Registrar of the Supreme Court v Herald & Weekly Times Ltd No. Scciv-02-1015

REGISTRAR OF THE SUPREME COURT v HERALD & WEEKLY TIMES LTD
[2004] SASC 129
Civil

GRAY J: This is a proceeding for contempt against The Herald & Weekly Times Ltd.
The Herald and Weekly Times is the publisher of the Herald Sun newspaper, a daily newspaper with circulation in South Australia and elsewhere. The contempt proceedings arise from the publication of a photograph in the Herald Sun said to be in breach of an order made by a judge of this court prior to the commencement of a well publicised South Australian murder trial known as the Snowtown trial.
The Order
On 21 June 2001 counsel for Jason Spyridon Vlassakis, one of the defendants, made an application to the judge to suppress from publication images of Mr Vlassakis. Much of the detail of the application was not disclosed in open court. The application itself was suppressed. The judge heard submissions from Mr Vlassakis’ counsel, counsel for the Crown and solicitors representing the media who were in court at the time of the application. Counsel for the Crown supported the application. Media representatives argued against the making of suppression orders. The Herald and Weekly Times was not in court at the time. The judge made a suppression order in the following terms:
Order suppressing publication of the image of Mr Vlassakis in any form, including photographs, sketches and illustrations.
Further order suppressing publication of any description of Mr Vlassakis, that is, of his appearance, which would have the capacity to lead to identification of him by a reader of the description.
The orders will remain in force until further order, but His Honour indicated that it his intention to review orders on the next appearance of Mr Vlassakis in this court.
…
REASONS:
To prevent prejudice to the proper administration of justice.
Evidence given to this court by Mark Stokes, the Deputy Sheriff for South Australia, confirmed that the suppression order was received by the Sheriff’s Office and entered in the Suppression Order Register on 21 June 2001. Mr Stokes outlined the process. The suppression order report is received by fax or by hand. It is then logged in the alphabetical index entitled ‘Suppression Order Register” and cross referenced. The order is then entered into another register in date order. Then the report is kept in a lever arch file.
The suppression order of 21 June 2001 was to continue. The matter was then listed for further submissions. Following those submissions the order was continued indefinitely. The purpose of the order was to contribute to securing Mr Vlassakis’ safety within the prison system. It was apparent that this may have been necessary as Mr Vlassakis had by this time indicated his intention to give evidence as a Crown witness at the trial of other accused.
The Publication
On 11 July 2002 an article featuring a photograph within the terms of the suppression order was published in The Herald Sun. The article included a close up facial photograph of Mr Vlassakis.
On 12 July 2002 the judge’s attention was drawn to the article published in The Herald Sun that contained the photograph. An unreserved apology was proffered by counsel for The Herald and Weekly Times. It was said that steps had been taken to ensure that no further suppressed material would be printed.
In a letter to the judge dated 24 July 2002 The Herald and Weekly Times outlined the circumstances by which the photograph came to be published:
The Herald Sun is published by The Herald and Weekly Times Limited. It is a major metropolitan Victorian newspaper.
Estimated publication figures of The Herald Sun in South Australia for 11 July 2002 were 987 copies in Adelaide and a further 1,705 copies in the country (including Mount Gambier where 1,150 are sold). These figures are currently best estimates, as the final returns have not yet been received.
…
In this instance, the relevant story was received from AAP. All previous stories concerning Snowtown received from AAP notified of relevant suppression orders. It was only on this story that the relevant suppression order was not notified. It is customary that all relevant suppression orders are notified at the top of copy received from AAP.
…
The decision to publish the photograph was made in good faith. No one involved in the decision to publish the photograph had any suspicion that use of the photograph was an issue.
…
In this instance, no one involved in the decision to publish the photograph was aware of the suppression order…
The Contempt Proceedings
On 26 July 2002 the matter came before the judge. Counsel for The Herald Sun and Weekly Times submitted that the judge should not direct the Registrar of the Supreme Court to issue proceedings charging contempt. The judge refused this application and directed that contempt proceedings be instituted.
On 30 July 2002 a Registrar’s summons for contempt was issued against The Herald and Weekly Times. The summons (as later amended) provided:
…that THE HERALD AND WEEKLY TIMES LIMITED did on the 11^th day of July 2002 publish in The Herald Sun newspaper circulated in South Australia a photograph of James Spyridon Vlassakis in breach of the order of the Supreme Court of South Australia made on 21 June 2001 suppressing publication of the image of James Spyridon Vlassakis in any form, including photographs, sketches and illustrations: Sections 69A and 70 of the Evidence Act 1929.
The summons was returnable on 16 December 2002. The Herald and Weekly Times through counsel indicated its intention to plead not guilty.
