R v Hinch

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2013 03249

THE QUEEN (ON THE APPLICATION OF THE PROTHONOTARY OF THE SUPREME COURT OF VICTORIA)	Applicant
v
DERRYN HINCH	Respondent

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	23, 24 September 2013
DATE OF JUDGMENT:	2 October 2013
CASE MAY BE CITED AS:	The Queen v Hinch
MEDIUM NEUTRAL CITATION:	[2013] VSC 520	Second Revision: 19 December 2013

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CONTEMPT – Publication by respondent of article on the internet – Publication contrary to non-publication order to which respondent not a party – Whether publication interfered with order – Whether respondent had sufficient notice of order – Whether public interest defence applicable to such contempt.

CONTEMPT – Whether publication had tendency to prejudice fair trial of pending criminal proceedings – Relevance of delay to trial – Relevance of other prejudicial material relating to the accused – Whether publication justified by a superior public interest.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Langmead SC and Ms F Forsyth	The Victorian Government Solicitor’s Office
For the Respondent	Mr D Gilbertson	HWL Ebsworth Lawyers

HIS HONOUR:

The applicant seeks declarations that the respondent be adjudged guilty of contempt of court for making a publication in relation to pending criminal proceedings against Adrian Ernest Bayley (“Bayley”). That publication consisted of an article written by the respondent and appearing on his website “HumanHeadline.com.au” (“the website”) from 5 April 2013 to 9 April 2013. The application is brought by the Prothonotary of the Supreme Court by originating motion under rule 75.07 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

The facts

The principal facts are not in dispute. A number of them were the subject of a statement of agreed facts.

On 28 September 2012, Victoria Police filed charges against Bayley in a proceeding at the Melbourne Magistrates’ Court, charging him with rape and murder in relation to the death of Gillian Edie Meagher on 22 September 2012. Two subsequent charges of rape were added on about 24 January 2013. I shall refer to that proceeding as “the Meagher proceeding”.

On 1 February 2013 and on 4 March 2013, Victoria Police filed twelve charges against Bayley in three proceedings at the Melbourne Magistrates’ Court. Those proceedings are conveniently referred to as “the first proceedings”. The charges brought against Bayley included charges of rape, intentionally causing injury and false imprisonment in relation to three female victims. Those proceedings are unrelated to the Meagher proceeding (other than that Bayley is the accused in each proceeding).

On 12 March 2013, at a contested committal hearing in the Meagher proceeding, Bayley pleaded guilty to one count of the rape of Gillian Meagher, but not guilty to the two other charges of rape and the charge of murder.

On the same day, the Melbourne Magistrates’ Court, in that proceeding, made an order, pursuant to s 126 of the Magistrates’ Court Act 1989 (Vic), prohibiting publication of the following matters concerning the accused until the commencement of the trial or a plea of guilty:

(i)Previous convictions, sentences or previous criminal cases;
(ii)The pending first proceedings; and
(iii)Any material which would identify the address of any witness in those proceedings or their telephone number.

On Friday, 5 April 2013, an article entitled “They Were Told” was published on the front page of the Herald Sun newspaper, and in the online version of that newspaper. The article contained a subheading (above the main heading) “Family warned authorities about Meagher accused”. The article stated that “authorities” had been warned that Bayley was a risk of attacking a woman before Gillian Meagher was raped and killed. The article stated that Bayley’s parents had met authorities and “pleaded” with them over their “grave concerns about his behaviour”.

On Friday 5 April 2013, at approximately 10.32 am, the respondent caused to be uploaded onto the website an article (“the article”) under the heading, and via a click-through icon on the website, entitled “Friday Thoughts”. The article was entitled “Jill Meagher”. The respondent was the author of the article. It contained the following words:

“To start with the ugly. The Herald Sun today reveals news that must add to the anguish of Jill Meagher’s family. The 29-year-old rape/murder victim could be alive today if authorities had acted on information and revoked the bail of her rapist and alleged killer, Adrian Bayley.
According to the Herald Sun, Bayley’s parents, with whom he was living, were concerned he might attack a woman and alerted the authorities. Apparently, when he found out, Bayley confronted his parents, and after a row, moved out to live with his girlfriend in Coburg. That was only a short distance from where Jill Meagher took those fatal final steps to be sexually abused and strangled only metres from her home and her husband.
The news does not surprise me. I can now reveal, that twice before Jill Meagher’s murder, Police appealed to the Parole Board to put Bayley back behind bars.
According to my senior Police source late last year, the Sexual Crimes squad were so concerned that they made that recommendation. I realise now, it could have been linked to the concerns raised by Bayley’s own family. Once he’s locked up, maybe the full story will come out. And, again, an angry public justifiably will be asking: How the hell did this man make parole?”

On Friday 5 April 2013, at 10.32 am the respondent published a link on his “Twitter “feed to the article. At 10.39 am, he published, on his “Twitter” feed, the words, “Friday Thoughts – A collection today of some end-of-week thoughts. Some good, some bad, and some very ugly”, with a link to the website.

On the same day, at about 2.18 pm, Bayley entered a plea of guilty, before Nettle JA of this Court, to one count of rape and one count of murder in the Meagher proceeding. At 2.53 pm, Nettle JA made an order to the following effect:

(1)Until further order of the Magistrates’ Court or of a judge of the Supreme Court, publication is prohibited of:
(a)any information relating to previous convictions, sentences or previous criminal cases of Bayley;
(b)any information relating to the pending first proceedings in the Magistrates’ Court;
(c)any material which would identify the address of any witness in those proceedings or his or her telephone number.

(2)Until further order of the Magistrates’ Court of Victoria or of a judge of the Supreme Court of Victoria, publication is prohibited of:
(a)any prior criminal convictions of Bayley;
(b)any other matter reasonably likely to reflect adversely upon Bayley’s character;
(c)without limiting (a) or (b), the contents of Bayley’s record of interview with police dated 27 September 2012.

Notwithstanding the making of those orders, the article continued to be published on the website.

At 10.32 pm on 5 April, the respondent posted a further link to the article on his “Twitter” feed. On Monday, 8 April, at 4.25 pm, the respondent commented on his “Twitter” feed: “Justice being seen to be done? Bayley pleaded guilty to Jill Meagher’s rape/murder. Why did Judge Nettle suppress so much material?” Two hours later, at 6.20 pm on the same day, he posted another comment on his “Twitter” feed to the following effect: “No appearance your Honour. Weird rumour from a journo and a lawyer. Hinch ordered to appear Supreme Court 9.30 am over Bayley tweets”. Fifty minutes later, at 7.11 pm, he commented on his “Twitter” feed: “Things starting to coagulate. Seems Supreme Court miffed about Friday Thoughts blog on humanheadline.com.au not tweets”. The words “humanheadline.com.au” in that “tweet” were posted as a link to the website.

On the next day, Tuesday 9 April, a hearing was convened by Nettle JA in the Supreme Court after the publication was brought to his Honour’s attention. At 9.06 am on that day, his Honour ordered that, pursuant to rule 75.07 of the Rules, the Prothonotary apply by originating motion for punishment of the contempt of court constituted by the publication.

On the same day, on 9 April, at 9.45 am, the respondent telephoned his solicitor and said that he had just been informed that he was about to be charged with contempt of court arising from the article published on the website. The solicitor gave advice to the respondent (which is subject to solicitor-client privilege). At 9.55 am, the respondent sent an email to Jason Soultan, his webmaster in respect of the website, requesting that he contact the respondent on a legal matter. At approximately 10.00 am, the respondent telephoned Soultan requesting that he redact the article. At 10.13 am on the same day, the article, apart from the heading and the first thirteen words of it, were removed from the website, and the following words were substituted (all in upper case): “This material has been suppressed by order of the Supreme Court of Victoria April 9 2013”.

Subsequently, on 26 April, at a committal proceeding in the Melbourne Magistrates’ Court, Bayley entered a plea of not guilty to all charges in the first proceedings, and he was committed to the Melbourne County Court to appear at a directions hearing on 21 May. On 11 June, an order was made by the Supreme Court revoking its previous non-publication order of 5 April.

The charges of contempt

By the originating motion, the applicant seeks two declarations that the respondent be adjudged guilty of contempt of court for making the publication, and that the respondent be punished by imprisonment, or fine, or both. The first declaration, sought by the applicant in paragraph 3 of the originating motion, is that the respondent be adjudged guilty of contempt of court for making the publication in contravention of the non-publication order made by the Supreme Court on 5 April 2013. It is alleged that the publication constituted a contravention of that order in the following respects:

(1)By referring to bail in relation to Bayley, it breached the terms of paragraphs 1(a) and 2(a) and (b) of the order.
(2)By referring to parole in relation to Bayley, it breached the terms of paragraph 1(a) and 2(a) and (b) of the order.
(3)By referring to concerns raised by Bayley’s parents that he might attack a woman, it breached the terms of paragraph 2(b) of the order.
(4)By referring to appeals to the Parole Board by the police in relation to Bayley, it breached the terms of paragraph 2(b) of the order.
(5)By referring to concerns and recommendations of the Sexual Crimes Squad in relation to Bayley, it breached the terms of paragraph 2(b) of the order.

The second declaration, sought by the applicant in paragraph 4 of the originating motion, is that the respondent be adjudged guilty of contempt of court on the basis that the publication had a tendency, or was calculated, to interfere with the due administration of justice in the trial of the accused in the first proceedings. In particular, it is alleged that the publication created a real risk of prejudice to the defence by Bayley of the charges against him, and created a real risk of interference with his rights to a fair hearing of the first proceedings, on the following bases:

(a)by making the publication:
(i)while the first proceedings were due to start
(ii)when the first proceedings would each be jury trials in the absence of a plea of guilty
(iii)before Bayley had entered any plea in the first proceedings
(iv)at a time when it was at least possible that the trials in the first proceedings would take place in the near future
(v)three weeks before the committal proceeding

(b)by publishing:
(i)references to and commentary on the previous parole and bail of Bayley
(ii)references to concerns of Bayley’s parents that he might attack another woman
(iii)claims that Victoria Police had previously “appealed” to the Parole Board to “put Bayley back behind bars”
(iv)claims that the Sexual Crimes Squad was “so concerned” about Bayley that it recommended his parole be revoked
(v)references to material which would be inadmissible in the first proceedings
(vi)material relating to sexual offences and assertions of propensity to commit sexual offences when the first proceedings included charges against Bayley of sexual offences.

