INTRODUCTION
3.1 To be liable for sub judice contempt, a person or organisation must first be found to be responsible for the “publication” of material. In this chapter, the Commission examines the meaning of “publication” and “responsibility” as prerequisites for liability, and discusses those reforms, if any, which should be introduced to these aspects of the operation of the sub judice rule.
“PUBLICATION”
The meaning of “publication”
3.2 The courts have not considered in any detail the meaning of “publication” in the context of sub judice contempt. Publications which have attracted prosecution for contempt have typically involved the dissemination of material, either written, visual, or audio, by media organisations, through newspapers, radio stations, or television channels. A film shown in a cinema may also, for example, amount to a publication for the purposes of sub judice contempt.1
3.3 A private communication to a single individual would not usually be considered a “publication” under the sub judice rule (unlike the position in defamation law).2 This is because, in order to attract liability for sub judice contempt, the publication must have a tendency to cause prejudice to particular legal proceedings. In order to have the requisite tendency, the material must be published to a sufficiently wide class of people to include potential participants in the proceedings.3 A private communication, therefore, would not usually be considered to have such a tendency. However, a communication to an individual may give rise to liability for sub judice contempt if it is made in the context of a media interview, where it is foreseeable that the contents of the interview will be published to a wider audience (whether or not the material is in fact so published).4 It is also possible that handing out pamphlets to people outside a courthouse amounts to a publication for the purpose of sub judice contempt, on the basis that people receiving the pamphlets would include jurors.5
Consideration of a legislative definition of “publication”
3.4 In the United Kingdom, legislation expressly defines the term “publication” for the purpose of sub judice contempt. Section 2(1) of the Contempt of Court Act 1981 (UK) provides that “publication” includes a communication in any form which is addressed “to the public at large or any section of the public”.6 This definition seeks to distinguish between communications occurring in the private and the public arenas, and to prohibit only those communications which occur in the public arena. It follows a recommendation of the Phillimore Committee which considered it desirable to exclude expressly from the application of the sub judice rule the conduct of private individuals. It was thought to be unreasonable and wrong to make an ordinary individual liable for conduct carried out in their private lives as opposed to conduct carried out in public life.7 Of course, conduct by a private individual may still amount to another form of criminal contempt or to an attempt to pervert the course of justice. However, different rules will apply to determining liability, and in particular, some form of fault or intention will usually need to be proved.8
3.5 The approach taken in the United Kingdom has been criticised on the grounds that it may not always be clear whether a communication is a private communication between individuals, or one made to a section of the public. For example, it is equivocal whether a communication circulated to a private club amounts to a public or a private communication.9 To this extent, the wording of the legislative definition may, in theory, give rise to some ambiguity and uncertainty as to the sorts of communications that constitute contempt. However, the Commission is not aware of any cases to date where the legislative definition has in fact been the issue in the case.
3.6 In contrast to the approach taken in the United Kingdom, the Australian Law Reform Commission (“ALRC”) recommended against adopting a legislative definition of the term “publication”, considering it preferable to retain a degree of flexibility.10 It concluded that in each case, the court should look at the communication in question to determine whether there was a sufficient degree of dissemination within the community as to create a risk of influencing a juror in the relevant legal proceedings. It argued that this approach would better meet the policy objectives of sub judice contempt than a legislative definition which restricted “publication” to “public” communications. The Commonwealth government supported the approach of the ALRC in its Discussion Paper in 1991.11
The Commission’s tentative view
3.7 Although “publication” has not been clearly defined at common law, no real controversy or uncertainty appears to have so far arisen as a result. Subject to the discussion below, the Commission cannot at this stage see any advantage in introducing a legislative definition of the term “publication”, with the inflexibility and ambiguity in interpretation which this is likely to bring.
Place of publication
3.8 It is becoming increasingly common for material to be available to the public of New South Wales which emanates from another jurisdiction. For example, a newspaper may originally be published in another Australian state, but may be made available to people in New South Wales (for example, by way of the Internet). Similarly, a television program prepared and transmitted in another country may be received by residents of New South Wales via cable or satellite television. Although the material in question is originally transmitted from another jurisdiction, if it is received by the public of New South Wales, the common law would regard that as a publication in New South Wales and may hold the publisher liable for sub judice contempt if the publication is found to have a tendency to prejudice proceedings in New South Wales.
