5.1 In Australia, it is not necessary to prove that a person or organisation actually intended to interfere with the administration of justice, in order to establish liability for sub judice contempt.¹ All that is needed to establish liability is an intention to publish the material in question,² and proof that the publication had a tendency to interfere with the administration of justice.

5.2 Because intention to interfere is not a requirement of liability, it seems that a person or organisation may be guilty of contempt even if they publish material without knowing that proceedings are current or pending which may be prejudiced by that material.³

5.3 Similarly, liability may be imposed even though the publisher has taken precautions to exclude prejudicial material, such as setting up a checking system,⁴ or seeking legal advice on which basis it believed (incorrectly) that the publication would not breach the sub judice rule,⁵ or checking with sources such as the police or the accused’s legal representative that a certain matter, such as identity, will not be at issue at the trial.⁶

5.4 There are some authoritative dicta to the effect that, although intention to interfere is not a requirement, it is a relevant consideration in determining liability.⁷ The courts have not, however, elaborated greatly on the way in which it may be relevant. Intention is acknowledged to be relevant to the question of whether the publication is exempt from liability on the basis that it relates to a matter of public interest.⁸ It is at least clear that the intention of the publisher is relevant to sentencing, whether it be a factor which the court considers in deciding whether to punish the publisher at all for the contempt,⁹ or in determining the appropriate penalty to impose.¹⁰

5.5 There has also been some suggestion in some older cases¹¹ that a person or organisation may escape liability for sub judice contempt on the basis that they had no knowledge of, and had no reason to know of, the existence of the legal proceedings said to be prejudiced. However, more recently, that suggestion has been doubted¹² , and it certainly appears to have been rejected as a ground of exoneration at common law in England.¹³

CRITICISMS OF THE CURRENT APPROACH

5.6 As is obvious from the discussion above, the current approach to fault, specifically its relevance to liability, is by no means clear. There is some suggestion that an intention, or lack of intention, to interfere with proceedings is at least relevant to the question of liability.¹⁴ It is possible that publishers may be able to claim that they had no reason to know that proceedings were pending, as a basis for escaping liability. However, there is also authority suggesting that the current approach is to impose liability, even if the publisher had no reason to know that a particular publication constituted a contempt.

5.7 If the current approach is to impose liability with no consideration of any fault, or lack of fault, on the part of the publisher, then there are three main criticisms which may be made of this approach. They are, to some extent, inter-related, and may be summarised as follows:

• This approach is contrary to the general trend of the criminal law to require some form of intention before imposing liability, or, at the least, to impose strict liability rather than absolute liability for offences which are more than merely regulatory offences.
• This approach is unfair to the individual publisher, who may be convicted of an unintended and reasonable mistake.
• This approach represents an unjustifiable infringement on freedom of discussion.

5.8 Sub judice contempt is generally regarded as imposing criminal liability, and carries criminal sanctions. It is a general principle of criminal law that, to be guilty of an offence, a person must both commit the conduct prohibited by law and intend the consequences of that conduct, or be reckless or at least negligent as to whether the conduct will have those consequences. For example, to be guilty of murder, a person must both have killed another human being and have intended to kill, or be reckless as to whether certain conduct will result in another person’s death.

5.9 There are exceptions to this general principle. Some offences allow a person to be convicted without any proof of intention to commit the offence in question.¹⁵ In this context, the criminal law distinguishes between offences which impose “absolute liability” and those which impose “strict liability”.¹⁶

5.10 Offences of “absolute liability” do not require proof that the accused knew or could reasonably have known that his or her act was wrongful, and do not recognise any excuse of honest and reasonable mistake. For example, a statute which makes it an offence to sell adulterated meat, even if the vendor does not know that the meat was adulterated, and honestly and reasonably (though mistakenly) believed that the meat was pure, imposes absolute liability.¹⁷

5.11 In contrast, offences of “strict liability” exempt the accused from liability if the accused was honestly and reasonably mistaken as to the existence of facts which (if true) would have made the act innocent. For example, a statute imposes strict liability if it makes it an offence to sell adulterated meat, but exempts from liability a vendor who honestly and reasonably believed that the meat sold was pure.

5.12 Following the distinction between offences of absolute and strict liability as generally understood by the courts, it would appear that sub judice contempt may well be an offence of absolute liability under current Australian law. That is, it imposes liability even if the publisher did not know, and could not reasonably have known, that an offence was being committed. So, for example, a publisher cannot escape a contempt conviction by arguing that it made reasonable efforts to check that no proceedings were pending which may be affected by its publication. If such an argument were accepted as an excuse, then sub judice contempt would be properly classified as an offence of strict liability. Some confusion may arise because, when describing the nature of sub judice contempt, courts and commentators have often referred to it as an offence of strict liability.¹⁸ It would appear, however, that what they mean by this term is what is generally referred to in criminal law as absolute liability.