The evidence

In addition to the facts which I have already outlined, other evidence was adduced by way of the statement of agreed facts and also by affidavits filed by both parties. It is convenient to refer to some of that evidence at this stage.

The statement of agreed facts included five newspaper articles which were annexures to the statement. I have already referred to the first annexure, namely, the article published by the Herald Sun on 5 April. The second annexure consisted of a subsequent article published by the Herald Sun online on 5 April, entitled “Adrian Bayley pleads guilty to murder of Jill Meagher”. The article reported that Bayley had pleaded guilty to the murder of Gillian Meagher, and that he had been remanded to re-appear in the Supreme Court on 11 June for plea and sentence. The article continued: “No other aspects of the arraignment hearing can be reported for legal reasons”. The article then described, in brief terms, the sequence of the events which occurred in the early hours of 22 September, and which led to the murder of Gillian Meagher.

The third annexure was a similar article published online by The Age on 5 April entitled “Bayley pleads guilty to Meagher murder”. The second last paragraph of the article stated: “Justice Nettle suppressed all details of Friday’s case in Victoria, including the contents of his interview with police after his arrest on September 27”.

The fourth article annexed to the statement of agreed facts was published by the Herald Sun newspaper on Saturday 6 April. The first page of the article (which was also the first page of that edition of the newspaper) contained a photograph of Bayley, and, in large print, the word “Guilty”. Otherwise, the article was in similar terms to the article published by the Herald Sun online on 5 April.

The fifth article annexed to the statement of facts was published by the Herald Sun newspaper on 8 April. It was entitled “Family tell of ‘relief’”. It referred to the fact that Bayley had pleaded guilty on the previous Friday, and that he had been remanded to re-appear for plea and sentence on 11 June. The article stated: “No other aspects of the arraignment hearing can be reported for legal reasons”. The article then referred to the fact that the murder of Gillian Meagher had shocked Melbourne and had precipitated an outpouring of grief. It contained a short outline of the events which led to the murder of Gillian Meagher, and to the arrest of Bayley in respect of it.

In addition, the applicant relied on affidavits sworn by five deponents, which principally concerned the issue of the publication of the article. The applicant also called Dr Bradley Schatz, a forensic computer scientist, who gave evidence about the means by which material, such as the article, is uploaded onto the internet, and the means by which a “Twitter” feed can be used to link with an article on a website.

In the course of submissions, the applicant relied on three particular aspects of the evidence adduced by it to establish that the respondent had notice of the order made by Nettle JA on 5 April. First, it referred to an article, published by the respondent on the website on 9 April 2013, entitled “Contempt of court”. The article, having reported that, on that day, Justice Nettle of the Supreme Court had ordered that the respondent be charged with contempt of court of matters on the website on the previous Friday (5 April), stated: “Friday Thoughts was posted Friday morning. The judge’s almost blanket suppression order had not then been made”. Further on in the article, he stated:

“Another salient point: I was in Sydney on Friday when I wrote that story. Did not get back to Melbourne until Saturday night and did not read the suffocating suppression order until Monday. Yesterday’s Herald Sun carried an extensive report which included a paragraph that incensed me enough to twitter about it.”

On the same day, 9 April 2013, the respondent was interviewed on the “Today Tonight” program broadcast by Channel 7. In the course of that interview, the respondent reiterated that he had posted his “editorial” (that is, the article) hours before Justice Nettle had made the suppression order. He then stated:

“But come Friday, … before a judge, he’s pleading guilty, ah there’s no jury you can influence, I’m just amazed and also surprised by the fact that judge then just suppressed everything virtually about that case on Friday. I got annoyed about that and went on Twitter and said so.”

On the same day, at 6.17 pm, the respondent commented on his “Twitter” feed: “My blog was posted in Sydney hours before the suppression orders were made. I read the orders in the HS yesterday”.

The respondent also relied on a number of affidavits filed on his behalf. First, he relied on an affidavit of Mr Andrew McLeish, a computer forensic expert. In particular, Mr McLeish gave evidence as to the number of “unique visits” to the page on the website which contained the article. In particular, his evidence is that there were 797 unique views in Melbourne of that page between 5 April 2013 and 8 April 2013. On 8 April, there were 221 unique views in Melbourne of the page.

In addition, the respondent relied on three affidavits sworn by his solicitor, which exhibited a voluminous amount of media publications and printouts from the internet relating to Bayley and the murder of Gillian Meagher. I shall refer to the salient aspects of that material when I summarise the submissions of Mr D Gilbertson, counsel for the respondent.

Submissions

Mr J Langmead SC, who appeared with Ms F Forsyth for the applicant, submitted that I should be satisfied of the guilt of the respondent of the two charges of contempt, contained in the originating motion. In particular, he submitted that the article was in breach of the terms of the suppression order made by Nettle JA on 5 April in that:

(a)By referring to bail in relation to Bayley, it breached the terms of paragraphs 1(a) and 2(a) and (b) of the suppression order.
(b)By referring to parole in relation to Bayley, it breached the terms of paragraph 1(a) and 2(a) and (b) of the order.
(c)By referring to concerns raised by Bayley’s parents that he might attack a woman, it breached the terms of paragraph 2(b) of the order.
(d)By referring to appeals to the Parole Board by the police in relation to Bayley, it breached the terms of paragraph 2(b) of the order.

Mr Langmead submitted that, in proceedings for contempt of court, it is not necessary for the applicant to prove that an article, published on the internet, has been downloaded and read by any person. He submitted that it is sufficient that, for the purposes of a charge of contempt, the material was made available, and continued to be made available, by the respondent on the internet. In support of that proposition, he referred to the decision of the Court of Appeal in News Digital Media Pty Ltd v Mokbel[1] and the decision of the New South Wales Court of Appeal in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim.[2]
[1](2010) 30 VR 248.
[2][2012] NSWCCA 125, [43].

Mr Langmead further submitted that, for the purposes of the first charge of contempt, it was not necessary for the applicant to prove that the respondent knew of the precise terms of the suppression order made by Nettle JA on 5 April. Rather, it is sufficient that the respondent had received such notice of the terms of the order as, in the circumstances, would have caused a reasonable person, in his position, to refrain from further publishing the article on the website. In support of that proposition, Mr Langmead referred to the decision of McGarvie J in Foley v Herald-Sun TV Pty Ltd[3] and the decision of Pinkus J of the Federal Court in Sun Newspapers Pty Ltd v Brisbane TV Ltd.[4]
[3][1981] VR 315, 318.
[4](1989) 92 ALR 535, 538.

Mr Langmead submitted that I should infer that the respondent had sufficient notice of the suppression order on 5 April or 6 April. In particular, the respondent, on his website, had identified his “top reads” as (inter alia) the Herald Sun newspaper and The Age newspaper. The Herald Sun and Age articles of 5 April, and the Herald Sun article of 6 April, each stated that the details of the hearing before Nettle JA on 5 April were either suppressed or could not be reported “for legal reasons”. Alternatively, Mr Langmead submitted that the respondent had adequate notice of the suppression order on 8 April. In the article written by the respondent on the website on 9 April, and in his interview on the Today Tonight program, the respondent had said that he had learned of the suppression order from the Herald Sun article of 8 April, which also stated that “no other aspects of the arraignment hearing can be reported for legal reasons”.

Mr Langmead submitted that there was substantial evidence that the respondent not only knew of the making of the suppression order by Nettle JA, but that he also knew that it was expressed in broad terms. In particular, he referred to the “tweet” by the respondent on his “Twitter” account on 8 April at 4.25 pm, the comments made by the respondent on the “Today Tonight” interview on 9 April, and the article published by the respondent on the website on 9 April entitled “Contempt of court”. In addition, Mr Langmead referred to the “tweets” on the respondent’s “Twitter” account at 6.20 pm and 7.11 pm, which, Mr Langmead submitted, demonstrated that the respondent understood, at least by that stage, that the court had serious concerns about the article published on the website.

Mr Langmead submitted that the appropriate test, in relation to the second charge, is whether the article published by the respondent had a tendency, as a matter of practical reality, to interfere with the course of justice in a particular case. See Hinch v Attorney-General (Vic).[5] He submitted that the article had such a tendency to prejudice the defence by Bayley, to the charges against him in the first proceedings, in three respects. First, the reference, in the article, to the fact that Bayley was on bail when he murdered Gillian Meagher, and the reference to police twice appealing to the Parole Board “to put Bayley back behind bars”, amounted to the disclosure of Bayley’s prior convictions. Mr Langmead submitted that the publication of an accused person’s previous convictions constitutes, prima facie, a paradigm instance of a contempt of court.[6] Secondly, the references in the article to the concerns of Bayley’s parents, that he might attack a woman, and the allegation that Bayley’s parents had alerted authorities about those concerns, amounted to statements which were unfavourable to the character of Bayley, in particular by suggesting that Bayley had a propensity to commit violent crimes against women. Thirdly, and similarly, Mr Langmead submitted that the references in the article to recommendations of the Sexual Crimes Squad of the Victoria Police inferred that Bayley had a propensity to commit sexual crimes. He pointed out that that reference was lent a degree of authenticity by the claim by the respondent, in the article, that he had obtained that information from his “senior police source”.
[5](1987) 164 CLR 15, 28 (Mason CJ).
[6]R v Regal Press Ltd [1972] VR 67; R v Herald & Weekly Times Ltd (2007) 19 VR 248, 270 [77] (Smith J).

Mr Langmead submitted that those three matters, individually and collectively, are such that the article was clearly demonstrated to have a tendency, as a matter of practical reality, to prejudice the right of Bayley to a fair trial of the charges against him in the first proceedings.

