R v Sammut & Anor
[2008] VSC 189
•5 June 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6755 of 2007
| THE QUEEN (ON THE APPLICATION OF THE REGISTRAR OF THE COUNTY COURT OF VICTORIA) | Applicant |
| v | |
| ANITA SAMMUT and WIN TELEVISION VIC PTY LTD | Respondents |
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JUDGE: | HANSEN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 March 2008 | |
DATE OF JUDGMENT: | 5 June 2008 | |
CASE MAY BE CITED AS: | R v Sammut | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 189 | |
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CONTEMPT – Criminal trial in the County Court at Morwell – Presentment severed with further trial to follow - Suppression order prohibiting reporting of, or any information derived from, the proceeding – News broadcast on WIN Television in Gippsland region – Broadcast in breach of order – Plea of guilty to breach of order and to charge that broadcast had tendency to interfere with the administration of justice – First respondent journalist responsible for the news item – Second respondent proprietor of the television station – Proceeding against first respondent withdrawn – Second respondent agreeing to pay solicitor and client costs of proceeding - Penalty imposed on second respondent.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr H J Langmead SC and Ms J K Greenham | John Cain, Victorian Government Solicitor |
| For the Respondents | Mr S A O’Meara | Banki Haddock Fiora |
HIS HONOUR:
In this originating motion brought by the Crown two declarations are sought, namely:
(a)That the respondents be adjudged guilty of contempt of Court for broadcasting and publishing a news item on television on 5 February 2007 concerning a criminal proceeding in the County Court when on 29 January 2007 the trial judge had prohibited the publication of any report of the proceeding pursuant to s 80(1) of the County Court Act 1958 (“the Act”);
(b)That the broadcasting and publication of the news item constituted a contempt of the County Court in that it had a tendency or was calculated to interfere with the due administration of justice[1].
[1]As to the practice of including multiple contempts in an originating motion see Rich v Attorney‑General for the State of Victoria [1999] VSCA 14, 30, [45].
The respondents are Anita Sammut and WIN Television Vic Pty Ltd (“WIN Television”). Ms Sammut is a journalist employed by WIN Television, the proprietor of the WIN Television Station which broadcasts in regional Victoria and parts of southern New South Wales. WIN Television is based in Ballarat and has news bureaus in Bendigo, Shepparton, Albury and Traralgon. It also has a subsidiary with a news bureau in Mildura. Each news bureau employs journalists and cameramen and produces local news items to be broadcast in the local area.
Ms Sammut was employed at the Gippsland bureau in Traralgon. The Gippsland bureau had three journalists and three cameramen who covered local items for the Gippsland region, such items being broadcast by WIN Television throughout Gippsland and sometimes through the WIN Network.
At the time of the offending broadcast Ms Sammut was the Bureau Chief for WIN News at Gippsland. She was responsible for news items from the Gippsland bureau, supervised the production of local news items, and did three or four news items of her own each day. She read and approved the offending news item that was broadcast by WIN Television in the Gippsland region at 8.30 pm on 5 February 2007.
When the hearing commenced I was informed that WIN Television pleaded guilty to both charges and that the Crown withdrew the proceeding as against Ms Sammut on the basis that WIN Television agreed to pay the Crown’s costs of the proceeding against the respondents on a solicitor and client basis. Hence the hearing was conducted as a plea.
There were two affidavits, one sworn by a solicitor employed by the Victorian Government Solicitor, and the other sworn by Ms Sammut, to each of which there were several exhibits. Neither deponent was cross-examined. The only other evidence was a letter addressed to the Court from Steve Marshall, the Director of News for WIN Television Victoria and a booklet referred to in Ms Sammut’s affidavit entitled the ABC All-Media Law Handbook.
With that introduction I turn more fully to the facts to indicate the circumstances in which the offending broadcast occurred.
In 2005 Michael Gaythorne Caldwell and his son Kelly Edward Caldwell were committed for trial in the County Court on a number of charges. The committal was covered in news items broadcast by WIN Television on 9 and 10 August 2005 which referred to the theft of tree ferns and timber from private and public land in the Gippsland region. On 20 November 2006 a presentment containing 60 counts was filed against the Caldwells at the County Court at Morwell.
On 29 January 2007, when the proceeding came on for trial in the County Court at Morwell, another presentment was filed over. This charged six counts, namely:
(a)Two counts charged the Caldwells with conspiracy between 1 March 2000 and 7 March 2004, one conspiracy being to steal tree ferns and the other being to steal timber logs.
