R v Herald & Weekly Times Ltd (No 2)

[2000] VSC 35

SUPREME COURT OF VICTORIA
CAUSES JURISDICTION	Do not Send for Reporting
Not Restricted

No. 4398 of 1999

THE QUEEN (on the application of THE	Applicant
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA)
V
THE HERALD & WEEKLY TIMES LIMITED (ACN 004 113 937)	First Respondent
GRAHAM GUE WOODROFFE	Second Respondent
PETER BLUNDEN	Third Respondent

No. 4399 of 1999

THE QUEEN (on the application of THE	Applicant
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA)
V
THE HERALD & WEEKLY TIMES LIMITED (ACN 004 113 937)	First Respondent
GRAHAM GUE WOODROFFE	Second Respondent
ALAN HOWE	Third Respondent

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JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 1999
DATE OF JUDGMENT:	22 February 2000
CASE MAY BE CITED AS:	R v Herald & Weekly Times Ltd (No. 2)
MEDIA NEUTRAL CITATION:	[2000] VSC 35

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CONTEMPT OF COURT – Penalty – Appropriate penalties to be imposed on the proprietor, the publishers and the editors of two newspapers.

Attorney-General v Gordon & Ors (unreported, Brooking J, 12 July 1985)
DPP v John Fairfax & Sons Ltd (1987) 8 NSWLR 732
R v Herald & Weekly Times Ltd (unreported, Harper J, 15 April 1996)
R v Nationwide News Pty Ltd (unreported, Gillard J, 18 February 1998)
R v Pacini [1956] VLR 544
R v Spectator Staff Pty Ltd (unreported, Eames J, 9 April 1999)

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Douglas Graham QC, Solicitor-General for the State of Victoria, with Mr CM Caleo	Ronald C Beazley, Victorian Government Solicitor
For the Respondents	Mr WT Houghton QC with Ms GL Schoff	Corrs Chambers Westgarth

HER HONOUR:

1. On 12 November 1999 I found the first to third respondents in proceeding number 4398 of 1999 guilty of contempt of court in respect of the publication of an article which appeared in the Herald-Sun News-Pictorial on 2 September 1998, and also found the first to third respondents in proceeding number 4399 of 1999 guilty of contempt of court in respect of the publication of an article which appeared in the Sunday Herald-Sun of 23 August 1998.   In each proceeding I found a fourth respondent to be not guilty of contempt of court.   I adjourned both proceedings to enable the respondents to call evidence and make submissions on the issue of penalty.

1. The reasons for those findings are set out at length in my reasons for judgment delivered on 12 November 1999 (“the earlier reasons”), which should be read together with these reasons. I found in each proceeding that the article in question, incorporating, as it did, its headline, had a tendency or was objectively likely to undermine public confidence in the administration of justice by giving rise to a serious risk that this Court, constituted by Mr Justice Eames, in a major review of the custodial supervision order relating to Derek Ernest Percy under section 35 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, would appear not to have been free from any extraneous influence.

1. In each proceeding I found that it was not in issue that the first respondent was the proprietor of the relevant newspaper at the relevant time, the second respondent published each of the newspapers on behalf of the first respondent, and the third respondent was the editor of the relevant newspaper at the relevant time.

1. However, at the adjourned hearing, evidence was before me in the form of an affidavit sworn by Christopher McLeod, Editorial Development Manager of the first respondent.   Mr McLeod deposed as to the position of Mr Woodroffe, the second respondent in each matter.   The relevant portion of his affidavit, which was unchallenged, reads:

2.      Mr Graham Woodroffe was company secretary of Herald & Weekly Times Ltd from 14 July 1992 until 29 January 1999.

3. Prior to 19 November 1998, the Printers and Newspapers Act 1958 required a natural person to be identified as publisher of the Herald Sun and Sunday Herald Sun. As company secretary of Herald & Weekly Times Ltd, Mr Woodroffe was nominated as printer and publisher in the affidavit filed with the Registrar-General pursuant to section 13 of the Printers and Newspapers Act 1958.

4. The Printers and Newspapers Act 1958 was repealed by the Printers and Newspapers (Repeal) Act 1998 (the “Repeal Act”). The amendment came into effect on 19 November 1998. Shortly following the repeal, Mr Woodroffe was no longer nominated as printer and publisher of the Herald Sun and the Sunday Herald Sun.

5. Although Mr Woodroffe was nominated as printer and publisher of the Herald Sun and the Sunday Herald Sun at the time of publication of the articles the subject of these proceedings in accordance with section 13 of the Printers and Newspapers Act 1958, he played no part in the publication of the articles and had no knowledge of them until after they were published.

1. It was submitted on the basis of that evidence that I should not impose any penalty on Mr Woodroffe, and I accept that submission.   Gillard J adopted a similar course with respect to Mr Woodroffe in R v Nationwide News Pty Ltd (unreported, delivered on 18 February 1998), in which he was in a similar position.