5.13 The general approach taken by Australian courts is however to limit the range of offences which are interpreted as offences of absolute liability.¹⁹ In one case, He Kaw Teh v The Queen,²⁰ the High Court said that, in the context of interpreting legislation to determine whether it imposes absolute or strict liability, a number of factors should be taken into account. One factor is whether the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act. Offences may more readily be regarded as imposing absolute liability if they are more regulatory than truly criminal in nature, for example if they regulate industrial conditions or protect revenue, and particularly if the penalty for infringement is monetary and not too large.

5.14 The High Court’s ruling in He Kaw Teh v The Queen does not appear to have had an effect on the law of sub judice contempt, or, indeed, to have been considered in any great detail in the context of the relevance of intention to liability for sub judice contempt.²¹ It could be argued, however, that the current approach in imposing liability for contempt goes against the general trend of the courts in limiting the offences which are interpreted to impose absolute liability.

Fairness

5.15 It may be argued that it is unfair to impose criminal liability without any regard to whether the publisher has in some way been at fault, either by intending to interfere with the administration of justice or being negligent as to the consequences of publication. It could be said that the law requires publishers to be aware of every legal proceeding in the state which may be affected by a publication, no matter how unreasonable that may be, and to be able to guess at every statement which could be found to have a tendency to prejudice.²²

5.16 By making intention irrelevant to liability, sub judice contempt fails to focus on the blameworthiness of the offender. Yet it could be argued that the primary aim of the criminal law should be to punish conduct which is blameworthy, whether it amounts to an intentional act or gross carelessness. The imposition of liability without any element of fault should be restricted to situations where it is absolutely necessary, to protect society. It may be questioned whether sub judice contempt is such a situation.²³ The courts tend to view the imposition of absolute liability as generally more appropriate to offences of a regulatory nature. Such offences are not so much concerned with the condemnation of individual blameworthy behaviour, but with ensuring that people regulate their behaviour to promote a particular public interest, such as public safety.²⁴

5.17 It is questionable whether contempt is a mere regulatory offence. The penalties for a contempt conviction are not limited to fines, and while the usual penalty imposed is a fine, the amount can be large and indeed, in theory, limitless. Moreover, conviction for contempt carries the possibility of imprisonment. There is no maximum term of imprisonment which may be set.

5.18 In Canada, it has been suggested that the imposition of absolute liability for sub judice contempt is so unfair as to be unconstitutional.²⁵ It is argued that the absence of any requirement of fault in sub judice contempt violates the right of an accused person to fundamental justice, as enshrined in s 7 of the Canadian Charter of Rights and Freedoms. The Canadian Supreme Court, in a different context, has held that to impose absolute liability for an offence which carries the possibility of imprisonment is a breach of the right to fundamental justice, unless it can be justified in the interests of a free and democratic society.²⁶ In the past, Canadian contempt law did not appear to require any form of fault as an element of liability for sub judice contempt,²⁷ and this was not subjected to constitutional challenge. In several recent cases, however, Canadian courts have emphasised the need for some form of fault as a component of sub judice contempt, such as a requirement of reasonable foreseeability of risk created by the publication.²⁸

Freedom of discussion

5.19 As the Irish Law Reform Commission pointed out, publication of information is not an activity which is prima facie suspect and anti-social, but, on the contrary, is integral to human society and freedom.²⁹ Yet liability for sub judice contempt is currently formulated in such a way that, if publishers want to be sure of avoiding prosecution, the only option for them is to choose not to publish. Once they publish, they are susceptible to attracting liability, no matter how careful they are, and whether or not the threat to the administration of justice arising from the publication could be reasonably anticipated.

5.20 As a consequence, in so far as contempt law represents a compromise between the competing interests in the fair administration of justice and freedom of discussion, it could be argued that, by imposing absolute liability, it tilts the balance too far at the expense of freedom of discussion. Such an intrusion on freedom of discussion may be able to be justified if it could be shown to be necessary to prevent interference with the administration of justice. However, as discussed below, it is questionable whether the imposition of absolute liability provides any more of a deterrence against prejudicial publicity than would the imposition of liability requiring some element of fault.

JUSTIFICATIONS FOR THE CURRENT APPROACH

5.21 If the current approach is indeed to impose absolute liability, then it may be justified on the basis that it is necessary to prevent serious prejudice to legal proceedings. The law on sub judice contempt aims, as a matter of overriding importance, to prevent interference with the proper administration of justice. It has been pointed out that the risk of such interference is just as real, and in just as much need of being prevented, whether it is brought about intentionally or unintentionally by the publisher.³⁰ By imposing absolute liability, the law of sub judice contempt places strong obligations on the publisher to ensure that the risk of prejudice to legal proceedings does not arise. In this way, the law seeks to prevent damage arising from prejudice to proceedings, rather than trying to remedy such damage after it has already occurred.