(b)Each accused was charged with two separate but identical counts of common assault on named persons on 5 May 2003.
On the same day the trial judge made an order pursuant to s 80(1) of the Act, prohibiting “the publication of any report of the whole of the proceedings or any information derived from the proceedings until further order”.
On 30 January 2007 the judge severed the presentment and ordered that the conspiracy counts (counts 1 and 2) be heard first followed by a separate trial of the assault charges (counts, 3, 4, 5 and 6).
On 31 January 2007 a jury was empanelled, the accused were arraigned and pleaded not guilty, and the trial was adjourned to 5 February 2007.
On 2 February 2007 the Communications Branch of the Department of Sustainability and Environment (“DSE”) sent an electronic media alert to journalists and reporters in the media, including WIN Television at Traralgon. The alert stated:
Friday, 2 February 2007
DRAFT
***Embargo applies – Prohibition of Publication of Proceedings Order in force)***
COURT TO HEAR TREE FERNS AND HARDWOOD THEFT CHARGES
WHAT: A significant trial led by DSE against two Traralgon men commences at La Trobe Valley County Court in Morwell on Monday, February 5, 2007.
Traralgon father and son Michael and Kelly Caldwell face conspiracy charges to steal large qualities [sic] of tree ferns and hardwood timber from native forests in Gippsland.
The pair are alleged to have illegally removed the vegetation in and near the Strzelecki Ranges and around the headwaters of Gippsland’s Franklin River.
The offences allegedly occurred between 2000-2004, resulting in environmental damage to approximately 50 hectares of Crown, plantation and privately owned land.
WHERE: La Trobe Valley County Court, Morwell.
WHEN: Trial starts Monday, 5 February, 2007 when opening statements will be heard.
BACKGROUND: In Victoria, tree ferns can be harvested and traded only under strict conditions. The charges against the Caldwells have emerged from Operation Dart, led by the Department of Sustainability and Environment, and Operation Kiosk, led by Victoria Police.
Penalties are set under the Crimes Act 1958. If convicted, the Caldwells could face up to 10 years’ imprisonment and/or fines of up to $120,000.
*****
COMMENT: This Media Alert is provided for your news team’s planning purposes only and to notify you that a Prohibition of Publication of Proceedings Order is already in force. This means details of proceedings CANNOT be published or broadcast until completion.
This case is expected to [sic] heard in open court at Morwell, before Judge Geoff Chettle. Journalists will still be entitled to attend and take notes if they wish. Check directly with the County Court should you need any further clarification on the Order or are seeking transcripts.
DSE prosecutor Gavan Knight will be available for further comment only when proceedings in this case are concluded, and final sentencing handed down.
Thanks for your ongoing interest and co-operation. We will provide an update when possible.”
As mentioned below, Ms Sammut read the alert prior to the offending news broadcast on 5 February 2007.
On 5 February 2007 the trial got underway. The Crown opened the case and evidence commenced. Save that evidence concluded on 28 February 2007 I do not know the result of the trial or anything as to the disposition of the remaining four counts. The hearing before me was conducted on the basis that there was no evidence that the news broadcast had any effect on the first and second trial (assuming a second trial occurred), one way or the other. What is complained of is that the broadcast was made in contravention of the suppression order and that it had a tendency to interfere with the due administration of justice.
Later on 5 February 2007, in a news update broadcast at 8.30 pm, WIN Television broadcast in the Gippsland area the following:
“The trial of two Traralgon men accused of stealing tree ferns and hardwood timber from private and public land in the Strzelecki Ranges and selling them to a commercial nursery is underway in Morwell.
If convicted, Michael and Kelly Caldwell could face up to 10 years’ jail.”