3.9 Of course, it is a separate issue whether a New South Wales court would have any jurisdiction to punish for contempt a person who resided solely in another jurisdiction, or a person who, or an organisation which, carried out their business solely in another jurisdiction. In that situation, it may be more likely that a prosecution would be brought against a distributor in New South Wales, if there were a distributor.12
3.10 It should also be remembered that if liability for sub judice contempt is made dependent on some element of fault, then the liability of publishers in other jurisdictions will depend to a large extent on whether they are at fault in some way, such as whether they ought reasonably to have known the circumstances giving rise to a contempt in New South Wales. Given the protection that would be provided to publishers in other jurisdictions by the Commission’s proposal for a defence of innocent publication13 the Commission does not consider that it would be too harsh to hold publishers potentially liable for publications that are originally transmitted from another jurisdiction. At this stage, therefore, the Commission supports the common law approach in regarding any material that is made available to potential participants in legal proceedings in New South Wales as a publication, regardless of its original place of transmission.
Time of publication
3.11 It may be important to determine when material is published in order to establish whether publication took place within the time period in which liability for contempt arises.
3.12 In general, a publication will only constitute a contempt under the sub judice rule if it relates to legal proceedings which are current or pending.14 Criminal proceedings are generally regarded as “pending” once a person has been arrested or charged in relation to an alleged offence. Consequently, material concerning a particular crime which is published before anyone has been arrested for, or charged with, the crime will not constitute a contempt, even if it later proves to be prejudicial to the trial of the accused person.
3.13 Where material is initially published before an arrest is made or charges are laid, it may be questioned whether it could subsequently attract liability for sub judice contempt if it were still available to the public after the time of arrest or charge. For instance, if a magazine containing an article about a police suspect is initially made available to the public before the suspect is arrested or charged, could the publisher of the article later be held liable for potentially prejudicing the suspect’s trial if the article is still available to the public after the suspect is charged? If a publication were potentially to attract liability in such circumstances, it would place an unreasonable burden on the publisher of the magazine to recall copies of the magazine after the time of arrest.
3.14 The Commission is not aware of any case dealing with this specific issue, nor whether any difficulties have arisen in practice from the need to identify the time of publication of material. Although in Attorney General v Time Inc Magazine Co Pty Ltd,15 the court ordered the publisher to recall issues of its magazine, the case differed from the situation outlined above in so far as Time Inc was found already to have breached the sub judice rule by the initial publication of the relevant issue of its magazine. The order to recall the issue was therefore made to prevent further breaches of the sub judice rule.
3.15 It would seem, as a matter of principle, that publication of material is taken to occur at the time of original publication, rather than regarded as a continuing process. Otherwise, the sub judice rule would potentially operate too harshly against publishers. In the reverse to the situation outlined above, it was held in Director of Public Prosecutions (Cth) v Wran that a person who participates in a media interview may be liable for contemptuous statements made in the interview, regardless of whether or not the contents of the interview are subsequently relayed to the public.16 Liability only arose in the Wran case, however, because it should have been obvious to the speaker that his statements would very probably be republished in the near future to the community at large, resulting in prejudice to proceedings that were pending at the time when he spoke. Applying the same process of reasoning to television programs which are broadcast twice, publication occurs at the time of the original broadcast but, while not being a continuing process of liability, each relay of the original program would be a separate publication. An approach other than this may produce an unfair result when either the first or a subsequent broadcast occurs outside the period when the relevant proceedings are pending.
3.16 Under the current law, it would seem, therefore, that every distribution of written or printed material and every broadcast is treated as a separate act of publication, occurring at the time of the relevant distribution or broadcast. When republication in circumstances involving prejudice to pending proceedings is the natural and probable result of an initial act of publication, the original publisher may be treated as responsible for the consequences of republication. But even then, the act of publication on which liability is based is taken to have occurred at the time of the initial publication. There is no rule whereby republication is regarded as a continuing process. The Commission believes these principles to be appropriate and does not recommend any change.
