R v The Herald and Weekly Times Limited

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE		Not Restricted

COMMON LAW DIVISION

No. 9343 of 2007

R (on application of the PROTHONOTARY OF THE SUPREME COURT OF VICTORIA)	Applicant
V
THE HERALD AND WEEKLY TIMES PTY LTD	Respondent

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JUDGE:	Smith J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2008
DATE OF JUDGMENT:	16 March 2009
CASE MAY BE CITED AS:	R v The Herald and Weekly Times Limited
MEDIUM NEUTRAL CITATION:	[2009] VSC 85

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Contempt of Court – breach of suppression order – relevant considerations – disposition – penalty.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Caleo S.C. and Ms F Gordon	Victorian Government Solicitor
For the Respondent	Mr W Houghton Q.C. and Mr D Gilbertson	Corrs Chambers Westgarth

TABLE OF CONTENTS

Introduction

The Proceeding

The suppression order

The commencement of the proceedings

The content of the Originating Motion

The plea of the respondent and position of the parties

Relevant principles

The applicable law

Gravity of the type of contempt

The seriousness of the breach – the evidence

The information published.
The consequences
The circumstances of the offence

Introduction.....................................................................................................................................
The sequence of events
The respondent’s “standard procedures”
Compliance with “standard procedure”

The seriousness of the breach – submissions

The respondent’s explanations
Applicant’s submissions

The seriousness of the breach – Analysis

First explanation – departure from standard procedures
Second explanation – weakness in the alert system
Seriousness of the breach - Conclusion

The issue of specific deterrence.

Steps taken by respondent
Specific deterrence - analysis of respondent’s argument

Prior record

Respondent’s submission

Analysis

Mitigatory factors

Respondent’s submission

Analysis

Disposition of the matter

Should convictions be recorded?

Penalty

Conclusion

HIS HONOUR:

Introduction
The proceeding

By originating motion[1] filed 9 November 2007, the applicant seeks declarations that the respondent be judged guilty of contempt of court for publication of an article in the Herald Sun newspaper on 5 March 2007 (“the article”), contrary to a suppression order made by King J on 28 February 2007 (“the order”).
[1]Under r 75.07 of the Supreme Court (General Civil Procedure) Rules 2005
. (Vic).
The suppression order
The suppression order prohibited any publication that disclosed the identity of six people. The article in question identified one of the people the subject of the order.
The order was one of several orders made on 28 February 2007 by King J arising out of the plea of guilty by Carl Williams in criminal proceedings that had been brought against him. King J ordered the lifting of all suppression orders in respect of Carl Williams and another suppression order relating to another person, save for anything that would identify that person. King J also made a further suppression order in the following terms:
“Order that there be no publication of any matters relating to Count 4 of the presentment, that of the conspiracy to murder Mario Condello.”
The commencement of the proceedings
On 28 March 2007, King J ordered that the Prothonotary apply by originating motion for punishment for the contempt of court constituted by the publication of the article. I note that at that directions hearing, prior to the making of the order before King J, senior counsel appeared for the respondent and submitted that the order had not been breached.
The content of the Originating Motion
The original Originating Motion filed on 9 November 2007 named three respondents. They were Bruce Guthrie, Keith Moor and the present respondent. At the time of the publication, Mr Guthrie was the Editor-in-Chief of the Herald-Sun newspaper and Mr Moor was the author of the article and Insight Editor of the Herald Sun newspaper. Mr Guthrie and Mr Moor swore affidavits in the proceedings in which they deposed that they were not aware of the order at the time of the publication of the Article. After considering their affidavit evidence, the applicant decided to withdraw the charges against them. The case, therefore, has proceeded against the remaining respondent, the Herald and Weekly Times Pty Ltd.
The originating motion seeks two declarations of contempt. The first alleges that the publication of the article was in breach of the above order. The second declaration sought alleges that the article had a tendency or was calculated to interfere with the due administration of justice. It alleges that this arose in two ways.
“(a) the article created a real risk that the named person would refuse to give evidence for the prosecution and any proceeding relation to the murder of Lewis Moran; and/or
(b) the article had a tendency or was calculated to affect adversely the continuing administration of justice in Victoria by deterring informers and/or witnesses from coming forward in aid of legal proceedings and/or from seeking the protection of the law.”
The plea of the respondent and position of the parties
Before me, a guilty plea has been entered in respect of both of the alleged contempts and an unqualified apology made on oath by the managing editor of the respondent. The respondent has also agreed to pay the applicant’s costs on a solicitor/client basis.
Counsel for the respondent submitted that, considering the circumstances of the breach of the order, the steps that have been taken since to avoid the risk of such a case happening again, the apparent genuine remorse and contrition shown by the respondent and other relevant mitigatory facts, the proper assessment of the case is one where the breach should be seen as being towards the lower end of seriousness and that a conviction should not be imposed and only a moderate fine imposed upon the respondent.
The applicant seeks a conviction and the imposition of a fine. As the applicant has submitted, the plea of guilty carries with it an acknowledgement that the order was disobeyed and that the publication of the article had a tendency to interfere with the due administration of justice. The applicant accepts that the court has the power to proceed without recording a conviction but has submitted that, in this instance, a conviction should be imposed.
Relevant principles
The applicable law
It is common ground that in determining whether to punish a contemnor and, if so, the nature of the punishment, the court will take into account the following:[2]
[2]I note that the contemnor’s personal circumstances and financial means can also be a relevant matter (Smith v R [1991] 25 NSWLR 1), but the issues does not arise in this case.