On 27 November 2002 counsel for The Herald and Weekly Times issued proceedings for an extension of time to seek leave to appeal against the suppression order of 21 June 2001. On 31 July 2003 the Full Court of the Supreme Court granted leave to extend time to appeal, but dismissed the appeal.[1]
[1] [2003] SASC 234
The matter now comes before the court for a determination as to whether The Herald and Weekly Times is guilty of contempt.
The Trial Procedure
Proceedings for contempt are regulated by Rule 93 of the Supreme Court Rules 1988 which relevantly provides:
93.01 “Contempt of Court” for the purposes of this Rule shall include:
(a) contempt in the face or the hearing of the Court;
…
(d) any act or thing corrupting, punishing or harming any party or a witness in
relation to any proceedings taken or defended or intended to be taken or
defended or any witness in relation to evidence given or intended to be given in
relation to any proceedings or any threats or attempts to do any of the
aforementioned acts or things;
…
(g) any contumacious refusal to obey or comply with a judgment or order of the
Court;
…
(i) words written or spoken or acts done calculated to prejudice or pervert the
course of justice.
…
93.03 Where it is alleged that a contempt has been committed the Court may, in lieu of
ordering the immediate arrest of the person, direct the Registrar to issue a summons
in Form 30 and cause it to be served upon the person alleged to be in contempt, the
said summons to state the nature of the alleged contempt with sufficient particularity for the person charged to make his defence to the charge, and to state a specific time and place for him to attend.
93.06 When the said person comes before the Court for the hearing or the adjourned
hearing of the charge, the procedure shall be:
…
Plea to be taken
(b) in all proceedings, whether he is represented or not, the said person shall be asked whether he pleads guilty or not guilty;
…
If plea of not guilty evidence to be presented
(d) if he pleads not guilty, evidence in support of the charge of contempt shall be presented to the Court by a person and in the manner directed by the Court;
Onus of proof and rules of evidence to be those in criminal proceedings
(e) where substantial punishment is a practical possibility, the procedures to be adopted and the onus of proof to be applied and the rules of evidence to be followed, shall be those generally applicable in criminal proceedings to the extent that they are appropriate, except as follows:
Affidavits may be used
(i) for the purposes of the proof of the charge of contempt, any affidavits
previously filed in the matter, or in the preparation for the hearing of the
contempt charge, or during the course of the hearing on the contempt
charge, may be used in evidence as proof beyond reasonable doubt of the
facts therein stated provided the Judge is satisfied that it is safe so to act and
provided the said person has been given a copy of the affidavit and afforded
an opportunity to peruse it and to consider the same and thereafter elects not
to require the deponent to be called for cross-examination; and
…
At the commencement of the trial The Herald and Weekly Times entered a plea of not guilty to the charge of contempt.
Counsel for the Registrar opened the case. Affidavits and attached exhibits of Caroline Mary Mealor, Robert Stapleton, Ruth Blenkiron, Brian Swan and Mark Stokes were tendered by consent. Mr Stokes was called to give evidence. He was examined and cross examined about the relevant procedures involved in recording suppression orders. An order was prepared by the judge’s associate and forwarded by facsimile to the Sheriff’s Office for entry in the Register. The Sheriff’s Office then entered the details of the suppression order in the Register of Orders.
Counsel for The Herald and Weekly Times indicated that his client did not intend to call any evidence. It was submitted that a necessary element of the offence had not been established. It was said that the Registrar needed to, and had failed to, establish the necessary mens rea. It was contended that in this circumstance the charge of contempt should be dismissed.
The affidavits tendered by the Registrar established beyond reasonable doubt the circumstances in which the suppression order was made, the registration of the order and its availability on the public record. The material also established beyond reasonable doubt the fact of non-compliance with the order. It was accepted by The Herald and Weekly Times that it had published the suppressed photograph in The Herald Sun newspaper in South Australia and elsewhere in Australia.
Also contained in the affidavits tendered by the Registrar was evidence establishing that The Herald and Weekly Times was unaware of the suppression order at the time of publication. This evidence was not challenged by counsel for the Registrar.
Contempt
Civil and Criminal Contempts
Traditionally contempt offences have been divided into criminal and civil contempts. Criminal contempt involved acts or words which interfered with the administration of justice and amounted to a public wrong. Civil contempts involved a disobedience of an order, judgment or other process of a court. However, where a civil contempt was wilful, a court could find that such a contempt had a criminal character.
