The State of Western Australia v West Australian Newspapers Ltd; Ex Parte
[2005] WASCA 161
•23 AUGUST 2005
THE STATE OF WESTERN AUSTRALIA -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR; EX PARTE JAMES ANDREW McGINTY MLA, ATTORNEY GENERAL FOR WESTERN AUSTRALIA [2005] WASCA 161
| (2005) 30 WAR 434 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 161 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CIV:2207/2004 | 22 JULY 2005 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA MILLER AJA | 23/08/05 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | First contemnor fined $15 000 Second contemnor fined $5000 | ||
| A | |||
| PDF Version |
| Parties: | WEST AUSTRALIAN NEWSPAPERS LTD PAUL ARMSTRONG JAMES ANDREW McGINTY MLA, ATTORNEY GENERAL FOR WESTERN AUSTRALIA |
Catchwords: | Contempt of Court Publication of article in newspaper Statutory offence Children's Court of Western Australia Act 1988 s 36 Identifying 9yearold child as a ward of the State Sequence of articles in newspapers Pleas of guilty |
Legislation: | Children's Court of Western Australia Act 1988 (WA), s 36 |
Case References: | 6IX Southern Cross Radio Pty Ltd; Ex parte Director of Public Prosecutions for Western Australia [1999] WASCA 254 Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd & Laws [1998] NSWSC 28 Bailey v Hinch [1989] VR 78 Director of Public Prosecutions for Western Australia v Rural Press Regional Media (WA) Pty Ltd, unreported; FCt SCt of WA; Library No 980756; 5 August 1998 Kennedy v Lovell [2002] WASCA 226 R v Australian Broadcasting Corporation; Ex parte Director of Public Prosecutions for Western Australia, unreported; FCt SCt of WA; Library No 940402; 26 July 1994 R v David Syme & Co Ltd; Ex parte Director of Public Prosecutions for Western Australia, unreported; FCt SCt of WA; Library No 960359; 10 July 1996 R v Nationwide News Pty Ltd; Ex parte Commonwealth Director of Public Prosecutions, unreported; FCt SCt of WA; Library No 970477; 25 September 1997 R v Nationwide News Pty Ltd; Ex parte Director of Public Prosecutions for Western Australia, unreported; FCt SCt of WA; Library No 960527; 16 September 1996 R v The Age Company Ltd (2000) 113 A Crim R 181 R v West Australian Newspapers Ltd; Ex parte Director of Public Prosecutions for Western Australia (1996) 16 WAR 518 R v West Australian Newspapers Ltd; Ex parte Keating, unreported; FCt SCt of WA; Library No 970316; 19 June 1997 AttorneyGeneral (Qld) v Win Television Qld Pty Ltd [2003] QSC 157 Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242 Gallagher v Durack (1983) 152 CLR 238 H v Forsyth (1992) 15 Fam LR 673 Hinch v AttorneyGeneral (Vic) (1987) 164 CLR 15 Hinch v AttorneyGeneral (Vic) [1987] VR 721 Minister for Justice v West Australian Newspapers Ltd [1970] WAR 202 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 Newspapers Publishers Association of New Zealand (Inc) v Family Court [1999] 2 NZLR 344 P v P (1985) 2 NSWLR 401 Perez v The Queen (1999) 21 WAR 470 R v Eades (No 1) (1991) 6 WAR 402 R v H (A Child) (1995) 83 A Crim R 350 R v MJM (2000) 24 SR (WA) 253 R v Pearce (1992) 7 WAR 395 R v Repacholi (1990) 52 A Crim R 49 R v Thompson [1989] WAR 219 R v West Australian Newspapers Ltd; Ex parte Minister for Justice (1958) 60 WALR 108 Re Z (a minor) [1995] 4 All ER 961 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR; EX PARTE JAMES ANDREW McGINTY MLA, ATTORNEY GENERAL FOR WESTERN AUSTRALIA [2005] WASCA 161 CORAM : WHEELER JA
- ROBERTS-SMITH JA
MILLER AJA
AND
WEST AUSTRALIAN NEWSPAPERS LTD
First Contemnor
PAUL ARMSTRONG
Second Contemnor
EX PARTE
JAMES ANDREW McGINTY MLA, ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Applicant
(Page 2)
Catchwords:
Contempt of Court - Publication of article in newspaper - Statutory offence - Children's Court of Western Australia Act 1988 s 36 - Identifying 9yearold child as a ward of the State - Sequence of articles in newspapers - Pleas of guilty
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 36
Result:
First contemnor fined $15,000
Second contemnor fined $5000
Category: A
Representation:
Counsel:
Applicant : Mr G T W Tannin SC & Mr S M Murphy
First Contemnor : Mr W S Martin QC & Ms C Galati
Second Contemnor : Mr W S Martin QC & Ms C Galati
Solicitors:
Applicant : State Solicitor's Office
First Contemnor : Edwards Wallace
Second Contemnor : Edwards Wallace
(Page 3)
Case(s) referred to in judgment(s):
6IX Southern Cross Radio Pty Ltd; Ex parte Director of Public Prosecutions for Western Australia [1999] WASCA 254
Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd & Laws [1998] NSWSC 28
Bailey v Hinch [1989] VR 78
Director of Public Prosecutions for Western Australia v Rural Press Regional Media (WA) Pty Ltd, unreported; FCt SCt of WA; Library No 980756; 5 August 1998
Kennedy v Lovell [2002] WASCA 226
R v Australian Broadcasting Corporation; Ex parte Director of Public Prosecutions for Western Australia, unreported; FCt SCt of WA; Library No 940402; 26 July 1994
R v David Syme & Co Ltd; Ex parte Director of Public Prosecutions for Western Australia, unreported; FCt SCt of WA; Library No 960359; 10 July 1996
R v Nationwide News Pty Ltd; Ex parte Commonwealth Director of Public Prosecutions, unreported; FCt SCt of WA; Library No 970477; 25 September 1997
R v Nationwide News Pty Ltd; Ex parte Director of Public Prosecutions for Western Australia, unreported; FCt SCt of WA; Library No 960527; 16 September 1996
R v The Age Company Ltd (2000) 113 A Crim R 181
R v West Australian Newspapers Ltd; Ex parte Director of Public Prosecutions for Western Australia (1996) 16 WAR 518
R v West Australian Newspapers Ltd; Ex parte Keating, unreported; FCt SCt of WA; Library No 970316; 19 June 1997
Case(s) also cited:
AttorneyGeneral (Qld) v Win Television Qld Pty Ltd [2003] QSC 157
Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242
Gallagher v Durack (1983) 152 CLR 238
H v Forsyth (1992) 15 Fam LR 673
Hinch v AttorneyGeneral (Vic) (1987) 164 CLR 15
Hinch v AttorneyGeneral (Vic) [1987] VR 721
Minister for Justice v West Australian Newspapers Ltd [1970] WAR 202
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
(Page 4)
Newspapers Publishers Association of New Zealand (Inc) v Family Court [1999] 2 NZLR 344
P v P (1985) 2 NSWLR 401
Perez v The Queen (1999) 21 WAR 470
R v Eades (No 1) (1991) 6 WAR 402
R v H (A Child) (1995) 83 A Crim R 350
R v MJM (2000) 24 SR (WA) 253
R v Pearce (1992) 7 WAR 395
R v Repacholi (1990) 52 A Crim R 49
R v Thompson [1989] WAR 219
R v West Australian Newspapers Ltd; Ex parte Minister for Justice (1958) 60 WALR 108
Re Z (a minor) [1995] 4 All ER 961
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
(Page 5)
1 JUDGMENT OF THE COURT: The applicant has brought a motion for orders requiring each of the first contemnor ("WA Newspapers") and second contemnor ("the editor") to pay a fine arising out of articles which were published in "The West Australian" newspaper on 19, 20 and 21 July 2004. The articles, read together, identified a 9-year-old child (whose first name was given but to whom we shall refer as "P") as a "ward of the State", being a child who has been ordered to be committed to the care of the Department for Community Development (formerly the Department for Family and Children's Services).
2 Section 36 of the Children's Court of Western Australia Act 1988 (WA) ("the Children's Court Act") provides, so far as is relevant, that:
"(1) Where -
…
(c) a child is ordered to be committed to the care of the department established under section 4 of the Community Services Act 1972 or placed under the control of that Department,
a person other than the child shall not, in a manner which identifies or is likely to lead to the identification of the child, disclose the fact of … any relevant order except to a court of law, to a person acting in the performance of duties under any written law, to a person who as part of the person's duties is concerned with the custody or welfare of the child, or in accordance with an order made under section 36A.
