The Queen v The Herald & Weekly Times Pty Ltd (Ruling No 2)
[2020] VSC 800
•4 December 2020
| 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 |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 12–13, 16–17 November 2020 |
DATE OF RULING: | 4 December 2020 |
CASE MAY BE CITED AS: | The Queen v The Herald & Weekly Times Pty Ltd & Ors (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 800 |
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CONTEMPT OF COURT – Submission of no case to answer – Alleged breach of proceeding suppression order contempt and sub judice contempt – Appropriate test – Civil procedure applicable – Protean (Holdings) Ltd (receivers and managers appointed) v American Home Assurance Co [1985] VR 187 applied.
CONTEMPT OF COURT– Alleged sub judice contempt – Proceeding suppression order – Impugned publications disseminated outside of Victoria – Whether publications had a real tendency, as a matter of practical reality, to interfere with administration of justice – Whether any exposure of possible jury pool members to publications demonstrated.
CONTEMPT OF COURT – Alleged breach of proceeding suppression order contempt and sub judice contempt – Whether impugned publications breached and frustrated proceeding suppression order – Whether impugned publications had a real tendency, as a matter of practical reality, to interfere with due administration of justice – Publications inferred that reader could ascertain supressed information by conducting internet searches – Whether applicant required to prove consequences of such conduct – Objective assessment of the effect of the content of the publication in context required – Assessment of practical tendency of publication.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | Ms L De Ferrari SC and Ms R Kaye of counsel | Ms Abbey Hogan, Solicitor for Public Prosecutions |
| For the first, and third to seventh, ninth, tenth, and twelfth respondents | Mr W T Houghton QC with Mr S Mukerjea and Mr M A McLay of counsel | Thomson Geer |
| For the fifteenth, sixteenth, eighteenth to twenty-third, twenty-sixth to thirty-first, and thirty-third to thirty-sixth respondents | Dr M Collins QC with Mr S Mukerjea and Mr M A McLay of counsel | Thomson Geer |
TABLE OF CONTENTS
Introduction....................................................................................................... 1
Circumstances leading to this proceeding................................................... 1
Two trials...................................................................................................... 2
Proceeding suppression order................................................................... 2
The verdict and its aftermath..................................................................... 3
Protean Holdings election............................................................................... 5
The respondents................................................................................................ 5
The impugned publications......................................................................... 12
News.com.au online article...................................................................... 12
Courier Mail article................................................................................... 14
Daily Telegraph article.............................................................................. 14
Age article................................................................................................... 15
Age online article....................................................................................... 16
Age online editorial................................................................................... 16
SMH article................................................................................................. 17
AFR online article 1................................................................................... 17
AFR online article 2................................................................................... 18
AFR article.................................................................................................. 19
Mamamia online article............................................................................ 19
Business Insider online article................................................................. 20
2GB Breakfast segment............................................................................. 20
5:32am Today Show segment.................................................................. 21
6:00am Today Show segment.................................................................. 22
7:02am Today Show segment.................................................................. 22
Applicable principles on the applications................................................ 22
Applicable principles governing the charges of contempt.................... 23
Breach of proceeding suppression order contempt.............................. 24
Sub judice contempt................................................................................... 25
Ground one...................................................................................................... 27
Ground two...................................................................................................... 27
Respondents’ submissions....................................................................... 27
Applicant’s submissions........................................................................... 29
Analysis....................................................................................................... 31
Tendency to interfere with the due administration of justice... 31
Extent of publication........................................................................ 34
Courier Mail article............................................................. 35
Daily Telegraph article....................................................... 35
SMH article.......................................................................... 35
2GB Breakfast segment...................................................... 36
Conclusions................................................................................................ 36
Queensland Newspapers and Weir............................................... 36
Nationwide News and English...................................................... 37
Fairfax Media Publications and Davies........................................ 38
Radio 2GB Sydney and Smith........................................................ 38
Ground three................................................................................................... 39
Respondents’ submissions....................................................................... 39
Applicant’s submissions........................................................................... 43
Analysis....................................................................................................... 46
Purpose of the order........................................................................ 49
Prejudice to justice........................................................................... 50
Features of the publications............................................................ 54
Characteristics of the person alluded to.......................... 55
Characteristics of the offences........................................... 56
The finding of guilt............................................................. 57
A second trial....................................................................... 57
Knowledge of suppression order..................................... 58
International publications reporting................................ 60
Accessing overseas articles............................................................. 62
Applicant’s search result evidence................................... 62
Sequence of publication..................................................... 63
ANNEXURE 1 - FINDINGS OF PUBLICATION TIME OF OVERSEAS ARTICLES.................................................................................................. 68
ANNEXURE 2 – COPIES OF THE IMPUGNED PUBLICATIONS...... 76
Herald Sun online article.......................................................................... 76
News.com.au online article...................................................................... 77
Courier Mail article................................................................................... 79
Geelong Advertiser online article........................................................... 80
Daily Telegraph article.............................................................................. 81
Daily Telegraph online article................................................................. 82
Weekly Times online article..................................................................... 83
Advertiser online article........................................................................... 84
Age article................................................................................................... 85
Age online article....................................................................................... 88
Age online editorial................................................................................... 91
SMH article................................................................................................. 93
AFR online article 1................................................................................... 95
AFR online article 2................................................................................... 97
AFR article................................................................................................ 100
Mamamia online article.......................................................................... 101
Business Insider online article............................................................... 102
2GB Breakfast segment........................................................................... 104
5:32am Today Show segment................................................................ 105
6:00am Today Show segment................................................................ 106
7:02am Today Show segment................................................................ 107
HIS HONOUR:
Introduction
The Director of Public Prosecutions, as applicant, brings contempt charges against various media organisations, editors, journalists and television/radio presenters arising out of reports published in the media in December 2018, in the immediate aftermath of a jury’s verdict that Cardinal George Pell (‘Pell’) was guilty of child sex offences. This trial commenced on 9 November 2020.
At the close of the applicant’s case, the respondents put submissions of no case to answer. The submissions were directed against the case put against all respondents but in differing groupings and based on different grounds, which I will explain. The submissions can conveniently be considered in three parts.
(a) ‘ground one’: a submission of no case to answer by some respondents, later described as the ‘journalist respondents’. This submission was directed at both the charges of breach of proceeding suppression order contempt and the charges of sub judice contempt;
(b) ‘ground two’: a submission of no case to answer made by the respondents that have been charged for their involvement with publications that are later described as the ‘Outside of Victoria publications’. This submission is in respect of the charges of sub judice contempt; and
(c) ‘ground three’: a submission of no case to answer put on behalf of all respondents to the proceeding in respect of all charges, both breach of the suppression order contempt and sub judice contempt.
Circumstances leading to this proceeding
The circumstances of the prosecution of criminal charges against Pell relating to allegations of child sexual offending are well known and I need not repeat them.[1] For present purposes, it is sufficient to note the following.
[1]Pell v The Queen [2019] VSCA 186; Pell v The Queen (2020) 94 ALJR 394.
Two trials
Pell was committed to stand trial on 1 May 2018. It was subsequently determined that the charges for which he was committed to stand trial were to be heard sequentially in two separate trials, with 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.
Once the order of the proceedings was settled, the first trial in time was of the charges of child sexual abuse alleged to have taken place at St Patricks Cathedral, which was referred to as the ‘cathedral trial’. The second trial in which Pell faced further charges, which concerned allegations of child sexual abuse that had occurred at a swimming pool in Ballarat, was referred to as the ‘swimmers trial’.
Proceeding suppression order
On 25 June 2018, Chief Judge Kidd made a proceeding suppression order under 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 proceeding suppression order was made to pursuant to s 17 of the Open Courts Act 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 proceeding 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). As required under s 11, the court gave notice to relevant news media organisations concerning the application and counsel appeared before the court for a number of them.
The media representatives did not oppose a proceeding 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 raised was whether the order ought to apply throughout the whole of Australia. Several media organisations contended that the order should be limited to the geographical reach of Victoria. The prosecution and defence submitted that it was appropriate that an Australia-wide order be made.
Chief Judge Kidd ruled that it was necessary for the proceeding suppression order to apply beyond Victoria to Australia as a whole and ordered accordingly, publishing his reasons (‘Suppression Order Ruling’).[2] There was no appeal.
[2]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 proceeding suppression order, providing them with a copy.
The verdict and its aftermath
On 7 November 2018, the cathedral trial commenced in the County Court 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. At that time, the swimmers trial was listed to commence in the County Court on 11 March 2019.
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 naming Pell and identifying information derived from the trial. Various local media companies instructed solicitors to apply to the court to have the proceeding suppression order varied or revoked. Those solicitors were notified late in the afternoon of 12 December 2018 that Chief Judge Kidd would hear any application on 14 December 2018 at 9:30am.
From the evening of 12 December 2018, Australian media outlets began publishing the reports that are the subject of this proceeding (‘impugned publications’).
On the morning of 13 December 2018, the nature of prominent media reporting, obvious to those involved as relating to the trial, caused Chief Judge Kidd to summon the prosecution and defence legal teams to a mention at 11:00am on 13 December 2018. Immediately prior to that mention, the solicitors for the local media companies confirmed that an application to vary or revoke the proceeding suppression order would be made the following morning.
The application proceeded before Chief Judge Kidd the next day. Relying on affidavits that identified the extent to which information concerning the conviction had been disseminated online, including via social media, the local media companies contended that the proceeding suppression order was now futile, as the ‘genie was out of the bottle’. Chief Judge Kidd dismissed the application later that day.[3] Again, there was no appeal.
[3]DPP (Vic) v Pell (Review of Suppression Order) [2018] VCC 2125.
On 26 February 2019, a notice of discontinuance of the prosecution of the charges in the swimmers trial was filed on behalf of the applicant. The proceeding suppression order was revoked later that day.
