman shows how the law is completely obvious in this regard from an editor's perspective. The knowledge of a company is held by those individuals who are in reality the directing mind and will of the corporation: HL Bolton Engineering Co Ltd v TJ Graham & Sons Ltd [1957] 1 QB 159 per Denning LJ at 172, Tesco Supermarkets Ltd v Nattrass [1972] AC 153 per Lord Reid at 170 - 171. Here, individuals such as Ms Haley as the Acting Editor, are properly regarded as the directing mind and will of the company with regard to matters of publication and editorial responsibility. I am sure that not only Ms Haley, but also others with editorial responsibility employed by Davies Brothers, were fully aware of the prohibition on publishing the identity of rape victims, regardless of their consent.
Victims of sexual crimes have been afforded statutory protection with respect to publication of their identity in Tasmania for approximately 25 years. Before then the protection was only afforded if a court order was made with reference to considerations, one being whether it was desirable "in the interests of, the administration of justice": Evidence Act 1910, s103AB (inserted by 3 of 1976). Section 103AB was amended to impose a statutory prohibition with respect to publishing identifying information regarding rape victims, subject to a court order (55 of 1987, s5). The prohibition has remained substantially the same since 1987. There was an amendment in 1993, immaterial here, to expand the terms of the category of victims protected by the prohibition in that section (5 of 1993, s5). With the commencement of the uniform Evidence Act 2001, that provision was replaced by s194K, in the same terms.
Davies Brothers published the article with full knowledge of the prohibition.
A matter relied upon in mitigation as a significant factor is that the article was checked by Mr Zeeman and he did not draw to the company's attention that the article contravened s194K of the Evidence Act. The weight to be given to the taking of legal advice depends on the circumstances. One factor diminishing the weight to be given to this consideration in this case is that the photograph was not provided to Mr Zeeman. Publication of the photograph in itself amounted to a contempt, s194K(1)(b). Another factor is that the company already knew about the law. The effect of the section prohibiting publication was clear, and there was no question of law with regard to the application of the section to the article in this case.
I infer from the content of the article and the nature of the photograph, with the victim looking directly at the camera lens in front of her residence, that the victim was content for the article to be published in order to achieve an objective of a relocation to another residence. Presumably she wanted publicity of her plight to assist her with her cause of having the … Department accede to her request. If the journalist who interviewed Z and wrote the article was unaware of the prohibition, then presumably Z was not informed that her identity was protected, and she was not given the option of publication of the article without her identifying details. Section 194K requires that details may only be published if permitted by a court order. The Court may only make such an order if satisfied that it is in the public interest.
While there was no suggestion of specific harm or prejudice to Z as a consequence of publication, there is a risk that that could occur in the future or emerge later. There is also general harm of the kind described by Evans J in R v The Age Company Ltd [2000] TASSC 62, involving undermining the community perception that victims are protected from publicity, and thus impacting upon the preparedness of victims to report sexual offences:
"[13] One of the purposes of s103AB is to protect victims of sexual offences from the consequences which may flow from media publicity. In Tasmania, this protection is imposed regardless of whether the victim seeks the publicity or not. In some jurisdictions, it is a defence to a charge of breaching a provision similar to the Act, s103AB(1), if the victim has given permission for the publication. See, for example, the Judiciary Proceedings Repeal Act 1958 (Vic), s4(1B). The Act, s103AB, contains no provision allowing a victim to consent to his or her identity being publicised. There are good reasons for this. Such a provision may encourage representatives of the media to pester victims to consent to publicity. It is undesirable to expose victims to this pressure at a time when they are likely to be in considerable emotional turmoil and may be ill-equipped to weigh up and assess the consequences of publicity. One benefit of a provision such as s103AB is community knowledge that those who make complaints about sexual offences are protected from publicity. This protection encourages people who might otherwise have been deterred from reporting sexual offences to come forward. The perception that victims are protected from publicity would be diminished if the media was able to publish details of victims who consented to that course."
In characterising the seriousness of the contempt, two relevant considerations are the prejudice that is likely to flow from the contempt and the culpability of those concerned: R v The Age Co Ltd par[16] citing R v Thomson Newspapers Ltd; Ex parte Attorney-General [1968] 1 All ER 268, Lord Parker CJ, in delivering the judgment of the court at 269.
Here, in terms of prejudice, there was the prospect of harm to Z, as well as the general harm adverted to by Evans J involving the public interest in not identifying victims of sexual assault.
The article and photograph featured prominently in the particular edition of the newspaper, as was her identity and that she was a rape victim. Because of the prominence there existed the real potential for other rape victims to be deterred from coming forward. The potential damage in this case was not as significant as in other cases due to the overall tone of the article which was sympathetic to her and her situation.
Information was provided about the system and "protocols" in place at the time the article was published and described by Andrea Haley in her affidavit sworn 12 April 2012 as to, "assist in identifying potential legal issues prior to publication and to educate staff members … as to the proper practices and procedures to be adopted" at Davies Brothers should such issues arise. These were identified as:
· On induction each journalist and sub-editor is given a copy of News Limited's Media Law Guide.
