The Queen v The Herald & Weekly Times Pty Ltd
[2021] VSC 253
•4 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2019 01228
| THE QUEEN (ON THE APPLICATION OF THE DIRECTOR OF PUBLIC PROSECUTIONS) | Applicant |
| v | |
| THE HERALD AND WEEKLY TIMES PTY LTD & OTHERS (according to the attached Schedule) | Respondents |
---
JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9–13, 16–17 November 2020; 4 December 2020; 10–11, 16–17 February 2021 (penalty hearing) |
DATE OF JUDGMENT: | 4 June 2021 |
CASE MAY BE CITED AS: | The Queen v The Herald & Weekly Times Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VSC 253 |
---
CONTEMPT OF COURT – Breach of suppression order contempt – High profile accused faced two trials – Suppression order made to protect accused’s right to fair second trial – Suppression order prohibited publication of ‘information derived from the trials’ – Overseas news media organisations published information identifying accused and details of charges after jury’s verdict in first trial – Multiple Australian news media outlets published information derived from the trial and encouraged searches to locate overseas publications identifying accused.
CONTEMPT OF COURT – Penalty – Applicable principles – Where pleas of guilty entered at trial – Where privilege maintained over legal advice – Where content, tone and subject matter of publications conveyed intention to frustrate purpose or efficacy of suppression order – Where respondents consent to costs order in favour of applicant – Where natural persons employed by respondents said to be were impacted by separate charges that were discontinued at trial.
---
APPEARANCES: | Counsel | Solicitors |
| For the applicant | Ms L De Ferrari SC with Ms R Kaye of counsel (for liability hearing) Ms R Kaye of counsel, with Ms J Wang (for penalty hearing) | Ms Abbey Hogan, Solicitor for Public Prosecutions |
| For the first, fourth, fifth, seventh, ninth and twelfth respondents | Mr W T Houghton QC with Mr M A McLay and Mr S Mukerjea of counsel | Thomson Geer |
| For the fifteenth, twentieth, twenty-sixth, twenty-eighth, thirtieth and thirty-third respondents | Dr M Collins QC with Mr M A McLay and Mr S Mukerjea of counsel | Thomson Geer |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Plea agreement.............................................................................................................................. 4
Relief sought.................................................................................................................................. 7
Findings of facts................................................................................................................................. 8
The Pell trials.................................................................................................................................... 10
Two trials...................................................................................................................................... 10
The suppression order................................................................................................................ 10
The cathedral trial and jury verdict.......................................................................................... 12
The publications and the application to vary the suppression order.................................. 12
The impugned reports..................................................................................................................... 19
News Corp online articles.......................................................................................................... 19
Circumstances of publication.......................................................................................... 19
Content in breach of the suppression order.................................................................. 22
Extent of publication......................................................................................................... 24
Daily Telegraph article............................................................................................................... 24
Circumstances of publication.......................................................................................... 24
Content in breach of the suppression order.................................................................. 25
Extent of publication......................................................................................................... 26
Courier Mail article..................................................................................................................... 26
Circumstances of publication.......................................................................................... 26
Content in breach of the suppression order.................................................................. 26
Extent of publication......................................................................................................... 26
The Age articles........................................................................................................................... 27
Circumstances of publication.......................................................................................... 27
Content in breach of the suppression order.................................................................. 33
The Age online article, The Age article and the SMH article......................... 33
The Age online editorial...................................................................................... 34
Extent of publication......................................................................................................... 35
The AFR articles.......................................................................................................................... 35
Circumstances of publication.......................................................................................... 35
Content in breach of the suppression order.................................................................. 39
Extent of publication......................................................................................................... 40
Mamamia online article.............................................................................................................. 40
Circumstances of publication.......................................................................................... 40
Content in breach of the suppression order.................................................................. 44
Extent of publication......................................................................................................... 45
Business Insider online article................................................................................................... 45
Circumstances of publication.......................................................................................... 45
Content in breach of the suppression order.................................................................. 46
Extent of publication......................................................................................................... 46
2GB Breakfast segment............................................................................................................... 47
Circumstances of publication.......................................................................................... 47
Content in breach of the suppression order.................................................................. 48
Extent of publication......................................................................................................... 48
Today Show segments................................................................................................................ 49
Circumstances of publication.......................................................................................... 49
Content in breach of the suppression order.................................................................. 50
Extent of publication......................................................................................................... 50
Principles........................................................................................................................................... 51
Applicant’s submissions................................................................................................................. 57
Mitigating factors............................................................................................................................. 62
Culpability and responsibility...................................................................................................... 63
Assessment................................................................................................................................... 63
Tendency to interfere with due administration of justice........................................... 64
Frustration of purpose or efficacy of suppression order............................................. 68
Respondents’ contentions.......................................................................................................... 69
Analysis........................................................................................................................................ 72
The foundational allegation............................................................................................. 72
Intention in publication.................................................................................................... 77
To pressure Chief Judge Kidd............................................................................ 77
To take a calculated risk in publication............................................................ 78
Content, tone and subject matter..................................................................................... 87
Editorial systems and reliance on legal advice............................................................. 89
Considerations particular to News Life Media and The Age Company............................ 91
Other factors...................................................................................................................................... 94
Harm............................................................................................................................................. 94
Character...................................................................................................................................... 96
The guilty pleas........................................................................................................................... 96
Impact on the respondents...................................................................................................... 101
Apology...................................................................................................................................... 102
Costs............................................................................................................................................ 103
Considerations particular to individual respondents............................................................. 103
Publishers of News Corp online articles................................................................................ 103
News Life Media.............................................................................................................. 103
Syndicated publishers..................................................................................................... 107
Queensland Newspapers and Nationwide News................................................................ 108
The Age Company.................................................................................................................... 110
Fairfax Media Publications...................................................................................................... 116
Mamamia.................................................................................................................................... 120
Allure Media.............................................................................................................................. 123
Radio 2GB Sydney.................................................................................................................... 126
GTC............................................................................................................................................. 129
Penalty.............................................................................................................................................. 131
HWT............................................................................................................................................ 131
News Life Media....................................................................................................................... 132
Queensland Newspapers......................................................................................................... 132
The Geelong Advertiser........................................................................................................... 132
Nationwide News..................................................................................................................... 132
Advertiser Newspapers........................................................................................................... 132
The Age Company.................................................................................................................... 132
Fairfax Media Publications...................................................................................................... 133
Mamamia.................................................................................................................................... 133
Allure Media.............................................................................................................................. 133
Radio 2GB Sydney.................................................................................................................... 133
GTC............................................................................................................................................. 133
Costs.................................................................................................................................................. 134
HIS HONOUR:
Introduction
On 22 March 2019, the Director of Public Prosecutions commenced this proceeding, seeking that various media organisations, editors, journalists and television/radio presenters be adjudged guilty of contempt of court. Those charges arose from the following reports published in the media between 12–14 December 2018, following a jury’s verdict that Cardinal George Pell (‘Pell’) was guilty of child sex offences.
The reports that are the subject of this proceeding (‘impugned reports’) can conveniently be grouped by the relationship between the publishers:
(a) the first, fourth, fifth, seventh, ninth and twelfth respondents (‘News Corp respondents’):
(i) the online article published on News.com.au on 13 December 2018 and titled ‘It’s the biggest story in Australia but news.com.au is not allowed to report the details, this is the reason why. NATION’S BIGGEST STORY’ (‘News.com.au online article’), which was automatically syndicated and published in identical form to:
(A) the website of the Herald Sun (heraldsun.com.au) (‘Herald Sun online article’);
(B) the website of the Geelong Advertiser (geelongadvertiser.com.au) (‘Geelong Advertiser online article’);
(C) the website of the Daily Telegraph (dailytelegraph.com.au) (‘Daily Telegraph online article’);
(D) the website of the Weekly Times (weeklytimesnow.com.au) (‘Weekly Times online article’); and
(E) the website of Advertiser Newspapers (adelaidenow.com.au) (‘Advertiser online article’),
(together, the ‘News Corp online articles’).
(ii) the article published in the print edition of the Courier Mail newspaper on 13 December 2018 and titled ‘Court censorship 2. Secret Scandal’ (‘Courier Mail article’); and
(iii) the article published in the print edition of the Daily Telegraph newspaper on 13 December 2018 and titled ‘IT’S THE NATION’S BIGGEST STORY’ (‘Daily Telegraph article’).
(b) the fifteenth, twentieth, twenty-eighth, thirtieth and thirty-third respondents (‘Nine Entertainment respondents’):
(i) the article published in the print edition of The Age newspaper on 12 December 2018 and titled ‘Why media can’t report on a high-profile case’ (‘The Age article’);
(ii) the online article published on the website of The Age (theage.com.au) on 13 December 2018 and titled ‘Why the media is unable to report on a case that has generated huge interest online’ (‘The Age online article’);
(iii) the online article published on the website of The Age (theage.com.au) on 13 December 2018 and titled ‘Rampant use of suppression orders has become absurd’ (‘The Age online editorial’);
(iv) the article published in the print edition of the Sydney Morning Herald (‘SMH’) on 13 December 2018 and titled ‘Why we can’t report on a case of huge interest’ (‘SMH article’);
(v) the online article published on the website of the Australian Financial Review (‘AFR’) (afr.com.au) on 13 December 2018 and titled ‘How the case that can’t be named is being reported around the world’ (‘AFR online article1 ’);
(vi) the online article published on the website of the AFR (afr.com.au) on 13 December 2018 and titled ‘Judge slams ‘flagrant’ media over world’s worst kept secret’ (‘AFR online article 2’);
(vii) the article published in the print edition of the AFR newspaper on 14 December 2018 and titled ‘Judge slams ‘flagrant’ media’ (‘AFR article’);
(viii) the online article published on the website of Business Insider Australia (businessinsider.com.au) on 13 December 2018 and titled ‘The Australian media wants to talk about a high-profile criminal conviction but can’t – here’s why’ (‘Business Insider online article’);
(ix) the segment on the 2GB Breakfast radio program broadcast at 5:41am on 13 December 2018 (‘2GB Breakfast segment’);
(x) the segment on the Today Show television program broadcast at 5:32am on 13 December 2018 (‘5:32am Today Show segment’);
(xi) the segment on the Today Show television program broadcast at 6:00am on 13 December 2018 (‘6:00am Today Show segment’); and
(xii) the segment on the Today Show television program broadcast at 7:02am on 13 December 2018 (‘7:02am Today Show segment’);
(c) the twenty-sixth respondent, the online article published on the website of Mamamia (mamamia.com.au) on 13 December 2018 and titled ‘Why today, Australian media can’t report on ‘the nation’s biggest story’ (‘Mamamia online article’).
