R v Holman
[2012] TASSC 75
•2 November 2012
[2012] TASSC 75
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Holman [2012] TASSC 75
PARTIES: R
v
HOLMAN, Andrew
DAVIES BROTHERS PTY LIMITED
FILE NO/S: 605/2012
DELIVERED ON: 2 November 2012
DELIVERED AT: Hobart
HEARING DATE: 30 October 2012
JUDGMENT OF: Evans J
CATCHWORDS:
Procedure – Contempt, attachment and sequestration – Power of court to punish for contempt – Supreme Court – Generally – In contravention of a statutory provision a newspaper report identified the alleged victim of a sexual offence.
Evidence Act 2001 (Tas), s194K.
The Age Company Ltd (2000) 113 A Crim R 181; DPP v John Fairfax & Sons Ltd (1987) 8 NSWLR 732, referred to.
Aust Dig Procedure [701]
REPRESENTATION:
Counsel:
Applicant: T J Ellis SC
Respondent: D F M Zeeman
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Butler McIntyre & Butler
Judgment Number: [2012] TASSC 75
Number of paragraphs: 29
Serial No 75/2012
File No 605/2012
THE QUEEN v ANDREW HOLMAN and DAVIES BROTHERS PTY LIMITED
REASONS FOR JUDGMENT EVANS J
2 November 2012
The applicant applies for orders that the respondents be fined for contempt of court arising from their breach of the Evidence Act 2001, s194K, which relevantly provides:
"194K Publication of certain identifying particulars prohibited
(1) A person, in relation to any proceedings in any court, must not, without a court order, publish or cause to be published in any newspaper, … –
(a)the name, address, or any other reference or allusion likely to lead to the identification, of –
(i) any person in respect of whom a crime is alleged to have been committed under section … 185 … of the Criminal Code;
…
(4) A person who publishes or causes to be published anything in contravention of this section commits a contempt of court and is liable to punishment for that contempt as if it had been committed in the face of the court against which the contempt is committed."
In early July 2012, an edition of the Mercury newspaper, edited by Andrew Holman, the first respondent, and published by Davies Brothers Pty Limited, the second respondent, contained the report under consideration. The report was headed "Woman 'knew' accused" and was printed on a page well into the edition. It was as follows:
"A ST Marys man yesterday denied in court that he had ever been in the home of a woman who had accused him of rape.
Alleged victim [a named woman who I will refer to as the complainant] told the Launceston Supreme Court that [a named man who I will refer to as the accused] had knocked on the door of her St Marys home about 7pm on a Saturday in June 2010. She said she had known him and let him in.
The trial continues."
The respondents have not shown cause. They acknowledge they published or caused to be published the report and that its publication contravened s194K(1)(a)(i), as the report named the complainant as a person who had allegedly been raped by the accused. The accused was on trial on a charge of having raped the complainant in breach of the Criminal Code, s185. No court order had been made allowing or permitting the publication of the report.
The respondents are to be dealt with as if their conduct was a contempt committed in the face of the court.
Andrew Holman commenced his career in the media in 1976, and he has been engaged in that career for all but 18 months since. He commenced his duties as editor of the Mercury in late January 2012. Prior to these proceedings he has never been convicted for contempt of court or had an application made against him for committing an alleged contempt of court, nor has he suffered any sanction for any editing breach.
In the course of the hearing before me, I was told that on 15 January 2012, a few days prior to Mr Holman commencing his duties as editor of the Mercury, the Sunday Tasmanian published a report with the consent of a rape victim, but without the sanction of a court order, which named the victim, gave her age and residence and included a photograph of her. As editor of the Mercury, Mr Holman is also editor of the Sunday Tasmanian. Application was made that Davies Brothers Pty Limited and Martine Haley be fined for contempt of court for the publication of the Sunday Tasmanian report. Mr Holman was present in court on 17 April 2012 when that application was heard.
As a consequence of the Sunday Tasmanian breach, Mr Holman, in conjunction with his deputy editor, Martine Haley, instructed the Mercury's lawyer, Daniel Zeeman, to brief the Mercury's reporting and editing staff on legal restrictions on publications. The primary purpose of the briefing was to deal with s194K, but it also covered issues such as defamation, contempt and other statutory restrictions on the publication of material. That briefing took place in Hobart on 14 May 2012. Mr Zeeman also provided a paper that included advice with regard to s194K.