(2) A person who contravenes this section commits an offence punishable -
(a) by the Supreme Court as for a contempt; or
(b) after summary conviction by a fine of $10 000 or imprisonment for 12 months.
(3) Proceedings for a contravention of this section may be taken by the Attorney General or a person on his behalf."
3 Each of the contemnors has pleaded guilty to, and on that plea been convicted of, the offence identified in the notice of originating motion.
(Page 6)
- Consequently, the only issue which arises is what should be the appropriate punishment to be imposed on each of the contemnors.
Events giving rise to the offence
4 WA Newspapers is the publisher of "The West Australian" newspaper, published primarily in the metropolitan area of Perth and in other parts of Western Australia. The editor has held that appointment since September 2003.
5 Under the Child Welfare Act 1947 (WA) and the Children's Court Act, a child is placed under the guardianship of the Director-General of the Department for Community Development (and hence generally referred to as a "ward" of the State) if the child is declared by order of the Children's Court to be a child in need of care and protection. By order made on 22 January 2002 by the Children's Court of Western Australia, P was committed to the care of the Department until he turned 18. He was then seven years old, having been born in 1994.
6 P was provisionally diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") in 2002. In 2004 he was placed in the care of his grandmother who lives in a suburb of Perth.
7 On 18 July 2004 an article was published in "The Sunday Times" newspaper (owned by a different publisher) under the headline, "Boy, 9, runs riot with axe". The article concerned a 9-year-old boy (in fact, P) who had allegedly threatened a bedridden pensioner with a tomahawk during a home invasion. The boy was said to have been "accused of terrorising a community" and police were said to be "powerless to stop him". The boy was described as an ADHD sufferer and a ward of the State. That publication did not contravene s 36(1)(c) of the Children's Court Act.
8 On the following day, Monday, 19 July 2004, "The West Australian" published an article, on page 3 of the newspaper, under the headline "Kids: a law unto themselves". The article referred to "reports of boys under 10 going on crime sprees" and featured comments from the Justice Minister, Michelle Roberts. Two paragraphs of the article referred to "A nine-year-old ward of the State with the attention deficit condition ADHD" who was alleged to have been responsible for a string of offences, including threatening a pensioner with a tomahawk during a home invasion.
(Page 7)
9 On the following day, 20 July, "The West Australian" newspaper ran two front page articles concerning the boy. His case was also discussed in an editorial. The front page of the newspaper featured a photograph of the boy on a bicycle. The two articles raised a number of issues concerning the boy, who was described as a "suburban terrorist" said to have "terrorised his neighbours, robbed their homes and threatened their children". The boy was said to be "known as [P]" and also gave his actual nickname, but which we shall refer to as "R". The boy's grandmother, identified only by her first name, was reported as saying that she wanted the boy placed in a foster home where he could have more dedicated attention. She was also reported as having said that the boy needed counselling and to see a psychiatrist and that all she wanted was for him to get some help. The caption under the photograph read as follows: "Too young: Nine-year-old [P] yesterday. He admits to 60 burglaries but cannot be charged for them". The article immediately under the photograph referred to "the nine-year-old who has authorities stumped". It related that he had admitted certain offences, the general nature of which were disclosed, and had been linked to another offence, details of which (including its location) were given.
10 The editorial described the boy as "a menace to society and himself". It suggested that the community needed protection from the boy and that the boy needed protection from himself before he was allowed to ruin his own life. It questioned the practices of the Department which had resulted in him building a deplorable history of antisocial activity before he turned 10.
11 On 20 July 2004, the Department held a meeting in order to discuss P's care and protection. The meeting decided that he required a placement outside his family and that he should be placed with the "Great Mates" organisation, which provides 24-hour care for seriously disturbed children.
12 On the following day, 21 July 2004, two additional articles were published in "The West Australian" newspaper, each referring to the child by his given name. The first of the articles reported that he was to be placed in intensive 24-hour care. Once again, P was said to be known locally as "[R]". There was another photograph of him. On this occasion the articles gave the full name of his grandmother, "[AB]", and also the names of his parents. The newspaper published a photograph of Ms AB.