On 9 November 2020, the trial commenced.[1] Following the close of the applicant’s case, the respondents made submissions of no case to answer on three grounds, one of which was successful (‘No Case Ruling’).[2] While there is unavoidable repetition, these reasons assume that the reader is familiar with the No Case Ruling for particulars of the charges that proceeded to trial, and those in respect of which the applicant called evidence. Copies of the impugned reports are reproduced in Annexure 2 to the No Case Ruling.
[1]The intervening nineteen months having been the subject of numerous interlocutory disputes and pleading amendments, including the abandonment by the applicant of many charges initially brought and the discontinuance of the proceeding against several respondents.
[2]The Queen v The Herald & Weekly Times Pty Ltd (Ruling No 2) [2020] VSC 800 (‘No Case Ruling’). Only two grounds were ultimately pressed by the respondents and the subject of the ruling.
Plea agreement
Following the No Case Ruling, some of the remaining respondents opened and partially completed their defence before the parties announced that they had resolved questions of liability by agreement (‘plea agreement’).
On 1 February 2021, by consent and implementing the plea agreement, I dismissed all remaining charges of sub judice contempt against all respondents, and all remaining charges against the natural person defendants (being individual journalists, editors and presenters). After they entered guilty pleas through their counsel, I further declared that the following respondents (‘guilty respondents’) were adjudged guilty of contempt in respect of the charges and publications identified below:[3]
[3]The impugned reports are identified in these reasons by adopting the definitions used in the statement of claim. The charges are identified by number in accordance with the applicant’s aide memoire (see [AID.500.006.0001]).
| Respondent | Charges |
| First Respondent The Herald & Weekly Times Pty Ltd (‘HWT’) | Breach of proceeding suppression order contempt in respect of: · the Herald Sun online article (Charge 1) · the Weekly Times online article (Charge 25) |
| Fourth Respondent News Life Media Pty Ltd (‘News Life Media’) | Breach of proceeding suppression order contempt in respect of the News.com.au online article (Charge 5) |
| Fifth Respondent Queensland Newspapers Pty Ltd (‘Queensland Newspapers’) | Breach of proceeding suppression order contempt in respect of the Courier Mail article (Charge 9) |
| Seventh Respondent The Geelong Advertiser Pty Ltd | Breach of proceeding suppression order contempt in respect of the Geelong Advertiser online article (Charge 13) |
| Ninth Respondent Nationwide News Pty Ltd (‘Nationwide News’) | Breach of proceeding suppression order contempt in respect of: · the Daily Telegraph article (Charge 17) · the Daily Telegraph online article (Charge 21) |
| Twelfth Respondent Advertiser Newspapers Pty Ltd (‘Advertiser Newspapers’) | Breach of proceeding suppression order contempt in respect of the Advertiser online article (Charge 29) |
| Fifteenth Respondent The Age Company Pty Ltd | Breach of proceeding suppression order contempt in respect of: · The Age article (Charge 33) · The Age online article (Charge 41) · The Age editorial (Charge 47) |
| Twentieth Respondent Fairfax Media Publications Pty Ltd (‘Fairfax Media Publications’) | Breach of proceeding suppression order contempt in respect of: · the SMH article (Charge 49) · the AFR online article 1 (Charge 53) · the AFR online article 2 (Charge 59) · the AFR article (Charge 65) |
| Twenty-sixth Respondent Mamamia.com.au Pty Ltd (‘Mamamia’) | Breach of proceeding suppression order contempt in respect of the Mamamia online article (Charge 71) |
| Twenty-eighth Respondent Allure Media Pty Ltd | Breach of proceeding suppression order contempt in respect of the Business Insider online article (Charge 75) |
| Thirtieth Respondent Radio 2GB Sydney Pty Ltd | Breach of proceeding suppression order contempt in respect of the 2GB Breakfast segment (Charge 79) |
| Thirty-third Respondent General Television Corporation Pty Ltd | Breach of proceeding suppression order contempt in respect of: · the 5:32am Today Show segment (Charge 83) · the 6:00am Today Show segment (Charge 85) · the 7:02am Today Show segment (Charge 87) |
Having regard to the essential elements of the offence of contempt by breach of a proceeding suppression order,[4] each of the above respondents accepted, by that plea of guilty, that:
[4]No Case Ruling, [81] (n 2); R v Hinch [2013] VSC 520, [52] (‘Hinch’).
(a) the respondent published the report the subject of the relevant charge;
(b) the publication of the report frustrated the effect of the proceeding suppression order because it contained material that was contrary to or that infringed the terms of the order; and
(c) when the report was published, the respondent’s knowledge of the terms and effect of the order was such that a reasonable person with that knowledge would have understood that the publication of the report would have the tendency to frustrate the efficacy of the order.
It was not contentious that the court should sentence the respondents by reference to the extent that the breaches had a tendency to frustrate the purpose or efficacy of the proceeding suppression order, and not simply on the basis of breaches of the terms of the suppression order simpliciter. However, and in that context, there was a debate between the parties as to precisely what was admitted by the plea.
The guilty respondents submitted that the applicant should be held to her pleaded case and that they be sentenced on the basis that they admitted to frustrating the purpose or efficacy of the suppression order to the extent that they each may have encouraged readers of the impugned reports to conduct their own searches in order to find one or more of the 35 overseas publications identified by the applicant, and not by the content of the articles themselves. I will explain my reasons for rejecting this submission in due course.
Relief sought
The applicant sought the following orders in respect of each of the guilty respondents on each of the charges identified in paragraph 5 above:
(a) a declaration that they be adjudged guilty of contempt of court on the basis that the publication of each of the impugned reports breached the proceeding suppression order of the Honourable Chief Judge Kidd made on 25 June 2018 (‘suppression order’);
(b) a fine, with the recording of a conviction; and
(c) costs.
The News Corp respondents submitted that the appropriate disposition of the charges was:
(a) the entry of a conviction and the imposition of a fine towards the middle of the range against News Life Media in relation to charge 5, arising from the publication of the News.com.au online article;
(b) the discharge of HWT, The Geelong Advertiser, Nationwide News and Advertiser Newspapers without conviction or penalty in relation to charges 1, 13, 21, 25 and 29, arising from the remaining News Corp online articles;
(c) the discharge of Queensland Newspapers without conviction or penalty in relation to charge 9, arising from the publication of the Courier Mail article; and
(d) the imposition of a modest fine (at the low end of the range) without conviction against Nationwide News in relation to charge 17, arising from the publication of the Daily Telegraph article.
The Nine Entertainment respondents and Mamamia submitted that the appropriate disposition of the charges in respect of the impugned reports for which they were responsible was:
(a) the entry of a conviction and the imposition of a single fine, towards the middle of the range, against The Age Company in relation to charges 33, 41 and 47, arising from the publication of The Age article, The Age online article and The Age online editorial;
(b) no conviction be entered or fine imposed against Fairfax Media Publications in relation to charge 49, arising from the publication of the SMH article;
(c) the entry of a conviction and the imposition of a modest fine (at the low end of the range) against Fairfax Media Publications in relation to charges 53, 59 and 65, arising from the publication of the AFR online article 1, the AFR online article 2 and the AFR article;
(d) the imposition of a modest fine (at the low end of the range) without conviction against Mamamia in relation to charge 71, arising from the publication of the Mamamia online article;
(e) the imposition of a modest fine (at the low end of the range) without conviction against Allure Media in relation to charge 75, arising from the publication of the Business Insider online article;
(f) the imposition of a modest fine (at the low end of the range) without conviction against Radio 2GB Sydney in relation to Charge 79, arising from the broadcast of the 2GB Breakfast segment; and
(g) the imposition of a modest fine (at the low end of the range) without conviction against GTC in relation to Charges 83, 85 and 87, arising from the broadcast of the 5:32am Today Show segment, the 6:00am Today Show segment and the 7:02am Today Show segment.
Findings of facts
My factual findings for the assessment of penalty are based upon the evidence admitted both at trial and on the plea hearing from the following persons:
(a) Ms Kirsten Aaskov, Ms Lauren Myers, Ms Lillian Pham and Mr Rowan Slattery, each a solicitor employed by the Office of Public Prosecutions;
(b) Mr Edward Gardiner, a media manager at the County Court of Victoria;
(c) Ms Marlia Saunders, a senior litigation counsel at News Corp Australia;
(d) Mr Alex Lavelle, the Editor of The Age during the relevant period;
(e) Mr Mark Coultan, a senior news editor at the AFR;
(f) Mr Simon Thomsen, a journalist employed by Allure Media during the relevant period;
(g) Ms Rachel Launders, the General Counsel and Group Company Secretary of Nine Entertainment;
(h) Mr Jason Lavigne, the Chief Executive Officer and co‑founder of Mamamia;
(i) Mr Darren Wick, the Director of News and Current Affairs for Australia of Nine Entertainment; and
(j) Mr Gregory Byrnes, the Head of Content for Nine Radio Operations Pty Ltd, an entity within Nine Entertainment.
Although all the charges were tried in a single hearing, it was not a joint trial. The evidence admitted against one respondent is not taken to be admitted against all respondents. Rather, throughout the trial, the particular respondent against whom evidence was tendered was identified.
In light of the common issues of fact that relate to the cases against each respondent, particularly those who are charged with involvement in multiple publications, it is convenient to summarise the applicant’s evidence as it is relevant to the whole of the proceeding, rather than for each individual respondent. However, as will become apparent, when making findings relating to individual respondents that rely on the applicant’s evidence, I have had careful regard to the evidence led and specific documents tendered against each respondent and have not relied on the evidence in broad spectrum when inappropriate to do so.
Although I am repeating part of my findings on the No Case Ruling, to assist in clearly following the submissions and findings at this penalty stage, I now restate the main background facts.