· the gravity of the offence in question,

· the circumstances of the offence,

· the seriousness of the breach, including the contemnor’s culpability[3] and the effect of the contempt on the administration of justice,[4]
[3]Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732.
[4]Durack v Gallagher (1982) 44 ALR 272.

· any prior convictions for contempt,

· the need for specific and general deterrence,

· mitigating factors.[5]

It was also common ground that the relevant provisions of the Sentencing Act 1991 (Vic) applied in contempt proceedings.[6]
[5]For a recent comprehensive consideration of the relevant law, I refer to and adopt the analysis of Kyrou J in R v Herald and Weekly Times [2008] VSC 251.
[6]See also Kyrou J, above [42] – [51], and the cases there cited.

In weighing up these matters it is relevant to consider the culpability of the contemnor and the nature and extent of harm actually caused by the contempt. It is also relevant to consider the existence or otherwise of any system in the relevant organisation for the prevention of the contempt, whether legal advice was sought before publication and the general nature and purpose of the publication. It is also relevant to consider remedial action taken and whether the respondent has pleaded guilty and apologised and offered to pay costs.[7]
[7]R v Herald and Weekly Times Pty Ltd, above.
Gravity of the type of contempt
Suppression orders are not made lightly. Commonly, they are made to protect the integrity of a trial. If that is compromised it will often be necessary to abort or delay the relevant trial. This wastes considerable time and causes great inconvenience and stress to the participants, including the victim’s family, the accused and his or her family, and any jury that has been empanelled. Considerable cost can also be wasted. Breach of suppression orders relating to the identity of persons can also put lives at risk and can put at risk the effectiveness of the witness protection system – a system vital for the investigation and trial of serious crimes. The importance of that program is recognised by the term of 10 years’ imprisonment that may be imposed for disclosing the identity of a person in the program.[8] If the breach results in the death of a key witness, the relevant prosecution may be defeated and the criminal justice process thwarted. In that situation, the victim’s family is denied closure. It is not unreasonable, in my view, to require high standards of everyone, including the media, when such issues are at stake.
[8]Witness Protection Act s.10(5).
Contempts by breach of suppression orders are, therefore, serious matters. In the present case, what occurred was a breach of an order of the court that the identity of a particular individual not be disclosed. It put the trial in which that person would be a witness at risk. It had the potential to prejudice the success of the witness protection program. It carried with it the risk that the person identified might be killed. What occurred was, therefore, a contempt of a most serious kind.
The seriousness of the breach – the evidence
The information published.

The two-page article in which the offending statements appeared concerned Tony Mokbel. It was entitled “Where in the world is Fat Tony hiding?”. In the course of the article, Mokbel’s disappearance from Australia was explained on the basis that he had discovered that he was about to be charged with murder. The article alleged that he had been identified by an informer. It then named the informer, one of the six people named in the suppression order. It also included information said to have been provided by the named informer about an offer made to that person by Mokbel to kill Lewis Moran. Thus the article directly and substantially breached the suppression order and directly defeated its purpose. The breach itself was, therefore, significant. In assessing its seriousness, however, it is necessary to consider the circumstances that gave rise to it and what light that sheds on the culpability of the respondent. It is also necessary to consider the consequences of the breach.

