R v Nationwide News Pty Ltd
[2018] VSC 572
•2 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2018 01818
| THE QUEEN (ON THE APPLICATION OF THE DIRECTOR OF PUBLIC PROSECUTIONS) | Applicant |
| v | |
| NATIONWIDE NEWS PTY LTD (ACN 008 438 828) | Respondent |
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JUDGE: | TAYLOR J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 September 2018 |
DATE OF JUDGMENT: | 2 October 2018 |
CASE MAY BE CITED AS: | R v Nationwide News Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2018] VSC 572 |
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CONTEMPT OF COURT – Newspaper publication in print and online – Express linkage of prior convictions with ongoing criminal proceedings – Previous general warning by DPP to avoid publishing material which has a tendency to prejudice the administration of justice – Previous specific warnings by DPP with respect to possible breach of sub judice contempt principle by publication of prior convictions – Plea of guilty – Apology – Remedial actions – Efficacy of systems to prevent inadvertent contempt – Specific deterrence – General deterrence – Conviction and fine – Indemnity costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | K Judd QC, DPP with R Kaye | John Cain, Solicitor for Public Prosecutions |
| For the Respondent | W Houghton QC with R Enbom | M&K Lawyers |
HER HONOUR:
On 24 April 2018 the respondent published an article in The Australian, in print and online, titled ‘Shorten’s just a puppet who’ll do what he’s told’ (‘the contemptuous article’). The opening paragraph of the article read:
Bill Shorten is a man of conviction according to union boss John Setka. Setka on the other hand is a man with convictions, at least 40 of them at the last count, and he’s facing charges under section 87 of the Crimes Act, which prohibits making demands with menace to gain an advantage.
The respondent has pleaded guilty to contempt with respect to the second sentence of that paragraph.
Background
On 6 December 2015 Mr Setka was charged with blackmail under s 87 of the Crimes Act 1958 (Vic).
Mr Setka was (and is) an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) of some notoriety.
On 12 February 2016, the then Director of Public Prosecutions (DPP) wrote to a number of media outlets, including The Australian, noting the pending matter and reminding publishers ‘to take care to avoid publishing material which has a tendency to prejudice the administration of justice’. The letter also requested publishers to ensure that ‘all staff are well aware’ of the matters referred to in the letter.
On 6 April 2016, The Australian published an article online titled ‘Meanwhile, in Victoria: John Setka union still a headache for Labor’. The byline and first two paragraphs of that article read:
Victorian CFMEU secretary John Setka is a big man. The only thing bigger than his biceps is his police rap sheet.
As The Australian revealed in 2012, Setka was charged 60 times with serious offences between 1982 and 1991 in a long-running, violent battle with the law.
He was convicted or fined in relation to 40 of those offences, including for theft, assault by kicking, criminal damage and assaulting police.
On 7 April 2016 the then DPP wrote to the Victorian Editor of The Australian, John Ferguson, stating that the 6 April 2016 article was ‘a possible beach of the sub judice contempt principle as it refer[ed] to Mr Setka’s prior convictions.’ The letter also reminded Mr Ferguson that while the prosecution was pending, ‘any publication should be restricted to a fair and accurate report of proceedings’.
On the same day, the respondent’s solicitors replied to the then DPP in the following terms:
We note that the article in question had already been identified and amended at the time your letter was received by our client. You will note that the publication as currently online does not contain any reference to Mr Setka’s prior convictions.
Our client regards matters relating to sub judice contempt with the utmost seriousness. It has no intention of publishing Mr Sekta’s prior convictions in future until his current charges are resolved.
On 26 and 27 May 2016, The Australian published an article online and in its hardcopy newspaper titled ‘Michaelia Cash savages John Setka’s ‘Nazi Germany’ attack on Coalition’s building code’. A sentence in that article was in the following terms:
Senator Cash said Mr Setka’s “extensive criminal history and the serious criminal charges he is currently facing demonstrate that he is not a fit and proper person to exercise political influence.”