Protean Holdings election
A preliminary question arose as to whether I ought to require each respondent moving for dismissal of the charges to make an election to call no evidence. The applicable procedure in cases governed by civil procedure rules follows the long established practice explained by the Full Court in Protean (Holdings) Ltd (receivers and managers appointed) v American Home Assurance Co (‘Protean Holdings’).[4] I directed that I would hear argument on the applications before determining whether to put the respondents to an election prior to ruling on the applications. Ultimately, the question of whether to impose an election will depend on the just and convenient disposition of the litigation and that question will be most efficaciously considered before I ruled on the applications.
[4][1985] VR 187 (‘Protean Holdings’).
Having heard and considered the arguments and formed a preliminary view as to how I would rule on the ground one submission, I determined that any ruling would necessarily require the assessment of the inferences to be drawn on the evidence. Accordingly, the just and convenient disposition of this litigation required the journalist respondents who advanced that ground to make an election not to call any evidence before I ruled on their submission.
The journalist respondents elected to withdraw their submission on ground one.
I will now rule on grounds two or three without requiring the respondents to make any election.
The respondents
The applicant makes allegations of two species of contempt: contempt by breaching the suppression order and sub judice contempt.
When the applicant closed her case, 87 charges of contempt were brought against 27 respondents in respect of 21 publications. Of the 27 respondents:
(a) 12 are corporations whose activities include the business of the news media outlets that published the impugned publications (‘corporate respondents’), being six respondents within the News Corp group of companies, five respondents from the Nine Entertainment group of companies, and Mamamia.com.au Pty Ltd;
(b) 5 are natural persons who are editors of the news media outlets that published the impugned publications (‘editor respondents’);
(c) 6 are natural persons who are journalists alleged to have authored a number of the impugned publications (‘journalist respondents’) who were the moving respondents for ground one; and
(d) 4 are natural persons who are radio or television presenters that spoke the words that formed a number of the impugned publications (‘presenter respondents’).
The 21 impugned publications were:
| News media organisation/group | Publications |
| News Corp | · News.com.au online article:[5] o Herald Sun online article o Geelong Advertiser online article o Daily Telegraph online article o Weekly Times online article o Advertiser online article · Courier Mail article (OV) · Daily Telegraph article (OV) |
| Nine Entertainment | · Age article · Age online article · Sydney Morning Herald (‘SMH’) article (OV) · The Age online editorial; · The Australian Financial Review (‘AFR’) online article 1 · AFR online article 2 · AFR article · Business Insider online article · 2GB Breakfast segment (OV) · 5:32am Today Show segment · 6:00am Today Show segment · 7:02am Today Show segment |
| Mamamia.com.au Pty Ltd | · Mamamia online article |
[5]Each of the impugned publications appearing as sub-bullet points were syndicated versions of the News.com.au online article and were in identical form.
Further, of the 27 respondents, eight are said by them to be charged for their involvement with publications that were substantially circulated outside Victoria and were alleged to have been consumed by few Victorians (‘Outside Victoria publications’), and are the moving respondents for ground two. These publications are identified in the preceding table with ‘(OV)’.
The following table identifies the respondents (including by reference to the categories identified above) and the charges that have been brought against them in respect of the impugned publications:
| Respondent | Charges |
| First Respondent The Herald & Weekly Times Pty Ltd (‘HWT’) · Corporate respondent | Breach of proceeding suppression order contempt in respect of: · the Herald Sun online article · the Weekly Times online article |
| Third Respondent Charis Chang (‘Chang’) · Journalist respondent | Breach of proceeding suppression order contempt in respect of: · the Herald Sun online article · the News.com.au online article · the Daily Telegraph online article Sub judice contempt in respect of the News.com.au online article |
| Fourth Respondent News Life Media Pty Ltd (‘News Life Media’) · Corporate respondent | Breach of proceeding suppression order contempt in respect of the News.com.au online article Sub judice contempt in respect of the News.com.au online article |
| Fifth Respondent Queensland Newspapers Pty Ltd (‘Queensland Newspapers’) · Corporate respondent | Breach of proceeding suppression order contempt in respect of the Courier Mail article Sub judice contempt in respect of the Courier Mail article |
| Sixth Respondent Sam Weir (‘Weir’) · Editor respondent | Breach of proceeding suppression order contempt in respect of the Courier Mail article Sub judice contempt in respect of the Courier Mail article Outside Victoria publication |
| Seventh Respondent The Geelong Advertiser Pty Ltd (‘The Geelong Advertiser’) · Corporate respondent | Breach of proceeding suppression order contempt in respect of the Geelong Advertiser online article |
| Ninth Respondent Nationwide News Pty Ltd (‘Nationwide News’) · Corporate respondent | Breach of proceeding suppression order contempt in respect of: · the Daily Telegraph article · the Daily Telegraph online article Sub judice contempt in respect of the Daily Telegraph article Outside Victoria publication |
| Tenth Respondent Ben English (‘English’) · Editor respondent | Breach of proceeding suppression order contempt in respect of the Daily Telegraph article Sub judice contempt in respect of the Daily Telegraph article Outside Victoria publication |
| Twelfth Respondent Advertiser Newspapers Pty Ltd (‘Advertiser Newspapers’) · Corporate respondent | Breach of proceeding suppression order contempt in respect of the Advertiser online article |
| Fifteenth Respondent The Age Company Pty Ltd (‘The Age Company’) · Corporate respondent | Breach of proceeding suppression order contempt in respect of: · the Age article · the Age online article · the Age editorial Sub judice contempt in respect of: · the Age article · the Age online article · the Age editorial |
| Sixteenth Respondent Alex Lavelle (‘Lavelle’) · Editor respondent | Breach of proceeding suppression order contempt in respect of the Age article Sub judice contempt in respect of the Age article |
| Eighteenth Respondent Patrick O’Neil (‘O’Neil’) · Journalist respondent | Breach of proceeding suppression order contempt in respect of: · the Age article · the Age online article Sub judice contempt in respect of: · the Age article · the Age online article |
| Nineteenth Respondent Michael Bachelard (‘Bachelard’) · Journalist respondent | Breach of proceeding suppression order contempt in respect of: · the Age article · the Age online article Sub judice contempt in respect of: · the Age article · the Age online article |
| Twentieth Respondent Fairfax Media Publications Pty Ltd (‘Fairfax Media Publications’) · Corporate respondent | Breach of proceeding suppression order contempt in respect of: · the SMH article · the AFR online article 1 · the AFR online article 2 · the AFR article Sub judice contempt in respect of: · the SMH article · the AFR online article 1 · the AFR online article 2 · the AFR article Outside Victoria publication[6] |
| Twenty-first Respondent Lisa Davies (‘Davies’) · Editor respondent | Breach of proceeding suppression order contempt in respect of the SMH article Sub judice contempt in respect of the SMH article Outside Victoria publication |
| Twenty-second Respondent Michael Stutchbury (‘Stutchbury’) · Editor respondent | Breach of proceeding suppression order contempt in respect of: · the AFR online article 1 · the AFR online article 2 · the AFR article Sub judice contempt in respect of: · the AFR online article 1 · the AFR online article 2 · the AFR article |
| Twenty-third Respondent Patrick Durkin (‘Durkin’) · Journalist respondent | Breach of proceeding suppression order contempt in respect of: · the AFR online article 1 · the AFR online article 2 · the AFR article Sub judice contempt in respect of: · the AFR online article 1 · the AFR online article 2 · the AFR article |
| Twenty-sixth Respondent Mamamia.com.au Pty Ltd (‘Mamamia’) · Corporate respondent | Breach of proceeding suppression order contempt in respect of the Mamamia online article Sub judice contempt in respect of the Mamamia online article |
| Twenty-seventh Respondent Jessica Chambers (‘Chambers’) · Journalist respondent | Breach of proceeding suppression order contempt in respect of the Mamamia online article Sub judice contempt in respect of the Mamamia online article |
| Twenty-eighth Respondent Allure Media Pty Ltd (‘Allure Media’) · Corporate respondent | Breach of proceeding suppression order contempt in respect of the Business Insider online article Sub judice contempt in respect of the Business Insider online article |
| Twenty-ninth Respondent Simon Thomsen (‘Thomsen’) · Journalist respondent | Breach of proceeding suppression order contempt in respect of the Business Insider online article Sub judice contempt in respect of the Business Insider online article |
| Thirtieth Respondent Radio 2GB Sydney Pty Ltd (‘Radio 2GB Sydney’) · Corporate respondent | Breach of proceeding suppression order contempt in respect of the 2GB Breakfast segment Sub judice contempt in respect of the 2GB Breakfast segment Outside Victoria publication |
| Thirty-first Respondent Chris Smith (‘Smith’) · Presenter respondent | Breach of proceeding suppression order contempt n respect of the 2GB Breakfast segment Sub judice contempt in respect of the 2GB Breakfast segment Outside Victoria publication |
| Thirty-third Respondent General Television Corporation Pty Ltd (‘GTC’) · Corporate respondent | Breach of proceeding suppression order contempt in respect of: · the 5:32am Today Show segment · the 6:00am Today Show segment · the 7:02am Today Show segment Sub judice contempt in respect of: · the 5:32am Today Show segment · the 6:00am Today Show segment · the 7:02am Today Show segment |
| Thirty-fourth Respondent Lara Vella (‘Vella’) · Presenter respondent | Breach of proceeding suppression order in respect of: · the 5:32am Today Show segment · the 6:00am Today Show segment Sub judice contempt in respect of: · the 5:32am Today Show segment · the 6:00am Today Show segment |
| Thirty-fifth Respondent Christine Ahern (‘Ahern’) · Presenter respondent | Breach of proceeding suppression order in respect of: · the 5:32am Today Show segment · the 6:00am Today Show segment · the 7:02am Today Show segment Sub judice contempt in respect of: · the 5:32am Today Show segment · the 6:00am Today Show segment · the 7:02am Today Show segment |
| Thirty-sixth Respondent Deborah Knight (‘Knight’) · Presenter respondent | Breach of proceeding suppression order in respect of the 7:02am Today Show segment Sub judice contempt in respect of the 7:02am Today Show segment |
[6]In respect of the SMH article only.