Counsel for The Herald & Weekly Times submitted that the distinction between civil and criminal contempt was doubtful. In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd[2] Gibbs CJ, Mason, Wilson and Deane JJ considered this distinction and observed:
[2] (1986) 161 CLR 98 at 106-109
Punishment for contempt serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as "civil contempt"; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have both been described as "criminal contempt": Fox, History of Contempt of Court (1927), p 1. As Lord Diplock said in Attorney-General v Leveller Magazine Ltd, criminal contempts " ... all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process".
…
…The theoretical distinction between the two classes overlooks the underlying rationale of every exercise of the contempt power, namely that it is necessary to uphold and protect the effective administration of justice. Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court's orders will be enforced. As the authors of Borrie and Lowe's Law of Contempt, 2nd ed (1983) say, at 3:
"If a court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute."
…
It is apparent from the foregoing discussion that very great difficulty has been experienced in maintaining the distinction between civil and criminal contempts and, in particular, in elaborating a precise and certain criterion which divides one class of contempt from the other…
There is, accordingly, much to be said for the view that all contempts should be punished as if they are quasi-criminal in character, notwithstanding the adoption of the contrary view by some members of this Court in the decisions to which we have already referred.
However, the distinction between casual, accidental and unintentional disobedience on the one hand and wilful disobedience on the other offers the prospect of a more limited basis for upholding the imposition of a fine by the Federal Court in the circumstances of this case.
The High Court favours the view that all contempts should be considered quasi criminal in nature.
The Relevant Burden
The burden of proof in all contempt matters is the criminal standard of proof beyond all reasonable doubt. In Witham v Holloway[3] Brennan, Deane, Toohey and Gaudron JJ observed:
The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt "must realistically be seen as criminal in nature". The consequence is that all charges of contempt must be proved beyond reasonable doubt.
[3] (1995) 183 CLR 525 at 534
Rule 93.06 earlier referred to confirms that the applicable onus is the criminal onus.
Conflict between Freedom of Speech and Contempt
The conflict between freedom of speech and contempt has been the subject of considered and lengthy judicial discourse. In Attorney General v Leveller Magazine Ltd[4] the House of Lords observed:
[4] [1979] AC 440 at 459-466
When contempt is alleged the courts have for generations found themselves called upon to tread a judicial tightrope, for, as Phillimore J. put it in Rex v. Blumenfeld Ex parte Tupper (1912) 28 T.L.R. 308, 311:
"The court had to reconcile two things - namely, the right of free speech and the public advantage that a knave should be exposed, and the right of an individual suitor to have his case fairly tried. The only way in which the court could save both was to refuse an unlimited extension of either right. It became, then, a question of degree."
This dilemma most frequently arises in relation to press and other reports of court proceedings, for the public interest inherent in their being fairly and accurately reported is of great constitutional importance and should never lead to punitive action unless, despite their factual accuracy, they nevertheless threaten or prejudice the due administration of justice…
…After considerable reflection I have come to the conclusion that a court has no power to pronounce to the public at large such a prohibition against publication that all disobedience to it would automatically constitute a contempt. It is beyond doubt that a court has a wide inherent jurisdiction to control its own procedure. … But it does not follow that were a person (and even one with knowledge of the procedure which had been adopted) thereafter to make public that which had been wholly or partially concealed, he is ipso facto guilty of contempt….
…
For [contempt] to arise something more than disobedience of the court's direction needs to be established. That something more is that the publication must be of such a nature as to threaten the administration of justice either in the particular case in relation to which the prohibition was pronounced or in relation to cases which may be brought in the future. So the liability to be committed for contempt in relation to publication of the kind with which this House is presently concerned must depend upon all the circumstances in which the publication complained of took place.
…
… In such cases as the instant one, we are concerned not with improper publication by a private individual (as to whom nothing presently arises) but with people controlling or connected with powerful organs of publicity who, for reasons of their own (one of which may be no more than the desire to boost sales), decide to take the course of defiant dissemination of matter which ought to be kept confidential. It is incumbent upon such people to ascertain what had happened in court. They have the means of doing this, and they cannot be heard to complain that they were ignorant of what had taken place.
…
Although it should be unnecessary, perhaps I ought to add that nothing I have said should be regarded as implying that there can be no committal for contempt unless there has been some sort of warning against publication. While, for the reasons I have indicated, it would be wise to warn, the court is under no obligation to do so.