5.22 It might also be argued that media organisations, which are the prime targets of contempt prosecutions, are businesses operating for profit. Their profit is derived from the same activity that poses a risk to the administration of justice. It makes sense, therefore, that the benefits obtained from such a business should carry certain obligations and responsibilities. Consequently, it may be argued that it is appropriate to impose laws that require media organisations to devote resources to avoid the risk of interfering with the administration of justice.

5.23 Moreover, it could be argued that it places too heavy a burden on the prosecution in contempt cases to be required to prove, beyond a reasonable doubt, intention or carelessness on the part of the publisher. By placing the onus of proving fault on the prosecution, the law would no longer be seen to impose positive obligations on the media to exercise proper care when carrying out their business. As a consequence, the law would lose its deterrent effect and would be less effective in preventing prejudice to the administration of justice.

The Commission’s tentative view

5.24 The Commission acknowledges the arguments in favour of absolute liability. However, when scrutinised, we do not consider that they are sufficiently strong to justify the imposition of liability without any element of fault.

5.25 First, while the law of sub judice contempt aims to prevent prejudice from arising by deterring the media from indulging in risky activities, the deterrent force of the law is not made any stronger by the imposition of absolute liability. As the law currently appears to stand, there is, in theory, nothing that the media can do to be certain of avoiding liability, no matter how careful they are and how reasonably they act to ensure that they do not breach the sub judice rule. By contrast, a fault requirement may give them more incentive to be careful.

5.26 Secondly, the Commission agrees that it is appropriate to impose obligations on media organisations that derive profit from the publication of material. However, the imposition of absolute liability is not the only means of imposing positive obligations to take care, and indeed, is arguably not the most effective means of doing so. Liability could be formulated in a way that required a publisher to take reasonable precautions in order to avoid prosecution. Arguably, this would impose the same obligations on the media to exercise reasonable care.

5.27 Thirdly, the concern that it would be too onerous on the prosecution to have to prove intention beyond a reasonable doubt may be addressed by placing the burden of proof instead on the defendant, as a defence to a charge of contempt. This has been the approach adopted by several law reform bodies as a means of injecting an element of fault into liability for sub judice contempt.³¹

5.28 Given these considerations, the Commission takes the preliminary view that it is fairer to require an element of fault rather than imposing absolute liability for sub judice contempt. The imposition of absolute liability appears unnecessary and, ultimately, unjustifiable. At present, it is not clear whether the law of sub judice contempt imposes absolute liability, and the Commission therefore considers that legislative reform may be desirable to make it clear that fault is an element of liability.

ALTERNATIVE APPROACHES

5.29 There are three alternative approaches which could be adopted to inject some element of fault into liability for sub judice contempt. These are:

(1) a requirement to show actual intention to interfere with the administration of justice, including recklessness as to whether interference will arise;

(2) a requirement to show negligence, that is that the publisher did not exercise reasonable care in preventing the risk of an interference with the administration of justice; and

(3) no requirement of intention or negligence, but a defence which excuses a publisher from liability if it can be shown that the publisher exercised reasonable care to prevent a risk of prejudice from arising.

Actual intention or recklessness

5.30 Liability for sub judice contempt could be formulated in a way that required the prosecution to prove, beyond a reasonable doubt, that the defendant had an actual intention to interfere with the administration of justice. This approach was favoured by President Kirby (as he then was) in the case of Registrar, Court of Appeal v Willesee,³² on the basis that it conforms with ordinary principles of criminal law. A requirement of intention could include reckless indifference as to whether a publication interfered with particular proceedings.³³

5.31 None of the previous reviews of contempt law has recommended the inclusion of actual intention as a requirement of liability for sub judice contempt.³⁴ The Australian Law Reform Commission (“ALRC”) and the Irish Law Reform Commission expressly rejected this approach.³⁵ At this stage, the Commission agrees that it does not seem desirable to require proof of actual intention or recklessness as an element of liability for sub judice contempt. It is the Commission’s tentative view that to require proof of actual intention would be to place too heavy a burden on the prosecution. One of the aims of the law in this area is to impose positive obligations on the media to take care when publishing information about court proceedings. If the law were changed to require actual intention to interfere, it would exclude from liability those who are unreasonably careless. As a consequence, the sub judice rule would lose much of its deterrent effect, relieving the media of any real obligation to take precautions when publishing potentially damaging information.