In response, Mr Gilbertson submitted that, in order that the respondent be guilty of the first charge of contempt, by contravening the order of the Court of 5 April, the applicant must establish that the article had a “real and definite tendency” to interfere with the administration of justice. As authority for that proposition, he relied on the decision of the House of Lords in Attorney-General (UK) v Leveller Magazine Ltd,[7] the decisions of the New South Wales Court of Appeal in John Fairfax & Sons Ltd v Police Tribunal of New South Wales[8] and Attorney-General (NSW) v Mayas Pty Ltd,[9] and the decision of Gray J of the Supreme Court of South Australia in Registrar of the Supreme Court v Herald & Weekly Times Ltd.[10] He submitted that, in order to establish the second charge of contempt against the respondent, it must be established that the article had, as a matter of practical reality, a real and definite tendency to interfere with the due course of justice in the first proceedings by prejudicing the fair trial of those proceedings.[11]
[7][1979] AC 440.
[8](1986) 5 NSWLR 465.
[9](1988) 14 NSWLR 342.
[10][2004] SASC 129.
[11]Hinch v Attorney-General (Vic) 164 CLR 15, 34 (Wilson J).

In respect of each of the two charges, Mr Gilbertson submitted that the reference, in the article, to the fact that Bayley was on bail, did not have the requisite tendency to interfere with the administration of justice, or to prejudice the fair trial of the first proceedings. He submitted that the meaning of the article was to be determined by reference to the understanding of it by the ordinary reasonable reader. Such an hypothetical person would not understand the reference to “bail” as conveying an imputation of guilt.

Mr Gilbertson further submitted that, in respect of each of the two charges, it is relevant to take into account the range of the dissemination of the article. In this respect, he referred to the evidence of Mr McLeish as to the limited scope of the readership of the article, which, he submitted, militated against the article having a real tendency to frustrate the administration of justice (for the purpose of the first charge), or to prejudice the fair trial of the charges against Bayley in the first proceedings (for the purpose of second charge). In that respect, Mr Gilbertson referred to Attorney-General (NSW) v John Fairfax & Sons Ltd & Bacon[12] and Attorney-General v Independent Television News Ltd.[13] He also pointed out that, at the time at which the article was accessible on the internet, between 5 April and 9 April, the committal hearing of the charges in the first proceeding had not taken place, and it was not known when the trial of that proceeding would take place.
[12](1985) 6 NSWLR 695.
[13][1995] 2 All ER 370.

Mr Gilbertson further submitted that, in determining whether the article had the requisite tendency to interfere with the administration of justice (for the purpose of the first charge), or to prejudice the right of Bayley to a fair trial of the charges against him in the first proceedings (for the purpose of the second charge), it is relevant to take into account the effect of other publications concerning Bayley up to the time at which the article was published. Mr Gilbertson accepted that the respondent was only entitled to rely on material, which contained the same allegations as the article, up until the time at which charges were laid against Bayley in the first proceedings (1 February 2013). However, he submitted that, otherwise, the respondent was entitled to rely on material affecting Bayley’s reputation, and similar matters, up until the time of the publication of the article by the respondent. In support of that proposition, Mr Gilbertson referred to the decision of the New South Wales Court of Appeal in Director of Public Prosecutions v Wran.[14]
[14](1987) 7 NSWLR 616, esp at 628-9.

In particular, Mr Gilbertson relied on publications, which are and were accessible on the internet by making Google searches of the words “Adrian Bayley” and “Jill Meagher”, and publications in the print and live media, which related to the following six subject matters:

(1)The previous convictions and character of Adrian Bayley. In that respect Mr Gilbertson referred to the following material:
(a)Material derived from a Google search using the term “Adrian Bayley”, which itself identified an internet site entitled “Adrian Ernest Bayley: Aussie criminals and crooks”. That site contained a number of contributions by various persons with access to the site. Mr Gilbertson relied on six extracts which stated that Bayley had previous convictions for rape. One contributor described him as a “serial rapist” who had served 11 years’ imprisonment for “numerous rapes”. Collectively the contributions revealed that Bayley had a previous conviction for rape in 1993, that he had re-offended in March 2000, and that he had been sentenced to a term of imprisonment for 11 years in 2001, with a minimum non-parole period of 8 years.
(b)An article published in the Daily Mail (UK) website dated 28 September 2012, which stated that Bayley had been jailed for three months in February 2012 for an assault in which he had broken his victim’s jaw and rendered him unconscious, and that the sentencing judge had said that Bayley’s “past history involved sexual violence and you have been jailed for other serious matters”. The article alleged that Bayley had “spent most of his life in jail”.
(c)An article published on the Daily Mirror online (UK) website dated 30 September 2012 entitled “Jill would be alive if he had served jail term”, stating that Bayley had savagely beaten a man in an unprovoked attack in August 2011, while he was on parole after convictions for serial rape, in respect of which he had been sentenced to a term of imprisonment for 11 years.
(d)An abstract of the Australian Women’s Weekly dated November 2012, which stated that Bayley had a history of sex crimes with three cases in 1999 and 18 rapes of five women in Melbourne in 2002, for which he had been sentenced to 11 years’ imprisonment.
(e)Extracts from a website entitled “Adrian Ernest Bayley: Aussie criminals and crooks”. The printout included an article which referred to Bayley’s conviction for assault, in February 2012, in an incident which involved Bayley “king hitting a Geelong man, breaking his jaw and rendering him unconscious”. The article stated that Bayley’s lawyer had said that Bayley had “spent most of his life in jail and was currently on parole until March 17, 2013”. The article also contained the sentencing magistrate’s remarks that Bayley’s past history involved sexual violence and that he had been in prison for other serious matters.
(f)Extracts from “Facebook” and “Twitter” which had been accessed by searching the term “Jill Meagher”. In particular, the extract contained an article (which was barely legible) describing Bayley as a “serial rapist” who had been released in 1993 after spending 22 months of a maximum 5 year term in jail. The “Facebook” extracts contained other references to the fact that Bayley had previous convictions for rape. In addition, the respondent referred to a “Facebook” community page entitled “Justice Seekers – Jill Meagher” which also contained references to the previous sentence of 11 years’ imprisonment imposed on Bayley in 2002, and to the fact that Bayley had previous convictions for sexual violence. The respondent also relied on a “Twitter” search in respect of Adrian Bayley, which contained a further reference to the previous conviction of Bayley for rape.

(2)References to the fact that Bayley was on parole at the time of the murder of Gillian Meagher. In particular, Mr Gilbertson referred to:
(a)the two Daily Mirror articles which I have already mentioned;
(b)an extract from the “Facebook” community tribute page entitled “RIP Jill Meagher” stating that Bayley had been released on parole before he had completed his sentence.
(c)two extracts from the “Twitter” search relating to “results for Adrian Bayley”, in which the contributors stated or inferred that Bayley was on parole.

(3)Material stating that Bayley had been charged in relation to the matters which were the subject of the first proceedings. In particular, Mr Gilbertson referred to an Age article published on 5 March 2013, and a “Facebook” community page entitled “Justice Seekers – Jill Meagher” which stated (on 4 March) that, in addition to the charges relating to the death of Gillian Meagher, Bayley also was the subject of charges relating to assaults in Elwood and Balaclava in 2012.
(4)Reports of the committal proceedings of the charges against Bayley for raping and murdering Gillian Meagher. Mr Gilbertson referred to articles published on the ABC online, to an Age article, and to an article on the Channel 9 website, which revealed that Bayley had admitted raping and strangling Gillian Meagher, and that he had pleaded guilty to one count of rape, but not guilty to the charge of murder.
(5)Publications that Bayley was “expected to plead guilty” to the murder of Gillian Meagher. In particular, Mr Gilbertson referred to:
(a)the article published in the Age newspaper on 5 April, and the article in the Herald Sun newspaper dated 5 April, to which I have already referred.
(b)the evidence that there were 419,862 copies of the 5 April print edition of the Herald Sun newspaper sold, and 6,169 unique page views of the online edition in Melbourne.
(c)the evidence that there were 182,796 copies of the 5 April edition of the Age newspaper sold in Victoria, and 55,000 unique visitors to the online edition of that newspaper in Melbourne between 4 and 10 April 2013.

(6)Reports of Bayley’s plea of guilty to the murder of Gillian Meagher. In that respect, Mr Gilbertson referred to an ABC article entitled “Adrian Bayley pleads guilty to Jill Meagher’s murder” on 5 April 2013 and the Age article entitled “Bayley pleads guilty to Meagher murder” of the same date.

Mr Gilbertson submitted that, in the context of the widespread publication of material relating to those six topics, the article published by the respondent was not demonstrated to have a tendency to frustrate the administration of justice (for the purpose of the first charge) or to prejudice the right of Bayley to a fair trial in respect of the charges in the first proceedings (for the purpose of the second charge).

Mr Gilbertson made two further contentions in relation to the first charge. First, he submitted that the applicant had failed to prove that the respondent, at any material time, had sufficient notice and knowledge of the terms of the order made by Nettle JA on 5 April. He submitted that the fact that the respondent nominated (among eight publications) the Age and the Herald Sun as his “top reads” was an insufficient basis for an inference that the respondent had read the articles published in those two newspapers of 5 April and 6 April. Mr Gilbertson submitted that the “tweets” by the respondent at 4.25 pm, 6.20 pm and 7.11 pm on 8 April did not demonstrate that, at that time, the respondent knew the terms of the order of Nettle JA, and, in particular, that he knew that it precluded the publication of the contents of the article. Rather, Mr Gilbertson submitted that the applicant had failed to exclude, as a reasonable inference, the possibility that the respondent had only understood, from the Herald Sun article of 8 April, that the suppression order made by Nettle JA precluded the publication of matters relating to the charges that Bayley had murdered and raped Gillian Meagher.

Secondly, Mr Gilbertson submitted that, in a case such as the present, when the offending material had been uploaded onto the internet before the making of the suppression order, the person responsible for the maintenance of the material on the internet must, first, have a reasonable opportunity to obtain legal advice. The respondent consulted his solicitor on the morning of 9 April, and, after that consultation, he promptly arranged for the article to be redacted to delete the offending aspects of it. In those circumstances, Mr Gilbertson submitted that, if the respondent did have sufficient notice of the terms of the order made by Nettle JA, he responded in sufficient time to that notice, allowing, first, for the opportunity for the respondent to obtain legal advice.