The Significance of Statutory Authority
In Attorney-General (NSW) v Mayas Pty Ltd[5] McHugh JA addressed the extent and reach of a contempt order and the extent to which such an order may be binding on a person unaware of the terms of the order. He observed:
Whether a person, who breaches a court order of which he is unaware is guilty of contempt depends upon whether the order is binding upon him. Courts have general authority to make orders binding on the parties, witnesses and other person present in the courtroom. But they have no general authority to make orders binding on persons unconnected with the proceedings before them…For a court order to operate as a common rule and to bind people generally, it needs the express or implicit sanction of the legislature. If, pursuant to statutory authority, a court makes an order binding on persons outside the courtroom, breach of it will prima facie constitute a contempt whether or not the person is aware of the order. But a different rule applies when a person, who is not bound by an order of the court, says or does something which has the effect of frustrating or interfering with the order. In that class of case, the person will be guilty of contempt only if he is aware of the order and it is apparent to anyone that the effect of the order would be frustrated by his act: AG v Leveller…
Counsel for the Registrar contended that the court order bound people generally. It was said that the order of 21 June 2001 was made pursuant to statutory authority that authorised the order to have such an effect.
[5] (1988) 14 NSWLR 342
The Legislative Scheme
The power to make suppression orders is contained in section 69A of the Evidence Act1929 (SA):
(1) Where a court is satisfied that a suppression order should be made—
        (a)     to prevent prejudice to the proper administration of justice; or
(b)     to prevent undue hardship—
(i)    to an alleged victim of crime; or
(ii)to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or
(iii)     to a child,
the court may, subject to this section, make such an order.
(2) Where the question of making a suppression order (other than an interim suppression order) is under consideration by a court—
(a)     the public interest in publication of information related to court proceedings, and the consequential right of the news media to publish such information, must be recognised as considerations of substantial weight; and
(b)     the court may only make the order if satisfied that the prejudice to the proper administration of justice, or the undue hardship, that would occur if the order were not made should be accorded greater weight than the considerations referred to above.
(3) Where an application is made to a court for a suppression order, the court may, without inquiring into the merits of the application, make such an order (an "interim suppression order") to have effect, subject to revocation by the court, until the application is determined; but if such an order is made the court must determine the application as a matter of urgency and, wherever practicable, within 72 hours after making the interim suppression order.
(4) A suppression order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.
(5) Where an application is made to a court for a suppression order—
(a)     any of the following persons, namely:
(i)    the applicant for the suppression order;
(ii)a party to the proceedings in which the suppression order is sought;
(iii)     a representative of a newspaper or a radio or television station;
(iv)any person who has, in the opinion of the court, a proper interest in the question of whether a suppression order should be made,
is entitled to make submissions to the court on the application and may, by leave of the court, call or give evidence in support of those submissions;
(b)     the court may (but is not obliged to) delay determining the application to make possible or facilitate non-party intervention in the proceedings under paragraph (a)(iii) or (iv).
(6) A suppression order may be varied or revoked by the court by which it was made, on the application of any of the persons entitled to make submissions by virtue of subsection (5)(a).
(7) On an application for the making, variation or revocation of a suppression order—
(a)     a matter of fact is sufficiently proved if proved on the balance of probabilities;
(b)     if there appears to be no serious dispute as to a particular matter of fact, the court (having regard to the desirability of dealing expeditiously with the application) may—
(i)    dispense with the taking of evidence on that matter; and
(ii)    accept the relevant fact as proved.
(8) An appeal lies against—
(a)     a suppression order or a decision by a court not to make a suppression order;
(b)     the variation or revocation of a suppression order or a decision by a court not to vary or revoke a suppression order.
(9) Any of the following persons is entitled to institute, or to be heard on, an appeal:
(a)     where an application for a suppression order was made to the primary court—the applicant; or
(b)     a party to the proceedings in which the order or decision subject to appeal was made; or
(c)     a representative of a newspaper or a radio or television station; or
(d)     a person who had, in the opinion of the primary court, a proper interest in the question of whether a suppression order should be made; or
(e)     a person who did not appear before the primary court but has, in the opinion of the appellate court, a proper interest in the subject matter of the appeal or proposed appeal,
but a person who did not appear before the primary court may only bring an appeal, or be heard on an appeal, by leave of the appellate court (which will be granted if the appellate court is satisfied that that person's failure to appear before the primary court is not attributable to a lack of proper diligence).
(10) Where a court makes a suppression order (other than an interim suppression order), the court must—
(a)     immediately forward to the Registrar a copy of the order; and
(b)     within 30 days forward to the Attorney-General a report setting out—
(i)    the terms of the order; and
(ii)the name of any person whose name is suppressed from publication; and
(iii)a transcript or other record of any evidence suppressed from publication; and
(iv)     full particulars of the reasons for which the order was made.
(11) Where a court varies or revokes a suppression order (other than an interim suppression order), the court must forward to the Registrar a written notification of the variation or revocation.
(12) The Registrar will establish and maintain a register of all suppression orders (other than interim suppression orders).
