R v Purdie and The Advocate Newspaper Pty Ltd

[2008] TASSC 15

[2008] TASSC 15

CITATION:              R v Purdie and The Advocate Newspaper Pty Ltd [2008] TASSC 15

PARTIES:  R
  v
  PURDIE, Jason

ADVOCATE NEWSPAPER PTY LTD, THE

TITLE OF COURT:  Supreme Court of Tasmania
JURISDICTION:  Original
FILE NO/S:  163/2008
DELIVERED ON:  28 April 2008
DELIVERED AT:  Hobart
HEARING DATE:  10 April 2008
JUDGMENT OF:  Slicer J

CATCHWORDS:

Procedure – Contempt, attachment and sequestration – Pending trial – Prejudicing fair trial of accused – Publication in newspaper – Procedures involving publication of court reports – Collective memory.

Aust Dig Procedure [678]

Procedure - Contempt, attachment and sequestration – Attachment and committal – Newspaper article – Fine – Contempt not wilful.

Aust Dig Procedure [723]

REPRESENTATION:

Counsel:
           Applicant:  T J Ellis SC
           Respondent:  G L Jones
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Douglas and Collins

Judgment Number:  [2008] TASSC 15
Number of paragraphs:  11

Serial No 15/2008
File No 163/2008

THE QUEEN v JASON PURDIE AND THE ADVOCATE NEWSPAPER PTY LTD

REASONS FOR JUDGMENT  SLICER J

28 April 2008

1. I have already found that the respondent is in contempt of court but not intentionally.  There remains disposition.

1. On 9 February 2008, the respondent published a brief news item prepared by one of its court reporters concerning the impending trial of a man charged with sexual misconduct.  The item referred to other pending, but separate, charges of wounding, aggravated assault and sexual assault which were due to be heard at a different and future date.  A jury panel had been summoned for 11 February to hear the case.  On that day, once the offending news item had been referred to the presiding judge, the trial was aborted.  It will be heard at a later sittings.

1. The Court accepted in its primary determination that publication of the offending material was not intentional.  The editor of the newspaper deposed:

"7I set out hereunder the process involved in relation to the publication of the article:

■    the article was written and filed for publication by our court reporter who attended the Burnie Court on 8 February, 2008.  The reporter was an experienced court reporter who had previously received training in relation to the role of the media in the judicial process.  Her training and experience included:

-   the successful completion of tertiary studies with a component of media law;

-   work seminars and work training sessions on media law;

-   learning from an experienced court reporter; and

-   fulltime court reporter in Hobart and Burnie during 2006-2008.

■    once filed for publication the article was passed to a sub-editor whose role it was to scrutinize the article for spelling, grammar and structure.  That person passed it to another sub-editor whose role it was to approve or refuse its publication.  In this case the sub-editor had more than twenty (20) years service with the newspaper.  Unfortunately, he did not pick up the relevant legal issue and the article was mistakenly published."

1. The editor has undertaken a review of the procedures involving publication of court reports and implemented a number of changes which include the re-issue of a media guide, increased utilisation of in-house counsel, additional training, and implementation of a new system of court reporting.  The Court accepts the remorse of staff and the organisation generally and that changes have been made to the relevant protocols and procedures.  The Advocate is a regional newspaper and has well served its community for 118 years.  It has trained and produced many fine reporters.  In more recent years it has been subject to change of ownership, re-organisation and greater pressures as a consequence of a more diverse and complex society and greater competition from other news organisations, both local and national.  It is presently a component of the Fairfax enterprise.  Doubtless those pressures and changes have affected the identity and culture of the newspaper.  Dislocation does not permit easy remedy.  Left there, the nature of the branch and the response of the editorial staff would require but a nominal sanction.

1. However, the Director of Public Prosecutions has sought a greater penalty.  He advances three basic propositions in support of his contention, namely:

1reliance on collective memory is inadequate as demonstrated by this and other lapses;

2the institutional processes are not sufficiently rigorous and not adapted for Tasmanian requirements;

3in general, the culture reflects inadequate research and attention to accuracy.  Certain stories might have reflected the views of the community, but ought not do so in an ill-informed manner.

1. In support of that contention, the Director relied on previous lapses and a series of topic-related articles in the criminal justice system.  He relied on concessions made by the present editor during the course of cross-examination during the hearing.

1. One matter relied upon can be readily discounted.  The Advocate had run a series of articles originating from concerns about the inadequate sentences imposed following the rape of an elderly citizen and extended generally into the operation of the criminal justice system.  I do not seek to make any judgment on the particular series except to observe that such stories attract outrage and instinctive, rather than considered, criticism.  The media often reflects this.  It is entitled to so do.  The criminal justice system ought be sufficiently robust to accommodate outrage and a desire for vengeance, provided that it is protected by Parliament, and often will be enhanced by such a process.  Here the claimed "lapses of judgment or taste", as raised during the course of cross-examination, have no import.

1. However, other matters raised are relevant.  During December 1999, the Advocate has been found guilty on five occasions for breaches of the reporting of bail proceedings, three contrary to the Justices Act 1959, s37A, one contrary to the Guardianship Act 1995, s13(1)(a) and (b), and one contrary to the Electoral Act 2004, s196. Each can be regarded as a lapse of judgment or unawareness, but cumulatively they are of concern. The newspaper relies on the collective memory held by experienced journalists on the editorial or sub-editorial teams. But here the reporting journalist had not been with the newspaper at the time of the breaches stated above and presumably had no knowledge of them. Nor had she been specifically trained in the particular requirements of this newspaper. That, coupled with the lapse of the sub-editor or editorial team, led to this breach.

1. There are insufficient guidelines for the use of in-house counsel.  Journalists are provided with an "in-house" legal guide prepared for the Fairfax Group.  But there is no adaptation specific to Tasmanian requirements.  There are over 30 statutory provisions within this State restricting the ambits of public disclosure.  They are dispersed in various legislative provisions and can be sometimes counter-intuitive.  Sometimes the basis for and determination of bail matters are beneficial as a recent case involving terrorist legislation and the use of the Migration Act 1958 (Cth) has demonstrated, or mask wider and important issues as in those cases involving mass arrests during the Franklin Dam controversy. Some of those restrictions can be frustrating to both style and judgment writing or journalistic reporting. But each of us, both judicial officer and journalist must heed them. I would suggest the addition to the media guide of an appendix or check list setting out the specific Tasmanian legislative provisions.

1. Here there does not appear to have been specific protocols to reinforce or formalise collective and historic memory and the editorial process.   The Advocate employs a news team of 45 persons located in the four main Tasmanian centres.  Here the particular journalist had received no specific training for local requirements of a small community.  The report itself might have gone unnoticed by jurors in a large city, but within Burnie and its surrounds it could well have great, even if sub-conscious, effect on jurors sworn on the trial.  The criminal justice system might be robust and the courts entitled to rely on the integrity of jurors (R v Glennon (1998) 173 CLR 592), but the balance in the individual cases, especially those sex related, between state and citizen, can be fragile.

1. I do not advance the above critique from a sense of superiority.  Courts, after all, have an elaborate appellate process to rectify error.  But I do accept some of the criticism advanced by the Director.  This was not a case of sensationalist reporting for the excitement of the community.  That it was accidental or non-intentional is balanced by the earlier lapses.  Taking a middle position (R v The Age Company Ltd [2000] TASSC 62), I would add to my finding of contempt the sanction of a fine of $5,000.