The consequences

Here the respondent has been fortunate. The applicant accepts that on the evidence, there does not appear to have been any harm to the relevant trial by the disclosure or any harm to the witness whose protection was an issue.[9]
[9]The witness gave evidence at a committal on 22 March 2007.
The fact that none of the above consequences happened is something that needs to be borne in mind in considering the seriousness of the actual breach. I turn to the circumstances of the breach.
The circumstances of the offence
Introduction
The details of the circumstances of the publication were deposed to by Mr Guthrie, the then Editor-in-Chief, including details of Mr Moor’s actions. In Mr Moor’s affidavit he confirms “the sequence of events” prior to publication set out in Mr Guthrie’s affidavit. Why this indirect approach was adopted was not explained. A result of this approach is that the evidence as to what occurred is hearsay but no objection was taken to its use. I will assume that this approach was the result of the editor-in-chief taking responsibility.
The sequence of events
The article was part of a two-part feature series and was prepared well in advance of its intended publication. Mr Moor finished researching and writing the series by Friday 23 February, approximately one week prior to the proposed publication dates of Friday 2 March 2007 and Saturday 3 March 2007. On about 23 February, after he had finished writing the series, he checked the respondent’s “legal alerts” database to see if there were any suppression orders relevant to the series and found none. On about 26 February 2007 he submitted the series to the respondent’s lawyers, Corrs Chambers Westgarth, for pre-publication legal review. They conducted that review on about the same day. The nature and extent of that review has not been described.
On 27 February 2007 the series was ready for publication which, as I have noted, was to take place on 2 and 3 March 2007. Publication was delayed until 5 March 2007, however, because on 28 February 2007 Carl Williams pleaded guilty in the Supreme Court to three murders and the reporting associated with that event was given priority. On 28 February 2007, as noted above, King J made the suppression order which included the prohibition on the publication of material that disclosed the identity of various persons including the one in question.
At the time, there was in place a system under which the Supreme Court notified the media of suppression orders. This was done electronically. Within the respondent’s organisation, when notice was received of a suppression order, it was placed on the “legal alerts” database referred to above and emails with the details were sent to their external legal advisors.
In this instance, the respondent received a copy of the suppression order at 6.02pm on Wednesday 28 February 2007, and on that day, the details of the suppression order were placed in the legal alerts database. At that time, Mr Moor and Mr Guthrie, the editor–in-chief, were not recipients of legal alerts emails. They were not aware of the suppression order at the time the article was published. Apparently, however, “soon after that” both Mr Moor and Mr Guthrie were added to the legal alerts email distribution list. Prior to publication, no further legal advice was sought by any of the respondent’s staff.
Mr Moor has deposed that the source of the words which identified the person as an informer, and the information he had supplied, was paragraph [4] of the sentencing reasons of Teague J in another matter. I do not understand the respondent to have based any argument on that evidence. I note, however, that in those reasons, his Honour included the following remarks
“[T]here are reasons for the media to be somewhat circumspect in what is published as to these sentencing remarks. There are other trials still to be heard. There is a significant committal soon to be heard.”
The respondent’s “standard procedure”
Material has been filed for the respondent, which has not been challenged, concerning the standard procedure in place at the relevant time in relation to the publication of articles by the respondent. It is contained in an affidavit sworn by Mr Trevorrow, Managing Editor of the respondent. The standard procedure involved a number of steps:

1. A journalist filed a text of his or her article with the news desk which was operated by the Chief of Staff, Deputy Chief of Staff and News Editor. One of those three people reviewed the copy and decided whether it would be published in the following day’s newspaper.

2. If it was decided that the copy would be published it was forwarded by the news desk to the back bench. The latter comprised senior journalists and usually included the Deputy Editor and, during the evening, the Night Editor. The copy would be there reviewed by a member of staff for publication. This might involve making changes to the copy and including new information obtained from other sources.

3. If the back bench had any concerns of a legal nature in relation to the copy it was sent for “legalling”. That involved sending the copy to the “in-house or external” legal advisors for review and legal advice. Mr Trevorrow deposed that it was

“standard practice that copy concerning legal proceedings or people who are accused or charged with a criminal offence was “legalled”.

Either a person on the back bench or the editor would speak to the legal advisors depending on the “nature of the article”. There was no elaboration of what is meant by the “nature” of the article. Any person or persons ultimately responsible were not described.

Under such an approach, the decision to seek advice and the nature of the advice sought would depend on the initiative of the respondent’s staff and any specific matter raised by the respondent’s staff.

4. The copy would be sent to the sub-editors after the back benchers finalised the copy and received any legal advice. The sub-editors would check for grammatical errors and errors of fact and then edit the copy to fit into the designated space. They also wrote headlines and captions. Where the copy had been legalled, the sub-editors also had the headlines and captions legalled. The copy would be further checked by a “check-sub” for spelling mistakes and grammatical errors and, if time was available, the completed pages would be read again by a second check-sub.

5. The completed pages would be then sent to Westgate Park for printing.[10]

[10]This description is substantially the same as that given to Kyrou J in R v Herald & Weekly Times [2008] VSC 251 at [8].

Compliance with “standard procedure”