The Pell trials
Two trials
Pell was committed to stand trial on 1 May 2018, with the charges on which he was committed to be heard sequentially in two separate trials; the second trial in time to commence very soon after the first had concluded. Each trial was to proceed before the Chief Judge of the County Court sitting with a jury. The members of each jury were to be drawn from eligible members of the community in the greater Melbourne area. At all material times, both within and well beyond that geographical area, there was intense media and public interest in the prosecutions.
The first trial in time was of the charges of child sexual abuse alleged to have taken place at St Patrick’s Cathedral and was referred to as the ‘cathedral trial’. The second trial, in which Pell faced further charges alleging child sexual abuse said to have occurred at a swimming pool in Ballarat, was referred to as the ‘swimmers trial’.
The suppression order
On 25 June 2018, Chief Judge Kidd made the suppression order under s 17 of the Open Courts Act2013 (Vic) on the application of the prosecutor.
The order stated the following:
THE COURT ORDERS THAT:
(1)Publication is prohibited of any report of the whole or any part of these trials, and any information derived from these trials and any court documents associated with these trials, save that publication is permitted that the accused is facing for historical child sexual offences in the County Court of Victoria.
(2)The prohibition on publication applies within all States and Territories of Australia and on any website or other electronic or broadcast format accessible within Australia.
(3)For the purpose of this order, ‘publication’ has the meaning attributed to it by s 3 of the Open Courts Act 2013, that is to say, it means the dissemination or provision of access to the public by any means including, publication in a book, newspaper, magazine or other written publication, or broadcast by radio or television; or public exhibition; or broadcast or written communication.
(4)This order will expire upon commencement of the second trial in time, save that publication of any report of the whole or any part of the first trial in time and any information derived from and any court documents associated with it will be prohibited until verdict in the second trial in time.
(5)For the avoidance of doubt, publication is prohibited of the following information:
a) number of complainants in either or both trials;
b) the number of charges, save for the fact that there are “charges”;
c) the nature of the charges, save for the fact that they are charges of "historical child sexual offences"; and
d) the fact of multiple trials.
The Chief Judge made the suppression order for the purpose of preventing a real and substantial risk of prejudice to the proper administration of justice. Chief Judge Kidd recorded that the terms of the suppression order were necessary to prevent a real and substantial risk of prejudice to the proper administration of justice, pursuant to s 18(1)(a) of the Open Courts Act. As required under s 11, the court gave notice to relevant news media organisations concerning the application, and counsel and a solicitor from Macpherson Kelley[5] appeared before the court for a number of them.
[5]The media law team at Macpherson Kelley, who subsequently moved to Thomson Geer, has acted for all respondents throughout this proceeding.
The media representatives did not oppose a suppression order in respect of publication of any report of the whole or any part of the trials, or any information derived from the trials in any form. The contest was whether the order ought to apply throughout the whole of Australia. Several media organisations contended that the order should be limited in geographical reach to Victoria. The prosecution and defence submitted that it was appropriate that an Australia-wide order be made.
Chief Judge Kidd ruled, publishing his reasons (‘Suppression Order Ruling’),[6] that it was necessary for the suppression order to apply beyond Victoria to Australia as a whole and ordered accordingly. There was no appeal.
[6]DPP (Vic) v Pell (Suppression Order) [2018] VCC 905 (‘Suppression Order Ruling’).
On 25 June 2018, the County Court notified by email various media organisations, lawyers acting for media organisations and individual journalists (amongst others) of the suppression order, providing them with a copy.
The cathedral trial and jury verdict
On 7 November 2018, the cathedral trial commenced before Chief Judge Kidd and a jury. The first jury was discharged after being unable to agree on a verdict and a second jury was empanelled. On 6 December 2018, the jury retired to consider its verdict.
On 11 December 2018 at 3:44pm, the jury delivered verdicts of guilty.[7]
[7]Since overturned by the High Court of Australia: Pell v The Queen (2020) 376 ALR 478.
At that time, the swimmers trial was listed to commence in the County Court on 11 March 2019. It remained extant until 26 February 2019, when the applicant filed a notice of discontinuance of the charges to be tried in that trial, following an evidentiary ruling by the trial judge. The evidentiary ruling that caused the prosecution of the swimmers trial to be abandoned was unrelated to the publication of the impugned reports. The suppression order was revoked later that day. Until that occurred, the suppression order was in force, operative for the reasons explained in the Suppression Order Ruling.
The publications and the application to vary the suppression order
By no later than 9:45am on 12 December 2018, online publications originating outside of Australia (but accessible within Australia) began reporting the conviction, including articles naming Pell and identifying information derived from the trial.
That day, various local media companies instructed Macpherson Kelley to apply to the court to have the suppression order varied or revoked. Those solicitors first contacted the Associate to Chief Judge Kidd by phone seeking an urgent hearing for an application to review the suppression order, and at 5:18pm on 12 December 2018 they were notified by email that Chief Judge Kidd would hear any application on 14 December 2018 at 9:30am.
In the evening of 12 December 2018, after that notification from the court, the guilty respondents began publishing the impugned reports. My detailed findings in respect of the impugned reports follow, but it is notable that they were published between 7:11pm on 12 December 2018 and the morning of 14 December 2018.
On the morning of on 13 December 2018, after several of the impugned reports were published, Macpherson Kelley confirmed it acted for HWT (the first respondent), Nationwide News (the ninth respondent), The Age Company (the fifteenth respondent), Nine Network Australia Pty Ltd, Macquarie Media Ltd and Seven Network (Operations) Ltd on the application to review the suppression order (‘intervening media parties’). That hearing proceeded on 9:30am on 14 December 2018.
Pausing here, at trial, the applicant relied on 35 publications by overseas media, including by the Washington Post, the New York Post, Radar Online and the Daily Beast (‘overseas publications’). In the No Case Ruling, I set out my findings of the publication times of the overseas publications and identified the sequence of their publication, and the publication and removal of the impugned reports.[8] For publications that I concluded were published within a specific time period, I identified the earliest possible time they could have been published, so as to draw the most favourable inference reasonably open on the applicant’s case in the context of the No Case Ruling.
[8]No Case Ruling, Annexure 1 (n 2).
The guilty respondents contended on the plea hearing that the factual findings on the timing of the overseas publications ought be the latest possible time that could have occurred, so as to reflect the applicant’s burden of proof. For reasons that will later become apparent, I do not accept the emphasis that the guilty respondents placed on the precise timing of the overseas publications. While I am satisfied that the requisite tendency, as alleged by the applicant, was evident because the impugned reports did encourage readers to search online and identify information derived from the cathedral trial, that was not the gravamen of the tendency to frustrate the suppression order, as I will later explain. For the purposes of penalty, although the chronology is relevant, it is sufficient to conclude that an article was published within a certain time period, rather than identifying a precise time in that range if it is not readily apparent from the article.
Save for correcting a typographical error,[9] I restate my findings in the No Case Ruling on timing of publication, in the form of the below table. The entries in the chronology relating to the impugned reports are shaded for emphasis, appearing in green for the time of publication and red for the time removed.
[9]The references to The Washington Post article 1 and The Washington Post article 2 have been substituted for each other. I reject the guilty respondents’ submission that the Gov’t Slaves article (item (k)) was published on 12 December 2018, on the basis that a version of the article tendered in the trial (LAY.500.209.0001) bears the date ‘12/11/2018’, being 11 December 2018 expressed in MM/DD/YYYY format.
Time (AEDT) Publication 11 December 2018 Between 4:00pm and 12 December 2018 3:59pm Black Christian News article published 12 December 2018 9:43am The Daily Beast article published Between 9:43am and 3:59pm Gov’t Slaves article published 9:55am News Republic article published 1:06pm Radar Online article published Approximately 3:00pm Church Militant article 1 published Between 4:00pm and
13 December 2018 at 3:59pmFox News article published National Catholic Reporter article 1 published Now The End Begins article published America Magazine article published 7:11pm The Age online article published 13 December 2018 Between 12:00am and
15 December 2018 at 6:15amThe Washington Post article 2 published Between 12:00am and 2:57pm New York Post article published 1:10am VOA News article published 2:48am Catholic News Agency article published Catholic World Report article published EurAsia Review article published 4:16am National Review article published 5:32am Today Show segment published 5:41am 2GB Breakfast segment published 6:00am[10] Courier Mail article published
Daily Telegraph article published
The Age article published
SMH article published
6:00am Today Show segment published 6:16am Life Site article published 7:01am Slate article published 7:02am Today Show segment published 7:45am Mamamia.com.au online article published 8:41am The Washington Post article 1 published 9:00am Business Insider online article published 9:25am 2GB Breakfast segment (podcast version) published 9:54am The Age online editorial published 10:24am Herald Sun online article published
News.com.au online article published
Daily Telegraph online article published
Geelong Advertiser online article published
The Advertiser online article published
Weekly Times online article published
Between 11:00am and
14 December 2018 at 10:59amThe Catholic Universe article published 11:29am The Washington Post article 3 published 11:38am The Hill article published 1:17pm AFR online article 1 published Between 4:00pm and
14 December 2018 at 3:59pmThe Tablet article published Church Militant article 2 published Church Militant article 3 published 6:00pm (approx.) 2GB Breakfast segment (podcast version) removed 6:01pm Herald Sun online article removed
News.com.au online article removed
Daily Telegraph online article removed
Geelong Advertiser online article removed
The Advertiser online article removed
Weekly Times online article removed
6:20pm The Age online editorial removed 11:41pm UPI article published 6:25pm AFR online article 2 published 14 December 2018 6:00am[11] AFR article published 8:00am The Straits Times article published 3:39pm Asia Times article published Between 4:00pm and
15 December 2018 at 3:59pmFirst Amendment Watch article published Richard Dawkins Foundation article published 15 December 2018 6:15am The Day article published 18 December 2018 1:01pm The Age online article removed 19 February 2019 11:10am Mamamia.com.au online article removed 22 February 2019 1:46pm AFR online article 1 removed
AFR online article 2 removed
6:04pm Business Insider online article removed [10]These publications were in hard copy and printed on the night of 12–13 December 2018.
[11]This publication was in hard copy and printed on the night of 13–14 December 2018.
At 11:00am on 13 December 2018, Chief Judge Kidd called the parties to attend a special mention hearing to discuss the media reporting that had occurred overnight. Chief Judge Kidd expressed a concern to the prosecution and defence counsel, which I now note as it was pressed by the applicant in these proceedings. His Honour said:
Some of the media that has occurred overnight at the very least raises a serious question as to whether my suppression order has been breached in the most egregious way possible. The media coverage overnight also raises a serious question, quite independently of that, of contempt of the court, namely bringing inappropriate and improper pressure upon me to vary or revoke my suppression order application.