The next morning in Court the broadcast and its possible effect on the trial was discussed by the judge and counsel. At the outset the judge said that the broadcast would not affect the present trial but it may affect subsequent trials. He said that he would hear submissions when he had a DVD of the broadcast. Counsel and the judge then proceeded to discuss other matters. A little later the judge said that he had received a transcript of the item, and read it out. He said that it seemed in breach of the non-publication order. There was reference to a report that jurors had seen the broadcast, as to which the judge noted that he had already warned the jury to ignore media reports of the trial, and said that he would direct the jury on conspiracy to clarify that the accused were not charged with stealing tree ferns and hardwood. In the discussion there was also reference to three items broadcast on the ABC on 5 February 2007[2]. Later, at 2.00 pm that day Ms Sammut appeared in Court. She stated, in answer to a question from the judge, that she was responsible for the report on WIN Television, and that no-one had actually been in Court. The judge then addressed Ms Sammut. His remarks were shortly expressed but direct in their meaning and effect. He described it as an “amazing style of journalism that you can actually report on things without being here” and he pointed out the risk that there was a prohibition order in existence. He said that he intended to refer the papers on to have contempt charges brought against WIN Television. He again criticised Ms Sammut for reporting on something one was not at, and which could end up costing the community a lot of money. He concluded his remarks by thanking Ms Sammut for her attendance. The transcript records that this episode occupied three minutes.
[2]These broadcasts also became the subject of contempt charges; see R v Australian Broadcasting Corporation [2007] VSC 498.
The jury were then brought in. Reminding the jury that he had previously told them to ignore any media reports, he asked if the jury had become aware of any media coverage and, if so, what was heard, and whether that would make it impossible to carry out their duty. After a retirement the foreman advised the judge that four jurors saw on WIN Television that the trial had started “but there was really no other information”, and that no juror would be influenced in any way by what was seen. The judge warned the jury again about media coverage and said that as an example of how the media get things wrong WIN Television had said the accused were charged with theft when they were not, the charge was conspiracy. The trial then proceeded. No counsel made an application for the discharge of the jury or submitted that the trial could not then and there continue.
On 8 February 2007 the judge made an order directing the Registrar of the County Court to make application for the punishment of WIN Television for contempt of Court.
The originating motion was duly filed on 19 June 2007. The first contempt, constituted by broadcasting the news item in contravention of the prohibition order, is plain and needs no explanation. The second contempt is the common law contempt constituted by acts that have a tendency to interfere with the due administration of justice. The originating motion put the second contempt in two ways: first, the tendency of the news item to prejudice the accuseds’ defence of the charges against them, and secondly, the tendency of the news item to interfere with the rights of the accused to a fair trial. The respondents sought particulars of these contentions.
In particulars provided in response to the request the Crown stated that:
(a)The criminal charges in respect of which the news item had a tendency to prejudice the defence, and interfere with the accuseds’ rights to a fair trial, were the six charges on the new presentment.
(b)As to what part of the news item was relied upon, the Crown relied on the entirety but in particular the phrases “Michael and Kelly Caldwell”; “accused of stealing tree ferns and hardwood timber”; and “if convicted, Michael and Kelly Caldwell could face up to ten years’ jail”.
(c)The basis for the tendency or calculation of those phrases to prejudice the accuseds’ defence of the charges, and to interfere with the accuseds’ rights to a fair trial, included:
(i)Naming the accused in relation to the first trial when the trial had been split into separate but consecutive trials had a tendency to prejudice the defence of the accused in the second trial.
(ii)Overstating the charge in the first trial to be that of theft instead of conspiracy to steal had the tendency to prejudice the defence of the accused on the conspiracy charges in that trial.
(iii)Referring to penalty in the first trial had a tendency to prejudice the defence of the accused in that trial.
(iv)Making the publications on the first day of a criminal trial had a tendency to prejudice the defence of the accused in that trial.
(v)Both trials were to be by jury and the publications were in the same geographic area as that from which the jurors in the first trial had been selected and the jurors in the second trial would be selected.
In pleading guilty WIN Television did not question the case stated in the originating motion and particulars.
It should be added that in his submissions counsel for the Crown also referred to the risk to the prosecution of the publication of the possible penalty causing the jury to have an adverse reaction to conviction.
I now refer to Ms Sammut’s explanation of the broadcast. It is convenient to commence with her background. In 2000 she graduated from Monash University (Gippsland) with a Bachelor of Arts (Journalism). The course included a unit devoted to legal aspects including the law of contempt of court and suppression orders. She commenced employment with WIN Television in 2002 and after several promotions became Bureau Chief for WIN News at Gippsland.
Ms Sammut described Court reporting as a small part of the news reporting usually broadcast by WIN Television in Gippsland. They tend to cover some local court cases, mostly brief news items. She herself has experience in court reporting for WIN Television, having attended courts in the LaTrobe Valley and Sale and knows some court staff, police and lawyers. She knew that suppression orders are usually placed on the court door and elsewhere in the building and regularly asks court staff about the existence of any suppression order relevant to what she is doing.