On 30 May 2016, the then DPP again wrote to Mr Ferguson stating that the 26 and 27 May 2016 articles were a possible breach of the sub judice contempt principle. His letter further stated:
I take this opportunity to remind you that publication of an accused’s prior convictions is in my view a clear breach of sub judice contempt principles. I note this is the second occasion I have had to write to you with regards to the publication of Mr Setka’s prior convictions.
On 31 May 2016, the respondent’s solicitors replied to the then DPP’s letter stating that the article in question had been removed from the respondent’s website and that they would respond further the following week.
They did respond, but only on 1 July 2016. The respondent’s solicitors wrote a lengthy letter to the then DPP, to ‘set out’ the respondent’s position. The letter continued:
In summary, our client regrets and apologises for publishing the references to Mr Setka’s prior convictions. It does not intend to do so in the future, and it has implemented a number of internal procedures to prevent it happening again.
Despite that, we are of the strong view that the publication did not amount to a contempt. There are two reasons for this.
First, Mr Setka is so notorious, and his criminal history so well known in Victoria, that republication of those matters could not possibly create the required level of risk to the administration of justice to amount to a contempt.
Second, even if the publication did create a risk of prejudice to the administration of justice, it was a matter of such immense public interest that the publication would be protected by the public interest defence, also known as the ‘Bread Manufacturers’ defence.
The letter expanded upon those reasons before concluding:
Despite the discussion above, our client did not and does not intend to publish the prior convictions of Mr Setka until his criminal matters are resolved.
We are instructed that our client has taken a number of steps internally to ensure that similar material will not be published while Mr Setka … face[s] charges.
Our client takes this matter very seriously. That is evident from the fact that the Article was removed from online immediately after the issue was identified and by the fact that our client has taken time to seek advice from our firm and has incurred considerable expense in dealing with this matter.
On 24 April 2018, the respondent published the contemptuous article, both online and in hard copy.
Initiation of Proceedings Against the Respondent
On 16 May 2018 the DPP filed an Originating Motion in this Court seeking a declaration and orders that the author of the article, Nick Cater, and the respondent both be adjudged guilty of contempt and fined, and that the DPP be awarded the costs of its application on an indemnity basis. Both Mr Cater and the respondent were summonsed for directions on 15 June 2018.
On that date, the proceedings against Mr Cater were discontinued and the respondent pleaded guilty to the charge of contempt.
Evidence Filed
The Applicant filed two affidavits sworn by Kirsten Isobel Aaskov, a solicitor of the Office of Public Prosecutions, dated 16 May 2018 and 13 August 2018 respectively. At the hearing of this matter there was some challenge to the admissibility of parts of those affidavits and some of the material exhibited to them. I ruled with respect to that challenge and, in accordance with that ruling, I now have regard to the relevant parts of those affidavits and exhibits, particularly the correspondence and newspaper articles (as detailed above) and copies of prior cases in which the respondent has been sentenced for contempt.
The respondent filed four affidavits.
The affidavit of John William Ferguson – who is now a senior writer for The Australian but whom, at the relevant time, was its Victorian Editor – sworn 9 August 2018, makes on behalf of the respondent a ‘sincere and unreserved apology’ for the publication of the article. Mr Ferguson outlines the history of The Australian and notes its good record with respect to contempt. Mr Ferguson states that the error was made by Alan Howe, the editor responsible for the Opinion section of the newspaper. He deposes that Mr Howe failed to identify any potential risks in relation to the article and, consequently, failed to send the article to the respondent’s solicitors for legal advice prior to its publication. Those solicitors are available 24 hours a day, 7 days a week pursuant to a retainer agreement.
Mr Ferguson states that since the error occurred, the respondent has put in place additional safeguards to avoid any similar incident in the future. Those safeguards include the respondent engaging its solicitors to provide additional training to all editorial staff and journalists employed at The Australian, placing any correspondence from the DPP on the respondent’s ‘Legal Alerts Database’ and requiring reporters to search that database when preparing a report about court proceedings or a person the subject of court proceedings, and directing all editors who receive correspondence from the DPP to send an email to all editorial staff and journalists alerting them to the same.