5.32 The Commission does not consider that it is contrary to general principles of criminal law to require something less than actual intention or recklessness to commit an offence. There are other criminal offences which accept, for example, negligence as the threshold for imposing liability.³⁶ This argument is made stronger if maximum limits are set on the sanctions which may be imposed for contempt, which take into account the fact that liability may have been incurred unintentionally.³⁷

Negligence

5.33 Liability for sub judice contempt could be formulated in a way that requires the prosecution to prove negligence on the part of the defendant. That is, it would have to be proven, beyond a reasonable doubt, that a reasonable person in the defendant’s position would have anticipated that the publication created a substantial risk of prejudice to the administration of justice, or alternatively, that a reasonable person would have anticipated that the publication would prejudice the administration of justice. It would be for the court in each case to determine what was “reasonable”, and presumably a number of factors could be considered, such as the steps taken by the publisher to ensure that the specific publication would not breach the sub judice rule.

5.34 A main advantage of formulating liability in terms of negligence is that it punishes the careless, without punishing those who have taken all reasonable steps to avoid offending the law. It sets a lower standard of fault for liability than a requirement to prove actual intention, by punishing those defendants who have unintentionally breached the sub judice rule. However, it is arguably fairer than the current approach, which takes no account of the reasonableness of the defendant’s conduct. In this way, it is a compromise between the current approach, which could be criticised for setting too low a threshold for liability, and an approach requiring proof of actual intention or recklessness, which could be said to set too high a threshold. The Canadian Law Reform Commission recommended that liability for sub judice contempt be formulated in terms of negligence.³⁸

5.35 One disadvantage of formulating sub judice contempt in terms of negligence is that it may not be a very precise way of setting the limits of liability. That is, it may not be clear what factors the courts will consider relevant in determining whether conduct was “reasonable”. For example, will the courts consider it relevant to take into account the financial and other resources available to individual publishers to determine whether they conducted a reasonable search to ensure that no proceedings were current or pending before publishing? Will it necessarily be considered reasonable for a publisher to rely on legal advice in deciding whether to publish? Will the courts consider it relevant to take into account the particular time constraints facing the individual publisher when preparing for publication, in recognition of the practical demands which come with having to compete with other media organisations to be the first to deliver the most up-to-date information to the public?

5.36 To some extent, it seems inevitable that the decision as to what is reasonable will require a value judgment by the individual court hearing the case. The consequential uncertainty may pose problems both for the prosecution, in deciding whether to proceed with the prosecution and in proving its case beyond reasonable doubt, and for the media, in avoiding liability and in defending a charge. Admittedly, questions of negligence and what is reasonable are issues which the courts address on a regular basis, as they are elements of many criminal offences and civil causes of action. It would also be possible for legislation to include some or all of the factors that may be relevant to determining whether a publisher’s conduct was reasonable. This would provide some guidance to the media to avoid prosecution.

5.37 Another arguable disadvantage of this approach is that it places too heavy a burden on the prosecution to require it to prove, beyond a reasonable doubt, that the publisher acted unreasonably. Rather than imposing positive obligations of care on the media, this formulation would put the onus on the prosecution to prove that the defendant’s conduct was blameworthy. In this way, the deterrent effect of the sub judice rule may be significantly diminished. It could be said that the effect is to tilt the balance too far in favour of freedom of discussion over the public interest in the proper administration of justice. For this reason, the ALRC, the Phillimore Committee in the United Kingdom, and the Irish Law Reform Commission rejected this approach.³⁹

Defence of innocent publication

5.38 The third approach would be to maintain the current position, which includes no element of fault amongst the matters to be proved by the prosecution, but to confirm that taking reasonable care, with reference (among other things) to being aware of pending proceedings, should be a ground of defence. This would allow defendants to be excused from liability if they could show that they exercised reasonable care to avoid creating a substantial risk of interference with the administration of justice.

5.39 The ALRC, the Irish Law Reform Commission, and the Phillimore Committee in the United Kingdom, all recommended, in various forms, a defence of reasonable care. The ALRC recommended⁴⁰ that there be a defence of “innocent publication” to a charge of sub judice contempt. The Irish Law Reform Commission put forward a similar recommendation.⁴¹ Following this recommendation, the prosecution would not be required to prove any form of intention or negligence in order to establish liability. However, persons or organisations considered responsible for a prejudicial publication could be excused from liability if they could prove, on the balance of probabilities, that they had no knowledge of the relevant facts, and that, having regard to available resources, all reasonable care was taken to ascertain such facts. This defence could apply both to the situation where the defendant does not know that proceedings are current or pending which may be affected by the publication, and to a situation where the defendant knows that proceedings are pending or current but does not know and takes all reasonable care to exclude material which is likely to be prejudicial to the proceedings.