13 The editor, in an affidavit sworn by him on 20 July 2005, has said that, when the issue came to his attention, he regarded it as a serious one
(Page 8)
- which was of legitimate public interest. He deposed that after reading the article which was published on Monday, 19 July, and in particular the responses from the government representatives reported in that article, he formed the view that the article did not deliver the answers which, he believed, the community was looking for. He considered that the most important question was that of what was to be offered to this boy in order to stop his bad behaviour. Against the background of a significant degree of offending by young children, he considered that "the matter was being brushed to one side by the Government". He consequently resolved to try and find out more about the boy and instructed a reporter and a photographer to go to the street where he lived. He was told that, by the time the reporter and photographer arrived, a television reporter and camera crew had already conducted an interview with the child's grandmother and had filmed the child. The grandmother had spoken to the reporter from "The West Australian".
14 As a result of the interview with Ms AB, WA Newspapers was able to publish the story, on the following day, reporting the grandmother's wish that the boy should receive counselling and see a psychiatrist. The editor deposed that because he considered the newspaper had a duty to put the issue under the spotlight, he decided to publish a photograph of the boy. He wanted the newspaper's readers to be confronted by the age of the boy, graphically conveyed by means of a photograph. He said, in this respect, that he considered that it would be harder for society to brush the issue aside once readers were confronted "with a real person". He said that his experience had taught him that photographs are more effective catalysts for change than words.
15 As to the articles published on 21 July 2004, the editor says that he considered it important both to report on the outcome of the meeting between the Department and the child's grandmother which had been held the previous day and also to inform the public of the condition of the child's parents, namely that they were not in a fit state to look after him.
16 No complaint was made to "The West Australian", nor to the editor, concerning the extent of publication, or the publication of photographs of the boy and of his grandmother, until some time after these publications had been made.
17 The articles to which reference has been made contain numerous identifying features which were disclosed to the public about the child. They included his first name, nickname, age, suburb of residence, a
(Page 9)
- condition from which he suffered, and the names of his parents. His grandmother was also named.
18 There is no doubt that the several publications, when read together, constituted a continuing series of publications. They were close in point of time and each article was clearly linked. The attention of readers was directed back to earlier articles. Anyone who read "The West Australian" on 19 July and then on either or both of the following days would readily have identified the ward of the State referred to on the 19th.
19 The contemnors accepted, based upon the decision of this Court in R v West Australian Newspapers Ltd; Ex parte Keating, unreported; FCt SCt of WA; Library No 970316; 19 June 1997, that it was possible to identify the child by reference to the child in more than one article, provided the reference was made in a way which would lead an ordinary reader to link the two articles. That conclusion, in our view, follows not only from Keating's case, but from the natural meaning of the words of s 36 of the Children's Court Act, which speaks of disclosure of certain facts "in a manner which identifies or is likely to lead to the identification of the child".
20 Because the editor deposes that, in the present case, he (somewhat inexplicably) did not understand that the series of publications was likely to lead to the identification of the child, it is desirable to consider briefly Keating's case and the concept of identification in s 36 of the Children's Court Act. Keating was a case in which there was alleged a contempt by West Australian Newspapers Ltd, the first contemnor in the present proceedings. The allegation arose from s 35 of the Children's Court Act, which restricts publication of proceedings in the Children's Court containing "any particulars or other matter likely to lead to the identification of a child who is concerned in those proceedings". It can be seen that the concept is very similar, and the relevant wording identical, to s 36. In that case, an edition of the newspaper on 16 January 1996 contained a report of an event, with a follow-up report on the same event on the next day, together with a photograph of a 16-year-old child involved in that event. The second report noted that police had stated that the child would face certain charges. Charges were laid and there were proceedings in respect of those charges on 28 February 1996. On the day following those proceedings, a report was published by the newspaper, describing the proceedings in the Children's Court. That report did not name the child, although it did refer to his age and the suburb in which he lived. There were apparently further proceedings in the Children's Court
(Page 10)
- on 15 March 1996, with a report of those appearing on 16 March, along similar lines, although omitting reference to his age and suburb.
21 The principal judgment was that of Murray J. His Honour began by identifying the purpose of the relevant provisions, which he explained at 6 - 7 in the following terms:
" … it is appropriate to start from the point that the Children's Court of Western Australia Act, in the provisions to which I have reviewed above, is clearly concerned to strike an appropriate balance between two competing principles. In respect of the Children's Court, as in respect of other courts, there is the perception that the court is a public place and its proceedings should be open to public scrutiny and be able to be reported to the community generally in the public interest. There are many reasons concerned with the healthy functioning of our community and its system of justice why that is so. I need not expound them here. But on the other hand, it is recognised that the Children's Court is a court which has, as the particular subject of the exercise of its jurisdiction, children. Their interests are to be considered whether they are involved in proceedings in the court as defendants, convicted persons, persons in respect of whom a protective application is made, witnesses, victims or alleged victims. Their interests will generally require their protection from the harmful effects which may ensue following their public identification and exposure to the community generally."