Finally, Mr Gilbertson submitted that, if the material published by the respondent on the internet were otherwise, prima facie, a contempt of court, for the purposes of either charge, then the public interest in the administration of justice, or in protecting the right of Bayley to a fair trial of the charges in the first proceedings, was outweighed by the countervailing public interest in the freedom of discussion of, and dissemination of information concerning, three matters of public concern, namely:

(a)the safety of women and young children on the streets of Melbourne and elsewhere;
(b)violence against women generally;
(c)the operation and effectiveness of the parole system in Victoria.

In support of that submission, Mr Gilbertson referred to extracts from the internet which contained discussion online and on “Facebook” and “Twitter” of each of those three matters. Relying on the principles stated by Jordan CJ in Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd,[15] he submitted that the public interest, in the discussion of those matters, outweighed the competing public interest in the integrity of the administration of justice and in maintaining the right of Bayley to a fair trial of the charges against him in the first proceedings. Mr Gilbertson referred to the decision of the High Court in Hinch v Attorney-General (Vic),[16] in which the High Court held that the principles stated by Jordan CJ in the Bread Manufacturers’ case applied to cases of contempt of court, where the contempt related to pending criminal proceedings.
[15](1937) SA (NSW) 242, 249 (“Bread Manufacturers’ case”).
[16](1987) 164 CLR 15.

In reply, Mr Langmead submitted that the fact that other persons had published similarly prejudicial material did not exonerate the respondent from committing a contempt of court. In support of that proposition, he relied on the decision of the New South Wales Court of Appeal in Attorney-General (NSW) v Willesee.[17] He further submitted that where other prejudicial material has been published about an accused person, the publication of further material has a tendency to aggravate the prejudice to the accused.[18] In any event, he submitted that the other publications, on the internet, did not avail the respondent in this case. He contended that the entries on “Facebook” and “Twitter” were more conversational in style, and less likely to be later downloaded and read. The previous publications relating to Bayley did not contain any reference to the fact that the Sexual Crimes Squad of the Victoria Police had recommended to the Parole Board that Bayley’s parole be revoked (as claimed in the article). Mr Langmead submitted that in none of the other publications did there appear a combination of the four matters by reason of which, he submitted, the article constituted a contempt of court, namely, the references to Bayley being on bail, to Bayley being on parole, to the concerns of Bayley’s parents, and to the recommendation of the Sexual Crimes Squad of the Victoria Police.
[17][1980] 2 NSWLR 143.
[18]See R v Regal Press Pty Ltd [1972] VR 67.

Mr Langmead submitted that the fact that the respondent did not have a substantial following on his website was not relevant to an assessment as to whether the article had a tendency to prejudice the right of Bayley to a fair trial. In that respect, he referred to a passage from the decision of the Court of Appeal of Victoria in News Digital Media Pty Ltd v Mokbel,[19] which, he submitted, supports the proposition that, in a publication on the internet, the relevant tendency to prejudice the right of an accused to a fair trial is to be determined by the exposure of the material on the internet, and not by the number of persons who accessed that material and who read it.
[19](2010) 30 VR 248, 265 [65].

Mr Langmead further submitted that the “public interest” defence was not applicable to the first charge of contempt. In any event, he submitted that the article published by the respondent was specifically concerned with the accused man Adrian Bayley, rather than with the three topics of public interest nominated by Mr Gilbertson.

The charges: legal principles

The fundamental basis of any charge of contempt of court consists of the capacity of the impugned conduct to interfere with the due administration of justice.[20] Nevertheless, at common law, there are a number of different distinct categories of contempt of court.[21] In the present case, the two charges of contempt of court, specified in the originating motion, involve two separate species of contempt of court. The first charge alleges conduct by the respondent which had the effect of frustrating an order made by this Court, namely, the order made by Nettle JA on 5 April. The second charge alleges conduct by the respondent which had a tendency to prejudice the right of Bayley to a fair trial of the charges against him in the first proceedings. Although some of the elements of the two charges are the same, there are important differences between them.
[20]Attorney-General v Times Newspapers Ltd [1974] AC 273, 315 (Lord Simon); Witham v Holloway (1995) 183 CLR 525, 538-9 (McHugh J); Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106.
[21]Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 46 (Deane J).

Proceedings for a declaration that the respondent acted in contempt of court in respect of each of the two charges are considered by the law to be criminal in nature, and accordingly the applicant must prove each element of the charge of contempt beyond reasonable doubt.[22]
[22]Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 49-50 (Deane J); Witham v Holloway (1995) 185 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ).

Each of the two charges concern the potential effect of the article, respectively, to frustrate the effect of the suppression order made by Nettle JA on 5 April, or to prejudice the trial of the charges against Bayley in the first proceedings. In the case of each charge, the effect of the article is to be assessed by reference to the understanding of it by the hypothetical ordinary reasonable reader of it.[23]
[23]Attorney-General (NSW) v John Fairfax & Sons Ltd & Bacon (1985) 6 NSWLR 695, 698 (Samuels JA), 702-3 (McHugh JA); The Queen v Truth Newspaper (Supreme Court of Victoria, unreported, J D Phillips J, 16 December 1993) BC 9300922, at page 13; Director of Public Prosecutions v Wran (1987) 7 NSWLR 616, 626.

The first charge: legal principles

In order to establish the guilt of the respondent of the first charge, the applicant must prove beyond reasonable doubt each of the following elements:

(1)That the respondent published the article on the website.
(2)That the publication by the respondent of the article frustrated the effect of the order by containing material which was contrary to or which infringed the terms of the order.
(3)That at the time at which the respondent published the article, he had sufficient knowledge of the terms and effect of the order, that a reasonable person would have understood that the continued publication of the article on the website would have the tendency to frustrate the efficacy of the order.

In the context of the law of contempt, an article, which appears on the internet, is regarded as being published during the period in which the person responsible for maintaining the article on the internet makes the information, contained in the article, available on the internet. In this respect, the concept of publication in the law of contempt is different to the concept of publication for the purposes of the law of defamation.[24] In News Digital Media Pty Ltd v Mokbel,[25] in their joint judgment, Warren CJ and Byrne AJA, referred to two previous decisions which demonstrated the different approaches to the question, when publication is considered to occur, in the law of defamation and the law of contempt. Their Honours stated:

“There is between these two decisions a difference as to the moment of publication. Is it on every day that the material is available on the internet, or on the day that someone accesses the material which is available on the internet? In the case where the claim is for damages for defamation, the publication occurs when the material comes to the attention of the visitor to the site in whose eyes the plaintiff’s reputation suffers damage. In the case of contempt, where the concern is the risk to the legal process, this occurs when the material is made available to the juror or potential juror. Accordingly, we would accept the analysis … that the contempt occurs when and where the material is available to such a person, whether it be shown that the person accessed it or not. Contempt occurs when the court process is exposed to risk, irrespective of whether the risk becomes actuality. This is consistent with the approach of the court to allegations of contempt by publication of prejudicial material in the print or radio media. In such a case, the prosecution case does not depend upon proof that a juror or potential juror actually read or heard the prejudicial material; it is sufficient that, at the time of publication, the publication, assessed objectively, has a real and definite tendency to prejudice or embarrass the particular proceeding.”[26]

[24]Cf Dow Jones & Co Inc v Gutnik (2002) 210 CLR 575, 606-7 [44].

[25](2010) 30 VR 248; [2010] VSCA 51.

[26]Ibid 265 [65].

For that reason, it is accepted that, for the purpose of the law of contempt, publication of material on the internet is considered to be a continuing act, so that the person responsible for maintaining the matter on the internet is considered to thereby publish it for so long as the material is available for access by the public on the internet.[27]
[27]Ibid 266 [66]; Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 293 ALR 384, 396 [43] (Basten JA, with whom Bathurst CJ and Whealy JA agreed).

In order to establish the second element of the first charge, the applicant must establish that the article, published by the respondent, was contrary to the terms of the order made by Nettle JA and, as such, had the effect of interfering with or frustrating the administration of justice. The respondent was not a direct party to the order made by Nettle JA. Nevertheless, it is well established that a person, not directly bound by an order, is guilty of contempt of court if that person, with knowledge of the order, does an act which infringes, or frustrates, the efficacy of the order, and thus interferes with the due administration of justice.

The leading authority for that proposition is the decision of the House of Lords in Attorney-General v Leveller Magazine Ltd.[28] In that case, in committal proceedings concerning offences under the Official Secrets Act, the presiding magistrate directed that a particular witness be referred to as “Colonel B”. During cross-examination, that witness, without objection, revealed the official name and number of the army unit to which he belonged. That information was sufficient to enable the identity of the witness to be readily deduced. The Attorney-General brought proceedings for contempt of court against publishers of magazines who disclosed the name of “Colonel B”. The Divisional Court held that the publishers of the magazines were guilty of contempt of court.
[28][1979] AC 440.

On appeal, the House of Lords held that where a court made a ruling or order, the intended effect of which would be frustrated by an act done outside the court room, a person who, knowing the purpose of the ruling, committed such an act, might be guilty of contempt, by interfering with the due administration of justice. However, their Lordships held that the intended effect of the magistrate’s ruling, in relation to the witness, had been abandoned by the evidence given by the witness in cross-examination, from which his true identity could be readily ascertained. Accordingly, it was held that there had been no interference with the due administration of justice by the magazines who published his name.

In the course of his speech, Lord Diplock stated the relevant principles in the following terms:

“It may be that a ‘ruling’ by the court as to the conduct of proceedings can have binding effect as such within the courtroom only, so that breach of it is not ipso facto a contempt of court unless it is committed there. Nevertheless where (1) the reason for a ruling which involves departing in some measure from the general principle of open justice within the courtroom is that the departure is necessary in the interests of the due administration of justice and (2) it would be apparent to anyone who was aware of the ruling that the result which the ruling is designed to achieve would be frustrated by a particular kind of act done outside the courtroom, the doing of such an act with knowledge of the ruling and of its purpose may constitute a contempt of court, not because it is a breach of the ruling but because it interferes with the due administration of justice.”[29]

[29]Ibid 451-2.

In similar terms, Lord Scarman stated:

“If a court is satisfied that for the protection of the administration of justice from interference it is necessary to order that evidence either be heard in private or be written down or not be given in open court, it may so order. Such an order, or ruling, may be the foundation of contempt proceedings against any person who, with knowledge of the order, frustrates its purpose by publishing the evidence kept private or information leading to its exposure.”[30]

[30]Ibid 473; see also at 456-7 (Viscount Dilhorne); 468 (Lord Russell).