Copies of the impugned publications are annexed to these reasons (Annexure 2). I will now summarise the significant aspects of the content of the articles. Analysis of other material circumstances surrounding the publication of the articles the subject of ground two is undertaken later in these reasons.
The impugned publications
News.com.au online article
The article, entitled ‘The story we can’t report’ under the byline of Chang, prominently displayed the headline of the Daily Telegraph published that day (the Daily Telegraph online article), ‘NATION’S BIGGEST STORY’, at the top of the page. 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’ and thereby referred to the fact of multiple trials.
The effect or content of the proceeding 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 later in these reasons as ‘The Washington Post article 2’ and is one of the overseas publications relied on by the applicant.
This article was syndicated across other online mastheads within News Corp, and was identically published as:
(a) the Herald Sun online article;
(b) the Geelong Advertiser online article;
(c) the Daily Telegraph online article;
(d) the Weekly Times online article; and
(e) the Advertiser online article,
(together with the News.com.au online article, the ‘News Corp online articles’).
Courier Mail article
The publication appeared on the front page of the print edition of the Courier Mail and consisted of the following:
COURT CENSORSHIP 2It’s Australia’s biggest story.
A high-profile person found guilty of a terrible crime.
The world is reading about it but we can’t tell you a word.SECRET
SCANDAL?
Daily Telegraph article
The article appeared on the front page of the Daily Telegraph newspaper, commencing with a prominent front page headline expanding to fill approximately three quarters of the page:
AN AWFUL CRIME. THE PERSON IS GUILTY. YOU MAY HAVE READ THE NEWS ONLINE ALREADY. YET WE CAN’T PUBLISH IT. BUT TRUST US…
IT’S THE
NATION’S
BIGGEST
STORY
The text of the story followed a sub-heading ‘EDITORIAL’.
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, ‘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’.
Age article
The article appeared on the front page under the heading ‘Why media can’t report on a high-profile case’, under which the byline named O’Neil and Bachelard as the authors of the story. It 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’.
The article identified that there was to be ‘a further trial being held in March’ and thereby referred to the fact of multiple trials.
The article expressly referred to the existence and terms of the suppression order.
The article 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’. It 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 story stated that readers were questioning why ‘[The Age] [was] not reporting this major issue in the public interest’, which it answered by stating that failing to adhere to the suppression order could lead to charges of contempt.
The article concluded with discussion of a review of the Open Courts Act by ‘retired judge Frank Vincent’.
Age online article
The content of this article is substantially identical to the Age article.
Age online editorial
The online editorial appeared with the heading ‘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’ and thereby referred 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 ‘blind justice’ was ‘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 of ‘in the digital era news reports and other information instantly span the world, amplified by social media’, which was ‘demonstrate[d]’ 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’.
SMH article
The content of this publication, which appeared on the front page of the SMH with the heading ‘Why we can’t report on a case of huge interest’, is substantially identical to the Age article.
AFR online article 1
This article was titled ‘How the case that can’t be named is being reported around the world’ under the byline of Durkin. It reported information ‘derived from the trials’, namely that:
(a) an Australian had been ‘convicted’ of a ‘serious crime’;
(b) that person had been ‘found guilty’ by a ‘Victorian jury’; and
(c) a suppression order about the case had been issued by the Victorian County Court.
The article expressly referred to the existence and terms of the suppression order. It noted that the overseas publication The Daily Beast first reported the conviction,[7] and that the case that can’t be named is being reported around the world. The article commented that ‘high profile global media companies are flouting a suppression order in relation to an Australian who has been convicted of a serious crime after a Victorian jury found the person guilty of charges this week.’
[7]An overseas publication relied on by the applicant in this proceeding and referred to in Annexure 1 below as the ‘Daily Beast article’.
The article observed that that ‘Global websites available in Australia including the Jeff Bezos owned The Washington Post and National Public Radio were publishing the news on Wednesday and Thursday including in push notifications to Australians with the Washington Post app.[8]’ It also referred to the stories in the Daily Telegraph and The Age.
[8]Three articles from The Washington Post are relied on by the applicant as overseas publications and are referred to in Annexure 1 below as the ‘Washington Post article 1’, ‘Washington Post article 2’ and ‘Washington Post article 3’.
AFR online article 2
Under the headline, ‘Judge slams ‘flagrant’ media over world’s worst kept secret’, with the byline of Durkin, this article reported information derived from the media’s application to discharge the suppression order made on 14 December 2018.
The article also repeated much of the material from the AFR online article 1, which reported information derived from the cathedral trial. The article expressly referred to the existence and terms of the suppression order.
The article concluded with a section ‘Most Viewed In news’ that consisted of hyperlinks to other articles. The first two hyperlinks, in order, were:
(a) ‘How the case that can't be named is being reported around the world’ (AFR online article 1); and
(b) ‘Cardinal George Pell removed from Pope's Vatican cabinet’.
AFR article
The content of this publication, ‘Judge slams ‘flagrant’ media’, also under the byline of Durkin, is substantially identical to the AFR online article 2, save that the online version uses a different headline and contains an additional six paragraphs at the end, none of which are relevant to the charges.
Mamamia online article
This article was headlined ‘Why today, Australian media can’t report on “the nation’s biggest story”’ and bore the byline of Chambers. It reported information ‘derived from the trials’, namely that:
(a) a ‘very well-known Australian’ had been ‘found guilty’ of a ‘serious crime on Tuesday’ and that the crime was ‘awful’;
(b) the person ‘has been remanded in custody’;
(c) the person would be ‘sentenced in February’;
(d) the person was ‘GUILTY’ and had been ‘found guilty’;
(e) the person’s name had been suppressed by the ‘Victorian County Court’ (and therefore the case was in that court); and
(f) there was to be ‘another trial involving the same person in March’.
The article expressly referred to existence of suppression order. It stated that ‘overseas websites may report on the story’ and noted that it was argued that Australians could easily read the full story on overseas sites given the nation’s widespread access to the internet.
The article concluded with a note that if any of its readers knew the person’s name, ‘we please ask that you do not share it in the comments below’.[9]
[9]Emphasis in original.
Business Insider online article
The article, with the byline of Thomsen, was headed ‘The Australian media wants to talk about a high-profile criminal conviction but can’t -- here’s why’. It reported information ‘derived from the trials’, namely that:
(a) there had been a ‘high-profile criminal conviction’;
(b) a ‘prominent Australian’ had been ‘convicted’ of a ‘serious crime’; and
(c) ‘a Victorian jury’ had found ‘the person guilty of the charges this week’.
The article expressly referred to the existence and some of the terms of the suppression order. It stated:
(a) ‘However, in the global internet era, what has occurred is being widely reported globally. The name of the person has featured heavily on social media in the last 24 hours’; and
(b) ‘The Sydney Morning Herald reports that Google searches for the person’s name surged on Wednesday, particularly in Victoria, and reveal widely (sic) coverage by international media, although some websites have been geo-blocked to prevent Australian residents reading it’.
2GB Breakfast segment
The segment on breakfast radio compered by Smith broadcast information ‘derived from the trials’, namely that:
(a) a ‘high profile Australian with a worldwide reputation’ had been ‘convicted’ of an ‘awful crime’;
(b) such person was ‘a very high profile figure who’s been convicted of a serious crime’;
(c) the identity of the person could not be revealed owing to ‘a suppression order issued by the Victorian County Court’;
(d) the person’s case ‘had received significant media attention’ and he ‘was convicted on the second attempt after the jury in an earlier trial was unable to reach a verdict’; and
(e) the person was ‘due to return to court in February for sentencing’.
Smith stated that:
[D]espite the suppression order, we’re told that Google searches for the person’s name surged yesterday particularly in Victoria, with two of the top three results on the suppressed name showed websites that were reporting the charges, the verdict and the identity of the person in full.
He continued:
I can’t tell you who it is. But I can also encourage you to get on Google and start asking these questions: high profile Australian, world-wide reputation, conviction of an awful crime. And you’ll find out who it is.
5:32am Today Show segment
The first part of the segment of the Today Show was a news item read by the news reader, Vella, who reported information ‘derived from the trials’, namely that a ‘high profile Australian with a worldwide reputation’ had been ‘convicted’ of an ‘awful crime’.
The program then moved to a ‘live cross’ with reporter, Ahern, who reported further information ‘derived from the trials’, specifically that:
(a) the identity of the person and details of the case could not be revealed because of ‘a legal ban imposed by the Victorian County Court’; and
(b) the person was ‘due back in court in February’.
After making reference to the contents of the Age article, which was shown on screen, Ahern commented further that:
(a) ‘we here at Nine believe this is a story that needs to be told’; and
(b) ‘Orders by the court here in Australia don’t apply overseas so international media can report on this high profile case without the same restrictions’.
6:00am Today Show segment
This segment was in identical terms to 5:32am Today Show segment, save that instead of referring to the Age article during the live cross, Ahern quoted from the front page of the Herald Sun,[10] saying ‘the world is reading a very important story that is relevant to Victorians’ and ‘But trust us, it is a story that you deserve to read’.
[10]A publication that is not the subject of any charge in the proceeding.
7:02am Today Show segment
The news item was again in identical terms to 5:32am Today Show segment, read this time by Knight, save that the phrase ‘awful crime’ was not used by Knight and was substituted with ‘crime’ instead. The live cross to Ahern was identical to 6.00am Today Show segment.