Additionally, Mr Ferguson deposes that while he cannot locate in his email mailbox the letter of the former DPP dated 12 February 2016, he does have the correspondence dated 7 April 2016 and 30 May 2016. He sent those latter two letters to the respondent’s lawyers and brought them to the attention of his editorial staff. He cannot recall doing so with the first letter, but has no reason to believe that he would not have done so. The day after the receipt of the then DPP’s 30 May 2016 letter, an email was sent on behalf of the Editor of The Australian to all editorial staff and journalists directing them to not report Mr Setka’s prior convictions and to have all articles about Mr Setka sent to the respondent’s solicitors for review and advice. On the same day Mr Ferguson sent an email to the Industrial Editor and a court reporter at The Australian, amongst others, noting the DPP’s warning about possible contempt. A copy of each email is exhibited to Mr Ferguson’s affidavit.
Mr Ferguson notes that neither the correspondence from the DPP nor the internal emails were sent to Mr Howe – because he was not yet employed at The Australian, or Mr Cater – because he was a freelance writer. The ‘additional safeguards’ he says, are designed to overcome that difficulty.
Finally, Mr Ferguson states that on the day the contemptuous article was published, the respondent received a letter from Mr Setka’s solicitors and notes that the online version of the article was removed the following day at 11.47am. To that time, 1,390 unique Victorian visitors had gained access to it and total sales of the print edition of The Australian containing the article in Victoria were 18,591.
Mr Alan Christopher Howe in his affidavit, sworn 9 August 2018, acknowledges that he was the editor responsible for causing the article to be published. He offers a sincere and unreserved apology. He expresses deep regret and states that he had no intention of publishing an article that might interfere with the court proceedings against Mr Setka.
Mr Howe outlines his background and experience as a journalist and editor, which spans some 40 years. He then details the circumstances relating to the publication of the article. They are that he received the copy from Mr Cater, a freelance writer who wrote a weekly column for The Australian. As usual, it required minimal change. He then turned his mind to the potential for legal risk, being aware that Mr Setka had been charged and the matter was listed for committal hearing. Mr Howe says that the prejudice in publishing Mr Setka’s prior convictions did not ‘hit home’ because they were so well known to him and because, as Mr Setka’s proceedings were (then) in the Magistrates’ Court, he failed to consider that the charge may ultimately be heard by a jury. He says he cannot understand how he made such an obvious mistake. When the error had been brought to his attention he felt a great sense of responsibility and offered his resignation to the Editor of The Australian.
Mr Howe further deposes that he would attend the refresher training conducted by the respondent’s solicitors, and that he had been directed in future to personally search the ‘Legal Alerts Database’ whenever any copy is filed by a freelance writer.
Mr Justin Healy Quill is a principal lawyer with the respondent’s solicitors. In his affidavit, sworn 23 August 2018, Mr Quill details that on that very day he had conducted training in the Victorian bureau of The Australian, which Mr Howe had attended. He further states that similar training was to be conducted in the Sydney bureau on 13 September 2018 and that any editorial staff from the Victorian bureau who had been unable to attend the Melbourne based training would attend the later session via audio-visual link. Further training arrangements were being made for The Australian’s other bureaus. Exhibited to Mr Quill’s affidavit is an email from the Editor of The Australian concerning the role of editorial staff when correspondence was received from the DPP.
Mr Nicholas Robert Gray is the Chief Executive Officer of The Australian. He swore an affidavit on 6 September 2018 in which he assured this Court that The Australian was treating the contempt proceeding very seriously. Mr Gray has had personal oversight of the matter. This involved direct contact with editorial staff and the respondent’s solicitors about how the contempt occurred and what editorial changes needed to be made. Mr Gray deposes that he has been supportive and encouraging of ‘tightened procedures’ and training. As with Mr Ferguson and Mr Howe, Mr Gray also offers a sincere and unreserved apology to the Court.
Legal Principles
The legal principles concerning contempt of court are well known and uncontroversial. But, familiarity with settled principles does not rob those principles, and the reasons for them, of potency.
The purpose of the contempt jurisdiction is to ‘uphold and protect the effective administration of justice’.[1] Publications which tend to prejudice the prosecution or defence in pending proceedings or to interfere with the due administration of justice in a particular proceeding constitute contempt of court.[2]
[1]Australasian Meat Industry Employee’s Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107 (Gibbs CJ, Mason, Wilson and Deane JJ).