RESPONSIBILITY FOR PUBLICATION
Responsibility of media representatives, distributors, and vendors
3.17 To be liable for sub judice contempt, a person or organisation must be found to be “responsible” for the offending publication. In general, a person or organisation is responsible for a publication if they are in a position to exercise control over its contents, production, distribution, or broadcast.17
3.18 Contempt prosecutions are most commonly brought against the proprietor of the media organisation, the program producer, and/or the editor. Where an individual is contracted by a media organisation to prepare his or her own program for broadcast by that organisation, then it appears that both the individual and the proprietor of the organisation will be responsible for prejudicial material in the program.18 Similarly, where an independent production company produces a program for broadcast by a broadcaster, both the production company and the broadcaster may be found responsible and so be liable for contempt.19 Where a media organisation is owned by a company, a director of the company may be held personally responsible for prejudicial material if he or she was actively involved in its publication.20 Printers of newspapers have also been found liable, although the court may decide that it is not appropriate to punish them.21
3.19 In this section, the Commission focuses on the responsibility of reporters, editors, media proprietors, licensees, distributors, and vendors, as those most commonly involved in the various stages of the publication process. In particular, the Commission considers whether the law does and should hold responsible for contemptuous publications people such as reporters, those broadcasting programs under licence, distributors and/or vendors. The Commission also discusses the basis of liability for editors and media proprietors, and whether any such liability should be independent or based on the principles of vicarious liability.
Reporters
3.20 Individual reporters employed by media organisations have in the past been found to be responsible for a publication to the extent of attracting liability for sub judice contempt. It has been suggested that a reporter who merely provides information to an editor, rather than actually preparing material for publication, should not be held responsible for any subsequent publication of that material, since the reporter has not intended to publish that information to the general public.22 On the other hand, a reporter who prepares material with the expectation that it will be published should be held responsible for the publication of offending material. A number of English cases support this view.23
3.21 In accordance with what appears to be the English approach, it has been held by the New South Wales Court of Appeal that a reporter who prepares a report for publication is responsible for it if it is published, although the same principle may not apply to a reporter who does no more than furnish information to an editor.24 The court held that it is irrelevant to the question of responsibility that the reporter does not have a role in the final decision whether or not to publish, provided he or she was sufficiently involved in the publishing process. It was also held that a reporter could not escape responsibility on the ground that he or she relied on the editor and other supervising staff to remove contemptuous material or to seek legal advice before publishing.25 This approach is consistent with the approach taken towards private individuals who speak to the media, as discussed in paragraphs 3.41-3.45 below. It was suggested by Justice Mahoney, however, that if the reporter prepared material but did not intend it to be published at a time or in circumstances when the publication would prejudice the relevant legal proceedings, then the reporter would not be liable.26
3.22 Similarly, in a Victorian decision, it was held that the journalist who prepared the contemptuous material should be responsible and therefore liable for the contempt (together with others, including the editor and proprietors of the newspaper involved).27 The court made the comment that journalists should appreciate that they have responsibilities in the reporting of court proceedings, and that training programs offered to them to ensure that they understand the relevant rules should be taken seriously. While the journalist in the particular case was convicted of contempt, the court did not consider it appropriate to punish him.
3.23 Law reform bodies have taken differing views of the responsibility of individual reporters for contemptuous publications. The ALRC recommended a formulation of the notion of responsibility that focused on the publishing organisation and any officer or employee of that organisation in a position to exercise editorial control or supervise a checking system, rather than imposing liability on the individual reporter.28 The Phillimore Committee in the United Kingdom appeared to take the view that the individual employee should be responsible for preparing material for publication that is later found to constitute a contempt.29 The Irish Law Reform Commission recommended that a reporter should be responsible for a piece which appears in publication unamended, unless the reporter had no reason to expect that the material would be published without further communication with the publisher.30
3.24 As the law currently stands, the notion of responsibility for publication is sufficiently broad to include individual reporters within the scope of liability for sub judice contempt, but at the same time protects reporters who have no involvement in the publishing process. The question for consideration is whether this is the appropriate approach to take in imposing liability, or whether it would be more appropriate to hold responsible only those higher up in the hierarchy of a media organisation, that is, those who are in positions of control over the operation of the organisation and the material that it publishes. Although the Commission presently leans towards retaining the common law, there are advantages in both approaches and have suggested Proposal 2 as a possible alternative. This proposal would protect a reporter from liability where he or she was not in a position to authorise publication, exercise a significant degree of control over publication or supervise a system for safeguarding against breaches of the sub judice rule. The Commission invites submissions on which is the preferable approach.