Applicable principles on the applications
The test that I must apply in evaluating the submissions, as described in Protean Holdings, is whether there is any evidence, taking the applicant’s evidence at its highest, that ought to reasonably satisfy the tribunal of fact that the facts sought to be proved by the applicant are established. I am entitled to draw all proper inferences from the evidence, save that I cannot draw an inference against the moving party based upon the absence of evidence from that party.[11]
[11]Protean Holdings, 215, 240 (n 4).
The Protean Holdings test was considered by the High Court in Naxakis v Western General Hospital (‘Naxakis’).[12] In this case, the High Court reversed the Court of Appeal’s finding in favour of the trial judge’s application of Protean Holdings, in a medical negligence proceeding before a jury, that there was no case to answer. Kirby J, with whom Gleeson CJ agreed, opined that a number of difficulties in the reasoning of the Court of Appeal stemmed from its application of Protean Holdings.[13] However, I need not concern myself with those difficulties, as they are founded in the principles relevant to depriving all parties of the jury’s verdict when directing a verdict or entering judgment in favour of one party.
[12](1999) 197 CLR 269.
[13]Ibid 298–9 [82]–[84].
The applicant submitted that the proper test is identified in two criminal cases, Doney v The Queen,[14] and Case Stated by DPP (No 2 of 1993).[15] As with Naxakis, those decisions involved (criminal) cases tried before a jury. In such cases, it is necessary for the judge to very carefully consider the proper role of the jury, as the tribunal of fact, when undertaking an evaluative exercise as to whether evidence is capable of supporting a verdict of guilty.
[14](1990) 171 CLR 207, 214–15.
[15](1993) 70 A Crim R 323, 327.
I do not think that the principles stated in Naxakis require me, in the present circumstances, to apply a different test to that stated in Protean Holdings and, as I have stated, I will apply that test.
Applicable principles governing the charges of contempt
In Re Colina; Ex parte Torney,[16] Hayne J described ‘the cardinal feature of the power to punish for contempt’ as being that it ‘is an exercise of judicial power by the courts, to protect the due administration of justice.’ It is the capacity of the impugned conduct to interfere with the due administration of justice that lies at the heart of any charge of contempt of court.[17]
[16](1999) 200 CLR 386, 429 [112] (emphasis in original).
[17]Attorney-General v Times Newspapers Ltd [1974] AC 273, 315; Witham v Holloway (1995) 183 CLR 525, 538–9; Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106.
The applicant’s case is not one of breach ‘simpliciter’ of the suppression order. As Deane J observed in Hinch v Attorney-General (Vic),[18] there are several distinct categories of contempt of court under the common law of Australia. The present case is concerned with contempt by publishing material that tends to imperil the due administration of justice by a tendency to prejudice the fair trial of particular legal proceedings. Within this category, the applicant charged the respondents with charges invoking two separate species of contempt.
[18](1987) 164 CLR 15, 46 (‘Hinch v A-G (Vic)’).
The applicant framed the contempt charges by reference to the closely analogous case of R v Hinch (‘Hinch’).[19] In that proceeding, Derryn Hinch faced two charges of contempt arising out of his conduct in publishing material online relating to pending criminal proceedings against one Adrian Ernest Bayley, who would subsequently be convicted of rape and murder. A suppression order that prohibited publication of certain matters about Bayley was breached by Hinch’s publication. Hinch was convicted of contempt by breach of the suppression order. Hinch was also charged and found not guilty of sub judice contempt. The statement of the applicable legal principles by Kaye J (as his Honour then was) in Hinch was not questioned by any of the parties before me.
[19][2013] VSC 520 (‘Hinch’).
Pausing here, I note that s 23 of the Open Courts Act provides:
Offence to contravene proceeding suppression order or interim order
(1)A person must not engage in conduct that constitutes a contravention of a proceeding suppression order or an interim order that is in force if that person—
(a)knows that the proceeding suppression order or interim order, as the case requires, is in force; or
(b)is reckless as to whether a proceeding suppression order or an interim order, as the case requires, is in force.
Penalty: in the case of an individual, level 6 imprisonment (5 years maximum) or 600 penalty units, or both;
in the case of a body corporate, 3000 penalty units.
The applicant did not charge any respondent with the statutory offence under s 23 for breach of the proceeding suppression order. Instead, the charges are brought as breach of suppression order contempt under the common law. The Open Courts Act had not been enacted at the time when the suppression order in Hinch was made.
Breach of proceeding suppression order contempt
In order to establish the guilt of the relevant respondent for contempt of court in respect of an impugned publication, on the basis that a person who is not a party to a proceeding published a report that breached a suppression order, the applicant must prove beyond reasonable doubt each of the following elements:[20]
[20]Ibid [52].
(a) the respondent published the article (or caused it to be published); [21]
(b) the publication of the article frustrated the effect of the suppression order because it contained material that was contrary to or that infringed the terms of the order; and
(c) when the article was published, the relevant 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 continued publication of the article would have the tendency to frustrate the efficacy of the order.
[21]The words in parenthesis were not used by Kaye J but are justified by reference to other authorities on the meaning of ‘publish’ that were cited to me in respect of ground one.
It will be necessary to say more about some aspects of the second element of breach of proceeding suppression order contempt in the context of the parties’ submissions.
Sub judice contempt
Stated shortly, in order to establish sub judice contempt of court, the applicant must prove beyond reasonable doubt that the impugned publication:
(a) was published (or caused to be published) by the relevant respondent; and
(b) as a matter of practical reality, had a real tendency to prejudice the due administration of justice.
Kaye J identified, as well-established, the principles that apply to determine whether the applicant has proved beyond reasonable doubt that a respondent was guilty of sub judice contempt:[22]
[22]Hinch, [94] (n 19) (citations omitted).
(a) the tendency to interfere with, or prejudice, the pending proceedings, is to be determined at the time of the publication;
(b) the proof of an intention by the respondent to prejudice the pending proceeding is not an essential element of the contempt;
(c) the tendency of the publication in question is to be established objectively, by reference to the nature of the publication and the circumstances in which it was made. It is not relevant to consider the actual effect of the publication upon the pending proceedings;
(d) in determining whether the publication, as a matter of practical reality, had a real tendency to prejudice the fair trial of a pending proceeding, the court should take into account all the relevant circumstances, including:
(i) the content of the publication;
(ii) the nature of the proceedings liable to be affected, and whether they are civil or criminal proceedings;
(iii) whether at the time of publication the proceedings are pending at the committal, trial or appellate stage; and
(iv) the persons to whom the publication was addressed and the likely durability of the influence of the publication on its audience;
(e) in considering those circumstances:
(i) the court must determine, as at the date of publication, the probable period of time that would pass between the publication and the trial of the pending proceeding; and
(ii) the court should take into account the effect of other prejudicial matter which had already been published, before the date of the criminal charges, concerning the accused person. In performing that assessment, it is not permissible to take into account any prejudicial material published after the date of the laying of the charge against the accused person. On the other hand, it is permissible to take into account other material published after the laying of the charge against the accused, which did not constitute contempt, in order to determine the practical tendency of the particular publication to prejudice the fair trial of the charges against the accused.
The proceeding suppression order prohibited publication of ‘any information derived from these trials’. The applicant contended that the impugned publications reported significant information derived from the cathedral trial including:
(a) the fact of a conviction of a serious crime;
(b) that a person had been found guilty in the Victorian County Court; and
(c) that such person was due to face court again for a separate trial in March.
Ground one
The journalist respondents submitted they had no case to answer to both the charges of breach of proceeding suppression order contempt and sub judice contempt. The submission was directed to the first element of each charge, namely whether the moving respondent published or caused a report to be published.
As earlier stated, those respondents withdrew this submission.
Ground two
Respondents’ submissions
It will be recalled that this ground was advanced by those respondents charged with sub judice contempt for their publication of an Outside Victoria publication. As I have noted above, to establish this form of contempt, the applicant must establish to the requisite standard whether, as a matter of practical reality, the relevant impugned publication had a real and definite tendency to interfere with the due administration of justice. The respondents’ submissions focussed on the notion of ‘practical reality’ and the requirement of ‘a real and definite tendency’.
The respondents submitted that the test could not be satisfied if the circulation of the relevant impugned publication was only to a very small segment of the relevant population, identifiable by reference to the way in which the due administration of justice is engaged in the circumstances. In this case, that population is adult persons within metropolitan Melbourne who might be selected into a jury pool for the swimmers trial.
The News Corp respondents that published Outside Victoria publications were Queensland Newspapers and Weir (Courier Mail article), and Nationwide News and English (Daily Telegraph article). The evidence disclosed print sales of the Courier Mail in Victoria on the relevant day to be 67, while the Daily Telegraph had print sales on that day of 196. Accordingly, those respondents submitted that the number of persons potentially exposed to the publication within the relevant category of the population was miniscule. Taken at its highest, such evidence could not demonstrate, as a matter of practical reality, the requisite tendency to interfere with the due administration of justice.
Four of the Nine Entertainment respondents put the same submission in respect of the publication of the SMH article (Fairfax Media Publications and Davies), and the 2GB Breakfast segment, a radio broadcast lasting about 45 seconds in the course of a live breakfast radio program on the Sydney radio station at approximately 5:41am on 13 December 2018 (Radio 2GB Sydney and Smith).
Those respondents submitted that, taken at its highest, the length of the relevant segment of the 2GB Breakfast segment, the time of broadcast, and that it was broadcast in Sydney, as a matter of practical reality, could not have had the necessary tendency. There was evidence that the 2GB Breakfast segment was available for download as a podcast of that morning’s radio programme and that 68 downloads of the podcast were from Victoria.