22 Those observations are, in a general way, applicable to s 36 of the Children's Court Act also. It, too, is clearly directed towards the protection of the welfare of children, and, in particular, to the prevention of the victimisation, humiliation and harassment of those children who are dealt with in the ways referred to in s 36. Because of the public interest in proceedings relating to vulnerable members of the community, however, the restriction is directed at identification of the particular child, not at, for example, discussion of issues arising in relation to wardship generally.
23 Murray J went on to note that s 35(1), like s 36 in the present case, resolved the tension between competing principles by proscribing not only reports of proceedings which in fact identified the child, but also those which were likely to do so. His Honour continued (at 7 - 8):
(Page 11)
- "The section should be construed so as to facilitate that purpose, whilst not losing sight of the fact that contravention of the section is constituted as a criminal offence in respect of which, before this Court, there are unlimited powers to punish an offender.
In that context, I would accept that the capacity for identification which is proscribed is generally by the public, rather than by private individuals who may, by reason of knowledge otherwise acquired, have a particular capacity to identify a child the subject of a report, which the general reader, viewer or listener would not otherwise have. In my opinion, the requirement that the content of the report must be likely to lead to the identification of the child means that, giving the word 'likely' its ordinary meaning, but not forgetting the seriousness of the consequences of contravention of the section, it must be established that there was a real or substantial prospect that the report would lead the general reader, viewer or listener to identify the child."
- His Honour went on to say (at 9) that:
"The likelihood that the content of a report may lead to the identification of a child is, in other words, to be judged by what it may convey to the ordinary member of the public in the community in which the report is published who may read it, view it or listen to it as the case may require: cf Bailey v Hinch [1989] VR 78, 93 - 4."
25 There are a number of comments which should be made about Murray J's observations. Although his Honour postulates likely identification by a "general reader, viewer or listener", it is to be noted that that general reader is a member of the public in the community in
(Page 12)
- which the report is published. His Honour's reference to Bailey v Hinch [1989] VR 78, in which that question is discussed in more detail, makes it clear that it is not necessary, in order to establish that material is likely to lead to the identification of the child, that it be likely to lead to the child's identification by each and every member of the community. There is a background of general knowledge to which a Court may have regard. Thus, while the ordinary general reader is not one who is closely and intimately connected with the child or the child's family, so as to be able to identify the child from details unlikely to be generally known, such a reader may be a person who lives in the same small town as the child, or who attends or teaches at, or is the parent of a child who attends, the child's school. Once that is appreciated, it can readily be seen that publication of a number of details regarding the child, each in itself unlikely to lead to identification, may in combination have that effect. An example might be a reference to the child's sex, year of schooling, and a sport in which the child was said to excel or a type of school event in which the child had participated, together with the name of the school. To take a visual example, a child in a small community may be identified by publication of an image of the child, even where the face is obscured, if, for example, the community is named and the child's hairstyle can be plainly seen, or the child is standing with members the child's family whose general appearance can be discerned. The example given in Bailey v Hinch is the publication of the surname "Smith" which would not generally automatically be equated with identification, but which could amount to identification if there were also a reference to a small town where only one or very few Smiths resided (at 93).
26 That material of this kind should be regarded as likely to identify a child is a conclusion which flows from the language of s 36, and from a consideration of its purpose. It would be odd, indeed, if the section protected a child against identification by the public at large, but was not concerned with that section of the public, such as neighbours, whose identification would be most likely to have practical consequences for the child.
27 In the present case then, it can be seen that it is not merely the publication of the photograph of the child which identified him. Rather, in combination, many details such as his first name, nickname, age, suburb of residence and the names of his parents (whether they shared his surname or not) would plainly in combination have had the effect of identifying him to a significant number of general readers.
(Page 13)
28 It is also clear from Murray J's reasons that proximity in time between a report which contains identifying details and one which does not is a factor to be considered, as is the degree of public interest or notoriety which the reports are likely to have attracted. In the present case, the fact that a child as young as this child was alleged to have been responsible for a "string of offences" was, in itself, a striking detail, and the report identifying the child was published on the very next day, and then on the day following that.