Editors
3.25 Editors will usually be held responsible for a publication, on the basis that they have overall control of its contents.31 In general, an editor will be liable even if he or she has no knowledge of the contents of the publication, although the court may consider it appropriate in these circumstances not to impose a penalty, particularly if the editor has exercised all reasonable precautions to exclude contemptuous material.32 It has been said that editors should be held responsible, even if they have no personal knowledge of the publication, because they occupy positions of central responsibility in the publisher’s organisation.33
3.26 There has been some debate among commentators as to the nature of the liability imposed on editors, namely whether it is vicarious or primary.34 According to the principles of vicarious liability, an employer is liable for the wrongful conduct of an employee who is acting in the course of their employment. The employer’s own conduct is irrelevant. If an editor is vicariously liable for the preparation by a reporter of contemptuous material, liability will focus on the conduct of the reporter, rather than on the conduct of the editor. If, on the other hand, an editor is liable as a principal for the publication of contemptuous material, then liability will focus on the editor’s own conduct. At present in Australia, however, there is no practical significance in classifying an editor’s liability as either vicarious or primary, because there is no element of fault required for primary liability for sub judice contempt.35 This means that liability does not depend on whether the conduct of the person was blameworthy in some way. Consequently, whether an editor is vicariously liable or liable as a principal, liability will not require consideration of the blameworthiness of conduct, whether of the editor or the reporter.
3.27 If, however, some form of fault were introduced as an element of, or a defence to, primary liability for contempt, then it may become important to determine whether to classify an editor’s liability as primary or vicarious. If an editor were vicariously liable for a publication, then liability in a particular case would depend on whether the reporter was in some way at fault, and acting within the course of his or her employment. If an editor were liable as a principal, liability would depend on whether the editor was in some way at fault in failing to exclude contemptuous material from the publication.
3.28 The Commission supports the current approach at common law in generally holding editors responsible for contemptuous publications. Given that it is usually editors who exercise control over the contents of a publication, it seems appropriate that they should be liable for breaches of the sub judice rule. At this stage, the Commission tends towards the view that editors’ liability should not be vicarious. There are two reasons for this. First, vicarious liability can operate harshly against those who take all reasonable care to avoid breaking the law, but are nevertheless held responsible for the negligent or unreasonable actions of their employees. The Commission can see no real justification for imposing such a harsh standard of liability in the context of sub judice contempt. The fundamental purpose of the law in this area is to prevent prejudice to the administration of justice by deterring the media from engaging in conduct that presents a risk of such prejudice. The imposition of vicarious liability on editors provides no stronger deterrent than the imposition of primary liability: with vicarious liability, it does not matter whether the editor exercises reasonable care or not, he or she may still be held liable for the actions of a more junior employee. The second reason for rejecting vicarious liability as a basis for responsibility is that editors are not in fact employers, but are themselves employees of the media proprietor. It would be very unusual to impose vicarious liability on employees for the actions of other, albeit more junior, employees. The principle of vicarious liability, as it has evolved through the law of torts, is based on the “master-servant” relationship, where one person (or organisation) engages another to perform specific duties.36
Media proprietors
3.29 Media proprietors, such as newspaper or magazine proprietors, may be held liable for sub judice contempt, and are usually the primary targets for contempt prosecutions. As with editors, however, the basis for proprietors’ liability is unclear, namely whether they are vicariously liable or liable as a principal.37
3.30 Again, the basis of a proprietor’s liability may have no practical significance under the existing law of sub judice contempt in Australia, where, arguably, fault is not a requirement of liability. However, if liability is in some way made dependent on fault or blameworthiness, it becomes important to clarify the basis of a proprietor’s liability, in order to determine whether a proprietor’s liability will result from the fault of an employee, or from the proprietor’s own blameworthy conduct.