5.40 In the United Kingdom, legislation also provides for a defence of innocent publication or distribution, adopting the recommendation of the Phillimore Committee.⁴² According to this defence, the prosecution is not required to prove intention or negligence, but the publisher, or distributor, may be excused from liability by proving the defence on the balance of probabilities. The defence of innocent publication is formulated in narrower terms than that recommended by the ALRC. It applies only to the situation where the publisher does not know and has no reason to suspect that the proceedings affected by the publication were active. It does not provide any relief from liability for the publisher who knows that proceedings are active, but exercises reasonable care to exclude from publication any material which has a substantial risk of prejudicing the proceedings. Moreover, unlike the recommendation of the ALRC, the provision in the United Kingdom does not expressly allow for the court to take into account the resources available to the defendant in determining what is reasonable.

5.41 The obvious advantage of this approach is that it introduces an element of fault into the offence of sub judice contempt, but provides less barriers to a successful prosecution for contempt by placing the onus of proving reasonable care on the defendant. For this reason, the Commission considers that this may be the preferable approach to adopt. It recognises that there is a degree of uncertainty in any test that requires consideration of what is “reasonable”, and that it may involve, to some extent at least, a value judgement by the court deciding the issue. However, it may be necessary to allow for some uncertainty in order to provide sufficient flexibility to take into account the facts of each particular case. Any uncertainty in the operation of the defence should be reduced with the development of case law on what is “reasonable” in this context.

The Commission’s proposals

5.42 The Commission proposes a defence of innocent publication which should be available to two broad categories of persons who may be liable for sub judice contempt. The first covers those persons who are in a position to exercise editorial control in relation to the contemptuous publication. This includes, for example, publishers editors and reporters. The second covers those persons who have no such control, for example, distributors, vendors and broadcasters who broadcast live interviews. As the situations for these two sets of persons are quite different, the Commission has separate proposals for each. The underlying principle for both of them is the need to exercise reasonable care.

Proposed defence for persons responsible for the content of the publication

5.43 For persons who are in a position to exercise editorial control over the contemptuous publication, the Commission makes the following proposal:

PROPOSAL 7

Legislation should provide that it is a defence to a charge of sub judice contempt, proven on the balance of probabilities, that the person or organisation charged with contempt:

• did not know a fact that caused the publication to breach the sub judice rule; and
• before the publication was made, took all reasonable steps to ascertain any fact that would cause the publication to breach the sub judice rule.

5.45 Proposal 7 is largely modelled on the formulation recommended by the ALRC. However, it is worth noting that, under the ALRC’s formulation, in determining whether the defendant took “reasonable steps”, the court was expressly required to consider the resources available to the defendant to ascertain the relevant facts. This would require the court to consider, for example, the financial resources available to the particular publisher, as well as the degree of assistance available from agencies such as the police and the courts in determining whether proceedings were pending or current.

5.46 At this stage, the Commission does not consider it desirable to include a specific reference to the defendant’s resources in a formulation of a defence of innocent publication. The resources available to the defendant is just one of a number of matters that the court may wish to take into account in determining what is “reasonable”. The Commission questions whether it is necessary or appropriate to single out resources in legislation as something requiring express mention. However, it is interested to receive submissions on whether it would be useful to include in a formulation of a defence of innocent publication specific reference to the accused’s resources.

Proposed defence for persons with no editorial control of the content of the publication

5.47 The Commission makes the following proposal with respect to persons who do not have control over the content of the contemptuous publication:

PROPOSAL 8

Legislation should provide that it is a defence to a charge of sub judice contempt if the accused can show, on the balance of probabilities:

(a) that it, as well as any person for whose conduct in the matter it is responsible, had no control of the content of the publication which contains the offending material; and

(b) either:


(i) at the time of the publication, they did not know (having taken all reasonable care) that it contained such matter and had no reason to suspect that it was likely to do so; or

(ii) they became aware of such material before publication and on becoming so aware, took such steps as were reasonably available to them to endeavour to prevent the material from being published.

5.48 Proposal 8 is intended to cover at least two broad situations. The first, which is contained in paragraph (i), is patterned after the defence of innocent distribution in the Contempt of Court Act 1981 (UK) s 3(2). It is primarily aimed at giving distributors of printed material⁴³ a defence to a charge of sub judice contempt. Distributors are not in any way involved in the production of the material and therefore could not be obliged to exercise the same kind of care as that expected of editors or publishers in ascertaining whether a substantial risk of prejudice to pending proceedings will result from the publication. However, although they do not have control over the content of the publication, they do have control in its dissemination and therefore have the capacity, on exercise of reasonable care, to prevent the risk of prejudice from arising. The Commission is of the view that distributors should be held responsible if at the time of the publication they had reason to suspect that contempt might arise.