[2]R v Slaveski [2015] VSC 400, [84]–[85] (King J) citing R v David Syme & Co Ltd [1982] VR 173, 177 and Attorney-General v John Fairfax & Sons Ltd [1981] NSWLR 362.
The publication of an accused’s prior convictions prior to trial is prima facie a contempt of court.[3] That is because such publication directly undermines the right to a fair trial afforded to all accused persons under our system of law by imperilling the presumption of innocence. Our society has a ‘critical interest in ensuring that accused persons are tried before an impartial jury’.[4] This is ‘an indispensable requirement that lies at the heart of our legal process’.[5]
[3]R v The Herald and Weekly Times Ltd (2009) 19 VR 248.
[4]DPP v Wran (1987) 7 NSWLR 616, 639.
[5]The Queen v Hinch (No 2) [2013] VSC 554, [12] (Kaye J) (‘Hinch (No 2)’).
The sub judice rule is ‘simple, unequivocal and easy to comprehend’.[6]
[6]The Queen (on Application of the Attorney-General for the State of Victoria) v Nationwide News Pty Ltd & Ors (Unreported, Supreme Court of Victoria, Gillard J, 18 February 1998) 1.
The ‘fundamental function’ of punishment for contempt is ‘to uphold and preserve the undisturbed and orderly administration of justice in the courts according to law’.[7] The three principal purposes of sentencing for contempt are specific deterrence, general deterrence and denunciation.[8] Parsimony and proportionality are also relevant.[9]
[7]Hinch (No 2) [2013] VSC 554, [12].
[8]Ibid [12].
[9]DPP v Johnson & Yahoo!7 (No 2) [2017] VSC 26, [6] (‘Yahoo!7 (No 2)’).
Applicant’s Submissions
The applicant submits that against the history of warnings given to the respondent following the charging of Mr Setka in December 2015 and its responses thereto, the respondent’s publication of the contemptuous article is inexcusable. It was a serious error committed by a senior employee. It submits that the matter demands the recording of a conviction and the imposition of a substantial fine.
The applicant makes several arguments to support that contention.
First, whilst accepting that there was no actual impact on the administration of justice by reason of the contempt due to the discontinuation of the blackmail charge against Mr Setka, the potential effect was marked. The applicant notes the high profile of Mr Setka; the ‘not insignificant’ dissemination of the article; the prominence of the offending sentence in that article; and the precise wording of the relevant sentence. In other words, it is submitted that the express link made between the prior convictions and the (then) current proceedings in the first paragraph of a well-read large article about a well-known individual who was at that time facing a serious criminal charge gave rise to a substantial risk to the administration of justice.
Second, the explanations offered by Mr Howe as to how the error occurred are lame. The applicant submits that it was not for Mr Howe to determine whether the publication of the prior convictions was prejudicial given that they were well known to him and the matter was (then) before a Magistrate and not a jury. Mr Setka’s prior convictions should simply not have been published. And, for an editor and journalist of Mr Howe’s experience to now say that he does not understand how he made such an obvious mistake is unimpressive.
Third, in the period 1990 to 2006, the respondent was guilty of contempt on six occasions. In this context, the applicant notes that while not prior convictions or matters for punishment, the April 2016 and May 2016 publications of Mr Setka’s prior convictions – summarised above at paragraphs [6] and [9] – are nonetheless a significant counter weight to the respondent’s claim that The Australian has a good record.
Fourth, specific deterrence is of particular moment. The ‘internal procedures’ referred to in the 1 July 2016 letter by the respondent’s solicitors were, in the event, woefully inadequate and paid mere lip service to the assurances given to the DPP in that letter that the respondent took the matter seriously and would ensure no further publication of the prior convictions. Further, such procedures are only as good as their level of compliance and the breach here occurred through a failure of oversight. In any event, the potential for contempt was so obvious that any internal procedure and its oversight should have been, at best, a fall-back position.
Fifth, general deterrence is highly relevant in reminding media organisations that not only must they have rigorous systems in place to avoid contempt, they must also ensure compliance with those systems.