· New staff members are advised by the Chief of Staff and Night Editor that, should any issues arise on which advice may be required, these issues are to be raised as early as possible with a senior staff member.
· Senior journalists are aware that they can contact Davies Brothers' external legal adviser directly with any queries relating to possible legal issues.
· Issues are identified and discussed at The Sunday Tasmanian's weekly news conference which takes place every Tuesday. Any legal concerns can be raised at these conferences.
· The Editor and the News Editor have the opportunity to discuss issues before publication.
The Guide mentioned at the first bullet point is 90 pages in length covering issues such as defamation, contempt, copyright, privacy, trespass, reporting restrictions and like topics. Under the heading "6.2 VICTIMS OF SEX CRIMES", it states at 75:
"You must not identify victims of sex crimes. This may include, depending on the circumstances, the address, school or place of work of the victim (in some cases, even entire suburbs). Where the alleged perpetrator of the sex crime is a relative, you may not be able to identify the accused (particularly in instances where they share the same family name or there is a family relationship) as this will identify the victim.
In each state and territory, except Tasmania and Victoria, a victim may give consent to have their name published, provided that person is at least 16 at the time of publication and is capable of giving informed consent – but that consent must be explicit (generally in writing and/or witnessed by a parent or guardian) …"
These measures do not amount to an adequate system. To provide journalists with a lengthy written guide covering a range of topics without emphasising the prohibition in the Evidence Act, s194K, and the effect of it, is insufficient. Practical instruction or training is warranted and so are regular reminders. Most of all, what was lacking was an adequate system of vetting articles. It is relevant for courts to consider how prohibited material may have slipped through a publisher's net. According to the information before me, Davies Brothers did not have a net that was cast over all the articles before publication. There was no filter or vetting procedure unless the individual journalist or editor sought advice. While the weekly news conferences may have been effective as a structured opportunity for raising concerns, that did not assist if the articles were written after Tuesday. Access to advice from senior staff, and external legal advice would only be effective if there was an appreciation of the issue warranting legal advice. Counsel for the respondents described the system as requiring "experienced external advice". That was not a requirement at all unless the member of staff deemed it necessary. If a journalist lacked an appreciation of the prohibition, there was the real risk that legal advice or advice from a senior staff member would not be sought.
I accept that it can at least be said that Davies Brothers provided access to external legal advice which was taken up on this occasion. Ordinarily that would have detected the contempt that was committed in this case. I note too that this was not a case involving publication against legal advice.It was due to an inadequate system that the breach was not detected by the second respondent. Significantly, it was not a deliberate or knowing breach.
Another relevant consideration is the response of the second respondent to the contempt and any improvements that have been implemented since. That response has been to organise additional training for its staff. It was indicated that it was to occur in the near future. Details have not been provided to the Court. Importantly, the current Editor, Mr Holman, now checks the pages thoroughly.
Mr Ellis SC filed an affidavit providing information about a further breach by the second respondent of s194K involving the publication of an article identifying an alleged rape victim in The Mercury newspaper on 3 July 2012. He applied to re-open his case to have evidence of the breach admitted. There was an objection on the basis that it occurred subsequently and had no relevance to these proceedings. Mr Ellis SC relied upon the breach as countering the proposition advanced that appropriate systems and training had been introduced.
The application to re-open is granted and I allow the evidence to be admitted on the basis that it has relevance to the adequacy of the new systems that have been implemented by the second respondent. The evidence has only limited relevance, merely revealing that the new systems implemented as a response to the contravention have not been sufficient to prevent another breach from occurring.
A matter advanced in mitigation was that the offending material was immediately removed from the internet as soon as Ms Haley became aware of it. Ms Haley gave instructions to the online editor that the article be immediately removed from Newstext before receiving confirmation of a breach of the prohibition. Steps were also taken on that date to remove the article from The Mercury's website. However, unbeknown to the respondents, an online version remained available. On 18 April 2012, a day after submissions were presented in these proceedings, a Google search was conducted by Mr Ellis SC revealing that the article, complete with colour photograph, was still available online under The Mercury's website. The following information has been provided to the Court in relation to the online version.
While the article could not be accessed from the The Mercury's website, it remained on the second respondent's internal server and could be accessed via Google's search engine. A supplementary affidavit of Ms Haley explains that Google retained a cached version of the second respondent's website which was returned when a specific search was conducted.
Once the problem was identified, a request for the removal of the cached copy was sent by the online editor of the second respondent to Google. Evidently there was a second web address for the article which the respondents were not aware of. A request has also been sent to Google to remove that second address. The second respondent has removed the article from its server. I have not been informed when that occurred except that it had been done by 18 June 2012, being the date of an affidavit which referred to it having occurred. I do not know why it had not been done at an earlier time except that it must have been thought unnecessary. The article cannot now be accessed by a search on Google.