5.49 However, the situation of innocent distributors at the lower end of the distribution network, such as the street-corner vendor or newsagent, should be distinguished from that of large-scale distributors. The Commission agrees with the view expressed by one commentator that the former would act reasonably in assuming that others higher up in the chain have taken care to avoid dissemination of prejudicial material.⁴⁴ In other words, the reasonable care that is to be expected of big distributors should be higher than that of newsagents and others who directly sell the papers.

5.50 The proposed defence as it relates in paragraph (i) of Proposal 8 is intended to apply not only to distributors in the print media but also to distributors of broadcast (television/radio) material. A broadcasting station which is doing no more than relaying a program prepared by another station and has no control over the contents of the program should be able to avail itself of the proposed defence. However, a subordinate station would be unable to use the proposed defence if under its contract with the principal station, it had the opportunity to check for and censor material that was prejudicial.⁴⁵

5.51 The other situation which Proposal 8 seeks to address is where the offending material was published through the facilities of the accused who became aware of the contemptuous material prior to or after its publication and who could have taken steps to prevent its publication. As in paragraph (i) of the proposal, the accused, under paragraph (ii), nor any person for whose conduct in the matter it is responsible, must have had no editorial control of the content of the offending material. Under the proposal, the accused will only be guilty of sub judice contempt if it failed to take reasonable steps to prevent the material from being published.

5.52 The situation where the proposed defence will have likely application is live radio or television broadcast of contemptuous statements by interviewees or contributors.⁴⁶ While the source of the prejudicial statement, eg the interviewee, should be liable for sub judice contempt, the liability of the broadcaster remains unclear. The Phillimore Committee considered this issue and concluded that the editorial responsibility should remain strict in this situation.⁴⁷ It was of the view that even if the broadcaster had no reason to suspect that a contributor would make a particular statement, it should still be held liable, although this circumstance should be taken into account in the imposition of the penalty.⁴⁸

5.53 The Commission does not agree with this position⁴⁹ and has already stated that it is not in favour of imposing liability without any element of fault.⁵⁰ It takes the position that liability should be formulated in a way that requires a person to take reasonable precautions in order to avoid conviction for contempt. In circumstances where remarks which were not anticipated by the broadcaster are made during a live interview, the broadcaster should be exonerated from a charge of sub judice contempt if it can show that when it became aware of the contemptuous statement, it took all reasonable steps within its means to prevent the publication of the statement.

5.54 Radio “talk” stations are a case in point. Most of them operate on systems which allow for delayed broadcast of an average of 7.2 seconds.⁵¹ Such systems allow for certain words or names to be “dropped out” from the broadcast.⁵² Moreover, the producer and the radio talent on air usually both control a “panic button” which will allow them to stop the broadcast of a statement by the interviewee/contributor.⁵³ Under those circumstances, the radio broadcaster and others involved do indeed have the means to, upon hearing the contemptuous statement, prevent it from being broadcast. Failure to use the mechanism would be construed by courts as a failure to exercise the reasonable care required by the proposed defence.

5.55 The proposed defence contained in paragraph (ii) of Proposal 8 is also intended to apply to two types of entities which play a major part in the distribution of information through the Internet. These are the Internet service providers (“ISPs”) and the Internet content hosts (“ICHs”). An ISP is a person who gives to the public the facility to access the Internet.⁵⁴ An ICH is a person who hosts Internet content, which is information kept on a data storage device and accessed through the Internet.⁵⁵

5.56 Most ISPs and ICHs have no control over the content of the information that goes through their systems, although they may have the capacity to include or exclude certain information. The liability of ISPs and ICHs for carrying or hosting material that breaches the sub judice principle has not yet been considered by any Australian court. It is uncertain whether the common law principles developed regarding the liability of distributors⁵⁶ or even those concerning licensees of television channels⁵⁷ would apply to ISPs and ICHs.

5.57 The Commonwealth Government recently passed the Broadcasting Services Amendment (Online Services) Act 1999 which establishes a framework for dealing with “offensive” content on the Internet. Among its additions to the Broadcasting Services Act 1992 (Cth) is Schedule 5, s 91 which states that a law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it would: (1) subject an ISP or ICH to civil or criminal liability for hosting or carrying content where it was not aware of its nature; (2) and require an ISP or ICH to monitor, make inquiries about or keep records of content which it hosts or carries.

5.58 It has been argued that the immunity granted by cl 91(1) to ISPs and ICHs should be broadly construed because there is no apparent limitation in the Act on the subject matter of the laws that might be overridden by cl 91(1), nor is there a limitation on the type of content applicable.⁵⁸ Consequently, even though the immunity under cl 91(1) is granted in the context of the regulation of “offensive” online content, Eisenberg agues that the new defence applies to a range of State based content liability laws, such as defamation law, the law on sub judice contempt and statutory reporting restrictions.