Ms Sammut deposed as to resources provided by WIN Television to assist journalists, including herself, with legal issues. In addition to the ABC All-Media Law Handbook referred to earlier she referred to and produced the relevant portions of four other resources. These resources, other than the ABC booklet, are available on the WIN intranet site. In addition there was access to experienced editorial staff and management at WIN Television headquarters in Ballarat, and 24 hour access to experienced external lawyers. Ms Sammut said she had used these resources and consulted the WIN intranet on occasion. She said that she regularly speaks with members of WIN Television editorial staff and management about legal issues relating to stories and on occasion has telephoned the external lawyers for advice. She believes she has sufficient familiarity with legal restrictions on publication to identify when she needed to seek legal advice and had done so when she felt she needed to. She has not previously been accused of breaching a legal restriction on publication.
The day in question, 5 February 2007, was a very busy day at work. A journalist was away, leaving Ms Sammut and the other journalist to cover the news. Ms Sammut was involved in seven local news items, that being more than usual, including on recent bushfires. She received and read the above media alert from the DSE. That was her first knowledge of the trial starting. She remembered the committal which had been covered by WIN Television and other media. She remembered the WIN Television coverage.
The media alert was unlike one she had seen before or since. In her experience a proceeding the subject of a suppression order is not usually the subject of a media release. She thought she understood the media release. It was a draft and subject to an embargo. She noted that it referred to the essential details of the charges and that the trial was starting that day, and that a suppression order was in force. But the trial was to be open and journalists could attend. She decided not to send the other journalist to the Court or go herself because she realised that they could not report on events at the trial.
However, because the Court was open and journalists could attend, she decided that that meant they could publish a news item based on WIN’s earlier coverage of the committal and otherwise stating that the trial was underway. The names of the accused, charges and potential penalties had been reported by WIN at the time of the committal. Ms Sammut said that she did not understand the media alert to say that she could not report that the case had started or the “seemingly uncontroversial details” previously broadcast. She said that she failed to reflect on the potential for overlap between those details and what might occur at the trial.
Ms Sammut deposed that her misreading and misunderstanding of the media alert and effect of the suppression order was unintentional, and that she had been mistaken for which she sincerely apologised. She knew that such errors were serious and can be costly to the community.
Ms Sammut further deposed that owing to her error she did not seek legal advice. She decided that the news item could be published, and she read and approved the terms of it before it was broadcast. She saw the item on television that night and thought nothing of it.
The next day a call came through that the judge required someone at Court at 2.00 pm. Ms Sammut duly attended, having first been advised by Mr Marshall that she should be absolutely honest and sincerely apologise. When the matter came on in Court she identified herself as responsible for the news item. The judge was very angry and she did not say what she had intended to say, namely that she apologised, had not intended to breach the Court order, and had misread and misunderstood the media alert and thought the item would not breach the suppression order.
In her affidavit Ms Sammut expressed a sincere and unreserved apology for the broadcast on behalf of WIN Television. She also apologised personally. She had not intended to breach the suppression order, and was horrified to have done so. It had not happened before; she would never forget it. She would not knowingly disobey a Court order. Since the incident she had been very careful about checking in relation to suppression orders and double-checking with WIN Television editorial staff and management before items on Court proceedings are broadcast. Since then there have been occasions when they have not reported an item because she has had doubt about an aspect of a particular court case.
Finally, Ms Sammut deposed that Mr Marshall had informed her, and she believed, that WIN Television and its subsidiary have no prior prosecution or conviction for contempt of Court or breach of a suppression order. WIN Television has been operating since its incorporation in July 1959. Ms Sammut also placed in evidence a deal of material which reflects support by WIN Television of community activities in regional Victoria. The Crown does not challenge these matters.
