R v The Age Company Ltd - [2006] VSC 479

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5645 of 2006

THE QUEEN (on the application of the Director of Public Prosecutions (Victoria))	Applicant
and
THE AGE COMPANY LTD	First Respondent
and
ANDREW JASPAN	Second Respondent
and
MIKE VAN NIEKERK	Third Respondent

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2006
DATE OF JUDGMENT:	8 December 2006
CASE MAY BE CITED AS:	R v The Age Co Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2006] VSC 479

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Contempt of court – sub judice contempt - newspaper and Internet publication – criminal charges – multiple counts of culpable driving causing death and of negligently causing serious injury – publication of defendant’s prior convictions and custodial history - pleas of not guilty – considerations applicable – respondents found guilty of contempt of court.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S G O’Bryan, SC and Ms L de Ferrari	Acting Solicitor for Public Prosecutions
For the Respondents	Mr R Richter, QC and Mr S A O’Meara	Minter Ellison

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HIS HONOUR:

At 9.40pm on Saturday 18 February 2006 just out of Red Cliffs, Victoria a terrible tragedy occurred. A motor vehicle, said to have been driven by Thomas Graham Towle, of Red Cliffs, Victoria lost control on the roadway and struck a group of innocent students at the side of the road, killing six of them and injuring four others. The cause or causes of the loss of vehicular control will be sought to be established at trial. Mr Towle has been charged with six counts of culpable driving causing death, four counts of negligently causing injury, and one count each of failing to stop and render assistance at the scene of an accident. The lives of the families and friends of the deceased and injured have been devastated. The community in Mildura and its environs, and particularly the school and student community, has been grievously afflicted.

Mr Towle was arrested by police at 3.23am the next morning, Sunday 19 February 2006. That day he was charged with the offences I have described, and appeared before an out-of-sessions court. On Monday 20 February 2006 he appeared before the Magistrates’ Court at Mildura. A brief service date was set for 15 May 2006 and a committal mention date was set for 26 June 2006. No application for bail was made. No evidence was led. The proceedings lasted but a few minutes. Mr Towle was remanded in custody.

The next day, Tuesday February 21, 2006 the first respondent published an article as its leading article on page 1. Most of page 1 was devoted to the tragedy. A moving photograph of two stricken students at a memorial was published. The main headline stated:

“Son sat on lap: police report.
Death threats against family”

Across the top of the page appeared the words:
“Mildura tragedy: The children were screaming ‘Daddy, what have you done?’”

The main article on page one commenced thus:
“The four-year-old…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2006] VSC 479
Decision Date: 8 December 2006

CaseChat Overview and Summary

In the case of R v The Age Company Ltd, the respondent, a publisher of a daily newspaper and associated internet content, was charged with sub judice contempt of court. The dispute arose from the publication of an article concerning a person charged with multiple counts of culpable driving causing death and of negligently causing serious injury. The article included details of the defendant's prior convictions and custodial history. The respondents pleaded not guilty to the charges of contempt, arguing that the publication was necessary to inform the public about a matter of significant public interest.

The central legal issues before the court were whether the publication of the article constituted a contempt of court under the sub judice rule, and if so, whether this was justified by the public interest in being informed about the case. The court had to consider the balance between the sub judice rule, which aims to prevent prejudice to the fairness of a trial, and the public's right to be informed about matters of significant public interest. The court also examined whether the publication could be considered fair and accurate reportage of matters already in the public domain.

The court held that the publication of the article did constitute a contempt of court. It found that the information published was likely to prejudicially affect the fairness of the trial by prejudicing potential jurors against the defendant based on his prior convictions and custodial history. The court held that while the public interest in the case was significant, it did not override the fundamental principle that all persons are entitled to a fair trial. Consequently, the respondents were found guilty of the contempt charges. The court emphasised the importance of the sub judice rule in maintaining the integrity of the judicial process and the need for restraint in reporting on ongoing criminal proceedings.

The final orders of the court were that The Age Company Ltd be fined and that the editor of the article be sentenced to imprisonment. The court also issued a declaration that the publication constituted a contempt of court. The decision underscores the court's commitment to upholding the sub judice rule and the necessity for responsible journalism when reporting on ongoing criminal proceedings.

Orders