Mr Trevorrow has deposed in his affidavit that “for the most part “ the preparation of the article in question followed the above standard procedure. The affidavits, however, do not give any detail as to what happened on this occasion during the day or in the night before publication. In particular, the affidavits do not state whether the legal advisors were asked to check anything specifically by the respondent and, if so, what they were asked to check, or what the legal advisors understood they were expected to check. In light of the concession that the legal alerts database was not checked on the night before publication and the fact that the respondent does not blame the legal advisors, I am satisfied that the advisors were not asked during the day or on the night before publication by the back bench or the editor to check for suppression orders. It might, therefore, more accurately be stated that , assuming that that was a critical aspect of the standard procedure, it was not applied. The respondent’s affidavits do not explain why this happened.
Mr Trevorrow also deposed, however, that all of the respondent’s journalists who prepare copy about criminal proceedings or persons accused of criminal offences are expected to check the legal alerts database for “any relevant suppression orders and other information”.[11] Presumably the check made by Mr Moor was in response to that expectation. Mr Trevorrow did not indicate that there was a particular time when this was to be done under “standard procedure”. He also did not suggest that the journalist, or anyone else, is the person with the ultimate responsibility to check, or have others check the legal alerts database for suppression orders and other information.
[11]This was the situation described to Kyrou J in R v Herald & Weekly Times [2008] VSC 251 [8] – [9].
Mr Trevorrow also deposed that the standard procedure was departed from in a “minor way”. His affidavit states that this was
“Due to the article being a two-part series that was prepared well in advance of its intended publication date and due to Mr Moor’s position as Insight Editor.
He described the departure in the following terms
“That is, instead of a person on the back bench having the article legalled the night before publication, Mr Moor sought legal advice from HWT’s external legal advisors on or about 26 February 2007.”
Mr Trevorrow sought to play down the failure. The emphasis of this evidence about departures from the standard procedure appears to be as much on the identity of the person seeking the advice, as on the timing of the seeking of the advice. But in this instance, the problem was the timing. It seems that no-one checked the legal alerts database for the article on the day or the night before publication. On Mr Trevorrow’s evidence, the “standard procedure” did not have an identified person with the ultimate responsibility to ensure checking for suppression orders through “legalling”, or otherwise checking, and it did not require any legalling or checking to be done the night before publishing – the critical time.
The seriousness of the breach – submissions
The respondent’s explanations

Counsel for the respondent in oral and written submissions advanced an explanation in two parts. Counsel first adopted Mr Trevorrow’s assessment that “the standard procedure was followed for the most part” but was departed from in that legal advice was not sought and the database not checked on the night before publication. It was put that, instead this was done by Mr Moor some days prior to publication.
Secondly it was submitted that there was a weakness in the system because the editor of the Insight team, Mr Moor, the author of the article, was not on the legal alerts email system and should have been.[12].
[12]I note that it is not suggested in this case that the high volume of copy and time constraints on the night in question caused the error of failing to check That was the explanation advanced in R v Herald and Weekly Times Pty Ltd & Blunden [2006] VSC 25 in relation to a publication on 7 February 2006. In that case the only member of staff identified as having an obligation to check the legal alerts database was the journalist who prepared the copy.(See [9] – [11] and [21]).
Counsel submitted that if either the check had not been made earlier or Mr Moor had been on the legal alerts system, it was likely that the breach would not have occurred.

These arguments are considered in more detail below. I note, at this point, however, that the first argument appears to imply that the checking of the legal database by Mr Moor in some way explains the lack of any checking on the night before publication. But there is no evidence as to why the back bench did not check. There is also no evidence that the back bench was aware of the earlier check and somehow relied upon it. Further, approximately a week having elapsed, it could not be safely assumed that there was still no suppression order of relevance.

Other concerns arise. For example, was it the invariable practice that the lawyers checked the suppression order database as a matter of course when asked to “legal”? When, on the evidence, checking was a matter to be initiated by individual employees of the respondent, but no particular individual was regarded as ultimately responsible, was there any basis for confidence that someone would have taken the initiative in this case on the night before publication?