However, the relevant respondents submitted that the inferences that might be drawn from that fact were limited. First, at an unknown time on 13 December 2018, the impugned segment was excised from the podcast and it could not be said how many of the downloads had occurred prior to the excision. Secondly, podcasts are a transient form of communication and there was no evidence that every download was listened to by the person who downloaded it, either at all or in its entirety; and listeners are inherently unlikely to give the same degree of attention to a podcast as they might to the written word.[23] Thirdly, the broadcast did not name Pell or identify the charges of which he had been convicted. Although Smith, the presenter, encouraged online search where the answers to those questions would be revealed, there was no evidence that any person either conducted a search or found any of the overseas articles as a consequence of this (or any other impugned) publication.
[23]Citing Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, 165–6.
Those respondents submitted that, as a matter of practical reality, the applicant had not established that any potential juror in the swimmers trial was exposed or potentially exposed to the 2GB Breakfast segment (in either the live broadcast or podcast forms) and then went on to conduct searches. The only inference that was open was that the number of persons in the relevant sector of the population (possible members of a future jury pool) who may have been exposed to the relevant publication was miniscule, and accordingly it was fanciful, not a practical reality, that the publication could have the requisite tendency.
The relevant respondents contended that the applicant had no evidence of the number of copies of the print edition of the Sydney Morning Herald sold in Victoria on the relevant day, as they are not recorded by the publisher on a state-by-state basis. There was evidence of the extent of publication of other interstate mastheads in Victoria, but that evidence could only support the inference that interstate mastheads do not have substantial readerships outside their home state.
Accordingly, for the like reasons as were advanced in respect of other Outside Victoria publications, the relevant respondents submitted that the applicant could not discharge her burden of establishing that the SMH article had the requisite tendency, as a matter of practical reality, to interfere with the due administration of justice.
Applicant’s submissions
The applicant did not contest the proposition that she needed to establish the relevant tendency, as a matter of practical reality, to the requisite standard. She submitted that what was contestable was the view taken by the respondents of the totality of the relevant evidence. The respondents’ contentions, she submitted, failed to take into account inferences that may reasonably be drawn.
Using the Courier Mail article as an example, the applicant noted that although the print sales in Victoria were 67, there were print sales in New South Wales of 1,891. The applicant contended for assumptions about where the New South Wales sales may have occurred (e.g. Albury), and about the behaviour of Melbournians when interstate that, she submitted, supported an inference of a greater level of exposure. Extending the same argument, the print sales in South Australia were 784, while the print sales in Queensland were 95,323. The applicant contended that Melbournians commonly travel to Queensland as a holiday destination in a variety of different ways and may have purchased or read the Courier Mail while they were there.
Further, hard copies of interstate mastheads are available at the State Library of Victoria, while subscribers are able to access a ‘digital replica’ of the newspaper online that includes fourteen back issues. The 2019 News Corp annual report claimed a total monthly audience (print and digital) of 2.5 million. Moreover, subscribers to the Herald Sun and the Daily Telegraph have unlimited access to the Courier Mail website.[24]
[24]The point of this submission seemed somewhat obscure given that those subscribers would have had their attention drawn to the relevant impugned publication appearing on the platform to which they subscribed.
The applicant submitted that taking her case at its highest, with all inferences reasonably open to be drawn that are most favourable to her case, the court must infer that a significant number of subscribers to the Courier Mail, and each of the Herald Sun, the Daily Telegraph and the Advertiser had access to the Courier Mail in its digital form and would have read the Courier Mail article that was displayed prominently, and sensationally, on its front page.
The applicant observed that in Hinch, the offending online article was found to satisfy the test, despite not being published in a national masthead and having only been viewed 797 times.
The applicant applied a similar analysis in relation to the evidence in respect of the Daily Telegraph article and the Sydney Morning Herald article, but the submission is not better explained by a close review of those broadly similar statistics in these reasons.
Concerning the 2GB Breakfast segment, the applicant submitted that its tendency was strongly evident from what was said. The evidence is that the best estimate of the audience for that particular segment is 60,000 listeners, and the applicant submitted that some of them were likely to have been Melbournians in Sydney on that day. Further, Radio 2GB Sydney and Smith have admitted that the segment was streamed on the website 2GB.com.au, which provides a basis for an inference of direct reach of that broadcast into Victoria, together with the podcasts that had been downloaded.
As with the other publications, the applicant contended that the strong language used in the broadcast, in conjunction with a wider view of the extent of penetration into the relevant sector of the Victorian population, was sufficient for the court to be satisfied for the purposes of the no case submission that, as a matter of practical reality, the broadcast and publication of the Outside Victoria publications had a real and definite tendency to interfere with the due administration of justice.
Analysis
To rule on this ground, I need to analyse further aspects of the principles applying in respect of the tendency to prejudice the due administration of justice.
Tendency to interfere with the due administration of justice
Kaye J concluded in Hinch that the tendency of the publication in question is to be established objectively, by reference of the nature of the publication and the circumstances in which it was made.
Authority for that proposition is found in Director of Public Prosecutions (Cth) v Wran.[25] In that case, a five-member Court of Appeal noted that beyond analysis of the text and context of the impugned publication, other extrinsic factors were relevant. Such factors included the delay between the publication and the relevant trial, the existence of non‑contemptuous public discussion, and the public interest in the ventilation of questions of public concern. The extent of circulation of the impugned publication was not in issue. The relevant words were directed to the issue to be determined by the jury at the new trial, namely the innocence or guilt of the accused, were made to persons (radio journalists) who might republish them to large numbers of people, and were made by the Premier of New South Wales, whose standing made it more likely that there would be a further republication. The court said it was clear that any publication by the radio stations might reach persons who, in due course, would become members of the jury at the retrial.
[25](1987) 7 NSWLR 616 (‘Wran’).
In Hinch v Attorney-General (Vic),[26] Wilson J stated:
It is a jurisdiction to be exercised with caution and only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice. The impugned material must exhibit a real and definite tendency to prejudice or embarrass pending proceedings. It is obvious that the weight and importance of the various factors that will be material to a consideration of that question will vary from case to case. Broadly speaking, however, the more important factors will include the following: the content of the publication; the nature of the proceedings liable to be affected, whether they are civil or criminal proceedings and whether at the time of publication they are pending at the committal, trial or appellate stage; the persons to whom the publication is addressed; and finally, the likely durability of the influence of the publication on its audience.[27]
[26]Hinch v A-G (Vic) (n 18).
[27]Ibid 34 (citations omitted).
By reference to these authorities, I am satisfied that when assessing to the requisite standard whether, as a question of practical reality, and exercising the appropriate degree of caution, whether the impugned publications the subject of ground two have a tendency to interfere with the due course of justice, two factors must be balanced. Although significant weight needs to be given to the content of each publication, a countervailing factor—factually relevant in respect of these publications—is the limited extent of penetration into the relevant sector of the population eligible for selection on the future jury for the swimmers trial, whose impartiality might be adversely affected by the content of each publication.
I am fortified in this conclusion by reference to Attorney-General v Independent Television News Ltd.[28] In that case, two Irishmen had been arrested in West Yorkshire in connection with a murder and an attempted murder. The following day, a news program broadcast by the first respondent, when reporting the arrest, added that one of the men, M, was a convicted IRA terrorist who had escaped from jail, where he had been serving a life sentence for the murder of an SAS officer. The two men were charged in London and four newspapers owned by the second to fifth respondents gave an account of the incident, and published prejudicial details about M. The articles appeared only in the first edition of each newspaper and the distribution of print copies in the London area was 2,485, 1,000, 1,850 and 146 copies respectively. The trial of the two accused took place in London nine months later.
[28][1995] 2 All ER 370.
The respondents were charged with offences under the Contempt of Court Act 1981 (UK). Under that Act, the Attorney-General needed to establish a substantial or more than minimal risk that the course of justice would be seriously prejudiced by reason of that publication being remembered by one or more of the jurors when the case came to trial.
The Court (Leggatt LJ and Buxton J) while accepting that the information communicated was very noteworthy and could have seriously prejudiced the trial, was not satisfied that the Attorney-General had demonstrated that there was a substantial risk to the course of justice in the trial of the two accused would be effected. The court took account of the brevity of the broadcast and its ephemeral nature, the relatively small circulation of the offending newspaper articles in the London area and the lapse of time between the publications and the likely trial date.
Before me, counsel observed that the arguments advanced on behalf of the Attorney-General as to the effect that a newspaper story may have upon persons not living in the area in which it is distributed, referred to as the ‘leakage’ argument, were substantially the same arguments as were advanced by the applicant. Leggatt LJ stated:
Though the possibility must exist of what has been called ‘leakage’, I regard it in the circumstances as minimal.
The reason why I am unimpressed by the ‘leakage’ argument is that, although there may be an outside chance of a person adventitiously reading an article in a newspaper bought by somebody else, the possibility is, in my judgment, so remote in the circumstances of this case, as to be negligible. The risk that one of the newspapers distributed outside the jurors’ catchment area might none the less come into the hands of, or be read by, one of them, is so slight as to be insubstantial.[29]
The court also noted that given the result, the respondent may be thought to have been extremely fortunate if regard was had simply to the content of the publications.
[29]Ibid 383.
Leggatt LJ’s observations about ‘leakage’ must be placed in their temporal context. The manner in which news is consumed has evolved to some extent since 1992. So much was recognised by Chief Judge Kidd when making the proceeding suppression order.[30] He rightly rejected media opposition to an Australia-wide order to guard against domestic ‘social media chatter’ and internet access in Melbourne to anywhere arising from publication out of Victoria. However, the applicant neither alleged leakage of that sort nor alleged that the impugned publications had the requisite tendency because of the risk of secondary dissemination to potential jurors as a result of online leakage. That said, his Lordship’s observations remain pertinent to the way in which the applicant advanced the leakage submission. It should not be inferred from this observation about the way the applicant ran her case that I disagree with the observations that Chief Judge Kidd made about the ramifications of contemporary communications architecture.
[30]Suppression Order Ruling, [59].
