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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Hinch

Details

AGLC: The Queen v Hinch [2013] VSC 520
Case: [2013] VSC 520
Decision Date: 2 October 2013

CaseChat Overview and Summary

In the case of R v Hinch, the respondent, who was not a party to the non-publication order, published an article on the internet that allegedly interfered with the order. The applicant sought a contempt order against the respondent, alleging that the publication was in breach of the non-publication order and prejudiced the fair trial of the applicant in pending criminal proceedings. The court was required to determine whether the publication had the effect of interfering with the order, whether the respondent had sufficient notice of the order, and whether the public interest defence applied to such contempt. Additionally, the court had to consider whether the publication had a tendency to prejudice the fair trial of the applicant in the pending criminal proceedings, the relevance of the delay to the trial and other prejudicial material, and whether the publication was justified by a superior public interest.

The court found that the publication by the respondent had interfered with the non-publication order, despite the respondent not being a party to the order. The court held that the respondent had sufficient notice of the order, as it was widely publicised and available on open sources. The court rejected the respondent's argument that the public interest defence applied to such contempt, as it was not established that the publication was for a superior public interest. Furthermore, the court held that the publication had a tendency to prejudice the fair trial of the applicant in the pending criminal proceedings, despite the delay to the trial and other prejudicial material. The court found that the publication was not justified by a superior public interest.

The court made a contempt order against the respondent, finding them guilty of contempt of court. The respondent was ordered to pay a fine of $5,000 and contribute to the applicant's costs of $20,000. The court emphasised the importance of upholding the integrity of the court's orders and the need to protect the fair trial of accused persons in pending criminal proceedings. The court also highlighted the significance of the public interest defence in cases of contempt and the need for a high threshold to be met before it can be successfully invoked.

Orders