(13) The register will be made available for inspection by members of the public
free of charge during ordinary office hours.
(14) In this section—
"the Registrar" means a person to whom the functions of the Registrar under this section are assigned by the Attorney-General.

Section 69A of the Evidence Act provides for exceptions to be made to the common law position that the business of a court should be conducted in the public domain. A purpose of the section is to protect the integrity of the administration of justice and to protect those persons in the court who may be vulnerable or who are exposed to hardship. This is demonstrated by the second reading speech introducing proposed amendments to section 69A of the Evidence Act where the Minister observed:
… The section 69a now proposed by the Bill has the following new features:
(i)It makes it quite clear that it is no longer merely a matter for the court to ‘consider it desirable’ upon enumerated grounds, to make a suppression order. Instead, the court must be satisfied on the balance of probabilities that an order ought to be made…
…
(iii)…the sole basis for the making of an order will be ‘to prevent prejudice to the proper administration of justice’ a formula that is similar to, though stronger than, that which obtains in nearly all other Australian jurisdictions…This change will ensure than the attention of the courts will be focused almost exclusively upon the assurance and promotion of the integrity, well-being, efficacy and effectiveness of its own processes and procedures…But there is to be a further assurance that any decision to make a suppression order on this single basis will not lightly be taken. That guarantee is provided by the fact that the court must recognise as considerations of substantial weight, the public interest in publication of the relevant material and the right of the news media to publish it. For the first time in relevant Australian legislation the right of the news media … to publish relevant material is to be accorded full recognition by the courts.
…
(v)To enhance and assist the public administration of the new provisions, courts will be obliged to forward a copy of any suppression order made to a central register. The Registrar will be require to establish and maintain a register of all suppression orders, made by all empowered courts, to which the public (including the representatives of the news media) will have a right of access and inspection free of charge during ordinary office hours.[6]
[6] South Australia, Parliamentary Debates, Legislative Assembly, 15 March 1989, 2415-2416 (C J Sumner)
The legislation gives statutory power to the court to protect an accused person’s right to a fair trial where such a right may be eroded or placed in doubt by the publication of evidence, submissions or identity or other matters arising in court.
Courts are frequently requested to make suppression orders at short notice. This is a necessary incident of the trial process. It is within the scope of the legislation that suppression orders will apply not only to those persons present in the courtroom when the order is made, but also to a wider audience encompassing the whole community. Were this not the case, the intended protection to be provided by the order would be much reduced, if not rendered nugatory.
Section 69A(5) provides certain classes of persons affected by a proposed suppression order with the statutory right to make submissions to the court prior to the making of the order, and to appeal from a suppression order once made. The newspaper media are one such class. Section 69A(2) provides that the interest of the ‘news media’ must be taken into consideration in the making of any suppression order.
The legislation requires a register to be kept and maintained of all suppression orders made. This register is to be available to all members of the public for inspection during normal business hours.[7] This legislative requirement has resulted in all relevant information being collated and available from one place to any interested member of the public.
[7] 69a(13)
Section 70 of the Evidence Act provides:
(1) Where a person disobeys an order under this Division, he shall—
(a) if the court by which the order was made has power to punish for contempt—be guilty of a contempt of that court and punishable accordingly; and
(b) whether or not that court has power to punish for contempt—be guilty of a summary offence punishable by a fine not exceeding two thousand dollars or imprisonment for a term not exceeding six months.
(2) A person shall not, in respect of the same act or default, be proceeded against under this section both for a contempt of court and a summary offence.
(3) Where a court of summary jurisdiction makes an order under this Division and the order is disobeyed in the face of the court, the court may proceed immediately to convict the person guilty of that disobedience on its own view of the matter and, if it imposes a sentence of imprisonment, to issue a warrant of commitment to enforce the sentence.
In the present case this court, the court which made the order, had the power to punish for contempt. A person who disobeyed that order committed a contempt and was liable to be punished accordingly. Section 70(1)(a) does not prescribe or limit the punishment that may be imposed. Section 70(2) provides that a person shall not be proceeded against for both contempt and the summary offence created by section 70(b). The penalty provided for the commission of a summary offence is a fine of $2000 or imprisonment for not more than six months.
The Registrar’s Submissions
Counsel for the Registrar submitted that the suppression order was a valid order made pursuant to section 69A of the Evidence Act. A review of the transcript of the application for the suppression order disclosed that the judge and counsel referred explicitly to section 69A throughout the course of submissions. Consideration was given to the public interest in the publication of the suppressed information and the right of the news media to publish the information.