Extent of publication
Also relevant in assessing whether the applicant’s evidence will satisfy the test is the evidence of market penetration for the relevant impugned publications. For the moving respondents to this ground, that evidence came from affidavits deposed to by Ms Marlia Saunders (Senior Litigation Counsel at News Corp) and Ms Rachel Launders (General Counsel and Company Secretary of Nine Entertainment).
Courier Mail article
Ms Saunders deposed that the Courier Mail had 98,199 print sales on 13 December 2018, of which:
(a) 95,323 were sold in Queensland;
(b) 1,891 were sold in New South Wales;
(c) 784 were sold in South Australia;
(d) 116 were sold in Western Australia;
(e) 67 were sold in Victoria; and
(f) 18 were sold in the Australian Capital Territory.
Daily Telegraph article
Ms Saunders deposed that the Daily Telegraph had 161,703 print sales on 13 December 2018, of which:
(a) 151,086 were sold in New South Wales;
(b) 6,124 were sold in the Australian Capital Territory;
(c) 4,268 were sold in Queensland;
(d) 196 were sold in Victoria; and
(e) 29 were sold in South Australia.
SMH article
Ms Launders deposed that the Sydney Morning Herald had 69,962 print sales on 13 December 2018. Although circulation figures for the Sydney Morning Herald were not calculated on a state by state basis, Ms Launders’ evidence was that the majority of sales occur within New South Wales.
2GB Breakfast segment
Ms Launders deposed that:
(a) the 2GB Breakfast segment was broadcast to approximately 60,000 people;
(b) it was not possible to identify precisely how many people listened to the segment on the website; and
(c) the 2GB Breakfast segment was part of that day’s Alan Jones Breakfast Show, of which a podcast that included the segment was available from 9:32am on 13 December 2018 until 6:18am on 12 February 2019. It had a total of 422 downloads, of which 68 were from Victoria.
Conclusions
Queensland Newspapers and Weir
The no case submission was limited to one charge of sub judice contempt against each respondent in respect of the Courier Mail article.
Taking the applicant’s evidence at its highest and drawing all proper inferences from this evidence, I have not been persuaded that there is sufficient evidence for me to conclude beyond reasonable doubt that, as a matter of practical reality, the publication charged had the requisite tendency to interfere with the due administration of justice. The nature of the content of the publication is an important consideration and, as noted above, the article reveals the conviction of a high profile person of a terrible crime and states that the world is reading about it. Context and other extrinsic factors are relevant, particularly the short delay between publication and the anticipated start date for the swimmers trial and the general climate of substantial public interest in matters of institutional abuse arising from the Royal Commission and particularly focussed upon the Catholic Church. These are matters that lend support to the applicant’s contention that the impugned publication was contemptuous.
Weighing against these factors, however, is the want of evidence of any significant penetration of the Courier Mail article into the relevant sector of the population. The evidence of print sales is set out above, to be considered in the context of the applicant’s submissions about the ways in which the content of the Courier Mail article may have come to attention of residents of metropolitan Melbourne who might have been summoned to form a jury pool for the second Pell trial. In the context of these charges, it must be assumed that the ordinary reasonable reader of the Courier Mail is a member of that subcategory of the population.
On the evidence, I am satisfied that it is fanciful, not real, to identify the requisite tendency in the publication of this article, bearing in mind that the question is to be approached as a matter of practical reality and not in any technical or highly constrained way. I am not persuaded by the applicant’s submissions about the possible ways in which the Courier Mail article can be presumed to have had a more extended distribution than the 67 sales of the print edition in Victoria. I am not persuaded that the applicant has laid a factual basis for such inferences and I decline to find such factual basis by taking judicial notice, as was submitted.
The sub judice charges against Queensland Newspapers and Weir in respect of the Courier Mail article will be dismissed.
Nationwide News and English
Consistent with the above analysis, as a matter of practical reality, the applicant has not shown that the Daily Telegraph article had a real and definite tendency to interfere with the due administration of justice. It could not be determined on the applicant’s evidence, drawing all appropriate inferences, that the article had achieved any practical penetration into greater metropolitan Melbourne. The evidence of print sales in Victoria on the day the article was published was that 196 copies had been sold. Again, in an attempt to show that there was in a practical sense penetration of the Daily Telegraph article into greater metropolitan Melbourne, the applicant relied on the ‘leakage’ arguments.
For the reasons I have already given, I assessed the applicant’s evidence to be insufficient to permit me to conclude beyond reasonable doubt that, as a matter of practical reality, the Courier Mail article had the necessary tendency to interfere with the due administration of justice.’ The submission of no case to answer in respect of the sub judice contempt charges are brought against Nationwide News and English succeeds and those charges will be dismissed.
Fairfax Media Publications and Davies
These respondents submitted that there was no case for them to answer on the charges of sub judice contempt brought against them in respect of the publication of the SMH article. The evidence before me of the circulation of this article was extremely limited. There were no print sales figures available calculated on a state-by-state basis. For the reasons I have already expressed, the contention that there was, as a matter of practical reality, any exposure of persons in greater metropolitan Melbourne who might become part of a jury pool is fanciful.
The no case submission in respect of Fairfax Media Publications and Davies succeeds and the charges of sub judice contempt against each of these respondents in respect of the SMH article will be dismissed.
Radio 2GB Sydney and Smith
I accept the submission on behalf of each of Radio 2GB Sydney and Smith that they have no case to answer on charges of sub judice contempt in respect of the 2GB Breakfast segment. My reasoning for this conclusion will be clear from the preceding paragraphs of these reasons. I accept the submissions advanced on their behalf that the applicant’s evidence of market penetration, taken at its highest, cannot demonstrate that the broadcast had a real and definite tendency to interfere with the due administration of justice. I have not been persuaded that this tendency becomes a practical reality by reference to the applicant’s ‘leakage’ arguments.
I would add that if the tendency to interfere with the due administration of justice was determined solely by reference to the content of the publication, the conduct of these respondents might be thought to be the most egregious of all of those charged in this proceeding. However, that is not the law.
International publications reporting
| Term used | Impugned publication(s) |
| ‘International publications are already reporting on the case’ ‘Details have been released on social media’ ‘A Washington Post column on the story’ | News Corp online articles |
| ‘With but a few key strokes, people were immediately directed to foreign websites reporting the full details’ | Age online editorial |
| ‘The world is reading about it’ | Courier Mail article |
| ‘You may have read the news online already’ | Daily Telegraph article |
| ‘Word has got out widely online and through social media’ ‘Google searches for the person’s name surged yesterday’ ‘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. One of the websites was blocked from viewing … but its content was republished on a number of other sites’ ‘The person’s name was subject to thousands of tweets [that] both named the individual and the charges and posted links to online sites where information was available’ ‘The wide dissemination of the suppressed information online’ | Age article Age online article SMH article |
| ‘Global media companies’, ‘flouting’, ‘suppression order’ ‘Global websites available in Australia including … The Washington Post and National Public Radio were publishing the news’ ‘Other global websites including the Daily Beast, which first reported the conviction’ ‘The widespread reporting of the case globally and on social media’ | AFR online article 1 AFR online article 2 AFR article |
| ‘Overseas websites may report on the story’ ‘Australians could easily read the full story on overseas sites’ | Mamamia online article |
| ‘In the global era, what has occurred has been widely reported globally’ ‘The name of the person has featured heavily on social media in the last 24 hours’ ‘Google searches for the person’s name surged … and reveal widely (sic) coverage by international media’ | Business Insider online article |
| ‘Despite the suppression order, we’re told that Google searches for the person’s name surged yesterday particularly in Victoria, with two of the top three results on the suppressed name showed websites that were reporting the charges, the verdict and the identity of the person in full.’ and ‘I can’t tell you who it is. But I can also encourage you to get on Google and start asking these questions: high profile Australian, world-wide reputation, conviction of an awful crime. And you’ll find out who it is’ | 2GB Breakfast segment |
| ‘International media [can/are able to] report on this high profile case without the same restrictions’ | 5:32am Today Show segment 6:00am Today Show segment 7:02am Today Show segment |
A case to answer in respect of the second element of sub judice contempt is found when I am satisfied that there is evidence, taking the applicant’s evidence at its highest, that can reasonably satisfy me of a practical and real tendency to prejudice the fair conduct of the swimmers trial. This tendency is to be determined at the time of publication and established objectively, by reference to the nature of the publication and the circumstances in which it was made. Actual consequences are not relevant. For the reasons I have already given, I am satisfied that there is a sufficient basis in the evidence to be so satisfied by reference to the nature of the publications.
Accessing overseas articles
The applicant’s case was not simply that outlined thus far. The applicant went further, contending that the publications also frustrated the proceeding suppression order and/or interfered with the due administration of justice because they had a tendency to encourage readers to search for the answers to the questions that they pose—namely, who was the offender and what were the offences—suggesting that the answers were readily discoverable via internet searches and social media.
It was in this context that the respondents argued that the applicant’s evidence did not demonstrate that the overseas articles were capable of being accessed at the time of publication of the impugned publications, and that this was fatal to the charges.
This submission rests on two discrete matters: the nature of the internet searches relied on by the applicant as evidence of the accessibility of the overseas articles, and the sequence of publication of the overseas articles and impugned articles.
Applicant’s search result evidence
In assessing the real and practical tendency of each publication, I can take account of all the relevant circumstances. In doing so, the proper use to be made of the searches conducted by the applicant’s solicitors is not the stark analytical assessment of which search terms returned what overseas articles. For the purpose of this submission, I consider that the searches are evidence that is indicative of the kind of searches that the ordinary reasonable reader might use in seeking further information after having come across an impugned publication.
Those indicative searches would fall within a range from revealing nothing to locating any one of the 17 overseas articles that I am satisfied were published before 6:00am on 13 December 2018, or to 26 overseas articles that were published before the first of the impugned publications was removed from the internet.