Applicant’s submissions

The applicant accepts that there was nothing deliberate or malicious about the publication and no intent to cause prejudice to any trial or to any person who might be on a witness protection program. However, the applicant notes that it has not been explained why the members of the “news desk”, to whom legal alerts emails are distributed, apparently remained unaware of the relevance of the order to the contents of the article despite their role in determining the contents of the newspaper each day. The applicant also notes that Teague J‘s sentencing remarks, read by Mr Moor, themselves exhorted the media to be circumspect in what was published as to those remarks.
The seriousness of the breach – Analysis
First explanation – departure from standard procedures
As noted above, the first explanation proffered was that the standard procedure was not followed in that instead of seeking legal advice and checking the database on the night before publication, the latter was done a week before by Mr Moor on 23 February 2007 and the former on 26 February 2007.
This proposition assumes that there was a standard procedure that required that suppression orders be checked the night before publication by someone. I refer to my above summary of the relevant evidence. There is no evidence that there was a system that would ordinarily apply and would have required a checking of the text against suppression orders on the nights before publication whether on the 2, 3 or 5 March. The state of the evidence also casts doubt on the existence of any system as to the timing of any search. The course taken by Mr Moor would suggest that that there was no system. I refer, in particular, to Mr Moor’s checking of the legal alerts database and his checking with the lawyers on about 26 February 2007 knowing that that was about four days before the then intended publication date.
No manual or document has been produced by the respondent to point to a standard requirement or system to check suppression order issues the night before publication.
No satisfactory explanation has been offered as to why, if there was such a standard system, it was not followed. As to seeking legal advice, this, on the evidence, was a matter in the discretion of the editor and the back bench should they “have any legal concerns”. No evidence has been given identifying any person or persons whose responsibility it was to do that or make sure that it was done. One would expect that such a person or persons would exist if there was in fact a standard procedure in place.
Based on the evidence the defendant has produced, I conclude that there was not a standard procedure in place to check potential contempt aspects the night before publication of copy. The explanation for what occurred lies not in a departure from a standard procedure. Focussing on procedure, the explanations lie rather in the inadequacies of the respondent’s procedures identified above. In particular, there appears to have been no standard requirement that articles like Mr Moor’s article be so checked and there was no one in the organisation who carried the ultimate responsibility for ensuring that suppression orders were not breached. The procedure, such as it was, provided, at best, opportunities for anyone involved in the production of an edition of the paper to check suppression orders but none of those people had an allocated responsibility to perform that task.
Second explanation – weakness in the alert system
I agree that it was a weakness in the legal alerts system that the editor of the Insight team, Mr Moor, the author of the article, was not on the legal alerts email system. The evidence, however, does not support the conclusion that, if Mr Moor had had such access, it would have made any difference.
It might be expected that the author of the copy will have the keenest interest in, and familiarity with, its content. It might also be expected that the author would have a personal concern that the law be complied with so that trials would not be aborted and lives of informers not put at risk. But, whatever information might have been made available to the author, the author had to be motivated to read the legal alerts and to check the material. It would seem that Mr Moor was motivated to some extent to check but that was some days out from the publication and not the night before. The affidavits are silent as to what he would have done if he had been on that system and received the alerts. From his own conduct it appears that he was not, himself, in any state of alert in the lead up to publication.
There is no explanation from Mr Moor as to why he did not check the copy again against the legal alerts database, or have that done by someone else, when he became aware of the proposed date of publication. He was aware of Teague J’s warning. He was aware when he wrote the article that he had named an informer in relation to an alleged murder. It seems to me that it would not be unreasonable to expect of a journalist, particularly the Insight editor, who had written the special feature, to check the legal alerts database, or have it checked, the night before publication of the article in question to ensure that there had been no developments since he last checked it which impacted on the article, particularly having regard to the sensitivity of the facts referred to in it. He did not do so.
The evidence does not support an inference that a causal connection existed between the fact that Mr Moor was not personally on the legal alerts system and the failure to check it the night before publication. At best the respondent’s argument is speculative.
Seriousness of the breach - Conclusion
Focussing on the issues raised by the respondent, I accept that, on the evidence, the very significant breach resulted from omission not deliberate act and that there was no deliberate intent to commit a contempt of court. For reasons already discussed, the breach in this case was not caused by a failure to comply with an otherwise adequate system or a minor weakness in it. It may fairly be said that the breach occurred because the arrangements, such as they were, that had been put in place to deal with a very important and onerous responsibility, were inadequate. They were flawed in the typical situation and were inadequate to deal with delayed publication of copy. On the evidence before me there does not appear to have been any formal protocol or training addressing that situation at the time. I suggest that a fundamental flaw was that the ultimate responsibility to ensure checking for possible suppression order problems immediately before publication did not rest with any identified person.
In light of the few convictions of the respondent in the past, it may be inferred that, generally, reliance on the author or the back bench to check, or engage the legal advisors to do so, has been sufficient in most cases to avoid breaches of suppression orders. Presumably, most copy forwarded by journalists to the respondent’s back bench would be forwarded for publication the next day and so checked by the author, or the journalists on the back bench, or both, the night before. Assuming that that is not normally done until the evening of the day before publication, the checking of the legal alerts database would throw up any suppression orders that might be relevant. Thus there may have been a generally effective system in place for the standard situation, but not one for the occasion which departed from the norm. Alternatively, the respondent may have been lucky over the years either not to breach orders or not to be charged. But, a safety system needs to cover reasonably foreseeable events such as feature and other articles written well in advance of publication or delays in publication. A safety system should not depend on luck.
The reality was that the respondent did not have in place a system under which there would be reasonable confidence that relevant copy would be appropriately checked the night before publication. It had a system giving access to relevant information and it relied upon the happenstance of the author or another member of staff recalling a legal alerts email (if read) or checking the legal alerts database or asking legal advisors to do so. But there was no one with the ultimate responsibility immediately before publication to ensure that such checks had been or were made in appropriate situations.
In assessing the seriousness of the actual breach, it is also relevant that the breach was a result of acts and omissions of senior employees. It was also not a difficult one to avoid, particularly with a reasonable system in place to guard against such a breach. Further, the respondent had a reminder of such obligations approximately twelve months earlier. There is a further issue.
The focus of the arguments advanced by the respondent has been on the system and departures from it and weaknesses in it. In advancing its arguments, the respondent has not addressed the reality that the publication was of a kind that should not have needed a system to prompt a checking for possible contempt dangers. Its content should have automatically resulted in the obtaining of legal advice and the checking of the alerts system the night before publication without any system being in place at all. It concerned a leading figure in the gangland killings and drug world. It foreshadowed criminal proceedings. It also purported to identify a very important informer in a murder investigation and the information supplied. It was dangerous to do the latter and it was cavalier to publish that, and the other, information without ensuring that a thorough check was made the night before publication to ensure that there were no suppression orders of relevance and no sub judice issues. Generally there should be a contempt check when reporting criminal matters unless there is good reason not to do so.[13] This applies particularly to the reporting of criminal matters of the notoriety, significance and scope of the matters referred to in the article. Regardless of the quality of the systems in place, the respondent’s staff should have automatically checked to ensure that there was no sub judice or suppression order contempt risk arising from publication of this material.
[13]As noted above, Mr Trevorrow claimed that this was standard procedure – presumably a recognition of the above proposition. Note also R v Wilson and ABC [2007] VSC 498 where convictions were recorded and fines imposed for breaches of suppression orders which had not been communicated by the relevant court to the media. The case proceeded on the basis that the respondents should have made enquiries before publication. See Harper J’s analysis at [50].
I have come to the conclusion on all the evidence that the breach in this case occurred because the respondent and its staff did not give contempt issues the priority that was required. Further, the respondent did not, in fact, have in place an adequate system to check for suppression orders for an article about to be published the night before publication.
In my view, the respondent significantly failed to meet its responsibilities. This was a serious breach and the level of culpability was serious.
The matters discussed above are also relevant to the consideration of whether there is genuine remorse and of the issue of specific deterrence.
The issue of specific deterrence.
Steps taken by respondent
A substantial amount of evidence has been placed before me about the steps that have been taken since the events to modify the pre-publication system to try to minimise further the risks of repeating such a situation. Counsel highlighted the following:

1. Mr Moor and the Editor-in-Chief are now recipients of email alerts which include details of suppression orders.

2. The respondent now employs a full-time in-house editorial legal counsel so there is someone full time at the corporation whose responsibility it is for “legalling” articles.

Asked what that legal counsel does, counsel for the respondent referred to the affidavit of Mr Trevorrow in which the role of this member of staff was described as being the central point of contact for journalists and other editorial staff in relation to legalling issues. That person also receives the legal alerts emails and is therefore notified of suppression orders as they are made and that information in turn is entered into the legal alerts database as noted above. When it was drawn to counsel’s attention that there was no description in any of the affidavits as to what the legalling issues were which were referred to internal or external legal advisors, I was invited by counsel to infer that the major issues on which a newspaper would need legal advice would be confined to two areas. One area would be suppression orders and contempt. The other would be matters relating to the law of defamation. Pressed further about the nature of the relationship of the in-house editorial legal counsel and those involved in producing a newspaper, counsel said that she was there full-time and journalists can approach her at any time to seek assistance. Pressed further, counsel sought instructions on whether, and to what extent, contact with this officer would be entirely dependent on a journalist and editorial staff approaching her to make contact. Counsel reported that he was advised by Mr Guthrie, who was in court, that the internal in-house legal counsel also sat on the news desk each night and went over the copy that was proposed to be published the next day with the other senior editorial staff. This evidence from the bar table was received without objection by the applicant.

3. Face to face training programs have been introduced in which in-house lawyers from the parent organisation in conjunction with the respondent’s in-house lawyer give instructions to all sub-editors and reporters. The content comprises a two hour presentation covering exercises based on real life examples including case studies and lessons learned in the past. Counsel submitted that that related to both defamation and contempt of court. Again this evidence came from the bar table. Counsel submits that this was a positive step aimed at overcoming the problem of human error which can always occur however good the system is. I note that this is additional to on-line legal training and media law guide.

4. It appears that at the time of publication there was a computer system in place used by the journalists in writing and filing their copy which included a banned words list. Since the present incident, this has been expanded to include the names of persons the subject of suppression orders.

5. Steps have also been taken to expand the legal information page which is available to staff on the intranet, the internal computer web page. It now receives detailed information about pending and on-going criminal proceedings that are being reported or are likely to be reported by the respondent. Each month an update is sent to all reporters, sub-editors, and editors. In this way they are given more detail than the legal alerts database provides which is a summary of the information.

Counsel submitted that these responses to what occurred show that the respondent has taken steps to try to ensure that what happened on this occasion will not happen again and that accordingly the need for any orders that are made to address special deterrence is significantly reduced.
Specific deterrence - analysis of respondent’s argument
The respondent is to be commended on the steps that have been taken. They represent a significant attempt to minimise the risk of breach of suppression orders. Some aspects of it are stronger than others.
Placing persons in Mr Moor’s position on the legal alerts email system will only ever be a partial remedy, because its success depends upon that person reading and absorbing the alert and making a connection between the suppression order and the copy or later checking it. What matters ultimately is the culture of the organisation and, bearing in mind the pressures journalists and editors are often under, such a change, while improving the chances of avoiding breaches of suppression orders, will still leave a significant chance of breaches occurring.
The training and education will also help. The more people in the process of publication who are alert to the issue and its importance the better – so long as there is still someone with the ultimate responsibility to ensure a check is made immediately before publication. Possibly the most significant change may be the modification to the banned words list system. There are potential dangers in that system, however, in that people may come to rely entirely on it and unless an identified person has responsibility for checking the system and ensuring the accuracy of the information in the systems, error is likely to occur. Further, the change as described will not give information about what is suppressed. Generally, the systems still rely upon people retaining memory of the content of legal alerts when reading copy or someone being concerned about possible suppression orders and conducting their own investigation on the alert database or taking it to in-house counsel shortly prior to publication. The in-house training will of course assist as far as that is concerned.
Accepting the evidence that it was expected, at the time, that the author would check for suppression orders, I assume that that expectation has continued. It will be important to ensure that that remains part of the system.