The principle, so stated by the House of Lords in Attorney-General v Leveller Magazine Ltd, has been accepted in a number of decisions in Australian courts. In John Fairfax & Sons Ltd v Police Tribunal of New South Wales,[31] McHugh JA (with whom Glass JA agreed) stated:

“An order made in court is no doubt binding on the parties, the witnesses and other persons in the courtroom. But an order purporting to operate as a common rule and to bind people generally is an exercise of legislative – not judicial – power. Nevertheless, conduct outside the court room which deliberately frustrates the effect of an order made to enable a court to act effectively within its jurisdiction may constitute a contempt of court. But the conduct will be contempt because the person involved has intentionally interfered with the proper administration of justice and not because he was bound by the order itself.”[32]

[31](1986) 5 NSWLR 465.

[32]Ibid 477; see also Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342, 355 (McHugh JA); News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 279 [123] (Buchanan JA); R v Savvas (1989) 43 A Crim R 331, 334-5 (Hunt J); Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, 69 [59]-[60] (Basten JA); [2012] NSWCCA 125.

In order to establish the third element of the first charge, the applicant must prove, beyond reasonable doubt, that the respondent was sufficiently aware of the effect or content of the order, that a reasonable person in his position would have apprehended that the continued publication of the article on the internet would frustrate the terms of the order.

In Attorney-General (NSW) v MayasPty Ltd,[33] a reporter was charged with contempt of court for publishing the name of a complainant to charges of sexual offences, after the magistrate, hearing the committal proceedings, had made a non-publication order in respect of the name of the complainant. McHugh JA (with whom Hope JA agreed) stated:

“If, pursuant to statutory authority, a court makes an order binding on persons outside the court room, breach of it will prima facie constitute a contempt whether or not the person is aware of the order. But a different rule applies when a person, who is not bound by an order of the court, says or does something which has the effect of frustrating or interfering with the order. In that class of case, the person will be guilty of contempt only if he is aware of the order and it is apparent to anyone that the effect of the order would be frustrated by his act …”[34]

[33](1988) 14 NSWLR 342.

[34]Ibid 355.

Similarly, in Foley v Herald-Sun TV Pty Ltd,[35] a plaintiff obtained, ex parte, an interim injunction restraining two television companies from publishing a film relating to the plaintiff. The plaintiff’s solicitor tried unsuccessfully to communicate the making of that order to the first television company. The film was presented by that company, and by its journalist, Michael Willesee. The plaintiff sought orders for contempt of court against the television company and Willesee. The critical question was whether the respondents had adequate notice of the injunction. McGarvie J expressed the applicable principle in the following terms:

“The true position is that the person or company restrained is bound when he or it has proper notice of the injunction … Mr Willesee’s erroneous belief that the injunction was not effective until served, does not excuse him if at the time of showing the film he had proper notice of the injunction …
I turn to consider what is the standard which the law applies in requiring that the respondents must have had proper notice of the injunction before their conduct amounts to contempt of court. Notice of an injunction may vary from the clear and unambiguous notice had by a person who is in court when the order is pronounced and who is served with a copy of it, to the doubtful and ambiguous notice which is received by a person who is told by a stranger of a rumour that an injunction has been granted. In my opinion … the respondent Willesee would be guilty of contempt of court if at the time when he showed the film he believed that an injunction had been granted or if at that time he had received such notice as in the circumstances would have led a reasonable person in his position to refrain from showing the film. A reasonable person would be a responsible citizen desirous of acting in accordance with any order of a court. A reasonable person would also be a person who did not share Mr Willesee’s erroneous belief that a restraining injunction was not binding until the order was served.”[36]
[35][1981] VR 315.
[36]Ibid 319; see also Tchia v Rogerson (1992) 111 FLR 1, 12-13 (Angel J); Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394, 403 (Thomas J); Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535, 538, 541 (Pincus J).

Conclusions in respect of first charge of contempt

The first element of the first charge of contempt is not in dispute. The respondent admits that he was the author of the article, and that he caused it to be uploaded onto the website. The evidence of the circumstances in which the respondent arranged for the article to be redacted, on 9 April, makes it plain that the respondent was responsible for maintaining the article on the website.

I am also satisfied, beyond reasonable doubt, that the effect of the publication of the article by the respondent was to contravene the terms of the order made by Nettle JA on 5 April, and thus to frustrate its effect and interfere with the due administration of justice. I have reached that conclusion for four reasons.

First, the reference by the article, to the fact that Bayley was on bail at the time that he murdered Gillian Meagher, was contrary to clause 2(b) of the order of Nettle JA. I accept that, as in defamation law, an allegation, that an accused person is on bail, does not mean that that particular person has committed a criminal offence.[37] However, in my view, the reference, to Bayley being on bail, in the article would have conveyed to the ordinary reasonable reader that the police had reasonable grounds upon which to suspect that Bayley had committed criminal offences, in respect of which he had been charged, and released on bail. The “sting” of that imputation was reinforced by the context in which the reference to bail occurred, namely, in an article which also revealed: that Bayley had allegedly raped and murdered Gillian Meagher; that before he committed those crimes his parents had alerted authorities as to their concern that he might attack a woman; that Bayley was then on parole; and that the Sexual Crimes Squad of the Victoria Police were so concerned that it had twice recommended to the Parole Board that Bayley’s parole be revoked. In that way, I am satisfied that the reference to Bayley being on bail, in the article, contravened clause 2(b) of the order of Nettle JA, in that it published matter which was reasonably likely to reflect adversely upon Bayley’s character.
[37]Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, 301 (Mason J).

Secondly, I am also satisfied that the reference, in the second paragraph of the article, to the concerns of Bayley’s parents about him, was similarly a breach of clause 2(b) of the order. In particular, the allegation, that Bayley’s own parents were so concerned that he might attack a woman that they alerted the authorities, is plainly material which was reasonably likely to reflect adversely on Bayley’s character.

Thirdly, for the same reason, I am satisfied that the article further contravened the terms of clause 2(b) of the order of Nettle JA by stating, in the third and fourth paragraphs, that the Sexual Crimes Squad had twice recommended to the Parole Board that Bayley’s parole be revoked and that he be returned to prison. The statement, that the Sexual Crimes Squad was “so concerned” that it made that recommendation, imputes that the Squad had reason to believe that Bayley then constituted an unacceptable risk of committing further sexual offences. The authenticity of that allegation in the article was reinforced by the claim by the respondent that he had received that information from his “senior police source”.

Fourthly, the reference in the article, to the fact that Bayley was on parole at the time at which he murdered Gillian Meagher, was a clear breach of clause 1(a) and clause 2(a) of the order of Nettle JA, in that it imputed that Bayley had a previous conviction, in respect of which he had been sentenced to a term of imprisonment, and in respect of which he was on parole when he murdered Gillian Meagher. It was also contrary to clause 2(b) of the order of Nettle JA.

Thus, I am satisfied that the article was contrary to the terms of the order of Nettle JA in four respects. Each of those contraventions of the order were matters of substance, and not of mere technicality. Individually, and collectively, the allegations contained in the article frustrated the intended purpose of the order of Nettle JA, namely, to protect the legal rights of Bayley, by preventing the publication of prejudicial material about him. Each of the four aspects of the article, to which I have referred, were directly contrary to the manifest purpose of the order made by his Honour. Taken together, they constituted a substantial infraction of the function and purpose of the orders pronounced by Nettle JA, and in that way, they interfered with the due administration of justice in this State.

Mr Gilbertson submitted that, notwithstanding those matters, the publication by the respondent of the article did not frustrate the orders made by Nettle JA, because, on the evidence, only 221 persons accessed the article on 8 April. (Of those persons, three accessed the article for purposes related to the present application). Mr Gilbertson referred me to the decision of the New South Wales Court of Appeal in Attorney-General (NSW) v John Fairfax & Sons Ltd & Bacon[38] and the decision of the English Court of Appeal in Attorney-General v Independent Television News Ltd,[39] in each of which the court held that the limited readership of the publication in question was a factor militating against it being found to be a contempt of court.
[38](1985) 6 NSWLR 695.
[39][1995] 2 All ER 370.

Both of those two cases, relied on by Mr Gilbertson, involved allegations of contempt of court of the type constituted by the second charge in this case, namely, a contempt of court based on the tendency of the publication in question to prejudice the fair trial of an accused person. In this context, it is important to distinguish between the nature of the contempt alleged in the first charge, and the nature of the contempt alleged in the second charge. The first charge is not concerned with the potential effect of the publication on the trial of the charges against Bayley, or the effect of it on potential jurors who might be empanelled to adjudicate on that trial. Rather, the first charge is concerned with the effect of the publication in contravening and frustrating the terms of the order pronounced by Nettle JA on 5 April. That order forbade the publication of the material contained in the article, particularly in the four relevant respects which I have identified. The respondent, by publishing the material on his website, contravened and thus frustrated the effect of that order, by making information available to the public on his website which was contrary to the terms of the order. If the readership figures referred to by Mr Gilbertson are relevant, they demonstrate that the respondent conveyed, to more than 200 persons, the facts which had been prohibited by the order of Nettle JA.

The third element of the first charge requires the applicant to prove that the respondent, at a relevant time, had received such notice of the order made by Nettle JA, as in the circumstances would have led a reasonable person, in his position, to refrain from further publishing the article on the website. That question involves two issues. First, it is necessary to determine whether the respondent had notice of the order of Nettle JA, and, more particularly, at what stage he had such notice. Secondly, it is necessary to consider whether the notice, which the respondent had of that order, at that stage, was such as would have led a reasonable person, in his position, to remove the article from the website, or to redact it appropriately.

As I stated, Mr Langmead submitted that I should be satisfied that the respondent was aware on 5 April of the order made by Nettle JA on 5 April, or at least by 6 April. Mr Langmead based that submission on the fact that the respondent, on his website, had cited the Herald Sun newspaper and the Age newspaper as among his two “top reads”. There is some force in Mr Langmead’s submission. The respondent is an experienced media commentator. He demonstrated that he had a keen interest in the circumstances surrounding the murder of Gillian Meagher by Bayley, so much so that he had his own “senior police source” who gave him exclusive access to information about it. If the civil onus of proof applied in this case, I would be satisfied, on the balance of probabilities, that the respondent knew of the order of Nettle JA by 5 April, and, at the latest, by 6 April. However, I do not consider that the circumstances, to which I have just referred, are sufficient to enable me to be satisfied of that matter beyond reasonable doubt.