Further, as I have already noted, the impugned publications themselves identified that the information that they did not disclose and which was of interest to readers, listeners and viewers was already available via internet searches. Taking the applicant’s evidence at its highest, I can draw an inference that this was in fact the case as at the time of those publication.
It is not to the point to submit, as the respondents did, that most of the impugned publications do not directly identify an overseas article. That information existed and was available online is sufficient to establish the requisite tendency of the publication as a matter of practical reality. The fact that references to search engines locating overseas articles were made in some of the impugned publications pacifies the sting that the respondents contend for, as it is contrary to their submission that there was no evidence of searches conducted at the time of publication, or shortly thereafter, that would affirmatively demonstrate an overlap between the publication of overseas articles and impugned publications.
Sequence of publication
As I have stated, I am also satisfied that the applicant’s case that the overseas articles were in existence at the time the impugned publications were first published is supported by sufficient evidence for me to conclude beyond reasonable doubt that this was the case.
There was significant argument was directed to the chronology of publications, both impugned and overseas. What follows are my findings as to the sequence of publication. For present purposes, taking the applicant’s evidence at its highest and drawing all proper inferences from this evidence, I am persuaded that there is sufficient evidence for me to conclude beyond reasonable doubt that, as a matter of practical reality, the publications charged had the requisite tendency to interfere with the due administration of justice.
The overseas publications relied on by the applicant appeared with publication timestamps from various timezones. Additionally, it is clear from the face of a number of articles that they were revised versions and had been first published at an earlier time. Having assessed each article on its face and considered the contentions of the parties, the following chronology identifies the sequence of publication of the impugned and the overseas publications, and, in the case of the impugned publications, their removal.[46] For publications that I have concluded were published within a specific time period, the order they appear reflects the earliest possible time they could have been published, so as to draw the most favourable inference reasonably open on the applicant’s case.
[46]The reasons for my findings in respect of the timing of publication of the overseas publications is set out in annexure 1 to these reasons.
The entries in the chronology relating to the impugned publications are shaded for emphasis, appearing in green for the time of publication and red for the time removed.
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 Age online article published 13 December 2018 Between 12:00am and
15 December 2018 at 6:15amThe Washington Post article 1 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 5:32am Today Show segment published 5:41am 2GB Breakfast segment published 6:00am[47] Courier Mail article published
Daily Telegraph article published
Age article published
Sydney Morning Herald article published
6:00am 6:00am Today Show segment published 6:16am Life Site article published 7:01am Slate article published 7:02am 7:02am Today Show segment published 7:45am Mamamia.com.au online article published 8:41am The Washington Post article 2 published 9:00am Business Insider online article published 9:25am 2GB Breakfast segment (podcast version) published 9:54am 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
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
Advertiser online article removed
Weekly Times online article removed
11:41pm UPI article published 11:45pm AFR online article 2 published 14 December 2018 6:00am[48] 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 15 December 2018 at 6:15am The Day article published 18 December 2018 1:01pm 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 [47]These publications were in hard copy and printed on the night of 12–13 November 2018.
[48]This publication was in hard copy and printed on the night of 13–14 November 2018.
As a matter of practical reality, the real tendency can be demonstrated to the requisite standard on the applicant’s evidence, because the impugned publications informed their readers, listeners or viewers that relevant international media sources online identified the person, the fact of his conviction, and other prejudicial details and such international media sources existed.
The no case submission in respect of ground three must be dismissed.
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ANNEXURE 1 - FINDINGS OF PUBLICATION TIME OF OVERSEAS ARTICLES
| Publication[49] | Time of publication (AEDT)[50] | Reasons for finding | ||
| (e) Black Christian News article Vatican’s third most powerful official cardinal George Pell convicted on all charges he sexually abused choir boys in the 1990s | Between 4:00pm on 11 December and 3:59pm on 12 December 2018. | The article appears with a publication timestamp of 11 December 2018 (including a reference to the Daily Beast article, it was either published or updated after the time of publication of that article(next entry). The article makes reference to procedures of courts in the United States, and I infer that the article was published in the United States and bears a date of publication in that timezone. | ||
| (ee) The Daily Beast article Vatican No 3 Cardinal George Pell Convicted on Charges He Sexually Abused Choir Boys | 12 December 2018 at 9:43am | The article appears with a publication timestamp of Dec 11 2018 5:43pm ET. | ||
| (k) Gov’t Slaves article Vatican No. 3 Cardinal George Pell convicted on charges he sexually abused choir boy...the highest-ranking Catholic Church official to face such criminal charges | 12 December 2018 between 9:43am and 3:59pm. | The article appears with a publication timestamp of 11 December 2018. The article adopts the title of the Daily Beast article as its headline, contains an abridged version of the content from that article and contains prominent link at the bottom of the article stating ‘Continue @ Daily Beast’, suggesting it was drafted after that article was published. The reference to ‘US’ and then ‘World’ in the navigation banner appearing in the applicant’s version of the article allows an inference to be drawn that the publication is based in the United States and so bears a date of publication in that timezone. | ||
| (j) News Republic article Vatican No. 3 Cardinal George Pell convicted on charges he sexually abused choir boys | 12 December 2018 at 9:55am | The article appears with a publication timestamp of 11 December 2018 at 9:55am. The article appears to be a syndicated version of the Daily Beast article, and, in light of the similar timestamps between the two publications (differing by less than 15 minutes), I infer that the publication is also based in the United States and so bears a date of publication in that timezone. | ||
| (f) Radar Online article Vatican No. 3 official found guilty of sexually abusing two choir boys: report – Cardinal George Pell convicted in Australia of child assault | 12 December 2018 at 1:06pm | The article appears with a publication timestamp of 11 December 2018 at ‘21:06pm’. The article refers to a United States area code, allowing an inference to be drawn that the article was published in the United States and bears a date of publication in that timezone. In the email sent by O’Neil to Lavelle and Bachelard on 12 December 2018 at 4:15pm with the subject ‘Screenshots’, the article appears in the first screenshot and is described as having been published ‘3 hours ago’. | ||
| (g) Church Militant article 1 Cardinal Pell found guilty of all counts of sex abuse | 12 December 2018 at approximately 3:00pm. | The article appears with a publication timestamp of 11 December 2018. The content of the related articles that appear in the sidebar of the article allows an inference to be drawn that the article was published in the United States and bears a date of publication in that timezone. In the email sent by O’Neil to Lavelle and Bachelard on 12 December 2018 at 4:15pm with the subject ‘Screenshots’, the article appears in the first screenshot and is described as having been published ‘1 hour ago’. The article includes a link to the Age online article, I infer that it was updated after being first published. | ||
| (x) Fox News article Once-powerful Cardinal convicted on sex-abuse-related charges in Australia | Between 4:00pm on 12 December and 3:59pm on 13 December 2018. | The article appears with a publication timestamp of 12 December 2018, but notes that the ‘last update’ was on 13 December 2018. I infer that the article was first published in the United States and bears a date of publication in that timezone. | ||
| (z) National Catholic Reporter article 1 Cardinal Pell found guilty of sex abuse, expected to appeal, reports say | Between 4:00pm on 12 December and 3:59pm on 13 December 2018. | The article appears with a publication timestamp of 12 December 2018. The footer provides an address for the publisher in Kansas City, Missouri, and I infer that the publication is a news outlet in the United States, and so bears a date of publication in that timezone. | ||
| (dd) Now The End Begins article Cardinal George Pell, the Vatican’s Third Most Powerful Official, Convicted in Australia of Sexually Molesting Young Choir Boys | Between 4:00pm on 12 December and 3:59pm on 13 December 2018. | The article appears with a publication timestamp of 12 December 2018. Having regard to the nature of the title of the stories that appear in the sidebar of the article and the image depicted of Capitol Hill, an eagle and the flag of the United States, I infer that the publication is based in the United States and bears a date of publication in that timezone. | ||
| (m) America Magazine article Cardinal Pell, top adviser to Pope Francis, found guilty of ‘historical sexual offences’ | Between 4:00pm on 12 December and 3:59pm on 13 December 2018. | The article appears with a publication timestamp of 12 December 2018. The title of the publication allows an inference to be drawn that the article was published in the United States and bears a date of publication in that timezone. | ||
| (c) The Washington Post article 1 A top cardinal’s sex-abuse conviction is huge news in Australia. But the media can’t report it there | Between 13 December at 12:00am and 15 December 2018 at 6:15am | The article does not appear with a date or time of publication. The article refers to the front page of the Herald Sun and the Daily Telegraph article and, in light of its title, can be presumed to have not been published before the morning of 13 December 2018. The Day article appears to be a syndicated version of this article and I infer that this article would have been published no later than The Day article. | ||
| (a) New York Post article Australian media barred from covering cardinal's conviction | 13 December 2018 between 12:00am and 2:57pm | The article appears with a publication timestamp of 12 December 2018 at 10:57pm. The article refers to having been ‘Updated’, although it is unclear whether the publication date and time reflect the first version or any amended version. Given the focus of the article is on the Australian media’s response to the conviction and refers to the front page of the Herald Sun, the Age article and the Daily Telegraph article, I infer that the article was published no earlier than the morning of 13 December 2018. | ||