1. Affidavits were before me from each of the third respondents.   Each deposed that he was the editor of the relevant newspaper and responsible for its editorial content;  and that the headline in the relevant article was not intended to be directed towards Mr Justice Eames, but was intended to be a summary of the views expressed in the article by the person who was the subject of the article.   Each stated that it had not been his intention to cause any embarrassment to Mr Justice Eames or to in any way suggest to members of the public that His Honour might be influenced by the headline of the article.   Mr Blunden, the editor of the Herald Sun News Pictorial, also deposed that he had not been aware that on 28 August 1998 Mr Justice Eames had indicated that he had determined to refer to the Attorney-General the article published in the Sunday Herald-Sun on 23 August 1998 (as to which see paragraph 15 of the earlier reasons).

1. The last paragraph of Mr Blunden’s affidavit reads:

It was not my intention to cause any embarrassment to the Honourable Mr Justice Eames or to in any way suggest to members of the public that his Honour might be influenced by the headline of the article.   If that has occurred, then I apologise to the court for any embarrassment that the headline may have caused it.

And the last paragraph of Mr Howe’s affidavit reads:

It was not my intention to cause any embarrassment to the Honourable Mr Justice Eames or to in any way suggest to members of the public that his Honour might be influenced by the headline of the article.   I accept that the Honourable Justice Balmford has found, inter alia, that the article’s headline had this effect.   If it was, then I apologise to the court for any embarrassment that the headline may have caused it.

1. I accept the submission of Mr Houghton that the two editors, as the persons responsible for the content of their respective newspapers, are the appropriate people to proffer an apology on behalf of the first respondent (“the company”), which is the proprietor of each of the newspapers, and on behalf of this Court I accept their apologies.

1. The company has three relevant prior convictions for contempt of court:  R v Pacini [1956] VLR 544, Attorney-General v Gordon & Ors (unreported decision of Brooking J delivered on 12 July 1985) and R v Herald & Weekly Times Ltd (unreported decision of Harper J delivered on 15 April 1996).   It appears that there was a fourth conviction in 1912, which it was tacitly agreed should not be considered.   Mr Woodroffe has one prior conviction, from a time when he held a position at The Australian newspaper similar to the position which he now holds at the company (see paragraph 5 above).   In R v Herald & Weekly Times Ltd (unreported decision of Harper J, delivered on 15 April 1996) His Honour said at 9:

In my opinion, I should take into account in [the company’s] favour the fact that it has only three convictions over the 104 years since it was formed.   In saying this, I note that communications have changed greatly in that time.   The potential for damage to the proper administration of justice is as real, perhaps much more real, now as it ever was.   There is no room for complacency.

I would, with respect, adopt that passage.

1. I have no reason to doubt the statements of the two editors as to their intention in publishing the articles, and I accept that there was no intention in either case to interfere with the due administration of justice.   I note that there was in this case no actual interference with the administration of justice, in contrast to cases like R v Spectator Staff Pty Ltd (unreported decision of Eames J, delivered on 9 April 1999), where the effect of publication of a contempt was the discharge of the jury prior to verdict.   I would agree with Gillard J’s opinion, expressed in Nationwide News at 10, that although absence of actual interference with the administration of justice is not relevant to the finding of contempt, it does have relevance to the sentencing process.

1. As Kirby P said in DPP v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 742, in punishing for contempt “pursuit of the principle of equal treatment of like cases is not simple. . . . those recent cases which are cited are rarely comparable because of the numerous considerations that must be kept in mind . . .”. The Solicitor-General kindly provided a table of penalties for contempt of court by media in Victoria and New South Wales since 1985, which it is not necessary to reproduce here. I accept the submission of Mr Houghton, for the respondents, that the contempts in question, while serious, were less serious than some of those recorded in the cases.

1. It was conceded for the respondents that the contempt was not an accidental publication, as has occurred in other cases.   It is desirable that the respondents, and other corporations or individuals in positions similar to the respondents, be aware of the need to avoid the publication of material which gives rise to a risk that a court would appear not to have been free from extraneous influence.  

1. In all the circumstances, I consider it appropriate that, in respect of each contempt, a fine of $10,000 be imposed upon the company, and a fine of $2,000 on the relevant third respondent, that is the editor in each case, as the person responsible for the content of the articles (including the headlines).   I have in mind that Mr Houghton indicated that his instructions were that the editors were unaware whether any fine imposed on them would be met by the company.   He also indicated that his instructions were that there was no relevant insurance.

1. There was no suggestion from the respondents that costs should not follow the event, and there will be an order for costs against all three respondents.   The Solicitor-General sought costs on a solicitor-client basis.   While an order for solicitor-client costs is often made in contempt proceedings, there is no rule of law or practice which requires it (see Spectator Staff at 10), and I do not consider that the circumstances of this case justify the making of such an order.