That conclusion is supported by the fact that the applicant placed in evidence statements made by the respondent on 9 April – in his online “Contempt of Court” article and in his “tweet” at 6.17 pm on that day – to the effect that he first knew of the order when he read the Herald Sun newspaper on 8 April. While that evidence is an admission by the respondent that he knew, on 8 April, of the making of the order, it is also uncontradicted evidence that the respondent did not know of the making of that order before that date.

It is not possible to determine precisely when on 8 April the respondent learned of the making of the order. It is clear beyond doubt that he knew of it by, at the latest, 4.25 pm, when he commented on his “Twitter” site “Justice being seen to be done? Bayley pleaded guilty to Jill Meagher’s rape/murder. Why did Judge Nettle suppress so much material?” Further, in the article, entitled “Contempt of Court”, which the respondent posted on his website on 9 April, he stated that he was in Sydney on Friday (5 April) when he published the article, that he did not return to Melbourne until Saturday night, and that he did not read about the suppression order until Monday (8 April). In light of that evidence, I am satisfied beyond reasonable doubt that the applicant knew of the order during the morning of 8 April. I did not understand Mr Gilbertson to contest such a conclusion.

The second issue is whether the respondent had such notice of the order, as would have caused a reasonable person, in his position, to have removed the article from the website, or to have redacted it in the manner in which he did on the next day (9 April).

In his “Contempt of Court” article, the respondent stated that he was incensed by the paragraph in the Herald Sun article of 8 April, which reported that Bayley had pleaded guilty to rape and murder, that he had been remanded to reappear for plea and sentence, and that “no other aspects of the arraignment hearing can be reported for legal reasons”.

The Herald Sun article of 8 April, referred to by the respondent in that article, is relevant, not only for what it contained, but also for what it did not contain. The article, apart from reciting the facts to which I have just referred, set out, in brief compass, the events of 21 September to 22 September 2012, which led to the murder of Gillian Meagher by Bayley. Pausing there, a reasonable person would have inferred that the reporting of those facts was not proscribed by the suppression order, referred to in the article. On the other hand, the article did not, at all, refer to any of the four matters, which are contained in the respondent’s article, and which are the basis of the contempt proceedings against him. The Herald Sun article did not refer to the fact that Bayley was on bail and on parole when he murdered Gillian Meagher, and it did not refer to representations made by Bayley’s parents and the Sexual Crimes Squad to the Parole Board, before the murder, that Bayley then constituted a danger to women. At the very least, a reasonable person, reading the Herald Sun article of 8 April, would have noted, particularly, the conspicuous absence in it of any reference to the fact that, at the time of the murder, Bayley was on bail and on parole.

Further, it is clear that the respondent had a particular understanding of the nature of the suppression order made by Nettle JA. In particular, he understood that it was of a very wide dimension. In his 4.25 pm “tweet”, he queried why the judge “suppressed so much material?” In his “Contempt of Court” article, he described the order made by Nettle JA as an “almost blanket suppression order” and as a “suffocating suppression order”. In the same article, he queried why, given the fact that Bayley had pleaded guilty, “all material” was suppressed in relation to it. In the “Today Tonight” interview on the evening of 9 April, the respondent stated that the judge had “suppressed everything virtually about that case“.

In those circumstances, it is clear that the respondent had the understanding at least that the order made by Nettle JA was designed to suppress almost everything relating to the Meagher proceeding. In my view, a reasonable person, with that understanding of the order made by Nettle JA, would have readily apprehended that the article, published by him on the website, contravened the terms of the suppression order.

It must be borne in mind that the article published by the respondent was directly concerned with the rape and murder by Bayley of Gillian Meagher. The first paragraph of the article alleged that Gillian Meagher could still be alive today “if authorities had acted on information and revoked the bail of her rapist and alleged killer Adrian Bayley”. The balance of the article sought to make good that proposition. It did so by stating that, in the time leading up to the murder of Gillian Meagher, Bayley’s parents, and the Sexual Crimes Squad of Victoria Police, had alerted the relevant authorities that Bayley constituted a risk to the safety of women. In that way, the central focus of the article was on the subject matter of the proceeding before Nettle JA, namely, the circumstances preceding the rape and murder of Gillian Meagher by Bayley. In these circumstances, I am satisfied, beyond reasonable doubt, that a reasonable person, with the same knowledge and understanding of the respondent of the order made by Nettle JA, would have readily understood that the article, published on the website, contravened the suppression order made by Nettle JA, and that such a reasonable person would have immediately withdrawn the publication from the website.

The conclusion, which I have reached, concerning the knowledge or understanding by the respondent of the effect of the order made by Nettle JA, is reinforced by the comments which he made on his “Twitter” account at 6.20 pm and 7.11 pm on 8 April. It is clear, from those two “tweets”, that the respondent, by then, was well aware that the judge had become seriously concerned about the continued appearance of the article on the website, so much so that the respondent understood that he had been “ordered” to appear in the Supreme Court on the next day. If a reasonable person, in the position of the respondent, had had any doubt about the matter, such a doubt would have been readily dispelled by that further knowledge, so much so that a reasonable person would have immediately removed the material from the website.

Mr Gilbertson submitted that the case had a novel aspect about it, because the article had already been uploaded by the respondent onto the website almost three days before he learned of the suppression order. Mr Gilbertson submitted that the respondent sought and obtained the appropriate legal advice within a reasonable time, namely, at 9.45 am on 9 April. Thus, he submitted that the respondent redacted the article on the website within a reasonable time.

I do not accept that submission. First, as I have found, I am satisfied beyond reasonable doubt that a reasonable person, with the respondent’s understanding of the order made by Nettle JA, would have readily apprehended that the article contravened, and thus interfered with, the terms of the order. Such a reasonable person, and in particular an experienced journalist, would not have hesitated to remove the article from the internet. Further, and in any event, it is clear that the respondent did not take any steps to seek advice about the matter, after he had learned of the making of the suppression order by Nettle JA. Rather, and by contrast, he railed against the making of that order. Instead of removing the article from the website, he made it plain, in his “tweet” at 7.11 pm, that the court’s concern was with the article published by him on his website, and he responded by including in that “tweet” another link to that website. There is no reason why he did not, at that stage, seek legal advice concerning whether he ought to have removed the article from the website. The respondent was only moved to act in that regard when he learned, on the next morning, that Nettle JA had directed that proceedings be commenced against him for punishment of contempt of court.

In those circumstances, I am satisfied, beyond reasonable doubt, that, after the respondent had sufficient notice that the article, published by him on the website, he contravened the terms of Nettle JA’s order, by maintaining, and thereby publishing, the article on the website. As I have already found, the article contravened the terms of the order made by Nettle JA in four important respects. As such, the continued publication by the respondent of the article constituted a contempt of court by him, in that it frustrated and interfered with the order pronounced by Nettle JA.

Finally, it is necessary to consider the “public interest” defence raised by Mr Gilbertson as a response to the first charge. As I stated, Mr Gilbertson submitted that there were three matters of public interest, which had been the subject of discussion in a number of articles and online contributions contained in the material tendered on behalf of the respondent. He submitted that the article, published by the respondent, related to those three aspects of public interest, namely, the safety of women and children in public, violence against women, and the functioning and effectiveness of the parole system.

The classic statement of the principles relating to the “defence” of public interest in proceedings for contempt of court is that of Jordan CJ in Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd.[40] That case concerned proceedings for contempt of court in respect of articles published by the respondent, which were relevant to civil proceedings which had been brought against the applicant. Jordan CJ stated:

“It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.
It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter .”[41]

[40](1937) 37 SR (NSW) 242.

[41]Ibid 249-50.

In Hinch v Attorney-General (Vic),[42] the High Court held that the principles, stated by Jordan CJ in the Bread Manufacturers’ case, also apply to cases of contempt of court, where the publication has the capacity to prejudice the fair trial of an accused person in a criminal proceeding. Thus, it is clear that the issue of whether the publication, in this case, involved discussion of matters of public interest, is relevant to a consideration of the second charge in the originating motion. However, Mr Gilbertson was unable to refer to any authority that the principles, stated by Jordan CJ in the Bread Manufacturers’ case, also apply to the type of contempt alleged against the respondent in the first charge. Nor have I been able to locate any such authority to that effect.
[42](1987) 164 CLR 15.

On the contrary, as a matter of basic principle, the decision of Jordan CJ in the Bread Manufacturers’ case would not apply to the type of contempt alleged in the first charge. In Hinch v Attorney-General (Vic), the High Court recognised that the principles of contempt, in respect of publications which might be prejudicial to civil or criminal proceedings, are based on the high public interest in the right of each litigant, and each accused person, to a fair trial. Thus, the court held that, on particular occasions, that public interest might be subordinated to a higher public interest in the public discussion, in a democracy, of a particular matter of public concern.[43]
[43]Ibid 22 (Mason CJ), 41-2 (Wilson J), 46, 58-9 (Deane J), 66 (Toohey J), 83 (Gaudron J).

From a conceptual point of view, the position is significantly different where the contempt is based on an alleged interference with the orders of a court. In such a case, the contempt is not based on the public interest in the right of a litigant or an accused person to a fair trial. Rather, the contempt is constituted by an interference with the system of justice, consisting of conduct which has frustrated or impeded the effect of a binding order pronounced by a court of law. In that context, it is difficult to discern any “public interest”, of the kind discussed in Hinch v Attorney-General (Vic), capable of being placed in a balance against the public interest in the discussion and dissemination of information of the type discussed in the Bread Manufacturers’ case.