Chief Judge Kidd observed that the media:
seem to be operating on a misinformed basis that it’s okay to print everything and anything apart from the name of [Pell]. And that’s not what my suppression order says. … My suppression order says “no information”, and that includes the conviction.
Some journalists were surprised by a ferocity evident in the Chief Judge’s response, and the judge himself questioned whether he ought calm his demeanour before proceeding, such was his response to the evidence of breach of the suppression order. He directed that the transcript of his remarks be distributed to the media, which occurred by email at 1:49pm that afternoon.
Although some guilty respondents took down certain impugned reports (as I will note in due course), a number of other respondents continued to publish throughout 13 December and into 14 December 2018 (either by updating existing publications or publishing fresh articles), including Fairfax Media Publications (the publisher of the AFR) and the publishers of the News Corp online articles.
On 14 December 2018, Chief Judge Kidd dismissed the application to review the suppression order, which he confirmed.[12] At that hearing, the intervening media parties were represented by counsel.
[12]DPP v Pell (Review of Suppression Order) [2018] VCC 2125.
The primary argument put by the intervening media parties was that it would be idle, ineffectual or futile to maintain the suppression order. His Honour noted that on the basis of two affidavits placed before the court, the intervening media parties submitted that the extent of online dissemination had generated significant publicity of information concerning the conviction, noting references on Twitter, Facebook, Reddit, Wikipedia, Google and other publications originating outside of, but accessible within Australia. They contended that the suppression order was futile, as the ‘genie was out of the bottle’.
Chief Judge Kidd observed that the necessity for the suppression order was reinforced by the jury’s verdict in the cathedral trial, commenting, were it lifted, that it would be forensically devastating to Pell’s ability to run any defence — particularly one that involved mistaken identity, accident or misunderstanding — if any information derived from the cathedral trial was published. His Honour considered that any direction that he might give to the jury in the swimmers trial would be ineffectual, at least to some material degree.
His Honour concluded that exposure of potential jurors to the publication material relied on by the intervening media parties required an active level of investigation or enquiry, which limited the reach of its dissemination within Australia, in contrast to the consequences of exposure to mainstream media saturation, which would inevitably be widespread and total. The extent of overseas media exposure did not, in the Chief Judge’s view, render the order nugatory or unnecessary. His Honour noted the possibility, but did not take it into account, that some of the media organisations may not have come to court with clean hands, given the publicity in the 24 to 48 hours prior to the review application. I pause to note that this possibility assumed significance in the trial of this proceeding, which is later discussed.
From 6:01pm on 13 December 2018, the impugned reports available online began to be removed. Notwithstanding his Honour’s ruling, a number of the impugned reports remained online after the intervening media parties’ application was dismissed. The last of the articles were removed on 22 February 2019, some ten weeks after the suppression order was confirmed.
The impugned reports
I now return to the impugned reports to express my findings about the circumstances of their publication, what information derived from the trial was conveyed in breach of the suppression order, and about distribution.
News Corp online articles
Circumstances of publication
Prior to the plea agreement, Ms Saunders gave evidence, and through her the applicant tendered business records of the News Corp corporate respondents. Ms Saunders explained the online publication system and the syndication process used by the News Corp respondents.
News Corp operates a series of ‘online mastheads’, in the names of its corresponding newspaper mastheads, apart from News.com.au. Each online masthead syndicates its content with the others. A story that is first published to the Herald Sun’s website will also be capable of appearing on the websites of the Daily Telegraph, the Courier Mail and the Geelong Advertiser, among others. Although journalists know that syndication may occur, they have no control over the syndication process.
Relevantly, the Herald Sun online article, the Geelong Advertiser online article, the Daily Telegraph online article, the Weekly Times online article and the Advertiser online article were each a syndication of the News.com.au online article. Each of those articles was accessible on their corresponding online mastheads at an identical time and were each updated simultaneously. News Corp’s automated syndication process means that chronology for publication of the News Corp online articles is identical, such that I need only refer to the News.com.au online article to explain the circumstances of their publication.
News Corp’s online publishing system consists of four platforms. Journalists and editors use a publishing system known as Methode to draft, edit and prepare articles for publication. Content in Methode can be ‘saved to digital’, which creates a digital preview of the article and causes it to be archived in another platform, a repository called CHP. Alternatively, articles can be published to the online mastheads in Methode by pressing the ‘publish’ button. This causes the article to be sent to an intermediary platform called CAPI, which automatically populates the content that appears on the websites. Generally speaking, journalists do not have authority to unilaterally take that step and publish content to the online mastheads. That responsibility is reserved for the chief of staff, editors or news desk staff.
Although CAPI is populated when the ‘publish’ button is used, some limited metadata is transmitted to CAPI when the ‘save to digital’ function is used, including the ‘live’ field, which identifies the first time that the function is used for a particular story.
Once the ‘publish’ button is pressed, although a new story or changes to an existing story will be accessible from the domains of each of the online mastheads almost immediately, such material may not necessarily appear as a story on the homepage or one of the topic-specific areas of every website. As part of the editing process, the article will be assigned to a specific ‘section’ of the originating online masthead, which will determine the location from which it can be accessed on that site. That location is evident by the article’s ‘page route’, a part of its URL that navigates a user directly to that part of the website, rather than the homepage.
In some cases, one online masthead may have different sections to that of another. A further application — Kurator — is responsible for populating CAPI with the equivalent sections as assigned to the article on the originating online masthead. This means that if a story is published to a section of one website that does not exist on another, it will still be accessible from that website via a comparable section.
Although content is syndicated across the online mastheads, each website is curated by its respective digital editors and sub-editors. This means that the homepage or section page of one website may display different stories to that of another. Generally, each online masthead can control which stories are displayed on its homepage and topic-specific pages through a process of ‘ranking’. By reviewing the stories that are assigned to a specific section, an editor can rank those stories in a way that mean they are prominently featured. Conversely, a story that is not ranked may not prominently appear on a website, or at all. In the case of the ‘News/National’ section, which relevantly was the section assigned to the News.com.au online article, ranking is undertaken by a national team and not individually by each online masthead.
Returning to the publication of the News.com.au online article, Ms Saunders stated that Ms Charis Chang was the author, as its by-line suggests. Ms Chang is an experienced senior reporter.
On the morning of 13 December 2018, Mr Oliver Murray (News Editor), requested Ms Chang write the article. When journalists are so tasked, they prepare and submit articles electronically. A sub-editor at the news desk reviews it and determines the category (or ‘section’) and the context in which it will be presented online, and may make changes to the content. In respect of a ‘risky’ or controversial’ story (meaning one where it is perceived that potentially adverse legal consequences may follow its publication), sub-editors and editors seek legal advice before the editor signs off on publication, a process described as ‘legalling’.
Ms Saunders explained that at 7:42am on 13 December 2018, Ms Chang created the News.com.au online article in Methode. At 7:46am, Ms Chang sent herself an email containing a link to The Age online article that had been published the previous evening, which was referred to as a source in the report that was ultimately published. At 8:00am, the story was ‘saved to digital’ for the first time in Methode, an action recorded in the ‘live’ field in CAPI. At 8:23am, the article was archived to CHP.[13]
[13]Ms Saunders explained that the archive system updates periodically, so that articles are ‘ingested’ at times that are routinely later than the actual time that the story is ‘saved to digital’ or published. However, Ms Saunders stated that versions of an article that were saved and published using the ‘publish’ function embedded a timestamp in the URL of images that accompanied the story. This timestamp is accepted as correctly identifying the precise time that each version of the News.com.au online was published.
At approximately 8:24am, Mr Murray sought pre-publication legal advice from the News Corp Australia group in-house legal team. At approximately 9:57am, Mr Michael Cameron (National Editorial Counsel for News Corp Australia) provided advice to Mr Murray. News Corp Australia respondents claimed client legal privilege over all legal advice received in respect of the publication.
Ms Chang’s article was published to the News.com.au website for the first time at 10:24am, when Mr Murray, according to counsel, pressed the ‘publish’ button in Methode, causing the article to be sent to CAPI, which in turn made it publicly available from each of the News Corp online mastheads. The 10:24am version was the second version of the News.com.au online article saved in CHP. The article was published and appeared on the News.com.au website in substantially as written by Ms Chang. Ms Saunders stated that the editor of news.com.au, Ms Kate de Brito, had the final say in whether the article would be published and in what form.
When it was published, the news editor assigned the article to the ‘VIC Courts and Law’ section of the News.com.au website, with a page route of ‘/national/victoria/courts-law/’, and it was automatically syndicated to each of the other News Corp online mastheads. As that section did not exist on the other online mastheads, Kurator identified the equivalent section — ‘National News’, with a page route of ‘/national/news/’— and updated CAPI with this information accordingly.
Between 10:24am and 12:21pm, several further iterations of the News.com.au online article were saved and published in Methode using the ‘publish’ function. The effect of these amendments included the addition of the last six paragraphs of the article (drafted by Ms Chang) that appear in the annexure to the No Case Ruling, which referred to the front pages of the Herald Sun and the Daily Telegraph newspapers published that day, and other statements regarding suppression orders. As was the case with the previously published version of the article, News Corp’s in-house legal team gave legal advice prior to the amendments being published.
A further revision was made at approximately 3:40pm, before the article was ‘legal killed’ at 6:01pm and removed from each of the News Corp online mastheads.
Content in breach of the suppression order
The article reported information ‘derived from the trials’, namely that:
(a) a ‘high profile Australian known across the world’ had been ‘convicted’ of a ‘serious crime’;
(b) the person had been ‘found guilty in the Victorian County Court’;
(c) the person was ‘due to face court again for a separate trial in March’; and
(d) there was a ‘conviction’ the publication of which might prejudice the separate case.
The article identified that the person was ‘due to face court again for a separate trial in March’ referring to the fact of multiple trials.