29 In short, the articles in question here were as proximate in time as it is possible for articles in a newspaper to be, they involved striking circumstances, and they contained a wealth of identifying detail (even without the photographs), some of which identifying detail, such as the child's age and the condition from which the child suffered, as well as the allegation that he was responsible for a number of offences, plainly linked the articles. It is difficult to see, as a matter of common sense, how any person could have formed the view that publication of the later articles would not have led to the identification of the child referred to in that of 19 July.
Training and education at "The West Australian" and matters in mitigation
30 The editor, and a solicitor engaged on behalf of "The West Australian", Ms Carmelina Galati, have deposed to training and education provided to staff of the newspaper. Ms Galati, who has been providing legal advice to WA Newspapers for around 13 years, has said the training seminars, covering such topics as defamation, contempt, statutory restrictions on publication, suppression orders, privacy and breach of copyright are regularly held. While, in more recent years, these are directed primarily to cadets and junior reporters, the training seminars also serve as refresher courses for those nominated by WA Newspapers to attend. Each attendee is provided with a set of materials which are updated for each seminar, containing summaries of publication-related issues.
31 Ms Galati has said that the commencement of these proceedings has illustrated that there is a possible gap in the training of senior editorial staff and, as a consequence, she has been instructed to present seminars to them. She has also drafted a circular, specifically addressing s 36 of the Children's Court Act and the risk of breaching that section by publication of a series of articles. That circular has been distributed to all editorial staff.
(Page 14)
32 The editor's evidence is to similar effect. In addition, he has said that he was at all times aware that it is unlawful to identify a ward of the State but that he has become "acutely aware" of the risk of breaching the law by publishing a series of publications. He has said that he sincerely regrets the contravention and his own role in it. He will do whatever he can, as editor, to avoid any further contraventions of the section.
33 WA Newspapers has not previously been convicted of a breach of s 36 of the Children's Court Act. The editor has not previously been convicted of any form of contempt.
Relevant considerations
34 There is no doubt that the legislature considers that breaches of s 36 should be viewed seriously. That provision, and its equivalents, have long been the law of this State (see the former s 126 of the Child Welfare Act 1947). Since August 1991 the legislature has determined that the offence might be punishable by the Supreme Court "as for a contempt". The seriousness of the offences created by s 36 is underlined by the penalty provided for by s 36(2)(b). That section must be read together with s 40(5) of the Sentencing Act 1995 (WA), which provides that, except where a statutory penalty is expressly provided for a body corporate, a body corporate that is convicted of an offence the statutory penalty for which is, or includes, a fine is liable to a fine of five times the maximum that could be imposed on a natural person convicted of the same offence. (We should mention that the provisions of the Sentencing Act 1995 and of the Sentence Administration Act 2003 (WA) are excluded in the case of a punishment for contempt, although regard should be had for the provisions of s 6 of the Sentencing Act: see s 3(3)(a) of the Sentencing Act and s 3 of the Sentence Administration Act and see also Kennedy v Lovell [2002] WASCA 226 at [6]; see also s 7 of the Criminal Code).
35 Much will depend, of course, on the individual circumstances of each offence and on the prior record of each offender.
36 Amongst the considerations to which regard should be had are:
(a) the extent of publication and the prominence and repetition of the offending disclosures;
(b) the likely consequence of the disclosures and the harm intended to be protected against by the prohibition;
(Page 15)
- (c) existence of pleas of guilty and of genuine expressions of remorse;
(d) the prior records and means of the contemnors;
(e) attempts which have been made or will be made in order to avoid possible breaches of the law;
(f) the extent to which the risk of offending was appreciated;
(g) whether the offence resulted from a commercial decision taken in pursuit of economic gain or from a genuine but misdirected sense of public duty;
(h) the purposes of punishing the contemnors;
(i) personal and general deterrence; and
(j) denouncing the conduct concerned in an approximately emphatic way.