3.31 Unlike editors, a proprietor’s liability may be more readily classified as vicarious, in so far as the relationship between a proprietor and, for example, an editor or reporter is properly one of employer/employee. However, against this it may be argued that the criminal law should be cautious in imposing vicarious liability, since, as noted in paragraph 3.28 above, it potentially operates harshly against proprietors who take all reasonable precautions and are nevertheless held responsible for the unreasonable actions of their employees. The Commission can see no real purpose to be served in imposing vicarious liability on media proprietors. At this stage, the Commission takes the view that they, like other media representatives, should be subject to primary, rather than vicarious liability.
3.32 This approach requires more careful consideration in the context of proprietors that are corporate bodies, as opposed to individuals. In particular, it would be necessary to identify the “corporate mind” if fault is to be an element of, or a defence to, liability for sub judice contempt. The Commission discusses this issue at paragraphs 5.66-5.71
Programs broadcast under licence
3.33 The following paragraphs 3.34-3.36 examine the liability of subordinate television stations, in a network of stations, which receive programs under “licence” from the principal station. As with editors, the channel broadcasting a program under licence is held responsible for a contemptuous publication, whether or not they have knowledge of its contents and even though it may have received the program on instantaneous transmission from another channel. In one case, it was held that a broadcaster that transmitted material prepared by an independent media company according to a contractual agreement was liable for transmitting the independent company’s contemptuous material, even though the broadcaster had no knowledge of the contents of the program.38 In another case, in which a Sydney television station forwarded a prejudicial news program to a Wollongong television station for broadcast in Wollongong in accordance with a licensing agreement, both television stations were found to be responsible for the publication.39
3.34 The High Court has considered the issue of the responsibility of television channels broadcasting programs under licence in the area of defamation law.40 A television channel had been sued for defamation for a television program which it broadcast under a licensing agreement with another channel. The High Court held that the channel broadcasting the program was liable for defamatory statements contained in the program, since it had the ability to control and supervise the material it televised. It was not merely a “conduit” for the program and therefore a subordinate disseminator. The court rejected the argument put forward by the television channel that time did not permit it to monitor the content of the program between its receipt from the other channel and its broadcast. The court noted that it was the decision of the television channel receiving the program to broadcast it live or instantaneously, and it was not obliged to do so under the licensing agreement.
3.35 The question of the responsibility of channels broadcasting programs under licence for contemptuous publications is a difficult one to resolve. At this stage, the Commission considers that the most appropriate approach may be that taken by the High Court in the case described above. That is, a broadcaster should be responsible for a publication if the broadcaster does, or could if it so chose, monitor and alter the content of programs which it receives from another organisation. It would be no excuse for the broadcaster to argue that it had no time to check programs which it broadcasts live, if the decision to broadcast live is not an obligation under the licensing agreement. The decision whether to check programs or to broadcast them instantaneously will often be a commercial decision made by the broadcaster, and it should therefore be accepted as a possible consequence of that decision that the broadcaster may attract liability for contempt. Moreover, it will often be the local broadcaster, receiving programs from a central broadcaster, who is in the best position to know or find out whether there are current legal proceedings which may be prejudiced by the broadcast of a particular program. It is therefore appropriate to expect that the local broadcaster ought to be responsible for maintaining an appropriate checking system to ensure that such prejudice does not arise. Liability would attach to broadcasters in this way if a provision such as that contained in Proposal 2, set out below, is enacted. However, a defence of innocent publication, as formulated in Proposal 8,41 would be available to broadcasters charged with contempt.
3.36 Although liability would apply equally to pay television stations, it is unlikely to apply to Internet service providers, who can more appropriately be classified as a “conduit” for the material appearing on the Internet. The exception to this would be if, in a particular case, an Internet service provider had received notice of prejudicial material and took no steps to remove it. In that situation, the Internet service provider may also be liable for contempt.
Distributors of printed material
3.37 It is possible that distributors of printed material may also be held responsible for a prejudicial publication, even though they have no knowledge of the contents of the material which they are distributing. In an English case, it was held that an importer and distributor of a foreign magazine were responsible for putting a magazine into circulation in England, and were therefore responsible for its publication. They were found liable for sub judice contempt for a publication in an issue of the magazine which had a tendency to prejudice a criminal trial in England.42 The court emphasised, however, that no other person or organisation who could be held responsible for the publication, such as the magazine owner or editor, resided or carried out their business in England. The distributor and importer were consequently the only people over whom the English courts could exercise jurisdiction to punish for contempt.43 It remains unclear whether an Australian distributor of an Australian owned magazine or newspaper would be found liable for contempt by an Australian court.