In considering the need to address specific deterrence, the fact is that the system remains flawed because of the informal and voluntary nature of the system with no one with the ultimate responsibility to ensure compliance. Specific deterrence, therefore, needs to be addressed. The need to address it is reinforced by the evidence and submissions of the respondent to which I have referred. They reveal that the culture of the respondent continues to be one that does not fully acknowledge the need to give the necessary priority to preventing breaches of suppression orders. Mr Trevorrow said that the “standard procedure was departed from in a minor way”. Further, in the explanations proffered for the respondent there was a failure to face up to what occurred. The respondent, despite the steps taken, also appears to be reluctant to acknowledge fully its responsibilities. On the evidence, the staff did not have the issue of possible breach of suppression orders and contempt of court at the forefront of their minds. One can well understand that situation. The content and the quality of the copy and publishing deadlines will tend to be the primary concern and focus of the staff and compliance with suppression orders is likely to be seen as an unwelcome burden. But unless contempt of court issues are regarded as primary concerns within the organisation, contempts will continue to occur.
Thus while the respondent has taken a number of significant steps in an attempt to address its responsibilities, specific deterrence remains an important factor in determining the appropriate sanctions in this case. So too does general deterrence. As Kyrou J stated[14]:
“The media need to be reminded that they must not only have appropriate systems in place to avoid contempt, but they must ensure compliance with those systems in all cases … .”
Prior record
[14]R v Herald & Weekly Times Pty Ltd & Blunden, above, [41].
Respondent’s submission
Counsel for the respondent also drew attention to the respondent’s prior record. It comprises five convictions[15] including one recent one imposed by Kyrou J, in the matter footnoted above and one in South Australia in 2004 – the latter involving breach of a suppression order.
[15]1956, 1985, 1996 and 2008 in Victoria; 2004 in South Australia
Counsel submitted that the Herald and Weekly Times and its predecessors had been publishing continuously in this community since 1840. Counsel submitted that in that context, the record is very good.
Analysis
The convictions are spread over a considerable period of time and point to the respondent by and large having complied with the law of contempt. But I do not regard the old history in this case as having particular significance for my decision; for I have to determine the appropriate disposition of the proceedings and appropriate penalty in relation to the events that occurred in recent and different times, and no doubt different circumstances. Further, the culture of organisations can change from the cautious to the cavalier.
The recent record, is difficult to judge. Plainly many editions of newspapers have been published without contempt proceedings being taken. But breach of the law of contempt approximately twelve months earlier and five years earlier[16] adds weight to the need to address specific and general deterrence.
Mitigatory factors
[16]R v Herald and Weekly Times & Blunden (above); and 5 years earlier Registrar of Supreme Court v Nationwide News Limited, Herald and Weekly Times & Ors (2004) 89 SASR113.
Respondent’s submission
Counsel for the respondent raised a number of issues.

· Guilty plea and apology. Counsel for the respondent submitted that the plea of guilty and the unqualified and unreserved apology and expression of regret proffered by the managing editor Mr Trevorrow in his affidavit, together with the presence in court of Mr Guthrie, the Editor-in-Chief, indicates that the respondent takes an extremely serious view of any charge of contempt and points to a fair degree of contrition and remorse in the matter. Counsel also referred to the steps that have been taken to minimise the risk of an event such as the present one occurring again and argues that they point to similar contrition and remorse.

· Offer to pay costs. Counsel for the respondent also submits that it is relevant to take into account as a mitigating factor that the respondent agrees that it should pay solicitor/client costs to the applicant. I note that counsel for the respondent did not expressly ask that that be taken into account as a factor directly relevant to the size of any fine or to punishment.

· Community service. Counsel also relied upon the substantial body of material filed in the proceeding deposing to the extensive and very substantial and valuable contribution the respondent has made to the community through funding and general support including the Good Friday Appeal which it started in 1931 and has supported ever since. Counsel submitted that the respondent has, for many years, taken the view that its reputation as a corporate citizen is very important and it is a matter of concern to it that prosecutions for contempt have an unfortunate tendency of impairing that reputation and it is something very sincerely felt by the organisation. Counsel conceded that such work contributed to the “corporate profile”, as marketers might say, but submitted that nonetheless it constituted a very positive contribution to the community and reflected well on the organisation.

Analysis

· Guilty plea and apology. The plea of guilty and the apology need to be taken into account[17] as discounting factors. The value of both, however, is significantly reduced by the fact that they were not made or given at the earliest opportunity.[18] Further, at that earliest opportunity, the respondent showed a distinct lack of contrition and remorse. At the hearing before King J on 28 March 2007, counsel for the respondent, after making submissions that the matter should not be referred, submitted that he had instructions that in the event that her Honour referred the matter –
[17]R v Herald & Weekly Times, above, at [33].
[18]Ibid.