Sixth, the remedial actions taken by the respondent are underwhelming. While the contemptuous article was removed from the website of The Australian on 25 April 2018, the respondent has made no effort to remove the offending sentence from other media sources which it could control and has not sought to have it removed from other websites. The training of journalists and editorial staff instituted by the respondent was delayed and limited. It is insufficient for the respondent to improve mechanisms focussed largely upon the receipt of warnings and other correspondence from the DPP. The respondent must assume responsibility and have adequate systems for avoiding contempt even where no such warning has been given. Further, Mr Howe failed to detail what his now ‘more cautious approach’ entails.
Seventh, while the respondent has pleaded guilty and done so at the earliest opportunity, in all the circumstances its true level of contrition is open to question.
Respondent’s Submissions
The respondent acknowledges that its publication of the contemptuous article was a serious error and should not have occurred. The respondent contends that in all the circumstances, the imposition of a modest fine[10] without conviction is a sufficient penalty.
[10]Counsel for the respondent suggested that a fine of ‘up to $75,000’ was appropriate.
The respondent makes several arguments in support of its contention.
First, the ‘long and proud history’ of The Australian. It is a large newspaper which comprises about 140 articles per print edition and about 160 articles uploaded online daily. In those circumstances its ‘relatively unblemished record’ for contempt of court illustrates that The Australian takes its responsibilities as a publisher very seriously and maintains procedures to prevent the occurrence of mistakes. The last conviction of The Australian was 12 years ago.
Second, its early plea of guilty and the sincere and unreserved apology made by the newspaper through Messrs Ferguson, Howe and Grant.
Third, the consent of the respondent to pay the applicant’s costs on an indemnity basis. Those costs have been agreed at $45,000.
Fourth, the contempt occurred as a result of human error. It was not intentional. It did not occur because of the pressure of deadlines. It did not occur as a result of inadequate resourcing driven by commercial motivations. Specifically, the failure to seek legal advice derived no monetary advantage to the respondent. Its retainer agreement with its solicitors operates by way of a fixed monthly fee irrespective of how many or how few requests for advice the respondent makes.
Fifth, the respondent has reacted appropriately to the error by ‘tightening’ its procedures, particularly with respect to notifications received from the DPP, and by conducting additional training with all its editorial staff and journalists. The new procedures will ensure that, never again, will a new editor be unaware of a warning made by the DPP.
Sixth, no harm was in fact occasioned by the contempt in this case. The online article was removed from the website the day after it was uploaded, and the audience to which the article was published – in numerical terms – was not significant.
Seventh, the prosecution itself and the published findings of this Court will achieve specific deterrence for a newspaper the calibre of The Australian.
Analysis
The contempt in this matter is very serious.
It is unfathomable that a seasoned and respected editor such as Mr Howe simply failed to see that a sentence in the lead paragraph of an article which expressly connected an individual’s prior convictions with that person’s ongoing criminal proceedings was or could be anything other than a breach of the sub judice contempt principle. Indeed, it is difficult to imagine a more blatant example.
In this regard, the observations of Gillard J in The Queen (on application of the Attorney-General for the State of Victoria) v Nationwide News Pty Ltd & Ors[11] are apposite:
All members of the media would be well advised to proceed on the basis that other than reporting the actual proceedings in the court, nothing should be stated in the media concerning the trial, the court, the accused or witnesses. If it is thought that a fact or comment concerning the trial should be published then legal advice from those experienced in media law should be obtained.
I would expect that a first year journalist would know and understand the sub judice rule in its application to the present facts. Indeed, Mr Beaby frankly admitted that when he first read the article, ‘I immediately realised it should never have been published’. The strange thing about this publication is that Mr Westfield, a senior journalist and two other members of the media whose responsibility it was to vet the article did not appreciate the same obvious fact.
[11]The Queen (on Application of the Attorney-General for the State of Victoria) v Nationwide News Pty Ltd & Ors (Unreported, Supreme Court of Victoria, Gillard J, 18 February 1998) 4.
And, this breach came after warnings had been issued by the then DPP to The Australian, first in general terms and then, twice, in specific terms concerning the publication of Mr Setka’s prior convictions while his current criminal charges were pending. The very first of those warnings asked The Australian to ensure that all staff were well aware of the matters. The respondent was on very clear notice not to do precisely what it then did.