Before referring to the submissions it is convenient to refer to some foundational matters. First, the purpose of punishing for contempt of court is to protect the authority of the courts and preserve the impartial administration of justice. See R v David Syme & Co[3]. Secondly, proceedings for contempt are criminal in nature[4]. Thirdly, whether a publication has the tendency to interfere with the due administration of justice or prejudice the prosecution or defence in a trial is determined as at the time of publication. It is not required that the publication actually cause harm as, for instance, by a trial being aborted or delayed. Further, mens rea is not an element of the offences charged, although the presence or absence of intention, and of awareness of a suppression order, is properly to be considered in deciding penalty; see R v Pacini[5]. Fourthly, O 75.11(2) provides that where the respondent to a contempt charge is a corporation, the court may punish for contempt by sequestration or fine or both. As to that, counsel for the Crown submitted, correctly, that a fine was the appropriate remedy in this case. I approach the matter of penalty accordingly. The penalty to be imposed being by way of fine, the provisions of the Sentencing Act 1991 do not apply; see McKinnon v Adams[6]. Fifthly, in determining whether to impose a fine for the contempts and, if so, the amount thereof the court is concerned with considerations of specific and general deterrence and the vindication of the authority of the court; see Registrar of Court of Appeal v Maniam (No 2)[7]; Registrar of the Supreme Court v Nationwide News Ltd[8]. Sixthly, WIN Television is to be punished for both contempts. It is not appropriate to impose a single “global” punishment; see Rich v Attorney‑General for the State of Victoria[9]; R v Australian Broadcasting Corporation[10]. Seventhly, an order for costs, such as that to be made here, is regarded as punishment and is thus to be taken into account in determining upon the matter of penalty.
[3][1982] VR 173.
[4]Witham v Holloway (1995) 183 CLR 525.
[5][1956] VLR 544, 546-547.
[6][2003] VSC 502, 10, [39].
[7](1992) 26 NSWLR 309, 314.
[8](2004) 89 SASR 113, 123.
[9][1999] VSC 14, 30 [45].
[10][2007] VSC 498, 20, [63].
I now refer to counsel’s submissions. I do so summarily but without overlooking all that they said in their written and oral submissions.
Counsel for the Crown submitted that WIN Television did not have in place a system that might have prevented the occurrence of the contempt. Further, there was no evidence of any steps taken to address the risk of a future occurrence. Then, notwithstanding that immediately after she left court on 6 February Ms Sammut had advised the Chief of Staff of WIN Television what had happened and how angry the judge was, and he therefore knew that an apology had not been given, WIN Television did not proffer an apology, whether by sending counsel to the court to do so or otherwise. The first apology was that given by Ms Sammut in her affidavit sworn on 4 December 2007, almost 11 months later, and was expressed as given “on behalf of” the company. It was not expressed to be given by or with the authority of the company or the board or any particular officer thereof. More significantly, there was no affidavit by an officer of the company apologising and expressing regret such as to suggest a true corporate remorse. As to this submission, I refer below to a letter to the court from Mr Marshall that was tendered by WIN Television’s counsel. Counsel observed of this letter that it did not contain an apology from WIN Television.
Counsel for the Crown then addressed Ms Sammut’s conduct in approving the news item for broadcast without having first clarified the terms of the suppression order or seeking legal advice upon it. As to this, counsel did not suggest that Ms Sammut acted wilfully in the sense of knowing that the broadcast would be in breach of the order and a contempt. However, he submitted, her conduct in approving the news item for broadcast was not inadvertent in that her approval was given with awareness of the order. Indeed, he submitted, her giving approval was arguably reckless as to whether the broadcast of the news item would be in contempt. In relation to this though, counsel acknowledged that he had not cross‑examined Ms Sammut upon her evidence that she had misread and misunderstood the media alert. Nevertheless, her evidence reflected a woeful lack of knowledge about suppression orders, the need to be astute as to their terms, and the effect of acting in contravention of them. Counsel submitted that what happened bespoke a systemic problem with WIN Television. As to that, counsel criticised the materials WIN Television made available to employees concerning publication of court proceedings and suppression orders. It was submitted that these materials did not establish a minimum position that before publishing anything about a trial, a journalist should as a matter of course contact the Court to see if there was a suppression order and as to the terms thereof, and if there was an order and the journalist was not sure of its meaning to enquire internally as to its meaning. In short, WIN Television did not have a proper system in place to avoid what had occurred, and had taken no steps since the offending broadcast to remedy that situation.
At the outset of his submissions WIN Television’s counsel identified the issues for consideration as being the assessment of the seriousness of the criminality of WIN Television, and whether any penalty greater than the imposition of costs should be suffered. As to that, Ms Sammut and WIN Television regarded the matter as serious and were contrite and chastened by the event. As to the matter of an apology by WIN Television, Mr Marshall was in court and counsel expressed the sincere and unreserved apology of the company to the court and the system of justice for what occurred. That, in fact, was what it thought was being done when Ms Sammut, who was the most senior person at the Gippsland Bureau, took responsibility for the error. Counsel also tendered a letter addressed to the court and signed by Mr Marshall in which he spoke highly of Ms Sammut, of whom the company was “fully supportive”, and stated that the company regarded itself as ultimately responsible and also responsible for Ms Sammut. He said that an error of judgment on her part was unusual but any deliberate act or recklessness or breach of a court order was unthinkable to one who knew her. She had been upset and devastated. Mr Marshall concluded with the statement that he had stressed to Ms Sammut that “all facilities at WIN, including its experienced news personnel and external lawyers, are available to support her now and in the future”.