Indeed, if such a “public interest” is to be identified, it resides in the basic concept of the rule of law, and in the aspect of it which requires that disputes between the State and individuals, and between individuals, be determined by binding orders and decisions pronounced by the courts. If that is considered to be a “public interest”, in the context of the law of contempt, it would, in my view, require an extreme case for the public interest, in the discussion and dissemination of particular information, to override and subordinate it. Certainly, on the facts of this case, I am well satisfied that no such public interest has been demonstrated on behalf of the respondent. In other words, if the contempt alleged in the first charge is based on such a “public interest”, I am satisfied, beyond reasonable doubt, that the three matters, referred to by Mr Gilbertson, could not have outweighed that “public interest” in the integrity of the court processes, and in the binding nature of court orders, so as to entitle the respondent to publish the matters contained in the article.

Accordingly, for the reasons I have stated, I am satisfied, beyond reasonable doubt, that the respondent committed the contempt of court alleged in the first charge alleged in paragraph 3 of the originating motion.

The second charge: legal principles

The principles, which are applicable to determining whether the applicant has established that the respondent was guilty of the contempt of court alleged in the second charge, are well established, and may be stated shortly as follows:

(1)In order to constitute a contempt of court in the manner alleged in the second charge, the applicant must demonstrate, as a matter of practical reality, that the article, published by the respondent, had a real tendency to prejudice the fair trial of the charges against Bayley in the first proceedings which were pending.[44]
[44]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 370, 372 (Dixon CJ, Fullagar, Kitto and Taylor JJ); Victoria v Australian Building Construction Employees’ & Builders Labourers’ Federation (1982) 152 CLR 25, 56 (Gibbs CJ), 99 (Mason J), 166 (Brennan J); Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 28 (Mason CJ), 57 (Deane J), 70 (Toohey J); Attorney-General (NSW) v John Fairfax & Sons Ltd & Bacon (1985) 6 NSWLR 695, 697 (Samuels JA), 708 (McHugh JA); Attorney-General (NSW) v MayasPty Ltd (1988) 14 NSWLR 352, 350 (McHugh JA).

(2)The tendency to interfere with, or prejudice, the pending proceedings, is to be determined at the time of the publication.[45]
[45]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 372; R v Regal Press Pty Ltd [1972] VR 67, 73 (McInerney J); Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 70 (Toohey J).
(3)The tendency of the publication in question is to be established objectively, by reference to the nature of the publication and the circumstances in which it was made. It is not relevant to consider the actual effect of the publication upon the pending proceedings.[46]
[46]Director of Public Prosecutions v Wran (1987) 7 NSWLR 616, 626.
(4)The proof of an intention by the respondent to prejudice the pending proceeding is not an essential element of the contempt.[47]
[47]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 371; Hinch v Attorney-General(Vic) (1987) 164 CLR 15, 69 (Toohey J); Attorney-General (NSW) v John Fairfax & Sons Ltd & Bacon (1985) 6 NSWLR 695, 708-9 (McHugh JA).
(5)In determining whether the publication, as a matter of practical reality, had a real tendency to prejudice the fair trial of a pending proceeding, the court should take into account all the relevant circumstances. In Hinch v Attorney-General (Vic), Wilson J stated that the more important circumstances would include: the content of the publication; the nature of the proceedings liable to be affected, and whether they are civil or criminal proceedings; whether at the time of publication the proceedings are pending at the committal, trial or appellate stage; the persons to whom the publication was addressed; and the likely durability of the influence of the publication on its audience.[48]
(6)In considering those circumstances, the court must determine, as at the date of publication, the probable period of time which would pass between the publication and the trial of the pending proceeding.[49]
(7)In determining the practical tendency of the publication to prejudice the fair trial of the pending proceeding, the court should take into account the effect of other prejudicial matter which had already been published, before the date of the criminal charges, concerning the accused person.[50] In performing that assessment, it is not permissible to take into account any prejudicial material published after the date of the laying of the charge against the accused person. The reason for that qualification was explained by the New South Wales Court of Appeal in Director of Public Prosecutions v Wran as follows:
“The fact that other people have been guilty of contempt cannot be used to justify a publication which would otherwise constitute contempt. If it were not so a failure to call a halt to publications prejudicing the due administration of justice in relation to a particular trial for some period of time would preclude that halt being called ever after.” [51]

(8)On the other hand, it is permissible to take into account other material published after the laying of the charge against the accused, which did not constitute contempt, in order to determine the practical tendency of the particular publication to prejudice the fair trial of the charges against the accused.[52]
(9)As I have already stated, in considering the first charge, the principles described by Jordan CJ in the Bread Manufacturers’ case, relating to the public interest defence, are applicable to a charge of contempt, which alleges that the publication in question had the tendency to prejudice the fair trial of a criminal proceeding. I shall return to that aspect later.

[48]Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 34.

[49]Attorney-General (NSW) v John Fairfax & Sons Ltd & Bacon (1985) 6 NSWLR 695, 699 (Samuels JA), 711 (McHugh JA).

[50]Ibid 700 (Samuels JA), 711 (McHugh JA).

[51](1987) NSWLR 616, 629.

[52]Ibid.

In the course of submissions, a question arose as to whether it is relevant, in the case of an internet publication, to take into account the actual readership of the publication in question, in determining the tendency of that publication to prejudice the fair trial of the pending proceeding. In a number of previous authorities, that circumstance has been considered to be relevant in determining the tendency of the publication.[53] Mr Langmead submitted that those authorities are not applicable to an internet publication. In support of that proposition he relied on the passage from the joint judgment of Warren CJ and Byrne AJA in News Digital Media Pty Ltd v Mokbel,[54] which I have earlier quoted.[55]
[53]See Attorney-General (NSW) v John Fairfax & Sons Ltd & Bacon (1985) 6 NSWLR 695, 713 (McHugh JA); Attorney-General v Independent Television News Ltd [1995] 2 All ER 370, 383 (Leggatt LJ).
[54](2010) 30 VR 248, 265 [65].
[55]See para [53] above.

In my view, that passage, from the joint judgment in Mokbel, does not stand for the proposition relied upon by Mr Langmead. The particular passage was concerned with the question as to when publication actually occurs, in the context of an internet publication, for the purposes of the law of contempt. Their Honours differentiated the law of contempt from the law of defamation in relation to that issue, and held that, for the purposes of contempt proceedings, publication on the internet occurs at the time at which the particular material is uploaded to the internet, and for the whole of the time in which the material remains available to be viewed on the internet. In my view, their Honours did not, thereby, preclude an appropriate inquiry into the tendency of the published material to prejudice the fair trial of the pending proceedings. Such a tendency could only be realistically assessed, as a matter of practicality, by reference to the number of persons who accessed and read the publication in question.

Conclusions in respect of the second charge of contempt

Taking those principles into account, the question, which I must determine, is whether, in all the circumstances, I am satisfied, beyond reasonable doubt, that the publication by the respondent of the article on his website had a tendency, as a matter of practical reality, to prejudice the fair trial of Bayley on the charges against him in the first proceedings.

If I were to consider the article itself in isolation from all other factors, I would be readily satisfied, beyond reasonable doubt, that it had such a tendency. The charges against Bayley, in the first proceedings, included charges of intentionally causing injury, false imprisonment, threat to kill, and rape in relation to three female victims. The three sets of offences were alleged to have been committed, respectively, in November 2000, April 2012, and July 2012. In that context, the imputation that Bayley had previous convictions – arising from the reference to him being on parole at the time at which he murdered Gillian Meagher – was highly prejudicial to the right of Bayley to a fair trial of the charges against him. That is particularly so where the clear implication of the article is that Bayley has a dangerous proclivity to sexual violence against women.

The prejudice, caused by the reference to Bayley being on parole, was compounded by the statements, in the article, that he was on bail at the time at which he murdered Gillian Meagher, and that in the period leading to that event, Bayley’s parents and the Sexual Crimes Squad had each become so concerned about the risk which Bayley posed to the safety of women in our community, that they made submissions to the relevant authorities that Bayley’s parole should be revoked. Taken together, those matters suggested, in the strongest terms, that Bayley had a dangerous propensity to commit acts of violence against women in the community. As such, and standing alone, the contents of the article were, potentially, highly prejudicial to the trial of Bayley in the first proceedings. The law sets its face against trial by prejudice and innuendo. The principle that the prosecution may not adduce evidence, tending to show that an accused person has been guilty of other criminal acts, for the purpose of leading to the conclusion that he is a person likely to have committed the offence for which he is charged, has been characterised by Viscount Sankey LC, in Maxwell v Director of Public Prosecutions,[56] as “one of the most deeply rooted and jealously guarded principles of our criminal law”.[57] It is for that reason that strict rules have been developed by the law as to the admission, in appropriate cases, of “similar fact evidence” at common law, and of coincidence and tendency evidence pursuant to ss 97 and 98 of the Evidence Act 2008 (Vic).
[56][1935] AC 309, 317.
[57]See also Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 71 (Toohey J), 88 (Gaudron J); R v The Herald & Weekly Times Ltd (2007) 19 VR 248, 270 [77] (Smith J); R v Knape [1965] VR 469, 472; R v Halliday (2009) 23 VR 419, [54] and following (Buchanan, Ashley and Weinberg JJA).

However, for the purposes of determining whether the applicant has established the contempt alleged in the second charge, the article is not to be considered in isolation, but rather, as I have already indicated, in the context of all relevant factors. In my view, there are three salient factors which must be taken into account in determining, whether, ultimately, the applicant has proven beyond reasonable doubt that the publication by the respondent of the article had the relevant tendency.

First, although the article was available, on the website, to be accessed by members of the public at large, the evidence establishes that, in fact, only 797 persons accessed, and potentially read, the article between the time at which the respondent caused the article to be uploaded onto the website on 5 April, and the time at which it was redacted on the morning of 9 April. In fact, it would seem that members of the public only demonstrated any real interest in the article, after publicity was given to the fact that the respondent had been charged with contempt in relation to it. By then, the article had been redacted. The jury, for the trial of Bayley, will be selected from a pool which will be drawn from the whole of the Melbourne and metropolitan area. In that context, it is clear that, in fact, only a very small proportion of the members of the public, from which the jury will be selected, actually accessed and read the article.

The second relevant factor arises from an assessment, as at the date of publication of the article, of the probable period of delay between the publication of the article and the trial of Bayley on the charges in the first proceedings. As I stated, the authorities require a judge, in a case such as this, to form a view as to the probable period of delay which would occur between publication and trial.