The effect or content of the suppression order was addressed, considered and discussed in the article, including when stating that:
(a) there was a story that ‘we can’t report’;
(b) ‘the details [of the story] cannot be published by any media in the country’;
(c) a ‘suppression order was put in place to prevent the publication of the details of the person’s name or the charges. This is because the person is due to face court again for a separate trial in March and publication of the conviction might prejudice the case’;
(d) the order was ‘an archaic curb on freedom of the press in the currently digitally connected world’;
(e) there was a ‘media ban’ that ‘News Corp Australia … [was] challenging’; and
(f) ‘We believe that you have the right to know this story now and without any further delay’.
The article stated that ‘the person’s high-profile status has meant that international publications are already reporting on the case and details have been released on social media’.
The article referred to the Daily Telegraph article, The Age online editorial, and to a ‘Washington Post column on the story’ by Margaret Sullivan. Ms Sullivan’s column is referred to in these reasons as ‘The Washington Post article 1’[14] and is one of the overseas publications relied on by the applicant.
[14]Erroneously referred to in the No Case Ruling as ‘The Washington Post article 2’ (see n 9).
Extent of publication
The News Corp respondents discovered analytical reports identifying the precise number of page views that each article received in the relevant period.
Based on a review of those documents;
(a) the Herald Sun online article received a total of 29 page views between 10:24am and 6:01pm on 13 December 2018, of which 23 were from Victoria;
(b) the News.com.au online article received a total of 210,507 page views between 10:24am and 6:01pm on 13 December 2018, of which 56,487 were from Victoria, and 76 were from an unspecified location;
(c) the Geelong Advertiser online article received a total of 15 page views between 10:24am and 6:01pm on 13 December 2018, of which 13 were from Victoria;
(d) the Daily Telegraph online article received a total of 63 page views between 10:24am and 6:01pm on 13 December 2018, of which 8 were from Victoria;
(e) the Weekly Times online article received a total of 86 page views between 10:24am and 6:01pm on 13 December 2018, of which 22 were from Victoria; and
(f) the Advertiser online article received a total of 32 page views between 10:24am and 6:01pm on 13 December 2018, of which 2 were from Victoria.
Daily Telegraph article
Circumstances of publication
On 12 December 2018 at 3:20pm, Mr Anthony Deceglie (Deputy Editor) emailed Mr Ben English (Editor) and others with the subject ‘Apparently Damon just called Zak to dump wrap’ stating ‘Cause they think they may be able to run it?’. What this communication meant was unclear, but the inference is plainly open that at this time discussions were occurring within the newspaper about running the Daily Telegraph article.
That afternoon, Mr Cameron and Ms Gina McWilliams of News Corp’s in house legal team advised Mr Deceglie regarding the article’s publication.
At 5:34pm, Mr English emailed Mr Deceglie a copy of what appears to be a draft of the Daily Telegraph article, although the content differs substantially from what was ultimately published on the front page of the newspaper the following day.
On 13 December 2018 at 9:29am (after the Daily Telegraph article had been published), Mr Lachlan Cartwright (a Senior Reporter at The Daily Beast) sent Mr English an email with the subject ‘Cracking splash today mate’ containing a link to The Washington Post article 1. I infer that the reference to ‘splash’ was to the Daily Telegraph article published on the front page of the masthead that day.
At 10:06am, Mr English replied:
Cheers Lachie. History will be on our side on this
At 12:44pm, Mr Cartwright responded:
No doubt. Happy to have played a part to shine a light on these ridiculous and draconian suppression orders. Story is breaking wide here now. Hope to catch you for a bevy soon mate.
Content in breach of the suppression order
The article reported information ‘derived from the trials’, namely that ‘a high-profile Australian with a worldwide reputation’ had been ‘convicted’ of an ‘awful crime’ and was ‘GUILTY’.
The article stated that ‘The Daily Telegraph and other Australian media are prohibited from telling you about it’ but that ‘the world is talking about it and reputable overseas news sites have published lengthy stories …’.
The existence of the suppression order was acknowledged by statements such as, ‘The Daily Telegraph and other Australian media are prohibited from telling you about it’, ‘The courts demand that you ignore the story totally until they see fit’, and the order was described as ‘an archaic curb on freedom of the press in the current digitally connected world’.
The article claimed an awareness that ‘YOU MAY HAVE READ THE NEWS ONLINE ALREADY’ and that ‘many of our readers have probably read the international stories written about this person that are published online outside the jurisdiction of the Australian courts’.
Extent of publication
The Daily Telegraph had 161,703 print sales Australia-wide on 13 December 2018, of which 196 were sales in Victoria.
Courier Mail article
Circumstances of publication
On 12 December 2018 at approximately 7:00pm (Queensland time), Ms McWilliams of News Corp’s in house legal team advised Ms Kara Vickery (a senior journalist) regarding publication of the Courier Mail article. At 8:45pm, Mr Sam Weir (Editor) sent Ms Vickery a draft of the Courier Mail article.
This article was also published in the hard copy edition on the morning of 13 December 2018.
Content in breach of the suppression order
The article reported information ‘derived from the trials’, namely that ‘a high-profile person was found guilty of a terrible crime, which was a secret scandal and court censorship. The world was reading about it ‘but we can’t tell you a word’.
Extent of publication
The Courier Mail had 98,199 print sales Australia-wide on 13 December 2018, of which 67 were sales in Victoria.
The Age articles
The three articles with which The Age Company is charged were published in the print edition of The Age and on its website: The Age article, The Age online article and The Age online editorial. The SMH article, for which Fairfax Media Publications is charged, was substantially identical to The Age article, as are its circumstances of publication. For that reason, it is convenient to refer to all four publications as ‘The Age articles’.
The Age article and The Age online article were published under the by-line of Mr Patrick O’Neil and Mr Michael Bachelard. Mr O’Neil was the masthead’s ‘PM news editor’. Since May 2016, he was also the ‘Justice Editor’, with responsibility for crime and court reporters. Mr Bachelard was The Age/SMH’s foreign editor and The Age’s investigations editor at the time of the publication.
Circumstances of publication
In the afternoon of 11 December 2018, soon after the jury’s verdict, Ms Marissa Calligeros (News Editor) received a phone call from Mr Adam Cooper (Court Reporter), who had been observing the trial. Mr Cooper informed Ms Calligerios that that Pell had been convicted. Ms Calligerios informed Mr Lavelle of Mr Cooper’s call and the verdict that he had conveyed to her. Subsequently, discussions occurred between several senior editorial staff, including Mr Lavelle, Mr Bachelard and Mr O’Neil, about the verdict and whether it was possible to publish a story. Mr O’Neil was tasked with drafting a short article for discussion purposes, to test whether it was possible to publish a story.
At 5:15pm, Mr O’Neil contacted Mr Peter Bartlett, a partner at MinterEllison and external solicitor for The Age Company by email, with the subject ‘Can I say any more than this? Or too much?’. The email contained the draft short article that Mr O’Neil had prepared.
At 5:50pm (after Mr Bartlett had responded to Mr O’Neil’s earlier email), Mr Lavelle exchanged emails with Mr James Chessell (Group Executive Editor, Fairfax Media), Ms Margaret Easterbrook (Managing Editor, Fairfax Media) and Ms Lisa Davies (Editor, SMH) to gauge their opinion on the short article.
At 5:53pm, Ms Davies replied:
Hmmm. Isn’t that just going to annoy people?
At 5:59pm, Mr Lavelle responded:
I’m not saying we should and it’s controversial obviously. Bach thinks we should run it, most others think not. It’s interesting that there’s nothing on Twitter yet. It would be surprising if it wasn’t run in international media overnight.
Mr Lavelle explained the reference to ‘controversial’ in this email as a reflection on what he perceived as an unprecedented case of a suppression order remaining in place when the news would likely leak out nonetheless.
Around this time, Mr Lavelle decided that no story about the verdict would be published that evening.
Meanwhile, Mr O’Neil had prepared a longer version of the draft article to explore whether it was possible to publish a story with more information. At 6:23pm, Mr O’Neil sent Mr Lavelle that version in an email with the subject ‘A bit rough but something like this’. This draft included much of the information derived from the cathedral trial that was ultimately published in The Age online article.
On the morning of 12 December 2018, staff at The Age discussed the number of overseas articles that had been published overnight and were accessible via Twitter. Mr Lavelle stated that during the day, other staff, including Mr O’Neil, informed him that readers were querying the absence of coverage of the verdict, and some had accused the paper of participating in a cover up or a Catholic conspiracy. I pause to note that no direct evidence of any of these queries or allegations was tendered at trial or on the plea hearing. I am satisfied that this was the expression of a perception of an obligation by the journalists to readers, rather than a groundswell of reader concern of any significance.
At 2:00pm, Mr Lavelle held a regularly scheduled afternoon news conference with the news director and senior editors, including Mr O’Neil, Mr Bachelard and Mr Chessell (by phone). The meeting agreed that Mr O’Neil and Mr Bachelard would work on Mr O’Neil’s draft, and the newspaper would explore publishing a story explaining why it was not able to report on the conviction. At 2:36pm, Mr Lavelle contacted Ms Larina Alick (Editorial Counsel)[15] by text message to inform her that The Age was leaning towards the possibility of running the story and confirmed she would be available to review a draft.
[15]Ms Alick was an in-house lawyer for Nine Entertainment and also provided legal advice to Fairfax Media Publications (in respect of the AFR articles) and Allure Media (in respect of the Business Insider online article).
At 3:03pm, Mr Lavelle forwarded Mr O’Neil’s draft article to Mr Bachelard, Mr Mark Fuller (Deputy Editor), Ms Selma Milovanovic (Weekday Print Editor) and Ms Duska Sulicich (Sunday Age Editor). At 3:22pm, Mr O’Neil sent Mr Bachelard a separate email with the subject ‘Words from last night’, containing an amended version of his draft provided to Mr Lavelle the previous day.
At 3:35pm, Mr Bachelard created a new entry for the article in the ‘INK’ content management system operated by The Age. At 3:44pm, Mr Bachelard saved the first draft of The Age online article into INK. The first draft largely resembled what Mr O’Neil had sent Mr Bachelard in the 3:22pm email. Between 3:44pm and 4:21pm, Mr Bachelard made six further revisions to the text of the draft article in INK.
At 4:15pm, Mr O’Neil sent an email to Mr Lavelle and Mr Bachelard with the subject ‘Screenshots’, attaching two screenshots. The first screenshot was of the results of a Google search for the search term ‘george pell guilty’. Those results included links to the Church Militant article 1 and the Radar Online article in the ‘top stories’ section of the page. The second screenshot was of the Twitter website showing that ‘george pell’ was a trending topic.