5.59 The consequence of such a broad construction of s 91 with respect to sub judice contempt is that ISPs and ICHs are not obliged to actively monitor the content that goes through their systems to determine whether a publication has a substantial risk of prejudice to pending proceedings. Furthermore, they cannot be held liable for sub judice contempt for hosting or carrying contemptuous publication if they were not aware of such offending material.

5.60 The Commission agrees in principle with this interpretation of cl 91. The Commission acknowledges the difficulties ISPs and ICHs may encounter in screening material posted on the Internet. It also agrees with the objectives of the Broadcasting Services Amendment (Online Services) Act 1999 (Cth) of encouraging the development of Internet technologies and services and avoiding putting unnecessary administrative and financial burdens on ISPs and ICHs.⁵⁹

5.61 Nevertheless, the Commission considers that where an ISP or ICH becomes aware of some contemptuous publication which it carries or hosts, it should then have an obligation to take steps within its means to prevent the material from being further published. This is consistent with the framework of the Broadcasting Services Act 1992 (Cth) as amended by the Broadcasting Services Amendment (Online Services) Act 1999 (Cth) whereby ISPs and ICHs are required to remove content following formal notification by the Australian Broadcasting Authority.⁶⁰ This position is reflected in paragraph (i) of Proposal 8.

5.62 An Australian company has recently established a website called CrimeNet which provides details over the Internet about individuals who have been convicted of a serious crime.⁶¹ This has implications on sub judice contempt as it is possible that a juror sitting on a criminal case may decide to look up this or a similar Internet site and be exposed to the prior criminal record of the accused. The question then arises as to whether the publication of the criminal record of a person by such means (that is, through a database on the Internet), where the person has a pending criminal case, constitutes contempt. The persons responsible for this kind of service will be unable to rely on the defence in Proposal 8 because they were fully aware of and had control of the contents of their publication. However, they may be able to invoke the defence contained in Proposal 8, if they can prove that they did not know that there was a pending criminal proceeding against the person whose criminal record they had published and, before the publication was made, took all reasonable steps to ascertain this fact.

FAULT AND PRINCIPLES OF RESPONSIBILITY

5.63 The Commission’s proposal for a defence of innocent publication requires consideration of the principles of responsibility for a publication, and the availability of the defence according to those principles.

5.64 According to the Commission’s Proposal 2, concerning responsibility for a publication, a range of persons may be held liable as principals for a contemptuous publication. For example, both an individual reporter, and a supervising editor, may be liable as principals. Since the basis for liability is primary rather than vicarious, a defence of innocent publication may be available to either the reporter or the editor, or both, depending on each person’s conduct. That is, an editor may rely on the defence by showing that he or she did not know of the relevant facts and took all reasonable care to ascertain those facts. The success of the defence would depend on the editor’s own conduct, rather than that of the reporter (as would be the case if the basis for the editor’s liability were vicarious).

5.65 A consequence of classifying liability as primary rather than vicarious, in the context of claiming the proposed defence of innocent publication, is that one defendant may be convicted, and another acquitted of contempt for the one publication.

Corporate media proprietors: identifying the “corporate mind”

5.66 The Commission’s proposed defence of innocent publication requires particular consideration in its application to media proprietors, where the proprietor is a corporate body. Media proprietors are commonly corporate bodies, rather than individuals. A problem in applying the proposed defence of innocent publication to corporate proprietors is identifying the “corporate mind”, that is, who exactly in the organisation is to be shown to have exercised reasonable care in order for the proprietor to rely on the defence.

5.67 To address the issue of criminal responsibility of corporate bodies generally, the criminal law has developed a principle of corporate criminal liability. According to this principle, the “corporate mind” of a corporation is located in certain, senior-ranking employees, on the basis that they are acting as the company and directing the “mind” of the company.⁶² It has been suggested that if the principle of corporate criminal liability applies to the law of sub judice contempt, liability of a media proprietor could depend, for example, on the blameworthiness of an editor, on the basis that editors are superior officers in the day-to-day control of the company, and could be regarded as the “brain” of the organisation’s publishing activities.⁶³

5.68 The principle of corporate criminal liability has been criticised for being out of touch with modern corporate structures, in which greater delegation to relatively junior employees occurs,⁶⁴ and as representing no more than an unsatisfactory form of compromised vicarious liability.⁶⁵

5.69 An alternative approach to corporate criminal liability is to rely on basic principles of vicarious liability for corporate bodies, but with provision for the corporation to avoid liability if it can show that it took reasonable precautions and exercised due diligence to avoid the criminal conduct engaged in by its director, servant or agent.⁶⁶

5.70 The Commission takes the tentative view that a corporation is liable, primarily, by virtue of the fact of publication, but has a defence if all relevant employees have behaved reasonably in relation to the publication and taken reasonable steps to prevent the conduct amounting to contempt. To rely successfully on the proposed defence of innocent publication, the media proprietor must show, on the balance of probabilities, that every employee involved in the publication process for the publication in question exercised reasonable care according to the requirements set out in Proposals 7 and 8.