“and in the event that ultimately my client is found guilty, to proffer at this earlier stage an unconditional apology.”

Her Honour responded:
“That’s the most conditional apology I think I’ve ever come across, but I will note it for what it is.”[19]
[19]T8

Thus initially no contrition or remorse for what had occurred was shown.
I accept, also, that the respondent, in the actions it has taken, has shown a degree of concern that contempts through breach of suppression orders do not occur again. As noted above, however, there is still a reluctance to face up to, and acknowledge, what in fact occurred, what reasonable steps are required to ensure it does not occur in the future and the need within the organisation to give the avoidance of contempt sufficient priority. As noted above, a degree of reluctance is not surprising. Inevitably, there is tension between the priorities of the media and needs of the criminal justice system. But, the apology and contrition being qualified, their value as a mitigating factor is significantly lessened.

· Offer to pay costs. Counsel for the applicant conceded that the payment of costs is a matter relevant to the penalty and I agree with the course taken by Kyrou J that the offer should be taken into account as a mitigating circumstance.[20]

I invited counsel to indicate to me what was the likely amount of costs to be awarded against the respondent. All that could be agreed was that the amount would be less than $50,000.
Some issues arise on the question of the impact of the agreement that it should pay solicitor/client costs of the applicant. It appears that in cases of contempt, it is not unusual that the defendant be ordered to pay costs or that the order be one that solicitor/clients costs be paid. In all the circumstances, the agreement of the respondent is not surprising in view of the fact that it was probably inevitable that such an order would be made. This agreement did, however, remove that issue from the debate. Ultimately, it seems to me that it is the reality that matters. The respondent will, as a consequence of this contempt be incurring a financial burden of something less than $50,000 under the solicitor/costs order I propose to make. I agree with Hansen J in R v Sammut[21] that it should be seen as part of the punishment[22] and should mitigate any formal punishment.

· Community service. The matters referred to by counsel are impressive. The respondent, over the years has made a very valuable contribution to the community. It may be said that it carries considerable benefits for the respondent both psychologically for its staff and in securing community loyalty and support for it. It is, however, a matter to be borne in mind as a mitigating factor.

[20]R v Herald & Weekly Times, above, [31] – [34].

[21][2008] VSC 189, [34] at [42].

[22]See DPP v Fairfax (1989) 8 NSWLR 732, 742; Attorney General for New South Wales v Dean (1990) 20 NSWLR 650.

Disposition of the matter
Should convictions be recorded?

The types of contempt were serious. As to the actual contempts, their seriousness was significantly reduced because it appears that no adverse consequences flowed. But the level of culpability was high. As to specific deterrence, since the incident, the respondent has taken a number of important steps which will assist to minimise the risk of a similar event occurring. But, as discussed above, it has still not adequately addressed the issues and in its approach, and in its conduct of this case, it has shown a degree of reluctance to accept the importance of complying with suppression orders, to face and acknowledge the reality of what occurred and to accept responsibility for that. While the respondent has shown remorse, it has been significantly qualified.
The level of culpability of the respondent and the need for specific and general deterrence require a conviction to be recorded notwithstanding the fortunate fact that the risks associated with the publication did not eventuate and notwithstanding the above mitigating factors. I have taken into account the willingness of the respondent to consent to an order for costs against it on a solicitor/client basis on this issue as well as in fixing the penalty.
Penalty
As to penalty, the matters to which I have referred above do not lead, in my view, to the conclusion adopted by the applicant[23] that the offences were at the lower end of the scale. The penalty must reflect the fact that the suppression order in this case was particularly significant as were the potential consequences of the publication. Fortunately, those consequences have not eventuated. The penalty must also reflect the fact that the breach occurred because of a serious lack of care, a flawed system and a failure to accord contempt issues the priority required.
[23]As to the effect of submissions from the applicant see Hinch v Attorney-General [1987] VR 721, 751; Malvaso v R (1989) 168 CLR 227, 223.
I was referred to, and have considered, a number of past cases as examples of a range of penalties that have been applied in various situations. It seems to me that an appropriate fine for the first charge would be $20,000.00 In relation to the second contempt charge, an appropriate fine would be $15,000.00. Applying the totality principal, a fine of $25,000.00 should be imposed. But for the absence of adverse consequences and the presence of mitigatory factors, particularly community service and the award of costs, the penalty would have been greater.
Conclusion
I propose, therefore, that the declarations sought be made, that a fine of $25,000.00 be imposed and that the respondent be ordered to pay the applicant’s costs of the proceeding on a solicitor client basis.

In conclusion, I should indicate that the recording of a conviction, the proposed penalty and costs order, in combination, do not, in my view, adequately address the issue of specific deterrence. I am constrained, however, by the law that the outcome and penalties not exceed that which is proportionate to the nature and gravity of the breaches.

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[2009] VSC 85

16 March 2009