At 4:23pm, Mr Bachelard sent an email to Ms Alick with the subject ‘Story that cannot be named’ seeking legal advice. One minute later, Mr Bachelard changed the status of the draft of The Age online article in INK from ‘Legal Status: None’ to ‘Legal Status: Pending’, meaning that it had been sent to lawyers for review.
At 4:25pm, Mr Bachelard emailed Messrs O’Neil and Lavelle, with the subject ‘Story [sic] that can’t be named’, a link to the 4:24pm version of the draft article in INK and the following:
Hi guys,
Can you have a look?
The last couple of pars we get very editorialising.
I've left them there from the original, because I'm not sure what you two agreed, but they seem out of character with the more newsy elements of the story.
We also need to embed the Google trends graphic.
At 4:38pm, Ms Milovanovic, who had earlier received a copy of the draft article, sent Mr Lavelle an email with the subject ‘Legal matter’:
Hi
Regarding the suppressed case, I am totally against publishing this story today, as I have said earlier. The final decision, of course, is not mine, but I need to say this for the record.
I am totally for a free press. However, I believe everyone should have the same legal protection when facing court. The person in question is the same in the eyes of the law as the wife basher today, whose prior convictions we are only reporting now - after the outcome of his current case.
In the past decades, we have never argued otherwise. One of our worst mass killers, Peter Dupas, was in the same situation. We sat on convictions for years.
Whether this is right or not is a matter for argument - but it is the law.
To challenge the suppression in court en masse is one thing, but to publish something ahead of this is quite another.
Of course, I will respect any decision you make on this issue and act accordingly.
Regards
S[16]
[16]Emphasis in original.
At 4:46pm, Mr O’Neil amended the draft of The Age online article in INK, and at 4:47pm he responded to Mr Bachelard’s email of 4:25pm:
Thanks Bach. Have cut those last pars as you suggested (the original incarnation was more of an editorial tone).
At 5:06pm, Mr Lavelle responded to Ms Milovanovic’s email:
I am very sympathetic to that view Selma. It's a hard one and I think there are valid arguments on both sides. I think one of the things that is different now is that the stories are everywhere and easily accessible, which was not the case with Dupas presumably. There are those who would say that this is more evidence that the MSM is irrelevant and we don't need them. And there are people asking why we aren't reporting on this story.
We are not breaching the suppression order, just explaining why we can't report on the story.
Anyway, I'll weigh this up with lawyers and make a call. If it is likely to hurt the chances of overturning the suppression order when we challenge it, then that will be taken into account too.
At 5:09pm, Mr Michael Short (Chief Editorial Writer) sent Messrs Bartlett, Lavelle and Bachelard an email with the subject ‘here’s the Pell leader. Would be great to run it tonight/tomorrow’. Mr Short was providing a draft of The Age online editorial to Mr Bartlett for legal review. Mr Bartlett responded to Mr Short’s email at 5:21pm.
At 5:09pm, Ms Alick provided Mr Bachelard with legal advice regarding the draft of The Age online article he provided to her earlier that afternoon, and the pair exchanged further emails regarding that advice between 5:12pm and 5:22pm.
Between 5:21pm and 5:30pm, Mr Bachelard made three further edits to the draft of The Age online article in INK following receiving legal advice received from Ms Alick. Mr Bachelard also changed the ‘Legal Status’ field from ‘Pending’ to ‘Approved’, confirming that the article had been cleared for publication by Ms Alick.
At approximately 5:30pm, Mr Lavelle contacted Mr Bartlett by a text message requesting a phone conversation to discuss the anticipated publication of The Age online article. Mr Lavelle stated that although the article had already been reviewed by an internal lawyer, in light of the unprecedented nature of the story contemplated for publication, he also wanted Mr Bartlett’s advice. Mr Bartlett phoned Mr Lavelle shortly afterwards and the pair spoke for several minutes.
At 5:31pm, Mr Bachelard sent a further email to Ms Alick regarding legal advice.
At 5:34pm, Mr Bachelard sent a further email to Mr Bartlett seeking legal advice in respect of The Age online editorial. Mr Bartlett provided that advice by return email at 6:16pm.
At 5:44pm, Mr Bachelard made his last edit to the draft of The Age online article in INK.
At approximately 6:15pm, Mr Lavelle, Mr Chessell and Ms Davies had a telephone conference for several minutes to discuss The Age online article. Mr Lavelle stated that they discussed the legal advice he had received from Ms Alick and Mr Bartlett and his conclusion that the story was in a fit state to publish. Both Ms Davies and Mr Chessell agreed that the story should be published by The Age and the SMH.
At 7:11pm, The Age online article was published online, with Messrs O’Neil and Bachelard both appearing in the by-line.
At 7:21pm, Mr Lavelle emailed Mr Short about The Age online editorial:
we will take a breath on the leader Michael and plan to run tomorrow. Thanks
Mr Short responded at 9:07pm:
Ok, thanks Alex. Are you holding the other stuff, too? If not, I’m not sure why we wouldn’t package it for maximum impact on this crucial issue. That is a comment, not a criticism.
Mr Lavelle stated that his decision to hold the The Age online editorial from publication was because he wanted further time to consider its publication. His focus had been on considering publication of The Age online article, and he did not want to complicate the matter by running another story that day. He rejected the suggestion that the ‘maximum impact’ of publishing both articles together, as described by Mr Short, was not a consideration; he wanted to play the situation as safe as possible.
At 9:55pm, Mr Lavelle uploaded a draft of The Age online editorial to INK. He set the ‘Legal Status’ attribute to ‘Approved’. The draft had been referred to, and discussed with, Mr Bartlett earlier that day.
On the morning of 13 December 2018, The Age article and the SMH article appeared in the print editions of those respective masthead. These articles were identical to The Age online article. The Age article was published with both Mr O’Neil and Mr Bachelard’s names in the by-line. The SMH article was not published with a by-line.
At 9:54am on 13 December 2018, The Age online editorial was published online. That article was removed at 6:20pm that day.
The Age online article was removed on 18 December 2018 at 1:01pm.
Content in breach of the suppression order
The Age online article, The Age article and the SMH article
The Age online article, The Age article and the SMH article each reported information ‘derived from the trials’, namely that:
(a) a ‘very high-profile figure was convicted on Tuesday of a serious crime’;
(b) the person ‘was convicted on the second attempt, after the jury in an earlier trial [had been] unable to reach a verdict’;
(c) the person would ‘return to court in February for sentencing’ and ‘would be remanded’ when that occurred;
(d) a suppression order relating to ‘the case’ had been issued by the ‘Victorian County Court’ (and therefore the case had been in that court); and
(e) there was ‘a further trial being held in March’ which might be prejudiced by ‘knowledge of the person’s identity in the first trial’ and thereby referred to the fact of multiple trials.
The articles expressly referred to the existence and terms of the suppression order. They noted that the person’s case had ‘attracted significant media attention’ and that ‘in this case, the word has got out widely online and through social media’. They stated that that ‘Google searches for the person’s name surged [on Wednesday 12 December 2018] … Two of the top three search results on the suppressed name showed websites that were reporting the charges, the verdict and the identity of the person in full’, and ‘Yesterday afternoon, the person’s name was the subject of thousands of tweets. The tweets both named the individual and the charges and posted links to online sites where the information was available’.
The stories asserted that readers were questioning why ‘[The Age] [was] not reporting this major issue in the public interest’, which they answered by stating that failing to adhere to the suppression order could lead to charges of contempt. The articles concluded with discussion of a review of the Open Courts Act by ‘retired judge Frank Vincent’.
The Age online editorial
The Age online editorial appeared with the headline ‘Rampant use of suppression orders has become absurd’. The article reported information ‘derived from the trials’, namely that:
(a) an ‘internationally prominent person’ had been ‘found guilty of appalling crimes’;
(b) the person would be ‘remanded in custody in February after a sentencing hearing’; and
(c) the person was to ‘face a related trial next year’.
The article identified that the person would ‘face a related trial next year’ and a ‘second hearing’ referring to the fact of multiple trials.
The article expressly referred to the existence and terms of the suppression order, stating ‘the Victorian County Court has blocked the publication of details, including the perpetrator’s name and the charges, in the belief it could prejudice the jury in the second hearing’. It argued that ‘’Justices blind to reality’ were ‘undermining freedom of speech and the public’s right to know how well the system their taxes [funded] might be working’. It opined about the futility of suppression orders in the context that ‘in the digital era news reports and other information instantly span the world, amplified by social media’, which was demonstrated by ‘the international coverage of a case we cannot tell you about in any detail’.
The article stated that online searches of the person’s name ‘rocketed only hours after the guilty verdicts’ and ‘[w]ith but a few key strokes, people were immediately directed to foreign websites reporting the full details’.
I accept that Mamamia did not directly intend to frustrate the efficacy of the suppression order, but that is because it was careless about what was suppressed. The best explanation that was offered by Mamamia was that the view of Ms Stephens and Ms Wainwright at the time of publication was that the article carried a negligible legal risk because of its write around nature. Mr Lavigne correctly conceded that this was an ‘absolutely incorrect’ error of judgment.
Mamamia misunderstood the nature of the suppression order, believing that it was only the name of the offender and the charges that had been suppressed. Given the nature of the media’s response that was the subject of the Mamamia online article, Ms Chambers, Ms Stephens and Ms Wainwright were careless in assessing the scope of the suppression order, not by reference to its terms, but by reference to the content of other media publications. Mr Lavigne accepted that it was inappropriate for his staff to assume that legal advice was unnecessary because the story had already been published by major media outlets. Although that conclusion was irresponsible, I do not infer from that error a deliberate decision on the part of Mamamia to defy the suppression order.
Both the decision to publish the Mamamia online article on 13 December 2018 and then to not remove it until 7 February 2019, after it received a letter from the applicant foreshadowing contempt charges, were wrong. Although Mamamia was unable to precisely identify the geographic location of the approximately 25,000 unique readers of the Mamamia online article, I am satisfied beyond reasonable doubt that a material number of the views originated from Victoria, having regard to the broad audience of the publication and the size of Victoria’s population comparative to other states and territories. The publication had the effect of spreading information derived from the trial to a wider or different audience of readers than the other impugned reports who were potentially members of the jury pool for the swimmers trial.