Counsel submitted that it was the intention of the judge that the order not be limited to those present in the courtroom at the time of making of the order. The order could only have the intended effect if it applied to the community at large. Counsel submitted that one purpose of the Suppression Order Register was to enable those who did not appear before the court to have access to the details of the suppression order and therefore the opportunity to apply for variation or revocation of the order.
Counsel acknowledged the distinction between the summary offence created by section 70 and the separate offence of contempt, and submitted that the legislature created two separate statutory offences. This was necessary, it was said, because inferior courts did not have inherent power to punish for contempt.
Counsel submitted that the offence of contempt was one of strict liability. The publication of the photograph by The Herald and Weekly Times on 11 July 2002 was said to breach the suppression order and was a contempt of court. Counsel contended that a contempt committed in these circumstances was not one that required proof of knowledge of or an awareness of the terms of the order.
Defendant’s Submissions
Counsel for The Herald and Weekly Times submitted that section 70 provided for two separate and distinct offences of contempt. Section 70(1)(a) was no more than a statutory reference to the common law offence of contempt. Section 70(1)(b) created a statutory summary offence.
Counsel submitted that as The Herald and Weekly Times had been charged under sections 70(1)(a) the charge of contempt was no more than a charge of common law contempt. It was said that one of the elements of this offence was knowledge of the existence and the terms of the suppression order at the time of the breach. Counsel argued that the Registrar had not proved that The Herald and Weekly Times had the requisite mens rea at the time of the alleged breach. On the evidence led by the Registrar it was not possible to be satisfied beyond reasonable doubt that The Herald and Weekly Times had knowledge of the suppression order of 11 July 2001.
In the alternative, counsel submitted that the use of the word ‘disobey’ in section 70 imported a requirement of knowledge of the existence and terms of any suppression order said to have been breached.
Consideration of the Issues
In R v Pacini; Brander; Mauger[8] Lowe J succinctly summarised relevant propositions of law about contempt arising out of publications in relation to pending criminal trials:
…
1.All publications (whether written or oral) which tend to pervert the course of justice or to prejudice the prosecution or defence in a pending trial constitute contempt of Court. (Halsbury’s Laws of England (3^rd ed.), vol. 8, pp. 2-3; The St. James’s Evening Post Case (1742), 2 Atk. 469; Packer v Peacock (1912), 13 CLR 577; R v Castro (1873), LR 9 QB 219, Davis v Baillie, [1946] VLR 486; R v Arrowsmith, [1950] VLR 78.)
2.Punishment of such contempt by summary procedure is discretionary. (Davis v Baillie (supra), at p.493; Bell v Stewart (1920), 28 CLR 419; Consolidated Press Ltd v McRae, [1955] ALR 278, at pp 291-2, per Fullagar J.)
3.Intention to interfere with the course of justice or to prejudice the prosecution or defence in a pending trial is not necessary to constitute the contempt. (R v Editor of the Daily Mail; Ex parte Factor (1928), 44 TLR 303; Ex parte Terrill; Re Consolidated Press Ltd (1937), 33 SR (NSW) 255, at p.257.)
4.The presence of such an intention may aggravate the contempt, and the absence of such an intention is a factor to be considered in determining whether the Court’s discretion should be exercised, and it is also a factor to be considered in determining whether any and if so what punishment should be imposed on the person in contempt. (R v Editor of the Daily Mail; Ex parte Factor (1928), 44 TLR 303; Consolidated Press Ltd v McRae (supra), at pp. 291-2.)
5.The Court will not exercise its summary jurisdiction unless the contempt is real and substantial. (Gaskell & Chambers Ltd v Hudson, Dodsworth & Co, [1936] 2 KB 595; R v Editor of the Daily Mail; Ex parte Factor (1928), 44 TLR 303; Bell v Stewart (supra); Hunt v Clarke (1889), 58 LJQB 490.)
[8] [1956] VLR 544 at 546-547
Whether or not knowledge of the existence and terms of a court order is an essential element of an offence against section 70(1)(a) is a question of statutory interpretation. As earlier observed counsel for the Registrar submitted that the contempt provided for in section 70(1)(a) is an offence of strict liability and therefore not an offence where intent to breach a court order is an essential element.
There is a presumption in favour of intention being an element of an offence, however, this is subject to rebuttal. In Proudman v Dayman[9] Dixon J observed:
[9] (1943) 67 CLR 536 at 540-541
… As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence.
The strength of the presumption that the rule applies to a statutory offence newly created varies with the nature of the offence and the scope of the statute. If the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered. But other considerations arise where in matters of police, of health, of safety or the like the legislature adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced. In such cases there is less ground, either in reason or in actual probability, for presuming an intention that the general rule should apply making honest and reasonable mistake a ground of exoneration, and the presumption is but a weak one.