Further, the respondent twice provided assurances to the then DPP that it would not (again) publish details of the prior convictions of Mr Setka until after the resolution of his blackmail charge. The respondent also, as at 1 July 2016, informed the then DPP that it had ‘implemented a number of internal procedures’ or ‘taken a number of steps internally’ to prevent the prior convictions again being published. But, there was not a number. There was only one. And, the step that was taken can barely be characterised as a ‘procedure’. It involved the sending of two emails: one from the Editor to all staff directing that all articles about Mr Setka were to be sent to lawyers prior to publication, and one from the Victorian Editor to three staff members and two external solicitors noting that the then DPP had warned both himself and the Editor about possible contempt. At best the email from the Editor to all staff was little more than a reinforcing direction to follow the already well established procedures at The Australian.
Notwithstanding the very serious nature of the contempt, I accept that it was not deliberate.
I also accept that no actual harm flowed from the contempt, in so far as Mr Setka’s proceedings are concerned. But I note that the potential for harm was very high. Mr Setka is a notorious figure, the readership of the article at the time of publication was not insignificant and the online life of electronic articles is very lengthy. Further, the potential for harm was not averted by any praiseworthy conduct on the part of the respondent, but by the decision of the DPP to withdraw the relevant charge. It also bears mentioning that irrespective of whether actual harm flowed from the article’s publication – that is, in the strict sense – the fact of the respondent’s contempt is of itself disruptive to the orderly administration of justice and deserving of this Court’s censure.
The respondent has taken remedial action. Given that the contempt seemingly arose from an inexplicable failure to recognise the juxtaposition of prior convictions and an ongoing criminal proceeding as a breach of the sub judice principle, refresher training was clearly warranted. I accept that in all the circumstances it was timely enough. While the inclusion of all warnings by the DPP in a ‘Legal Alerts Database’ is to be commended, the applicant’s submission that newspapers cannot simply rely upon such warnings to discharge their responsibilities to avoid sub judice contempt is well made. Publishers and broadcasters must remain vigilant and, on their own initiative, take measures to fully accommodate the value our legal system places on fairness to all accused persons.
I give due weight to the guilty plea of the respondent and that it was made at the first opportunity. I also accept that the contrition expressed by the respondent is genuine. I note its ready agreement to pay the applicant’s costs on an indemnity basis, agreed at $45,000, and the unreserved and sincere apologies expressed by three senior officers of The Australian.
I also note the respondent’s relatively limited record of prior convictions.
At the hearing of this matter Queen’s Counsel for the respondent submitted that I should only have regard to The Australian’s prior convictions for contempt, rather than those of its sister publications which also happen to be under the control of the respondent. He submitted that I ought to take judicial notice of the fact that The Australian is a different newspaper from, say The Daily Telegraph, with one being a national broadsheet and the other a state based tabloid and each with different editorial staff and journalists. He relied upon a paragraph in the joint judgment of the Full Court of the Supreme Court of Western Australia in The Queen v Nationwide News Pty Ltd; Ex Parte The Commonwealth Director of Public Prosecutions:
Save for the present case, and the case concerning Connell, the contemnor has not been found guilty of contempt of court arising out of the publication of The Australian newspaper. There have been other instances in other States where the contemnor has been found guilty of contempt of court, but those contempts were committed in the course of other businesses of the contemnor, unrelated to The Australian newspaper, and do not involve the same personnel.[12]
[12](Unreported, Supreme Court of Western Australia, Kennedy, Ipp and White JJ, 25 September 1997) 3.