Although the article makes reference to the importance of upholding the administration of justice (rather than flagrantly undermining it as other reports did), the irony — although humourless — in the publisher’s position is unmistakable, for two reasons.
First, Mamamia did not explain why the email sent to Ms Chambers by the County Court on the afternoon of 13 December 2018 — drawing the existence of the suppression order to her attention and providing her with a copy of the order and the transcript of the special mention before the Chief Judge — was not acted on. Mr Lavigne denied any knowledge of that email within Mamamia until a copy was provided to the respondent as part of the applicant’s evidence on the plea. It is of considerable concern that an email from a court to a journalist regarding a suppression order was not received and/or escalated to senior editorial staff, and squarely brings into focus the inadequacy of Mamamia’s editorial systems.
Secondly, it seems that despite their daily review of the media to identify suitable ‘write around’ publications, Mamamia was unaware of the AFR online article 2 published the following day, that commented specifically on the Chief Judge’s reaction to the media reporting of the verdict.
That said, I accept that Mr Lavigne understood the gravity of Mamamia’s offending and expressed sincere remorse and contrition for the mistakes that were made.
Lessons may have been learned from this process that will assist in its rehabilitation. At the time of publication, all editorial staff received legal training from external solicitors. Mamamia has since taken a number of steps to remedy and improve its editorial processes. Mamamia has engaged specialist media lawyers on a more extensive retainer to provide pre-publication advice on a rolling basis as required. Pre-publication advice is now mandatory for any story deemed legally sensitive, even when it has been the subject of reporting by other news media outlets.
Mamamia relied on a number of other matters in mitigation that have already been discussed in respect of the respondents generally, such as the apology, contribution to the applicant’s costs, the lack of actual prejudice to the swimmers trial, and the impact through the burden of stress on its employees. I have considered these matters in the manner discussed above.
I take into account that its guilty plea and its apology ought to be assessed in the light of its evidence that it operates a well-respected media business that is the recipient of multiple awards, and has also engaged in philanthropy, particularly an aid of or advancing the interests of women and girls. This work is not diminished by any prior convictions.
I consider that of all of the respondents being sentenced, Mamamia is the least likely to re-offend in the future.
Allure Media
I accept that the intention of Allure Media in publishing the Business Insider online article was to publish a ‘write around’ story. That said, and consistently with its plea of guilty, the article clearly reveals information derived from the cathedral trial, which conduct is not excused because the source of Mr Thomsen’s information was other media publications, for reasons already explained.
As with other respondents, the nature of the developing media storm and the clear references to the existence of a suppression order in terms, exciting a strong editorial comment from several of the News Corp respondents and the Nine Entertainment respondents, was said to justify the article that republished information derived from the trial. However, Mr Thomsen could not clearly explain his reasoning that the article would not breach the suppression order, because Allure Media maintained claims of client legal privilege in respect of advice that he sought from Ms Alick. From the evidence before the court, I was not able to understand precisely why Mr Thomsen formed his opinion that the Business Insider online article would not breach the suppression order if published, and the extent to which Ms Alick’s advice may have contributed to that conclusion. As stated above, I cannot give any significant weight to that assertion, and I am unable to accept on the balance of probabilities that he innocently made an error of judgment.
The only inference that is open on the evidence is that Allure Media knew there was a risk of breaching the suppression order, but it took that risk in choosing to publish the impugned report. There was no explanation as to why any publication was deferred until after the hearing before the Chief Judge.
The article remained on the Business Insider website until 22 February 2019. Mr Thomsen’s explanation for the delay in removing the article, that the applicant’s correspondence had been sent to a previous business address of the Business Insider, is unpersuasive as a mitigating factor. The absence of any action by Allure Media because a letter was sent to a previous business address, apparently without a mail forwarding, does not inspire confidence in Allure Media’s editorial systems, particularly given the widespread coverage of the Chief Judge’s comments concerning the media reporting of the verdict. Nor does the fact that action was not taken by Allure Media until Mr Thomsen, then a redundant former employee, returned from an extended holiday interstate and drew the applicant’s correspondence to a superior’s attention.
Mr Thomsen’s explanation also sits uncomfortably with other evidence before the court. Given that Allure Media received legal advice from Nine Entertainment’s in-house counsel, it is curious that Fairfax Media Publications, who had received legal advice from the same internal lawyer, removed the AFR online article 1 and the AFR online article 2 on the same day, hours earlier.
For these reasons, I cannot accept Mr Thomsen’s evidence that Business Insider was a risk adverse publication, although I will take into account in favour of this respondent that it is a publisher directed at a business-focused audience, and notwithstanding that a clear rationale for publication of this story to its readership emerged, I am satisfied that it was careless in undertaking the risk.
Allure Media contended that in publishing the Business Insider online article, it complied with all known editorial procedures that required legal advice to be sought before publishing legally sensitive stories. The staff involved in publication were required to participate in legal training covering contempt by breach of suppression orders, which was delivered by in‑house lawyers. The observations made above in relation to the reliance on legal advice by other respondents are apposite in this case. Allure Media’s systems were either overridden by Mr Thomsen’s deliberate judgment, or were inadequate. The option that the editorial decision to publish was an honest reliance on incorrect legal advice was not open on the material placed before the court by Allure Media.
The content of the article is inconsistent with the innocent error of judgment that Allure Media advances as its intention. The article referred to the conviction as being the subject of widespread reporting globally, with the name of the guilty person being featured heavily on social media in the preceding 24 hours. The article noted that ‘Google searches for the person’s name surged on Wednesday.’ On the other hand, the article, as did others, contained a number of express warnings to readers about the risk of contempt liability for the publisher. There is a certain irony in these comments. I do not accept them as indicative of a sincere appreciation of the importance of suppression orders and the law of contempt.
These circumstances weigh in favour of the purposes of general and specific deterrence in sentencing Allure Media. However, there are mitigating factors deserving of some force.
There was no evidence of the extent of publication of the Business Insider online article in metropolitan Melbourne. In the absence of such evidence, I have not been persuaded by the applicant to the requisite standard that the Business Insider online article materially contributed, beyond the admission comprised by its plea of guilty, to frustrating the efficacy of the suppression order. I accept that the limited extent of publication to the relevant audience is a significant mitigating factor.
No prior convictions for contempt were alleged against Allure Media.
Allure Media also adopted the submissions of others on the question of prejudice to the swimmers trial, or the impact on the corporate business of stress on individual respondents before those charges were withdrawn or dismissed, its apology to the court, its guilty plea and its contribution to the applicant’s costs. It is unnecessary to repeat what has been earlier set out and I either take, or do not take, these considerations into account as mitigating factors in a like manner.
Radio 2GB Sydney
A particularly egregious feature of the broadcast of the 2GB Breakfast segment was that it not only alerted listeners to the availability of further information online concerning the identity of Pell and the charges he faced, but it actively encouraged them to undertake searches to locate those details. The presenter, Mr Smith, went ‘off script’ with the words:
But I can also encourage you to get onto Google and start asking these questions: high profile Australian, worldwide reputation, conviction of an awful crime. And you’ll find out who it is.
Radio Sydney 2GB is not excused by the fact that Mr Smith saw it upon himself to go off script. Rather, it highlights two matters. First, any systems in place for ensuring that the respondent’s presenters stuck to scripts in sensitive matters comprehensively failed. Second, the fact that Mr Smith was able to ad-lib possible online search terms from the content of the impugned reports demonstrates how easy it was for any reader or listener, being presented generally with anonymised information derived from the cathedral trial — as is featured in all of the reports — to do the same.
It is irrelevant that the information that was published was derived ‘indirectly’ from the trial, as has been already discussed. As is clear from its plea of guilty, Radio Sydney 2GB published information derived from the trial.
In assessing why it did so, a number of factors are relevant. Firstly, the evidence disclosed clear systemic failure. The 2GB Breakfast segment itself was not legalled prior to publication. There was evidence from Mr Byrnes of the existence of general legal advice concerning reporting on the conviction broadly, which for reasons already discussed does not assist me. In any event, that advice was not seen or considered before broadcast by Mr Smith or the program’s Executive Producer, Mr Christenson, evidencing a lack of systems for properly bringing such matters to the attention of those involved in the production and broadcast of sensitive matters. Further, neither Mr Smith nor Mr Christenson considered it necessary to seek legal advice prior to broadcasting the 2GB Breakfast segment in light of the extensive local reporting on the jury’s verdict, a matter that does not permit any favourable inference about training for such persons.
However, the highly sensitive nature of the story was evident to the respondent from the broadcast itself, which included statements such as ‘I’m saying this very carefully because I’ve got to be’. Mr Byrnes believed that neither Mr Smith nor Mr Christenson considered that the suppression order would be breached by a broadcast on radio in Sydney, but it is not apparent how that view could have been formed, as neither of them saw the suppression order itself or any advice in respect of it. As was the case for a number of respondents who relied on evidence from executives instead of decision makers, Mr Byrnes’ belief of the beliefs of others is unhelpful.
It is plain from the words of the 2GB Breakfast segment that Mr Smith was aware of the suppression order. Self-evidently, the broadcast included information derived from the trial. Mr Smith stated that despite the suppression order, Google searches would readily identify the very high profile figure being discussed.
I am satisfied beyond reasonable doubt that this was a contumacious breach of the suppression order. It may not have been Radio Sydney 2GB’s corporate intention to frustrate the efficacy of the suppression order, as Mr Byrnes stated, but it is responsible for the conduct of Mr Smith, particularly when he and Mr Christenson were alive to the sensitivities involved. The respondent had sufficient information to be aware of the risk, yet had substantially inadequate procedures in place to prevent that risk from materialising.
Mr Byrnes’ statement of what Radio Sydney 2GB did not intend by the broadcast cannot be accepted. The respondent’s suggestion that these defects were a result of human error, rather than any shortcomings in the systems themselves, is a non-sequitur. The purpose of systems of this kind is to protect against human error. Radio Sydney 2GB must accept responsibility for the conduct of its authorised decision makers (as to broadcast content) operating within such systems as it then had. The respondent was careless in permitting a contumacious breach by its employees. General and specific deterrence remain legitimate sentencing considerations.