Indeed, there has been a marked and growing tendency to treat the prima facie rule as excluded or rebutted in the case of summary offences created by modern statutes, particularly those dealing with social and industrial regulation. But, although it has been said that in construing a modern statute a presumption as to mens rea does not exist (per Kennedy L.J., Hobbs v. Winchester Corporation at p. 483), it is probably still true that, unless from the words, context, subject matter, or general nature of the enactment some reason to the contrary appears, you are to treat honest and reasonable mistake as a ground of exculpation, even from a summary offence.
There may be no longer any presumption that mens rea, in the sense of a specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute; but to concede that the weakening of the older understanding of the rule of interpretation has left us with no prima facie presumption that some mental element is implied in the definition of any new statutory offence does not mean that the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also.
In Nationwide News v Bitter[10] Olsson J discussed this issue with respect to suppression orders and section 69A. He observed:
In my opinion, legislation setting irreducible standards is more likely to be found where, within a well-defined area of business, scientific, communal or other identifiable activity, it has become established, and is accepted by all, that a failure to comply with certain precautions, or with other predetermined practices or precepts, will have, for a known class of persons, adverse consequences, the nature and extent of which may be predicted with some precision. In such circumstances, the legislation has found its way onto the statute book, and is accepted by the community, because the stringency of its controls is regarded as more important, on balance, than adherence to the tradition embodied in the maxim actus non facit reum nisi mens sit rea: see generally Lim Chin Aik v The Queen at pages 174-175. If the above analysis is sound, it is not surprising that legislation by prescribed standards is found in the realms of public health, industrial and road safety, the handling of dangerous substances (including drugs), and public nuisance (using that word in its widest, and not only its historical, sense): compare Dixon J in Proudman v Dayman, at page 540.
…In the first place [the section]…is enacted to regulate certain activities in a specific sector of the community where a departure from standards required will cause immediate and predictable harm. It is regulatory legislation the essential thrust of which is to protect certain persons, whose co-operation and assistance is vital to the due administration of the law, from the adverse consequences of doing so resulting from an undesirable public identification of the persons concerned…
…If …it was open to a member of the media to say that, because it did not take the trouble to check whether any prohibition existed, it should be exculpated then it is difficult to see how the statutory provision could possibly be effective…
The plain fact of the matter is that, by the adoption of a simple exercise in care and inquiry in each case proposed to be reported, the media can readily ensure that they are not in breach of s 69. Such responsibility is one which may fairly and properly be imposed upon them in the interests of the public. The price required is modest by way of contrast with the evil likely to result from placing any other construction upon the legislation…
[10] Nationwide News v Bitter (1985) 38 SASR 390 at 395-397
These observations are compelling. The legislative scheme is such as to regulate certain activities in the community in particular those concerned with the publication of court related materials. A departure from the standards set by the legislation will be harmful to the administration of justice. The legislation is regulatory and designed to protect the fair trial of an accused and those involved in the administration of justice. In the present case the co-operation and assistance of a proposed witness Mr Vlassakis was important to the Crown and his protection vital. If knowledge of awareness of the terms of the order of 21 June 2001 were necessary before a contempt could be committed the protection provided by the legislation would be impeded if not rendered nugatory. The remarks of McHugh J in Mayas are directly relevant:
if pursuant to statutory authority a court makes an order binding on persons outside the courtroom, breach of it will prime facie constitute a contempt whether or not the person is aware of the order.
Section 70(1) provides for a liability for contempt if a person ‘disobeys’ an order under the Division. As earlier observed counsel for The Herald and Weekly Times argued that the word ‘disobeys’ presupposes knowledge and awareness of that which is disobeyed. Such a construction would also substantially erode the effectiveness of the protection offered by the section.
It is to be observed that the legislature has not included the adverb ‘wilfully’ to precede the verb ‘disobeys’. There are frequent examples in other statutes of the verb ‘disobey’ being preceded by the adjective ‘wilfully’. This has generally been treated as an indication that the legislature intended that contumacious disobedience is the standard of conduct referred to. The use of the adverb ‘wilfully’ suggests that a knowing or deliberate act is being addressed by the legislature. One example is to be found in Tremayne v Cook[11]where Crisp J observed:
The offence is one of wilful disobedience and this on the authorities required that the tribunal be satisfied not only that the direction was disobeyed in fact but that the failure to obey was a deliberate and intentional act of a culpable nature. From an abundance of of authority covering the use of wilful in this and similar contexts I would cite the following: Reg v Downes; Reg v Senior; In re Young & Harston’s Contract; In re City Equitable Fire Insurance Co Ltd; Horabin v British Overseas Airways Corporation; Cooper v Cooper; Jackson v Butterworth. A failure to obey due to an oversight or an honest mistake or to circumstances effectively preventing compliance for which the defendant cannot be held responsible is not wilful and cannot be an offence.