Following the briefing, Mr Holman ensured that Mr Zeeman's paper was distributed to all reporting and editing staff of the Mercury. This was done by way of an email dated 22 May 2012; it went to some 90 recipients. The portion of the paper that dealt with s194K was as follows:
"Statutes creating Contempt
Section 194K of the Evidence Act 2001 prohibits the publication (without a Court Order) of any kind, of the name, address or any other reference or allusion likely to lead to the identification of, or a picture of, any person who is alleged to be a victim in respect of one of the following crimes or offences or of any person who is a witness or intended witness (other than the defendant) in proceedings relating to those offences or crimes. They are the following:
· Sexual intercourse with a young person;
· Person permitting unlawful sexual intercourse with a young person on premises;
· Maintaining a sexual relationship with a young person;
· Indecent act with a young person;
· Sexual intercourse with a person with a mental impairment;
· Indecent assault;
· Aggravated sexual assault;
· Procuring by threat, fraud or drugs;
· Rape
· Abduction;
· Assault with indecent intent.
This section goes on to say that the contravention of the Section constitutes a contempt of Court.
I should add that where the section refers to 'any proceedings in any Court', it is clear that it relates permanently to such proceedings. That is, even if the proceedings were held years ago, the prohibition continues to apply and is permanent."
Mr Holman had a number of business meetings in Melbourne on the morning of the publication of the offending report. In the evening of the day prior to the publication, he travelled from Hobart to Melbourne. Prior to doing so, he left instructions and directions for senior staff on the edition of the Mercury due the next day. That edition was sent to the printer that night. Although in Melbourne, Mr Holman liaised with senior staff throughout the night in relation to that edition. He made an alteration to its page 1 lead story, having received a final proof at about 10pm. He did not see any other pages of that edition and left it to others to check them.
As editor, Mr Holman is on call seven days a week from early morning until publication at midnight. As is to be expected, the Mercury has a staff structure that includes deputies, night editors, sub-editors and check-subs who are responsible for ensuring that all publications meet ethical and legal requirements. A level of responsibility is also placed on those who write reports. They are trained with regard to these requirements. As editor, Mr Holman checks the key pages of the final edition of the paper, but there are occasions when he cannot check every page.
Although Mr Holman did not see the page of the final edition that contained the offending report, he rightly accepts that ultimate responsibility for what occurred rests with him.
At about 7.20am on the morning the offending report was published, Martine Haley telephoned Mr Holman and told him what had happened. He thereupon telephoned the managing director of Davies Brothers Pty Limited, informed him of what had occurred, and offered his resignation, which was rejected. Mr Holman cancelled his meetings in Melbourne that morning and returned to Hobart. St Marys is in the south-east of north-eastern Tasmania. Before returning to Hobart, Mr Holman arranged for the edition of the newspaper that contained the offending report to be withdrawn from sale in north-eastern Tasmania and Launceston. It is estimated that 537 copies of that edition were sold within that area prior to the withdrawal being effected.
The offending report was not placed on the Mercury's website or put into its newstext facility. That facility allows material to be retrieved electronically.
It is remarkable that the offending report was published so soon after the efforts made by Mr Holman and others to avoid any further breach of s194K. Bruce Mounster wrote the report. He has had 17 years' experience as a journalist and has covered court proceedings on numerous occasions. He was based in Launceston. I assume that for this reason he did not attend Mr Zeeman's briefing on 14 May 2012. Nonetheless, he was provided with a copy of Mr Zeeman's paper less than six weeks prior to writing the offending report. His explanation for what he did is that he was incredibly busy.
His report should or could have been read prior to its publication by up to five other Mercury staff. It is startling that his error was not noticed by any of them. Had it not been that the Mercury derived no benefit from the breach, I would have been inclined to the view that it was intentional. As it is, I have no hesitation in accepting that it was a mistake. Mr Holman says the breach is the worst example of human error he has encountered. One reason why those who should have noticed the error failed to do so may be that the report is short and, in terms of the layout of the page on which it appeared, of little consequence. It presents as a filler.
The day following the publication of the report, Mr Holman met Mr Mounster in the Mercury's Hobart office, informed him of the ramifications of his conduct and admonished him. He was given a first and final warning that is recorded on his file. The five staff members who should or could have noticed and rectified Mr Mounster's error were dealt with for their failure by Mr Holman or their immediate manager. Three were given a first and final warning which is recorded on their file. Mr Holman says that any recurrence is likely to lead to dismissal. The two who had a lesser involvement in that which occurred were given a warning.
Seven days after the offending publication, Mr Holman emailed all the Mercury's reporting and editing staff with a legal alert in the following terms:
"LEGAL ALERT
I cannot stress enough the importance of our publications meeting all legal and ethical requirements.
The laws are strict, and the penalties severe, for breaches in identifying sexual assault victims, minors, people in mental health facilities as well as in areas of subjudice, defamation and contempt.
Only in May, did we conduct a legal workshop with our company lawyer Daniel Zeeman. Comprehensive, easy-to-read briefing notes were then distributed to each and every staff member.
But again, we have breached the law by identifying a sexual assault victim in one of our editions.