Rejecting the Crown submission that Ms Sammut’s decision to broadcast the news item was reckless or near thereto, counsel submitted that on her evidence (upon which she was not cross-examined) it should be concluded that the publication occurred as a consequence of careless reasoning rather than wilful indifference. The correct view was that she sought to comply with the suppression order, and considered that she had. That is, there was no element of electing to take a risk. Thus she had not sought advice. In these circumstances it was not to be taken that she had a “woeful” knowledge of the law of suppression orders or that WIN Television’s systems were inadequate. In fact, those systems were adequate.
Counsel also referred to the fact that the judge and the parties at the trial had been able to deal with the broadcast in a routine manner. The errors in the news item were very minor and did not prejudice the trial.
Both counsel referred me to other cases as comparators to consider in assessing penalty. While I have read those cases it is not necessary to refer to them, or any others, as the decision as to the appropriate penalty turns on the facts and circumstances of the particular case. To that decision I now turn.
The fact is that there are two contempts and, as conceded, they were serious. I take into account that the order which I am to make for the payment of costs on a solicitor and client basis is to be regarded as punitive. Nevertheless I consider that the imposition of that order is not sufficient punishment for the contempts. The fact is that the offending news item was approved and broadcast with knowledge of the suppression order. It matters not that advice of the order did not come from the County Court, as distinct from the DSE, for the DSE media alert clearly stated the fact and existence of the suppression order and Ms Sammut read it and understood that it was such an order. It was for her to make inquiry of the Court for any clarification of the position prior to any broadcast concerning the case. Apart from that obvious step it is bewildering that when considering the proposed news item Ms Sammut’s mind did not immediately go to the possibility of contempt for breach of the order. For she had been instructed in the law and her employer had provided materials on the topic. It is one thing to have a busy day, with the usual pressures of deadlines, but the lapse here was fundamental. Plainly enough Ms Sammut was careless. But I do not accept the Crown suggestion that she was reckless in the sense that she chanced her arm with an awareness of risk. In the face of her evidence and the absence of cross-examination the Crown submission could not be accepted.
It is significant that this is the first occasion on which WIN Television has committed the offence of contempt, having regard to its long experience in broadcasting and the number of news bureaus and broadcast points. Nor has Ms Sammut previously offended. WIN Television’s history is an indicator that its “systems”, being the instructional materials and including the availability of advice referred to earlier, have an adequacy for their purpose much greater than the Crown submitted. But the extent of that adequacy is at least in part to be measured by Ms Sammut’s lack of appreciation of the effect of the suppression order. Furthermore, there is substance in the Crown submission that WIN Television’s reaction to what occurred indicates a lack of appreciation of the seriousness of the offence and a failure to take action to guard against repetition. This is seen in the absence of any positive action to ensure there is not a recurrence, as by staff instruction such as by meetings, seminars, written materials or otherwise. It seems to have accepted the offence as an unfortunate but isolated occurrence not requiring an upgraded effort. Perhaps that sentiment was reflected in the omission to send counsel to apologise to the judge, as one would have expected to have been done, and in the omission of an apology by an officer of and for the company (as distinct from Ms Sammut’s apology in her affidavit). Indeed it was not until the hearing that the company, by counsel, expressed its apology. Counsel for the Crown submitted that WIN Television’s reaction and omissions in these regards reflected a lack of remorse. I am inclined to consider that that is not the whole explanation, that in part at least there was a failure of advice and consideration as to the appropriate handling of the matter. But, even assuming that, it yet remains that the outward appearance was that Ms Sammut was left to explain the matter for both respondents without the support of any affidavit from her employer as to apology, indication of remorse, and action taken to avoid repetition.
Taking into account the evidence and all of the submissions of counsel I am of the view that there should be a conviction and fine of $25,000 on each contempt. It will also be ordered that WIN Television pay the Crown’s costs of the proceeding, including reserved costs, as between solicitor and client.
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