3.38 Legislation was introduced in the United Kingdom in response to the case noted above.44 It gave distributors a defence to an action for contempt where they did not know and had no reason to suspect that the publication contained offending material. That legislative provision was approved by the Phillimore Committee45 and was subsequently reproduced in the Contempt of Court Act 1981 (UK).46
3.39 The Commission considers that a similar approach should be taken in relation to the responsibility of distributors of printed material as that proposed in relation to the responsibility of channels broadcasting programs under licence. That is, a distributor should be held responsible for a contemptuous publication if in a position to monitor and alter, or cause to be altered, the contents of the printed material. However, the Commission proposes in Chapter 5 that a defence based on the absence of any “fault” should be available.
Vendors of printed material
3.40 Chapter 5 argues that vendors of printed material, such as newsagents or street sellers, are at the lower end of the distribution network and should be distinguished from that of large-scale distributors. One commentator has suggested that vendors cannot be said to intend to publish, since they are ignorant of the contents of material and are under no duty to be acquainted with them, and for this reason they would not be held responsible for a contemptuous publication.47 Another commentator, with whom the Commission agrees, has expressed the view that a vendor would act reasonably in assuming that others higher up in the chain have taken care to avoid dissemination of prejudicial material.48 The defence of innocent publication which the Commission proposes in Chapter 5 should be available for persons with no editorial control over the content of a publication includes a proviso that the person took reasonable care. The standard of reasonable care expected of a vendor would not be as high as that expected of large-scale distributors.
Responsibility of private individuals
3.41 Private individuals, who do not represent the media, may be found responsible for a publication and so be liable for contempt. For example, in past cases, a police officer49 and a politician50 who participated in interviews with media representatives were held responsible for prejudicial statements which they made in the interviews. It is no excuse that the person was unaware of the relevant rules of contempt law, or did not intend to prejudice proceedings, although these may be matters which the court takes into account in determining the appropriate penalty. Nor can the person avoid liability by relying on the editorial discretion of the media to omit prejudicial information from the published material.51 If it is highly likely that the statements will be published by the media to the public, then the individual will be responsible for their publication.52 Even if the media subsequently decide not to publish the interview, the individual will still be liable for any contemptuous statements made in the interview, the offence of contempt having been committed and completed at the time of giving the interview, and so not affected by any subsequent acts or omissions.
3.42 It would seem to follow that any individual who speaks to the media about a matter relating to specific proceedings may be liable for contempt. In theory, this may include, for example, the alleged victim of a crime or his or her family, although it is perhaps unlikely that the prosecuting authority would exercise its discretion to prosecute in this situation. It also seems possible, at least in theory, that a person accused of a crime may be found liable for contempt if he or she publicly asserts his or her innocence, although in practice such a statement uttered by an accused would probably not be considered to constitute a contempt.53
3.43 It is also clear that a media organisation which publishes prejudicial statements made by a private individual may be found responsible for the publication and so be liable for contempt.54 One commentator has suggested that the media should not be liable for the prejudicial statements of an individual, if those statements are broadcast live and are unexpected and unprovoked by the media interviewer.55 This issue does not appear to have been addressed in Australia. However, following general principles of liability for sub judice contempt, it is difficult to see how the media could avoid liability in this situation, although they may not be prosecuted or may be given a lenient sentence.
3.44 The Commission has no firm view on whether or not private individuals should be responsible for contemptuous statements made to the media. On the one hand, there is merit in retaining the flexibility of the common law approach and allowing for private individuals to be liable for sub judice contempt. In most cases, it seems likely that individuals would not be prosecuted, or would receive a very lenient sentence. If, however, a person had acted recklessly in speaking to the media without regard to the probable effect this would have on legal proceedings, then the common law would allow for that person to be prosecuted and punished appropriately.