It is the responsibility of each and every one of us to comprehensively understand the law as it relates to our everyday reporting and publishing.
We are again circulating Daniel's briefing notes for your consumption. You are required to read them and refer to them. Further, if anybody feels they do not have sufficient knowledge, online courses and further briefings can quickly been [sic] arranged. We must all be accountable and take responsibility in this regard.
Further, we will be re-tagging all courts stories in the cyber system with a first word 'LEGAL' to alert all copy handlers that extra care must be taken.
We cannot afford any further slips.
Andrew Holman"
As noted in the email, it was accompanied by a copy of Mr Zeeman's paper of 14 May 2012.
More generally, Mr Holman said that rarely a day goes by when he does not reinforce to staff, in the Mercury's open plan office, their obligations to meet ethical, social and legal responsibilities.
On 11 July 2012, Mr Holman sent a fulsome formal written apology to the complainant in which he said he would like to make personal contact with her, but would only do so if she indicated that this was acceptable. She did not respond.
The applicant has not put any information before the Court on the impact of the breach upon the complainant. Even if the impact on her was minimal, it must be borne in mind that one of the benefits of s194K is community awareness that those who make a complaint about a sexual offence are protected from media publicity. This protection encourages those who might otherwise have been deterred from reporting sexual offences to come forward. The perception that victims are protected from publicity is diminished by any breach of s194K.
So far as I am concerned, the conduct of Mr Holman in relation to this matter has been commendable. He was the editor of the Mercury for a little over five months prior to the publication of the offending report. During this period he took a number of positive steps to avoid breaches of s194K. When the breach occurred he promptly did what he could to reduce its impact, dealt with those responsible for it, renewed his efforts to avoid further breaches, and apologised to the complainant. He has taken his and the second respondent's responsibilities with regard to s194K very seriously.
The circumstances that invoke the law of contempt are many and varied. Most significant contempts involve publications that relate to matters which have a real tendency to interfere with pending proceedings or publications that are knowing breaches. This contempt is neither.
The needs of personal deterrence do not call for the imposition of a penalty on Mr Holman, and, in the circumstances of this case, the needs of general deterrence will be served by the penalty to be imposed on the second respondent.
With regard to Mr Holman I mention a further matter. A record of a conviction for contempt of court, no matter how little the culpability of the offender, can cause significant embarrassment and inconvenience to a person. The jurisdiction I am exercising is summary in the sense that a judge, as opposed to a jury, determines guilt. In exercising this jurisdiction, a judge has a unique discretion. A judge may determine not to convict, notwithstanding that, as a judge of the facts and the law, the judge is satisfied that a contempt has been committed; see R v Perkins; Mesto v Galpin (1998) 100 A Crim R 324, Brooking JA, agreed with by Phillips and Batt JJA, from 332 – 334. I will take that course in the case of Mr Holman. I will not order that Mr Holman be convicted of contempt of court.
I take a different view in relation to the second respondent, Davies Brothers Pty Limited. This is the second occasion this year on which the Mercury has breached s194K. This is a cause for considerable concern and requires a penalty that serves the interests of both personal and general deterrence.
In The Age Company Ltd (2000) 113 A Crim R 181 at par[18], I noted that although the disparity between the various contempt cases that come before the court must be recognised, there is also a need for some consistency in the approach of courts when punishing contempts; DPP v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 742.
With consistency in mind I have reviewed the penalties imposed in the cases I listed in The Age Company Ltd at par[19], and I have also considered the penalties imposed in the following more recent cases:
R v General Television Corporation Pty Ltd [2009] VSC 84;
R v The Herald and Weekly Times Pty Ltd [2009] VSC 85;
R v The Age Company Limited [2008] VSC 305;
R v The Herald and Weekly Times Pty Ltd [2008] VSC 251;
R v Nationwide News Pty Ltd [2006] VSC 420;
R v Sammut [2008] VSC 189;
R v Purdie and The Advocate Newspaper Pty Ltd [2008] TASSC 15;
R v Australian Broadcasting Corporation [2007] VSC 498;
Director of Public Prosecutions v Messenger Newspapers Pty Ltd [2007] SADC 76, and
Attorney-General for State of Queensland v WIN Television Qld Pty Ltd [2003] QSC 157.
Whilst, in the interests of consistency in sentencing, I have considered these cases, it must be said that they do little more than provide some background for the process. The cases differ markedly, and even where there is some similarity between the contempt in question, there is ordinarily a significant disparity between the number of those who potentially read, viewed or listened to the impugned publication.
I consider that a fine of $10,000, coupled with an order that Davies Brothers Pty Limited pay the applicant's taxed costs to be a sufficient and appropriate penalty. I convict Davies Brothers Pty Limited of contempt, impose that fine and make that order for costs.
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