- (See generally R v David Syme & Co Ltd; Ex parte Director of Public Prosecutions for Western Australia, unreported; FCt SCt of WA; Library No 960359; 10 July 1996 at 9 - 10; R v Nationwide News Pty Ltd; Ex parte Director of Public Prosecutions for Western Australia, unreported; FCt SCt of WA; Library No 960527; 16 September 1996 at 10 - 11; R v West Australian Newspapers Ltd; Ex parte Director of Public Prosecutions for Western Australia (1996) 16 WAR 518 at 539; R v Nationwide News Pty Ltd; Ex parte Commonwealth Director of Public Prosecutions, unreported; FCt SCt of WA; Library No 970477; 25 September 1997 at 5 - 6; Director of Public Prosecutions for Western Australia v Rural Press Regional Media (WA) Pty Ltd, unreported; FCt SCt of WA; Library No 980756; 5 August 1998 at 4; 6IX Southern Cross Radio Pty Ltd; Ex parte Director of Public Prosecutions for Western Australia [1999] WASCA 254 at 9, 12).
37 Also relevant is the vital importance of freedom of speech and the important role played by the media in engendering informed debate of matters of genuine public interest, such as the accountability of public authorities. These considerations are of course to be tempered by the legislative policy underlying s 36(1)(c).
38 Finally, as with other offences, there is a need for consistency in the approach of courts when punishing for a contempt.
(Page 16)
This case
39 We accept that the editor had, as one of the motives of publication, a desire to bring to the attention of the public that a boy as young as 9 years of age had allegedly been responsible for a string of criminal offences, some of which were quite serious, yet it was not possible because of his age for him to charged with any offence and police were "at their wits' end" as to what to do with him. The editor deposes to the fact that these were considered by him to be all matters of legitimate public interest which should be addressed by the newspaper, and we accept that. The editor also suggests that, from his viewpoint, the government and the Department were not offering a practical solution to the problem. The editor deposes to the fact that he made a conscious decision that the newspaper "had a duty to put this issue under the spot light [sic]" and decided to publish a photograph of the boy. He says he wanted the newspaper's readers to be confronted with the problem of seeing how young the boy was and he thought this was the only way in which the newspaper could "send home the message". To him, pictures "tell a story better than words".
40 We accept that the editor formed the views which we have described. We do not accept, as counsel for the editor at one point appeared to suggest, that concern for the child and the child's welfare was necessarily the predominant factor in the publications complained of. It is true that there are significant expressions of concern for the child in those publications. For example, there is a reference to his life as "tragic". The editorial raises issues of importance concerning very young offenders in a way which is not sensational. However, the selection of the photographs, together with other references in the articles, such as the reference to the child as a "suburban terrorist", would plainly have had the effect of vilifying the child and causing prejudice against him. The photograph of 20 July in particular, which shows him glaring up from under his eyebrows at the photographer, puts one in mind of the evil children sometimes seen in horror films. While it is the identification of the child which is the mischief at which the section is aimed, identification in a way which is likely to inflame prejudice against the child is a factor of relevance, given that the purpose of the provision is, as we have noted, the protection of the children concerned from humiliation and harassment.
41 We do accept that the editor correctly considered that the issues raised by the articles involving the child were matters of legitimate public interest which it was appropriate for the newspaper to address. We accept also that the editor considered, probably rightly, that those issues would
(Page 17)
- be raised in a way which would have more impact if a photograph of the child was published. Those are matters of mitigation.
42 The editor has conceded in his affidavit that he was, at all times, aware that it was unlawful to identify a ward of the State. He says it was not his intention to breach the provisions of s 36, and he was not aware of the contravention of the Children's Court Act at the time he authorised the relevant publications. We accept that that is so. While a deliberate contravention of the Children's Court Act would give rise to the question of whether the contempt was so serious that it could be dealt with only by imprisonment, it may be accepted for the purpose of these proceedings that there was no deliberate contravention and that, as the motion suggests, a fine is the appropriate penalty.
43 There is, however, a difficulty in setting the quantum of the appropriate fine in the present case, which stems from a deficiency in the materials provided by the contemnors. The deficiency may be illustrated by reference to other cases in which there has been unintentional contempt. In R v Australian Broadcasting Corporation; Ex parte Director of Public Prosecutions for Western Australia, unreported; FCt SCt of WA; Library No 940402; 26 July 1994, for example, there was in evidence a lengthy memorandum from the head of the news and current affairs section of the television station, setting out in some detail steps which had been taken to ensure that the contempt was not repeated. Further, there was put before the Court a series of booklets, training materials, and handbooks for the Court's perusal, which the Court on that occasion noted "exhibit an admirable sense of responsibility in this particular area" (at 11). In R v Nationwide News Pty Ltd; Ex parte Director of Public Prosecutions for Western Australia, there was evidence of the way in which the article in question came to be published, including reference to the particular legal considerations which were raised, the manner in which the material in question had been made available for legal advice, and evidence as to the state of mind of those involved in the publication.