| (o) VOA News article Reports: Australian Cardinal found guilty of sex abuse | 13 December 2018 at 1:10am | The earliest version of the article relied on by the applicant appears with a publication timestamp of 12 December 2018 at 9:10am. Having regard to the name of the publication (Voice of America), I infer that the article was published in the United States and bears a date of publication from that country. | ||
| (ff) Catholic News Agency article Reports of Pell guilty verdict emerge, despite gag order | 13 December 2018 at 2:48am | The Catholic News Agency article appears with a publication timestamp of 12 December 2018 at 10:48am. Having regard to the location where the story was filed from (described in the first line of the article as Washington DC), I infer that the publication is based in the United States and bears a publication time in that timezone. The article is largely identical to the Catholic World Report and EurAsia Review articles bearing the same title. On the face of all three article, I infer that the Catholic News Agency article is the original version of the story, as the letters CNA appear in the first paragraph of each article, suggesting that the EurAsia Review and the Catholic World Report articles are syndicated versions of the same story. I infer that all three articles were or were likely published at or around the same time. | ||
| (gg) Catholic World Report article Reports of Pell guilty verdict emerge, despite gag order | 13 December 2018 at 2:48am | |||
| (l) EurAsia Review article Reports of Pell guilty verdict emerge despite gag order | 13 December 2018 at 2:48am | |||
| (y) National Review article Third-Ranking Vatican Official Convicted of Sexually Abusing Choir Boys | 13 December 2018 at 4:16am | The article appears with a publication timestamp of 12 December 2018 at 12:16pm. Having regard to the article’s reference to an unrelated investigation in Pennsylvania, I infer that the publication is a news outlet of the United States, and so bears a date of publication in that timezone. | ||
| (v) Life Site article Cdl. Pell to appeal jury’s ‘outrageous’ verdict finding him guilty of sexual abuse | 13 December 2018 at 6:16am | The article appears with a timestamp of 12 December 2018 at 2:16pm EST. | ||
| (cc) Slate article Third-Highest Ranking Vatican Official Convicted | 13 December 2018 at 7:01am | The article appears with a publication timestamp of 12 December 2018 at 3:01pm. Having regard to the publication’s status as a major online news outlet in the United States, I infer that the article was published in the United States and bears a date of publication in that timezone. | ||
| (d) The Washington Post article 2 An Australian court’s gag order is not match for the Internet, as word gets out about prominent cardinal’s conviction | 13 December 2018 at 8:41am | The article appears with a publication timestamp of ‘Dec 13 2018 at 8:41am GMT+11’. | ||
| (n) The Catholic Universe article Cardinal Pell found guilty of sex abuse, expected to appeal, reports say | Between 11:00am on 13 December 2018 and 10:59am on 14 December 2018 | The article appears with a publication timestamp of 13 December 2018. Having regard to the slogan of the publication (‘Britain’s most trusted Catholic newspaper’), I infer that the article was published in the United Kingdom and bears a date of publication in that timezone. | ||
| (b) The Washington Post article 3 Australian court convicts once powerful Vatican official on sex abuse-related charges | 13 December 2018 at 11:29am | The article appears with a publication timestamp of ‘Dec 13 2018 at 11:29am GMT+11’. | ||
| (t) The Hill article Australian newspaper complains of censorship after gag order prevents coverage of Catholic sex scandal | 13 December 2018 at 11:38am | The article appears with a timestamp of 12 December 2018 at 7:38pm EST. | ||
| (q) The Tablet article Cardinal Pell found guilty of sex abuse | Between 4:00pm on 13 December and 3:59pm on 14 December 2018. | The article appears with a publication timestamp of 13 December 2018. Having regard to the footer of the article, which states that ‘The Tablet is the newspaper of the Diocese of Brooklyn, serving Brooklyn and Queens since 1908’, I infer that the article was published in the United States and bears a date of publication in that timezone. | ||
| (h) Church Militant article 2 Australian Prosecutor, Judge Threaten Church Militant Over Pell Story | Between 4:00pm on 13 December and 3:59pm on 14 December 2018. | The article appears with a publication timestamp of 13 December 2018. The content of the related articles that appear in the sidebar of the Church Militant article titled ‘Cardinal Pell found guilty of all counts of sex abuse’ allows an inference to be drawn that publication is based in the United States and bears a date of publication in that timezone. | ||
| (i) Church Militant article 3 Cardinal Pell’s Conviction | Between 4:00pm on 13 December and 3:59pm on 14 December 2018. | |||
| (w) UPI article Vatican adviser George Pell convicted on abuse-related charges | 13 December 2018 at 11:41pm. | The article appears with a publication timestamp of 13 December 2018 at 7:41am. The nature of the stories in the ‘Trending Stories’ and ‘Latest News’ sections that appear in the sidebar of the article, together with the formatting of the corporate entity that appears in the footer of the webpage (‘United Press International, Inc.’) allow an inference to be drawn that the publication is based in the United States and bears a date of publication in that timezone. | ||
| (u) The Straits Times article Vatican official found guilty of sex abuse | 14 December 2018 at 8:00am. | The article appears with a publication timestamp of ’14 December 2018 5:00am SGT [Singapore Time]’. | ||
| (r) Asia Times article Australian cardinal falls silently on child sex charge | 14 December 2018 at 3:39pm. | The article appears with a publication timestamp of ’14 December 2018 12:39pm (UTC+8)’. | ||
| (hh) First Amendment Watch article Some US news outlets are complying with an Australian gag order | Between 4:00pm on 14 December and 3:59pm on 15 December 2018. | The article appears with a publication timestamp of 14 December 2018. Having regard to the title of the publication, I infer that the article was published in the United States and bears a date of publication from that country. | ||
| (ii) Richard Dawkins Foundation article Cardinal George Pell Reportedly Convicted of Child Sex Abuse Amid Gag Order in Australia | Between 4:00pm on 14 December and 3:59pm on 15 December 2018. | The article appears with a publication timestamp of 14 December 2018. The respondents have assumed in their aide memoir that the publication bears a date of publication in the United States, which I adopt for the purpose of this ruling. | ||
| (s) The Day article Cardinal’s sin, and why the media can’t report it | 15 December 2018 at 6:15am | The article appears with a publication timestamp of 14 December 2018 at 2:15pm. The article makes reference to procedures of courts in the United States. I infer that the article was published in the United States and bears a date of publication in that timezone. | ||
| (aa) National Catholic Reporter article 2 Column: With his treatment of Cardinal Pell, Pope Francis shows his clericalism | Between 4:00pm on 15 December and 3:59pm on 16 December 2018. | The article appears with a publication timestamp of 15 December 2018. Having regard to the finding that I made regarding the other National Catholic Reporter article (‘Cardinal Pell found guilty of sex abuse, expected to appeal, reports say’), I infer that the publication is based in the United States and bears a date of publication in that timezone. | ||
| (p) The Mice Times of Asia article[51] The Pope fired a cardinal accused of pedophilia (sic) | I am unable to determine a precise time of publication for this article, except to say that it appears to have been published between 12 and 14 December 2018. | The article appears with a publication timestamp of 13 December 2018. This publication makes no reference to the conviction at all. At its highest, it particularises the charges as being ‘pedophilia’ rather than ‘historical sexual abuse’. | ||
| (bb) Patheos article[52] Top Vatican official Cardinal George Pell convicted of sexually abusing choir boys | I am unable to decipher the publication timestamp that appears on the copy of the article relied on by the applicant and so am unable to determine the time of publication. | |||
[49]The bracketed letters contained next to the name of each publication refer to the corresponding entries in ‘Aide memoire 3 – Annexure B publications’ relied on by the applicant.
[50]The respondents have assumed for the purpose of their aide memoir that any article published in the United States was presumed to have been published according to Eastern Standard Time (GMT -5), unless a specific timezone was identified. I have adopted the same approach with this table.
[51]Not included in the table in my Reasons.
[52]Not included in the table in my Reasons.
ANNEXURE 2 – COPIES OF THE IMPUGNED PUBLICATIONS
Herald Sun online article
News.com.au online article
Courier Mail article
Geelong Advertiser online article
Daily Telegraph article
Daily Telegraph online article
Weekly Times online article
Advertiser online article
Age article
Age online article
Age online editorial
SMH article
AFR online article 1
AFR online article 2
AFR article
Mamamia online article
Business Insider online article
2GB Breakfast segment
5:32am Today Show segment
6:00am Today Show segment
7:02am Today Show segment
SCHEDULE OF PARTIES
| THE QUEEN (ON THE APPLICATION OF THE DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| THE HERALD AND WEEKLY TIMES PTY LTD | First Respondent |
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| CHARIS CHANG | Third Respondent |
| NEWS LIFE MEDIA PTY LTD | Fourth Respondent |
| QUEENSLAND NEWSPAPERS PTY LTD | Fifth Respondent |
| SAM WEIR | Six Respondent |
| THE GEELONG ADVERTISER PTY LTD | Seventh Respondent |
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| NATIONWIDE NEWS PTY LTD | Ninth Respondent |
| BEN ENGLISH | Tenth Respondent |
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| ADVERTISER NEWSPAPERS PTY LTD | Twelfth Respondent |
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| THE AGE COMPANY PTY LTD | Fifteenth Respondent |
| ALEX LAVELLE | Sixteenth Respondent |
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| PATRICK O’NEIL | Eighteenth Respondent |
| MICHAEL BACHELARD | Nineteenth Respondent |
| FAIRFAX MEDIA PUBLICATIONS PTY LTD | Twentieth Respondent |
| LISA DAVIES | Twenty-first Respondent |
| MICHAEL STUTCHBURY | Twenty-second Respondent |
| PATRICK DURKIN | Twenty-third Respondent |
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| MAMAMIA.COM.AU PTY LTD | Twenty-sixth Respondent |
| JESSICA CHAMBERS | Twenty-seventh Respondent |
| ALLURE MEDIA PTY LTD | Twenty-eighth Respondent |
| SIMON THOMSEN | Twenty-ninth Respondent |
| RADIO 2GB SYDNEY PTY LTD | Thirtieth Respondent |
| CHRIS SMITH | Thirty-first Respondent |
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| GENERAL TELEVISION CORPORATION PTY LTD | Thirty-third Respondent |
| LARA VELLA | Thirty-fourth Respondent |
| CHRISTINE AHERN | Thirty-fifth Respondent |
| DEBORAH KNIGHT | Thirty-sixth Respondent |
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