Registrar of the Supreme Court of South Australia v Advertiser Newspapers Pty Ltd - [2015] SASC 157

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA v ADVERTISER NEWSPAPERS PTY LTD
[2015] SASC 157
Judgment of The Honourable Justice Blue
7 October 2015
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - CONTEMPT - WHAT CONSTITUTES - DISOBEDIENCE OF ORDERS OF COURT - OTHER CASES
Summons for contempt.
On 24 April 2015, the Court made a suppression order suppressing from publication any reference to Nicholas Lowe with respect to his involvement in a fraud matter for which he was sentenced in December 2014 and of his name until a verdict was returned or nolle prosequi entered on a charge against Mr Lowe of attempted murder.
On 11 July 2015, the defendant published The Advertiser which contained an article that referred to Mr Lowe by his full name and to the fact that he had been given a 10 year jail sentence in December 2014 for masterminding a fraud. The article was also published online on the AdelaideNow website until the morning of 13 July 2015.
The defendant pleaded guilty and made submissions in mitigation of penalty.
Held:
1.       The breach of the suppression order was inadvertent and inadvertent breaches stand in a different category to deliberate breaches (at [19]).
2.       The defendant did not at the time have in place an adequate system to ensure that inadvertent breaches of suppression orders did not occur (at [20]-[21]).
3.       Breach of a suppression order is a serious matter with potentially serious consequences. The importance of general deterrence is to be balanced against the inadvertent nature of the breach, the defendant’s early guilty plea, its apology and contrition (at [22]-[23]).
4.       Fine imposed of $10,000 (at [24]).
Criminal Law (Sentencing Act) 1988 (SA) s 10(1); Evidence Act 1929 (SA) s 69A, referred to.

REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA v ADVERTISER NEWSPAPERS PTY LTD
[2015] SASC 157
BLUE J:

This is a summons for contempt.
On 24 April 2015, I made an order under section 69A of the Evidence Act 1929 (SA) suppressing from publication any reference to Nicolas Lowe with respect to his involvement in a fraud matter of which he was convicted and for which he was sentenced by Judge Muscat in the District Court in December 2014 and of Mr Lowe’s name or image until a verdict was returned or nolle prosequi entered on a charge against Mr Lowe of attempted murder.
On Saturday 11 July 2015, the defendant published The Advertiser which contained an article on page 13 entitled “Rack ‘em or rehab – it’s a tough call to lock in” (the Article). The Article referred to Mr Lowe by his full name and to the fact that he had been given a 10-year jail sentence in December 2014 for “masterminding a million-dollar Victims of Crime fund fraud”.
The Article was published by the defendant online on its AdelaideNow website from 9.00 pm on Friday 10 July until 10.55 am on Monday, 13 July 2015. The journalist who authored the Article also tweeted about it providing a link to which it could be accessed online.
The defendant pleaded guilty to the charge of contempt and made submissions in mitigation of penalty.
Background
Mr Lowe was charged with 26 counts of dishonestly dealing in documents relating to a fraud committed on the Victims of Crime Fund while employed as a clerk in the Crown Solicitor’s Office, to which he pleaded guilty. On 5 December 2014, Judge Muscat in the District Court sentenced him to imprisonment for 10 years with a non-parole period of seven years commencing on 5 September 2012 for those offences. The sentence was reported inter alia by The Advertiser at the time.
Mr Lowe was charged in this Court with attempted murder. The trial was listed to commence on 19 January 2015 but that trial date was vacated as a result of the December 2014 publicity in relation to the fraud sentence. The trial was re-listed to commence on 20 July 2015.
On 24 April 2015, I made the suppression order because it was in the interests of justice that there be no further publication in relation to the fraud matter that might come to the attention of potential jurors in the trial of the charge of attempted murder. The suppression order was notified to members of the media, including the defendant, in accordance with the Court’s usual procedures.
On Saturday 11 July 2015, the Article appeared in The Advertiser. The Article addressed the cost to taxpayers of imprisoning offenders and alternatives being considered by the Attorney-General to imprisonment in the case of non-violent offences including fraud. It gave as an instance the sentence imposed on Mr Lowe and compared the amount stolen from the Victims of Crime fund with the cost to taxpayers of imprisoning Mr Lowe for up to 10 years. The Article was published by the defendant online on its AdelaideNow website from 9.00 pm on Friday 10 July until 10.55 am on Monday, 13 July 2015. The journalist who authored the Article also tweeted about it providing a link to which it could be accessed online.
On Monday 13 July 2015, court staff contacted staff at The Advertiser in relation to the Article and drew their attention to the suppression order. As a result, the defendant removed Mr Lowe’s name from the online version of the Article on the AdelaideNow website.
Publication of the Article resulted in an application by Mr Lowe for a stay of proceedings and vacation of the 20 July trial date. The application was opposed by the Director of Public Prosecutions and resulted in a hearing on 15 July 2015. I declined Mr Lowe’s application and the trial commenced on 20 July 2015. The costs of the application were met by the State via the Legal Services Commission funding Mr Lowe’s defence and the Attorney General’s Department funding costs of the Director of Public Prosecutions and of the Court.
Evidence adduced at the hearing
The charge of contempt was laid on 16 July 2015, served on 18 August 2015 and made returnable on 19 August 2015. On that date, the defendant entered a plea of guilty to the charge and the matter was adjourned to 17 September 2015 for submissions on penalty.
The Registrar tendered the 11 July 2015 edition of The Advertiser, together with affidavits addressing the extent of publication and circumstances surrounding the breach. This evidence established that the circulation of The Advertiser on Saturday 11 July 2015 was in the order of 165,000 copies and that there were hits to the online version of the Article from 120 users.
The defendant tendered an affidavit by the journalist who authored the Article. She deposed to the fact that she is a state political reporter. She said that when she wrote the Article she was not aware of any other proceedings concerning Mr Lowe or of any relevant suppression order. She said that she was aware of the existence of suppression orders in general but it did not occur to her that there might have been a suppression order in existence in relation to Mr Lowe. She took no steps to enquire about any suppression orders.
The defendant also tendered an affidavit by its digital editor responsible for the AdelaideNow website. He exhibited an email sent on 15 July 2015 by the defendant’s Head of News to all reporters referring to a breach of a suppression order on 11 July 2015 and saying it was critically important that all reporters check with the defendant’s courts team and/or the courts suppression registry when writing about legal issues and citing past cases. He also exhibited an email sent on 10 September 2015 to all journalists, sub editors and editors introducing new procedures in relation to suppression orders saying that, whenever journalists are writing or editors are editing a story that touches on legal issues or court cases or people who have been involved in legal proceedings, they must search the Legal Alerts database to see if there is an active suppression on the case.
The defendant in its submissions emphasised that the Article was not authored by one of its court reporters who had the experience to know to check for suppression orders when referring to court cases, and was addressing a generic issue of the cost of and alternatives to imprisonment in the course of which an example was given rather than reporting the result of a current court case.
The defendant referred to the fact that the breach of the suppression order was inadvertent, prompt action was taken to remove Mr Lowe’s name from the online version of the article, the defendant had a system in place regarding suppression orders, subsequent steps were taken by the defendant to strengthen that system, the guilty plea entered by the defendant at the earliest opportunity, its general good corporate character, the apology given by the defendant to the Court and the contrition expressed by the defendant.
It is common ground that, in determining an appropriate penalty, although not mandatory, regard may be had to the factors identified in section 10(1) of the Criminal Law (Sentencing) Act 1988 (SA).
Appropriate penalty
I accept that the breach of the suppression order was inadvertent and that inadvertent breaches stand in a different category to deliberate breaches.
It is evident from the fact of the breach of the suppression order that the defendant did not at the time have in place an adequate system to ensure that inadvertent breaches of suppression orders did not occur. No direct evidence was adduced before me as to the defendant’s pre-existing system, including as to whether it was documented as opposed to practice, whether one person within the defendant’s organisation was made responsible for the establishment, review and implementation of the system, what were the particular responsibilities of journalists to check for the existence of suppression orders in what circumstances, what were the particular responsibilities of editors to do so and how new staff were made aware of and trained in relation to the system.
It is not apparent that the defendant had in place a formal or comprehensive system as opposed to a practice followed by its court reporters when writing about current court cases. It is not apparent, if it had such a system in place, that it ensured that it was implemented and brought to the attention of all journalists, sub editors and editors. As has been said on many occasions in other contexts, it is as important if not more important to implement a system as it is to establish it.
As a result of the breach of the suppression order, the defendant has now established and communicated a formal system designed to ensure that journalists writing and editors editing stories that touch on court cases search the Legal Alerts database to see if there is an active suppression order in place. Although no direct evidence was adduced in relation to it, I assume that the defendant has also created and documented a system to ensure that new staff are made aware of and trained in relation to the system and that one person in the defendant’s organisation has responsibility for ensuring the maintenance, review and implementation of the system. If there should be any future contravention of a suppression order it will be an important consideration whether the defendant has in fact created and implemented a system incorporating this element and in particular assigning responsibility to a dedicated person in respect of the system.
In determining an appropriate penalty, I take into account the seriousness of contempt of court, the potentially serious consequences of a breach of a suppression order and the importance of general deterrence in relation to breaches of suppression orders. This is to be balanced against the inadvertent nature of the breach, the general good character of the defendant, its early guilty plea, apology and contrition.
In all the circumstances, I impose a fine payable by the defendant of $10,000.