In reply the applicant submitted that it is the respondent who is responsible for establishing appropriate systems to prevent contempt in all of its businesses and therefore it is the entire record of the respondent to which I should have regard. The Director referred to the decision of this Court in The Queen (on the application of the Registrar of the County Court) v Nationwide News Pty Ltd:
[15] The respondent has four relevant prior convictions. They are Attorney-General for New South Wales v Nationwide News Pty Ltd[13] wherein it was fined $200,000 for publications in the Daily Telegraph and the Daily Mirror; R v Nationwide News Pty Ltd; ex parte Commonwealth Director of Public Prosecutions[14] wherein it was fined $10,000 for a publication in The Australian; R v Nationwide News Pty Ltd[15] wherein it was fined $75,000 for a publication in The Australian; and Registrar of the Supreme Court v Nationwide News Ltd & Ors[16] wherein it was fined $22,500. The widely differing penalties imposed reflect the widely differing circumstances in those cases. There are two other apparent convictions, in 1986 and 1989, referred to in Gillard, J’s judgment in R v Nationwide News Pty Ltd but they were not admitted before me. I do not have regard to them because they have not been proved and in any event would not have added much to the admitted matters.
[16] The applicant rightly relies upon the admitted prior convictions.[17]
[13](Unreported, Supreme Court of New South Wales – Court of Appeal, Gleeson CJ, Kirby P and Priestley JA, 11 October 1990).
[14](Unreported, Supreme Court of Western Australia, Kennedy, Ipp and White JJ, 25 September 1997).
[15](Unreported, Supreme Court of Victoria, Gillard, J, 22 December 1997 & 18 February 1998).
[16](2004) 89 SASR 113.
[17][2006] VSC 420, [15]-[16] (Cummins J) (citations in original).
In my view, as a matter of both logic and legal authority, it is appropriate to have regard to the entire record of the respondent. As an entity it is the respondent that is responsible for the actions of the editors and journalists whom it employs. And, the authority of this Court is clear. Further, the particular paragraph of the Western Australian case relied upon by the respondent does not go so far as to say that other convictions of the respondent were irrelevant. Nor is there anything in the rest of the decision which would support that conclusion.
In any event, as I have said, I accept that the entire record of the respondent is relatively good. I do not accept the submission of the applicant that the prior publications of Mr Setka’s convictions in 2016, as detailed above, undermines that characterisation. First, those matters have not been the subject of any findings of guilt. Second, their relevance is to the factual matrix in which the contemptuous article was published, contributing to the very serious nature of the contempt it involved.
To assist in the fixing of an appropriate penalty, Queen’s Counsel for the respondent sought to distinguish two ‘upper limit’ cases.
He described the $300,000 fine imposed by the Court in Yahoo!7 (No 2) as sui generis. The contempt in that matter caused an in progress murder trial to be aborted and later postponed. That wasted time incurred considerable cost and occasioned stress to all concerned. And the expressions of remorse were not genuine and unconditional. The contemnors had at first apologised, before then contesting their liability for contempt.
Counsel then pointed to the aggravating features of Hinch (No 2) which are absent from the instant matter. Those were the intentional nature of the contempt in that case, the contemnor’s lack of insight into his behaviour, the lack of sincerity in the apology given and the Court’s finding that the contemnor was not genuinely remorseful for his conduct. In that matter the contemnor was fined $100,000.
As was pointed out by the applicant, the fine in Hinch (No 2) was ‘intended to occasion a real and substantial degree of financial pain’ for that individual, [18] and comparisons of penalties imposed on individuals with those imposed on corporations are of limited utility. Ultimately the applicant submitted that this Court is not constrained by upper and lower limits.
[18]Hinch (No 2) [2013] VSC 554, [45].
I agree with the applicant’s submission that comparisons between financial penalties imposed upon individuals and corporations are not readily made. In most cases there is an obvious difference in the financial capacity of the two categories of defendant.
Conclusion
Balancing as best I am able the competing considerations in this matter it is in my view appropriate to record a conviction against the respondent. This was a very serious breach of the sub judice contempt principle. That is so in and of itself – prominently and expressly linking prior convictions with ongoing criminal proceedings, but particularly so given the history of warnings and assurances that preceded it. The respondent had not implemented adequate internal procedures or steps to avoid further publication of the prior convictions despite those assurances.
And, notwithstanding the mitigating matters which the respondent calls in aid on its plea, I am of the view that the circumstances warrant more than a modest fine.
Accordingly, I make the following orders:
(a) The respondent will be convicted of contempt of court.
(b) The respondent will be fined $155,000.
(c) The respondent is to pay the costs of this application on an indemnity basis, fixed at $45,000.
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