3.45 On the other hand, as with the case of individual reporters, it could be argued that the aim of the sub judice rule is to encourage the media to implement proper systems to ensure that they do not compromise the proper administration of justice. This purpose is not served by holding a private individual liable for a statement made to the media if that individual has no real control over whether or not that statement is published to the general community, and in what form that statement is published. Following this approach, the focus of allocating responsibility for contemptuous statements should be on the degree of control that the person or organisation in question exercises over the published material and whether that person or organisation is in a position to implement systems to check that prejudicial material is not published. Proposal 2 reflects this latter approach, as an alternative to the existing approach at common law. However, as is emphasised in paragraph 3.46, this proposal is not necessarily the Commission’s preferred option. It is raised in order to invite comment on whether it would be a more appropriate approach to take in preference to the approach taken at common law.
The Commission’s proposal
3.46 At present, the Commission is inclined towards retaining the common law on determining who is responsible for the publication of contemptuous material. The common law notion of responsibility for publication is sufficiently broad to include individual reporters within the scope of liability for sub judice contempt. However, it is noted that the ALRC concluded that each officer or employee who was in a position to exercise editorial control in relation to the contemptuous publication, or whose duties included the establishment or supervision of a system for ensuring the sub judice rule was not breached, should be liable for the contempt. Accordingly, Proposal 2 is put forward as an alternative and submissions are invited on whether to recommend legislative implementation of the proposed principle, or whether the common law should be retained.
FOOTNOTES
1. See R v Hutchinson; Ex parte McMahon [1936] 2 All ER 1514.
2. See Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 378. There was some suggestion in earlier cases that publication to individuals or small groups of people may tend to interfere with the course of justice so as to amount to a contempt: see R v Collins [1954] VLR 46 at 56; Ex parte Attorney General; Re Goodwin [1969] 2 NSWR 360 at 362; see also S Walker, The Law of Journalism in Australia (Law Book Company, Sydney, 1989) at para 1.3.04. These cases are, however, best characterised as scandalising cases, rather than sub judice cases: see R v Collins at 50; Ex parte Attorney General; Re Goodwin at 362.
3. See Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682.
4. See Attorney General (NSW) v Dean (1990) 20 NSWLR 650. See also Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616; and para 3.41.
5. See Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682; The Prothonotary v Collins (1985) 2 NSWLR 549; Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554.
6. This legislative definition was endorsed by the Irish Law Reform Commission and by the South Australian Criminal Law and Penal Methods Reform Committee: Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.2 and recommendation 19; South Australia, Criminal Law and Penal Methods Reform Committee, The Substantive Criminal Law (Report 4, 1977) at para 3.10.1. The Irish Law Reform Commission recommended an addition to the English legislative definition to include a communication to “a judge or juror who is involved in the legal proceedings to which the publication relates”. The English legislative definition was also incorporated into the Bill C-19 1984 (Canada) cl 33.
7. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 75-77, 80. The legislation builds on the recommendation of the Phillimore Committee by including within the meaning of “publication” a publication made to a section of the public as well as to the public at large.
8. As to the relevance of fault to sub judice contempt, see Chapter 5.
9. G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 110-112. See also C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 144.
10. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 248-253. The Law Reform Commission of Canada also made no recommendation for a legislative definition of “publication”: see Canada, Law Reform Commission, Contempt of Court (Report 17, 1982).
11. Australia, Attorney General’s Department, The Law of Contempt (A Discussion Paper on the Australian Law Reform Commission’s Report 35, 1991).
12. See para 3.37-3.39.
13. See Proposal 7.
14. The time limits for liability are discussed in detail in Chapter 7.
15. Attorney General v Time Inc Magazine Co Pty Ltd (NSW, Court of Appeal, No 40331/94, 15 September 1994, unreported).
16. Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616.
17. See Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 379; G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 375; S Walker, The Law of Journalism in Australia (Law Book Company, Sydney, 1989) at para 1.3.02.
18. See Attorney General (NSW) v Radio 2UE Sydney Pty Limited (NSW, Court of Appeal, No 40236/96, 16 October 1997, unreported).
19. See Attorney General (NSW) v Willesee [1980] 2 NSWLR 143.
20. Attorney General (NSW) v Willesee [1980] 2 NSWLR 143 at 157 (Hope JA); Harkianakis v Skalkos (1997) 42 NSWLR 22 at 61 (Powell JA).
21. See R v David Syme & Co Ltd [1982] VR 173.
22. See G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 389-393; C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 290-292.