[11] [1955] Tas SR 100 at 102
The absence of the word ‘wilfully’ in section 70(1) suggests that the legislature intended that simple disobedience of a relevant order was conduct within the terms of the section.[12] This was the approach adopted by Lander J in SA Telecasters v DPP[13] where he observed:
The section provides for a liability for contempt or a summary offence if the person ‘disobeys’ an order under the Division. It was argued that the use of the word disobeys means that Parliament required proof of the knowledge of the suppression order at the time of publication before a person would be liable to the penalties in s70(1) of the Act. It was also put that the use of the word "Division" rather than the use of the words "made in court by a judicial officer" is important.
I do not agree with either of these submissions. Section 70 refers not only to orders made under s69a, but also to orders made under s69 of the Act. Section 69 gives a Court power to require persons to absent themselves from the Court during the proceedings. Indeed, in the circumstances provided for in s69(2), the court not only has the power but it must exercise the power, for the protection of child victims of sexual offences.
Therefore the powers to be exercised under s70, because they apply to orders made under the Division, include the enforcement of orders made during the course of a hearing requiring a person to leave the court. It is apparent therefore that the word ‘Division’ is used for the purpose of making it clear that s70 is concerned with wider circumstances than predicated in s69a. When that is understood it seems to me the use of the word ‘disobey’ cannot necessarily be understood to mean that a person, to be dealt with summarily under s70, has to have had notice of a suppression order under s69a. It may be that a Court would not exercise its powers of punishment of contempt under s70 unless it was first established that a person had knowledge of a particular order, a matter which I do not have to decide but I can see nothing in the section which requires knowledge of the order made under s69a by the person charged with a summary offence.
Indeed in my opinion the scheme of the Act is otherwise. I do not believe that the section could operate efficiently, if it was necessary to establish that a member of the media has actual knowledge of the order. As already observed the argument advanced overlooks an interim order which will never be recorded on the register. If the argument was right an interim order would only need to be observed by those who were in court when the order was made.
[12] There is no discussion in the second reading speech as to the intended meaning of the word ‘disobey’ within the section.
[13] (1996) 188 LSJS 42 at 52

The language of section 70 does not imply knowledge as a necessary element of either of the statutory offences. Nowhere in the section does the word ‘wilfully’ or ‘knowingly’ appear. If a relevant order is disobeyed, the defendant will be guilty of an offence.
Conclusion
The legislature creates a system of recording suppression orders which are then available to the public for inspection. It is by this process that those with an interest in the subject matter may check whether they are able to publish the information.
It is important that the court make clear and express directions about what material is available for publication and which is to be suppressed. Once an order has been made the burden shifts to the person seeking to publish material to ensure that the material is not the subject of a suppression order.
It is the duty of the court to inform the wider community of the existence and terms of a suppression order. This duty is satisfied by compliance with the legislative requirement to notify the Sheriff and by maintaining a complete and up to date Suppression Order Register. From that point, it is the obligation of the media and others to make enquiries to ensure the material they intend to publish is not subject to any suppression orders.
The legislation treats the media as a special category. The media is entitled to make submissions to the court on the hearing of an application for an order and to appeal from the making of such an order.
At common law knowledge of the existence of the relevant order has been treated as an essential requirement of the offence of contempt. However, the statutory regime imposed by section 69 and 70 of the Evidence Act alters that position.
While the action of The Herald and Weekly Times in publishing the photograph was not a wilful or deliberate disobedience of a court order, it was an act in disobedience in breach of the order nonetheless. The order was framed in terms that indicated that the judge intended it to apply to all people, not just those within the courtroom at the time the order was made.
The Herald and Weekly Times is guilty of contempt.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 [2003] SASC 234
2 (1986) 161 CLR 98 at 106-109
3 (1995) 183 CLR 525 at 534
4 [1979] AC 440 at 459-466
5 (1988) 14 NSWLR 342
6South Australia, Parliamentary Debates, Legislative Assembly, 15 March 1989, 2415-2416 (C J Sumner)
7 69a(13)
8 [1956] VLR 544 at 546-547
9 (1943) 67 CLR 536 at 540-541
10 Nationwide News v Bitter (1985) 38 SASR 390 at 395-397
11 [1955] Tas SR 100 at 102
12There is no discussion in the second reading speech as to the intended meaning of the word ‘disobey’ within the section.
13 (1996) 188 LSJS 42 at 52

[2004] SASC 129

28 May 2004