The committal proceeding in respect of the charges in the first proceedings was conducted on 26 April 2013. Section 212 of the Criminal Procedure Act 2009 provides that the trial of a person for a sexual offence must commence within three months of the date on which the person is committed for trial in respect of the offence, unless the court grants an extension of that period under s 247 of the Act. Notwithstanding those provisions, given the listing exigencies of the County Court at the time, I would understand that the probable period of delay, between the committal proceedings and trial, would have been in the order of twelve months. Further, as at the date of publication of the article, it might fairly be expected that some extension of time might be granted for the trial under s 247 of the Act, in order to ameliorate some of the effect of the adverse publicity which had been already disseminated about Bayley.

In those circumstances, it is appropriate that I proceed on the basis that the probable period of delay, between the publication and trial of the first proceedings, would have been in the order of twelve months. In the context of the never ending 24 hour news cycle, in which the public is continuously saturated with “breaking news”, such a delay is of some significance to the assessment of the potential prejudicial effect of the article published by the respondent in April 2013.

The third relevant factor, in determining the tendency of the article published by the respondent, arises from the volume of material, which was published about Bayley before he was charged with the offences with which the first proceedings are concerned. I have already summarised some of the material to which Mr Gilbertson referred. It is beyond dispute that, collectively, that material was substantially prejudicial to Bayley. In particular, it publicised the fact that Bayley was on parole at the time at which he murdered Gillian Meagher, and it also revealed, in some detail, that Bayley had a number of previous convictions for sexual offences, of a violent nature, against women. Taken in combination, those matters were prejudicial to Bayley, and must be taken into account in determining whether the article published by the respondent, in that context, had the relevant tendency to prejudice the fair trial of the charges against Bayley.

On the other hand, in taking that third factor into account, there are six countervailing considerations which reduce the weight to be attributed to that factor in this case.

First, most of the material was historical, in the sense that it was published in 2012, in the period of the first two months or so after the death of Gillian Meagher. Although the material remained available to be accessed by a “Google” search, it was not new material disseminated to the public.

Secondly, a large proportion of the material was to be found on “Facebook”, or on “Twitter”, or was constituted by contributions by various members of the public to weblogs (“blogs”). I agree with Mr Langmead’s characterisation of that material as being “conversational”. By contrast, the article published by the respondent was, as he described it, “editorial”.

Thirdly, none of the material, to which Mr Gilbertson referred, made any mention of the concerns of the Sexual Crimes Squad, or of representations made by that unit of Victoria Police to the Parole Board.

Fourthly, none of the previous publications, referred to by Mr Gilbertson, contained a combination of the four critical allegations stated in the article, namely, that Bayley was on bail, that he was on parole, and that his parents and the Sexual Crimes Squad had such particular concerns that Bayley posed a significant risk of sexual violence towards women.

Fifthly, there is some force in the proposition, argued for by Mr Langmead, that, where an accused person’s reputation has been publicly tarnished, an article of the type published by the respondent can, materially, aggravate the antecedent damage to that person’s character, and thus exacerbate the prejudice to that person’s right to a fair trial. A publication of the kind under consideration in this case may well, in my view, have the effect of reviving and reinforcing, in the minds of those who read it, the prejudicial effect of previous publicity.[58]
[58]Compare Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143, 150 (Moffitt P); R v Regal Press Pty Ltd [1972] VR 67.

Sixthly, the respondent published the article on his website at a time at which substantial focus was given to the criminal charges against Bayley. He had only recently been charged with the offences which are the subject of the first proceedings. In addition, on the day on which the article was first placed on the website, he pleaded guilty to the rape and murder of Gillian Meagher. Those circumstances would, in my view, have added to the likely prejudicial effect of the article on the mind of any person who read it.

As I have stated, those six matters do reduce the weight to be given to the effect of the other prejudicial material previously published about Bayley. Nevertheless, notwithstanding those six matters, I consider that the nature and extent of the other publicity, and the resultant prejudice to Bayley, is relevant to a proper assessment of the tendency of the article published by the respondent to prejudice Bayley’s right to a fair trial of the charges which are the subject of the first proceedings.

Individually, none of the three factors to which I have referred – the small readership of the article, the period of delay between the publication of the article and the likely trial date of Bayley, and the other prejudicial material about Bayley – would alone suffice to preclude a finding, beyond reasonable doubt, that the article published by the respondent had a tendency to prejudice the fair trial of the first proceedings. However, those three factors must be considered collectively, as providing the relevant context to the publication of the article. Taken together, those three factors do raise a reasonable doubt as to whether the article did, as a matter of practical reality, have a tendency to prejudice the fair trial of the first proceedings. As I stated, I consider that the article published by the respondent was highly prejudicial, in the manner in which I have described. An assessment, as to whether the three factors to which I have referred – the small readership of the article, the period of delay, and the other prejudicial material – are sufficient to raise a reasonable doubt about the relevant tendency of the article to prejudice a fair trial, is a matter about which minds might reasonably differ. However, bearing in mind the obligation of the applicant to prove its case beyond reasonable doubt, I consider that those three factors together do raise a reasonable doubt, which I cannot exclude, as to the tendency of the article, published by the respondent, to prejudice Bayley’s right to a fair trial of the first proceedings.

In reaching that conclusion, I make it plain that the respondent should not have published the article. Any media commentator or journalist, who has some knowledge of the criminal justice system, would have readily understood that such an article should not be published, because of its capacity to unfairly prejudice the right of the accused person to a fair trial. It is trite, but nevertheless necessary to state, that trial by media is anathema to our liberal democratic society, which our courts seek to preserve. In this country, criminal (and civil) trials are conducted according to law. The exclusion by courts of unfairly prejudicial material is critical to ensuring that each accused person is accorded his or her fundamental right to a fair trial. Each person, who is charged with a criminal offence, has an equal right to a fair trial. The same right is accorded by the law, and protected by the courts, in equal measure, to the rich and to the poor, to the strong and to the weak, and to the virtuous and to the villainous. The law does not differentiate between them. Articles, of the type published by the respondent, have the capacity to gravely undermine that right, and thus to weaken one of the central pillars of our democratic system.

Nevertheless, for the reasons stated, I am not satisfied, beyond reasonable doubt, that the article published by the respondent had a tendency, as a matter of practical reality, to prejudice the fair trial of the charges against Bayley in the first proceedings. In light of that conclusion, it is only necessary for me to deal, briefly, with the “public interest” defence relied on by Mr Gilbertson in response to the second charge.

For the reasons which I have just explained, the public interest, in the maintenance of the right of each person charged with a criminal offence to a fair trial of such charges, is accorded paramount weight. In those circumstances, the matters relied on support a countervailing public interest in response to a charge of contempt, would need to be of substantial moment, in order to outweigh the high public interest in maintaining the right of each accused person to a fair trial.[59]
[59]Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 37 (Wilson J), 48-49 (Deane J).

In Hinch v Attorney-General (Vic), Mason CJ stated:

“No doubt there will be other occasions, apart from reports of the proceedings of Parliament and the continuation of discussion of a matter of public interest commenced before the institution of proceedings, when the balancing approach requires that the public interest in the administration of justice should give way to the public interest in freedom of discussion. The discussion of a major constitutional crisis or of an imminent threat of nuclear disaster are illustrations with overriding claims which immediately leap to mind. But this concession is a fragile foundation for the conclusion that once any topic of public concern or interest is identified, the public interest in the administration of justice must give way to discussion of that topic …”[60]

[60]Ibid 26.

Similarly, Gaudron J stated:

“Where the impugned conduct goes directly to the question of guilt, it trenches at the very heart of the public interest in ensuring that no person is convicted of a criminal offence save by verdict given after a fair trial on the evidence given in that trial. In that situation a balancing process which merely weighed a lesser public interest against the “possibility of prejudice” would leave out of account a public interest which is fundamental to our rights and freedoms, and which is jeopardised by the conduct sought to be justified by reference to a lesser public interest.”[61]

[61]Ibid 88-89; see also at 47 (Wilson J).

I accept that each of the three matters, identified by Mr Gilbertson (namely, the safety of women and young children in public, violence against women, and the operation of the parole system), may fairly be regarded as being matters, which the public has, and at the relevant time had, a legitimate interest to discuss openly. I also accept that the evidence, referred to by Mr Gilbertson, established that each of those three matters had been, at that time, the subject of public discussion. However, the public interest in those topics did not, by any measure, outweigh the right of Bayley to a fair trial of the charges against him. The article, published by the respondent, did not refer to matters relating to Bayley as an incidental reference, while addressing the three topics referred to by Mr Gilbertson. Rather, the central topic of the article was the danger posed by Bayley to women in our society, which danger, it was alleged, was known to the authorities, and about which, it was alleged, the authorities had failed to take appropriate action. The reference to Bayley was not incidental, but was central to the article published by the respondent.[62] In those circumstances, if I was otherwise satisfied that the article constituted a contempt of court, by having a tendency to prejudice the right of Bayley to a fair trial, I would have been satisfied, beyond reasonable doubt, that the public interest in the administration of justice, and, in particular, in securing to an accused person the right to a fair trial, significantly outweighed the three aspects of public interest relied upon by Mr Gilbertson.
[62]Cf Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 28 (Mason CJ), 42 (Wilson J), 85 (Gaudron J).

Summary of conclusions

For the foregoing reasons, I summarise my conclusions as follows:

(1)I am satisfied, beyond reasonable doubt, that the respondent is guilty of the first charge of contempt of court, alleged in paragraph 3 of the originating motion, in that he made a publication in relation to criminal proceedings against Adrian Ernest Bayley on his website in contravention of the non-publication order of this Court dated 5 April 2013.
(2)I am not satisfied, beyond reasonable doubt, that the respondent is guilty of the second charge of contempt of court, alleged in paragraph 4 of the originating motion, by making a publication in relation to pending proceedings against Adrian Ernest Bayley on the website that had a tendency, or was calculated, to interfere with the due administration of justice in the trial of Bayley in those criminal proceedings.

Accordingly, I shall make a declaration to the effect claimed in paragraph 3 of the originating motion. I shall hear counsel on the fixing of an appropriate date on which to hear submissions relating to the question of the penalty to be imposed in relation to the charge of contempt which I have upheld.

[2013] VSC 520

2 October 2013