23. See R v Odhams Press Ltd; Ex parte Attorney General [1957] 1 QB 73; R v Thomson Newspapers Ltd; Ex parte Attorney General [1968] 1 All ER 268; R v Evening Standard Co Ltd; Ex parte Attorney General [1954] 1 QB 578. See also Harkianakis v Skalkos (1997) 42 NSWLR 22 at 61 (Powell JA), citing these English cases with approval.
24. Registrar, Court of Appeal v John Fairfax Group Pty Ltd (NSW, Court of Appeal, No 40478/92, 21 April 1993, unreported).
25. But see the dissenting view of Justice Priestley at 7.
26. Registrar, Court of Appeal v John Fairfax Group Pty Ltd (NSW, Court of Appeal, No 40478/92, 21 April 1993, unreported) at 10 (Mahoney JA).
27. R v Spectator Staff Pty Ltd (Vic, Supreme Court, No 7754/98, James J, 9 April 1999, unreported).
28. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 261.
29. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 146.
30. Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.34.
31. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 61 (Powell JA); R v David Syme & Co Ltd [1982] VR 173 at 178; R v Odhams Press Ltd; Ex parte Attorney General [1957] 1 QB 73 at 80 (Goddard CJ); R v Evening Standard Co Ltd; Ex parte Attorney General [1954] 1 QB 578.
32. See, for example, R v David Syme & Co Ltd [1982] VR 173 at 178-179 (Marks J); Harkianakis v Skalkos (1997) 42 NSWLR 22 at 61 (Powell JA); R v Evening Standard Co Ltd; Ex parte Attorney General [1954] 1 QB 578.
33. R v Evening Standard Co Ltd; Ex parte Director of Public Prosecutions (1924) 40 TLR 833 at 836 (Hewart CJ).
34. See G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 379-382, 387-388; C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 292-297; I Freckelton, Prejudicial Publicity and the Courts (Australian Law Reform Commission, Reference on Contempt of Court, Tribunals and Commissions, Research Paper 4, 1986) at 104-108; Laws of Australia (Law Book Company Ltd, Sydney, 1998) title 10.11 ch 2 at para 47. See also Ireland, Law Reform Commission, Contempt of Court (Consultation Paper, 1991) at 337-338.
35. See Chapter 5.
36. See J Fleming, The Law of Torts (9th edition, LBC Information Services, Sydney, 1998) at 412-420; R P Balkin and J L R Davis, Law of Torts (2nd edition, Butterworths, Sydney, 1996) at 739-742.
37. See G Borrie, Borrie & Lowe’s Law of Contempt (3rd edition, Butterworths, London, 1996) at 382-388; C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 297-301; Laws of Australia (Law Book Company, Sydney, 1998) at para 47. See also R v Evening Standard Co Ltd [1954] 1 QB 578 at 585 (Goddard LJ); Ex parte Bread Manufacturers; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 250 (Jordan CJ); Fitzgibbon v Barker (1992) 111 FLR 191 at 202-203.
38. Attorney General (NSW) v Willesee [1980] 2 NSWLR 143; see also Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650.
39. Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.
40. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, especially at 589-591 (Brennan CJ, Dawson and Toohey JJ) and at 594-596 (Gaudron J).
41. See para 5.38-5.47.
42. R v Griffiths; Ex parte Attorney General [1957] 2 QB 192.
43. R v Griffiths; Ex parte Attorney General [1957] 2 QB 192 at 204 (Goddard LCJ).
44. Administration of Justice Act 1960 (UK) s 11(2).
45. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 154.
46. Contempt of Court Act 1981 (UK) s 3.
47. G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 393.
48. C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 302.
49. Attorney General (NSW) v Dean (1990) 20 NSWLR 650.
50. Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616.
51. Attorney General (NSW) v Dean (1990) 20 NSWLR 650 at 658.
52. See R v Pearce (1992) 7 WAR 395 at 425 (Malcolm CJ). See also Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616 at 627.
53. See Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616 at 627. In most cases, it may be argued that jurors are unlikely to be influenced by an accused person’s public protestations of innocence, on the ground that this is what a person accused of a crime might be expected to say, and therefore the statement does not have a tendency to prejudice the administration of justice.
54. Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616; Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.
55. G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 397.