44 In the present case, while the editor deposes that, at the time of the publication of the articles of 20 and 21 July, he did not believe they were in breach of the law "as they did not refer to the child as a ward of the State", there is no clue in the affidavit as to what, if anything, his reasoning process about this issue may have been (although it is implicit in his affidavit that he had adverted to this question). The affidavit does not suggest that he either considered taking, or took, legal advice. Although there are general references in the affidavit to education
(Page 18)
- seminars and to a briefing note dealing specifically with s 36 of the Children's Court Act which has been circulated since the laying of the charges, those materials were not before us. This is not therefore a case in which it can be said that there was either an inexplicable failure to consider the relevant legislation, despite a systematic attempt to ensure that the law was observed, or that there was some reasonable and understandable mistake as to what the legal requirements were.
45 There has been no prior recorded case of contempt by reason of breach of the provisions of s 36 of the Children's Court Act. The only recent conviction of WA Newspapers for contempt was R v West Australian Newspapers Ltd; Ex parte Director Public Prosecutions for Western Australia. It was fined $25,000 for a contempt by the publication of articles in the newspaper about the fact that the Western Australian Turf Club was requiring one Connell to show cause why he should not be warned off racecourses. Reference was made in the articles to a prior conviction and gaol sentence imposed upon Connell and this necessitated that the so-called "Rothwells" trial which Connell was then facing be aborted. The then editor, one Murray, was fined $5000.
46 The editor has no prior convictions whatever for contempt. He commenced employment with the newspaper as a cadet reporter in 1988 and was political and economic issues reporter for the newspaper in 1991 - 1996. He then became deputy business editor. In 1998, he left the newspaper to go overseas and he worked as a business reporter and later, news editor of "The Times" newspaper in London between 1999 and 2001. He was a business reporter at "The Evening Standard" in London between 2001 and 2003. He returned to Perth in February 2003 to take up the position of business editor of the newspaper, which position he held until August 2003. In September 2003, he was appointed editor of the newspaper and he still holds that position.
47 Schedules of penalties imposed in this Court for contempt have been put before the Court. They show a wide range of penalties, which is to be expected. The highest penalty recorded is that which was imposed upon the newspaper in 1996, namely, the fine of $25,000.
48 It is to be accepted that there is a need for consistency in the approach of the courts when punishing for contempt (R v The Age Company Ltd (2000) 113 A Crim R 181 at [18] - [19] and Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd & Laws [1998] NSWSC 28 at 13 and 20), but most of the cases in this Court to which reference has been made involve penalties for contempts by media
(Page 19)
- organisations where the contempts have had a tendency to prejudice potential jury members or jurors in criminal proceedings. To that extent, they are different from the present proceedings and even then, the range of penalties is extremely varied, being anything from $1000 to $25,000.
49 It is relevant in the present case to take account of the fact that the newspaper has a wide publication in Western Australia and that the contempt has had a tendency to cause notoriety for the child who has been clearly identified. Against this, account must be taken of the pleas of guilty entered by WA Newspapers and the editor and the expressions of remorse or contrition; the absence of any prior record of the editor and a relatively good publication history on the part of the newspaper; and the implementation of changes to guard against repetition of such a contempt.
50 Reference was made by counsel for the applicant to the fact that the maximum fine which can be imposed upon summary conviction for a breach of s 36 of the Children's Court Act is $10,000. The Court was asked to take account of that fact in fixing an appropriate fine in the present case. That submission was made in the context that this offence was not charged summarily, but under the general power of the Court to punish for contempt, where there is no statutory limitation of the power of the Court to impose punishment. That power is at large. The submission was therefore, in effect, that as the maximum penalty on summary conviction is a fine of $10,000, punishment for such an offence as a contempt might be expected to attract a penalty greater than that. In our view, the statutory maximum of $10,000 by way of fine for summary conviction is a relevant consideration, but certainly not a determining one.
51 Having regard to the considerations mentioned above as reflected in the facts of this case, we consider that an appropriate fine for WA Newspapers in this case would be $15,000 and for the editor $5000. Each of the newspaper and the editor should be required to pay those sums within a period of 21 days. Each of the newspaper and the editor should pay the costs of and incidental to the motion to be taxed as one set of costs.
6
14
1