Notwithstanding these aggravating factors, a relevant and significant circumstance affecting the assessment of culpability is that the 2GB Breakfast segment was of short duration, on Sydney radio, and broadcast at 5:41am on 13 December 2018 as part of the Alan Jones Breakfast Show. These surrounding circumstances significantly ameliorate the presenter’s on-air conduct. A brief segment very early in the morning on Sydney radio would have an extremely limited audience in Victoria and its tendency to frustrate the purpose or efficacy of the suppression order, in the manner alleged by the applicant, would not be significant.
Although the existence of editorial systems alone is not a mitigating factor on this occasion, as they were ineffective, Mr Byrnes gave evidence of a number of improvements that have subsequently been made to those systems, with the objective of minimising the risk of future contempt. The Nine Radio network now has state-based content managers installed across its business, who are specifically tasked with overseeing day-to-day programming to add an additional level of editorial oversight. All programming staff are now included in the internal ‘Suppression Orders’ email distribution list and in that way receive copies of all suppression orders held by Nine Radio. Further, Mr Byrnes has communicated his expectation to all programming staff that all stories of a sensitive legal nature must be subject to legal advice, and presenters of all such stories are not to deviate from a script that has been legalled by adding editorial comment. The steps taken by Mr Byrnes to improve the systems operating at Nine Radio are both necessary and commendable.
No prior convictions for contempt were alleged against Radio Sydney 2GB, who claimed a record of philanthropic work in the community, both in its own right and as part of the Nine Entertainment group.
As with other respondents, reliance was placed on the apology and guilty plea, its contribution to the applicant’s costs, the want of prejudice to the swimmers trial, the stress for the organisation through charges laid against the individual employee, Mr Smith. I have taken these matters into account in the same manner as earlier discussed in respect of other respondents.
GTC
GTC pleaded guilty to three charges in respect of the Today Show segments, which were in all material respects identical, being based on a single script. Principles of totality and the avoidance of double punishment are relevant and I will take them into account.
Mr Wick, who has responsibility amongst other things for the Today Show, stated that the co-hosts or news presenters have no editorial control over what they present, and often receive scripts with limited advanced knowledge of their contents. They rely on a robust production process and the judgment of the show’s producers. As with all other respondents, GTC mistakenly believed that sanitising the story by not naming Pell or identifying the charges of which he had been found guilty would avoid breaching the suppression order. By its plea of guilty, the respondent acknowledges its error.
GTC submitted that the segments were entirely derivative of matters drawn from the public domain. In other words, the segments were in the nature of a ‘write around’ discussed earlier, my assessment of the culpability of that style of publication in a written form is equally applicable here to a broadcast. Like other respondents, GTC invited the court to infer from these matters, and from the fact that legal advice was obtained, that it was not its intention to frustrate the efficacy or purpose of the suppression order by disclosing information derived from the trial.
Clearly, GTC was mistaken in that assessment, as its plea of guilty now recognises. However, I am not persuaded that it has established that it lacked an intention to breach the suppression order for several reasons.
First, Mr Wick’s evidence was based on information and belief. He had no contemporaneous direct knowledge of events and those who did, did not present themselves for cross‑examination as to their intention. This created, as I have noted, a disconnection between the corporate intention, as expressed by a senior executive, and the corporate intention flowing from and evidenced by the conduct of its employees for which it is responsible.
Secondly, for reasons already explained, GTC is unable to rely on legal advice that has not been put into evidence, and has not shown a factually supported path of reasoning to a belief as to its intention.
Thirdly, GTC clearly wanted to join in the media frenzy following the jury’s verdict. The reporter, Ms Ahern, first made the specific point that:
Because of a legal ban imposed by the Victorian County Court, I’m unable to reveal the identity of this person, details of this case, or their crime.
Next, she stated:
[W]e here at Nine believe that it is very important that we were able to tell this story and that we and other members of the Australian media are working very hard to be able to do so.
The major newspapers around the country are obviously also very restricted in what they can report on, and they have taken to their pages to vent their anger and frustration today.
As with all other respondents, the language used by the news presenters, Ms Vella and Ms Knight, and the reporter, Ms Ahern, was liable to engender in the reasonable listener an interest in the identity of the high profile Australian and the awful crime for which he had been convicted.
The script included loaded phrases like ‘legal ban imposed by the Victorian County Court’, ‘we … are working very hard to be able to [tell this story]’ and ‘The major newspapers around the country … have taken to their pages to vent their anger and frustration’. Such language carried the tendency to diminish the court’s authority and standing by undermining public confidence in the administration of justice, by suggesting a contest between the media and the courts over the proper balance between the proper administration of justice and freedom of speech when reporting on the cathedral trial. In doing so, the Today Show segments were irresponsible journalism. In broadcasting them, GTC’s culpability was high.
Unlike Radio 2GB Sydney, whose broadcast was largely confined to metropolitan Sydney, the Today Show is a national broadcast. The audience of the 5:32am, 6:00am and 7:02am Today Show segments is estimated to be 22,704, 22,553 and 49,417 respectively. Although details of estimated audiences at a state level were not provided, I am satisfied beyond reasonable doubt that a material portion of the audience would have been viewers from metropolitan Melbourne. The size and locality of the audience is not the mitigating factor identified for other respondents.
The GTC respondent admitted to a prior conviction for breach of a suppression order in 2009.
GTC similarly relied on its apology, its pleas of guilty, its agreement to contribute to the costs of the applicant, the want of prejudice to the swimmers trial, and the impact the charges laid against individual employees had on the organisation as a whole. As with the other respondents, I have taken these matters into account in the same manner discussed above.
Penalty
HWT
The first respondent is convicted of breach of proceeding suppression order contempt in respect of the Herald Sun online article (charge one) and the Weekly Times online article (charge 25) and is fined $1,000 on each charge, a total of $2,000.
News Life Media
The fourth respondent is convicted of breach of proceeding suppression order contempt in respect of the News.com.au online article (charge five) and fined $400,000.
Queensland Newspapers
The fifth respondent is convicted of breach of proceeding suppression order contempt in respect of the Courier Mail article (charge nine) and is fined $1,000.
The Geelong Advertiser
The seventh respondent is convicted of breach of proceeding suppression order contempt in respect of the Geelong Advertiser online article (charge 13) and is fined $1,000.
Nationwide News
The ninth respondent is convicted of breach of proceeding suppression order contempt in respect of each of the Daily Telegraph article (charge 17) and the Daily Telegraph online article (charge 21).
On charge 17, the ninth respondent is fined $20,000, and on charge 21 is fined $1,000, a total of $21,000.
Advertiser Newspapers
The twelfth respondent is convicted of breach of proceeding suppression order contempt in respect of the Advertiser online article (charge 29) and is fined $1,000.
The Age Company
The fifteenth respondent is convicted of breach of proceeding suppression order contempt in respect of The Age article, (charge 33) and in respect of The Age online article, (charge 41) and is fined $125,000 on each charge.
The fifteenth respondent is convicted of breach of proceeding suppression order contempt in respect of The Age online editorial, (charge 47) and is fined $200,000.
The total of the fines imposed on this respondent is $450,000.
Fairfax Media Publications
The twentieth respondent is convicted of breach of proceeding suppression order contempt in respect of the SMH article, (charge 49) and is fined $2,000.
The twentieth respondent is convicted of breach of suppression order contempt in respect of each of the AFR online article 1 (charge 53), the AFR online article 2 (charge 59), and the AFR article (charge 65).
In respect of charge 53, the twentieth respondent is fined $75,000.
In respect of charge 59, the twentieth respondent is fined $75,000.
In respect of charge 65, the twentieth respondent is fined $10,000.
The total of the fines imposed on this respondent is $162,000.
Mamamia
The twenty-sixth respondent is convicted of breach of proceeding suppression order contempt in respect of the Mamamia online article (charge 71), and is fined $20,000.
Allure Media
The twenty-eighth respondent is convicted of breach of proceeding suppression order contempt in respect of the Business Insider online article (charge 75), and is fined $10,000.
Radio 2GB Sydney
The thirtieth respondent is convicted of breach of proceeding suppression order contempt in respect of the 2GB Breakfast segment (charge 79), and is fined $10,000.
GTC
The thirty-third respondent is convicted of breach of proceeding suppression order contempt in respect of the 5:32am Today Show segment (charge 83), and is fined $10,000.
The thirty‑third respondent is convicted of breach of proceeding suppression order contempt in respect of the 6:00am Today Show segment (charge 85), and is fined $10,000.
The thirty‑third respondent is convicted of breach of proceeding suppression order contempt in respect of the 7:02am Today Show segment (charge 87), and is fined $10,000, a total of $30,000.
Costs
I will order that the respondents pay the applicant’s costs fixed in the sum of $650,000.
---
CERTIFICATE
I certify that this and the 139 preceding pages are a true copy of the reasons for judgment of the Honourable Justice John Dixon of the Supreme Court of Victoria delivered on 4 June 2021.
DATED this fourth day of June 2021.
SCHEDULE OF PARTIES
| THE QUEEN (ON THE APPLICATION OF THE DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| THE HERALD AND WEEKLY TIMES PTY LTD | First Respondent |
|
|
|
|
|
|
| NEWS LIFE MEDIA PTY LTD | Fourth Respondent |
| QUEENSLAND NEWSPAPERS PTY LTD | Fifth Respondent |
|
|
|
| THE GEELONG ADVERTISER PTY LTD | Seventh Respondent |
|
|
|
| NATIONWIDE NEWS PTY LTD | Ninth Respondent |
|
|
|
|
|
|
| ADVERTISER NEWSPAPERS PTY LTD | Twelfth Respondent |
|
|
|
|
|
|
| THE AGE COMPANY PTY LTD | Fifteenth Respondent |
|
|
|
|
|
|
|
|
|
|
|
|
| FAIRFAX MEDIA PUBLICATIONS PTY LTD | Twentieth Respondent |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| MAMAMIA.COM.AU PTY LTD | Twenty-sixth Respondent |
|
|
|
| ALLURE MEDIA PTY LTD | Twenty-eighth Respondent |
|
|
|
| RADIO 2GB SYDNEY PTY LTD | Thirtieth Respondent |
|
|
|
|
|
|
| GENERAL TELEVISION CORPORATION PTY LTD | Thirty-third Respondent |
|
|
|
|
|
|
|
|
|
3
5
0