There are some external websites which contain extracts of the article which appeared on The Mercury's website. Search results have revealed three unrelated websites and three Google groups that make reference to the victim in the context of information derived from the article published by the second respondent. Ms Haley's solicitors have submitted a request to two websites to remove the material. Contact details for one of the websites is not available. Presumably the same situation applies to the three Google groups. There is no power that can be exercised by the first and second respondents over these third parties. It is hoped that the requests will be complied with. Whether they have been removed at the time these reasons are published is unknown. Ms Haley apologised for the initial failure to take these steps, a consequence of her lack of appreciation of the situation and presumably, also, attributable to the online editor's lack of appreciation.
As a consequence of the contravention and the online publication, the article continued to be accessible online for approximately three months. As explained above, it has proved to be impossible for the second respondent to retrieve all extracts published by third parties. It is an added modern dimension to the harm suffered by victims when their identity is published. Yesterday's news has a currency which it did not have before online publishing. There is an even more grave responsibility upon the second respondent to take particular care in the first place when publishing. I expect that generally victims would be entirely unaware of the potential for an online version of the print publication to be available for a significant period, and that third parties may extract and publish their identifying details.
I regard the efforts made by Ms Haley to retrieve the information as conscientious and mitigating with respect to her involvement. However, the efforts made by Davies Brothers to retrieve the identifying information were not thorough and are demonstrative of a lack of appreciation of the seriousness of the situation.
I take into account that the respondents expressed to the Court their regret and remorse. I have not been informed of an apology to Z.
In determining the appropriate penalty I have had regard to other cases with the objective of consistency in mind, insofar as that is possible, noting the varied circumstances which invoke the law of contempt: R v The Age Co Ltd [2000] TASSC 62 at par[18]. It is worth noting that costs orders are often made and are regarded as part of the punishment. In some cases costs awarded have been particularly high with the effect that the penalty has been reduced to take account of those awards. An example is R v The Herald and Weekly Times Limited [2009] VSC 85. There is no suggestion that if costs were awarded in this case they would be the sort of amount that ought to be seen as a significant punishment and therefore warranting a reduction of the penalty that should be imposed to any substantive degree.
It was a serious breach. The culpability of the respondent company is significant. It was well aware of the prohibition. The prohibition in its current terms has been the law in Tasmania for approximately 25 years. The article was a strikingly obvious breach of the provision. I am conscious of the fact that it was not a deliberate or calculated breach. The contravention was not detected by the second respondent before publishing the article due to the inadequacy of its systems. The inevitable conclusion is that the company has not taken the prohibition sufficiently seriously, and guarding against breaching the prohibition was not a matter to which it gave significant priority.
It is concerning that at the material time there was no systematic vetting of all articles before publication. That is suggestive of complacency by the second respondent, as is the reliance in these proceedings on Mr Zeeman's role in not detecting the contravention. The deficiencies in the system have now been addressed to the extent that all pages are checked before publication and training is to be implemented with respect to the Evidence Act, s194K, to ensure an adequate understanding of the prohibition across the organisation.
As for the reliance on Mr Zeeman's advice and oversight, as noted, it does not excuse the publishing of the photograph which was not drawn to Mr Zeeman's attention. Publication of the photograph was in itself a particularly blatant breach. Further, as has been emphasised, Mr Zeeman's failure was in not alerting Davies Brothers to a matter of law which it already knew about. A further consideration is that an adequate system is one which makes allowance for the potential for human error.
I have not overlooked that legal advice was sought, and it is not a case involving wilful ignorance or deliberately not following legal advice. If it had been such a case, a more substantial fine would be warranted.
While there are matters in mitigation which I give weight to, particularly that it was not a deliberate flouting of the prohibition and lessons have been learned, it is evident that the penalty to be imposed upon the second respondent must underline the seriousness of breaching this provision and the gravity of the responsibility that the company respondent has to not publish identifying details of victims or alleged victims of sexual offences in the absence of a court order. As noted, the respondent company has not given the requisite priority to its compliance with the provision. There is a need for specific deterrence, as well as general deterrence, to promote adherence to s194K and the important public interest at stake. I note that the respondent company has recently been fined for contempt for a subsequent breach, and there is the prospect that the recent experience of both proceedings will have a salutary effect.
In relation to Ms Haley, it is noted that she was unaware of the article and its publication until after its distribution. She held a position of responsibility as Acting Editor for a very short period. If she had been consulted, she would have been categorical in her instruction not to publish. Her response to the publishing of the offending article was appropriately conscientious and decisive. She has been responsive with respect to the concerns raised in these proceedings about the publication of the online version. Having regard to her lack of personal culpability for the publishing of the article, I conclude that it is not appropriate that a conviction be recorded or a penalty be imposed upon Ms Haley.
Davies Brothers Pty Limited is convicted of contempt and fined $20,000. Further, I order that Davies Brothers Pty Limited pay the applicant's taxed costs.
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