5.71 The Commission has taken the tentative view that the proprietor of a media organisation should be held primarily liable for a contemptuous publication. The proposed defence of innocent publication would therefore be available to a media proprietor on the basis that the proprietor exercised reasonable care in avoiding a breach of the sub judice rule.

WHERE ACTUAL INTENT IS PROVEN

5.72 Although it is not a necessary element of the offence, proof of actual intention to interfere with the administration of justice may give rise to liability for sub judice contempt. The law, however, is arguably uncertain in this situation. It is not clear whether, if actual intent to interfere is proven, it is also necessary, in order to establish liability, to prove that the intent was accompanied by an act which had a tendency to interfere with the administration of justice. It has been said in some cases that liability may arise solely from an intention to interfere with the course of justice, so long as the conduct charged created at least a remote possibility of interference.⁶⁷ That approach, however, does not appear to be supported by statements in other cases.⁶⁸

5.73 In the New South Wales Court of Appeal, President Mason recently noted the trend of the courts in past cases to regard actual intention to interfere as sufficient in order to prove liability for contempt, without any regard to whether the intention was accompanied by an act which had a tendency to interfere.⁶⁹ President Mason commented that there was no clear explanation for this approach. One possibility was that the courts considered that a person who does an act with such an intention admits a belief that he or she has a reasonable chance of success, with this admission being used as evidence of the fact. Another possible explanation was that proof of actual intention was analogous to an attempt to commit an offence. That is, intention to interfere, together with preparatory acts to carry out that intention, would be sufficient to sustain a charge for contempt. President Mason did not attempt to resolve the uncertainties in the law in this area.

5.74 These comments by President Mason echo suggestions by an earlier commentator that the trend in past cases represents a move by the courts towards recognising an offence of attempted contempt.⁷⁰ It is unclear what would be the practical significance of a finding of attempted contempt, as opposed to one of contempt, for example, whether it would result in the imposition of a lesser penalty.

5.75 It is arguably contrary to general principles of criminal law to impose criminal liability for the existence of an intention without the requisite act to give effect to that intention.⁷¹ It may be said that the law should not seek to punish those who contemplate the commission of an offence, unless they also engage in conduct which effectively carries out their intent. One exception to this general principle appears to be the statutory offence of perverting the course of justice, as provided for in s 319 of the Crimes Act 1900 (NSW). Section 319 requires only the commission of an act with the intention to pervert the course of justice, with no additional requirement that the act be likely or tend to succeed in perverting the course of justice.⁷² The offence of perverting the course of justice overlaps with the offence of contempt, in so far as both offences seek to punish conduct which may interfere with the proper administration of justice.

The Commission’s tentative view

5.76 To the extent that there may currently exist at common law a separate offence of “intentional sub judice contempt”, the Commission can see no reason why it should continue to operate independently of the ordinary principles of liability for sub judice contempt. There is already an offence of perverting the course of justice, which focuses on the intention of the offender rather than the acts taken to carry out that intention. There does not appear to be any need to retain as well a category of contempt which imposes liability for a mere intent to prejudice proceedings. It would appear preferable to have one form of sub judice contempt, which requires a substantial risk of serious prejudice, with a defence of reasonable care. Evidence of actual intention will then simply be relevant to the question of penalty, rather than liability. Where there is evidence of actual intention, without an accompanying act amounting to a substantial risk of serious prejudice, it may be possible to charge the publisher with the offence of intent to pervert the course of justice under s 319 of the Crimes Act 1900 (NSW).

PROPOSAL 9

Legislation should make it clear that mere intent to interfere with the administration of judice does not constitute sub judice contempt, in the absence of a publication that creates a substantial risk of prejudice to the administration of justice.

1. See, for example, R v David Syme & Co Ltd [1982] VR 173; Director of Public Prosecutions (Cth) v Australian Broadcasting Corp (1987) 7 NSWLR 588; Attorney General (NSW) v Dean (1990) 20 NSWLR 650; Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (1992) 7 BR 364 at 378 (Sheller JA) (Handley JA concurring); Attorney General (NSW) v Radio 2UE (NSW, Court of Appeal, No 40236/96, 16 October 1997, unreported). It has been argued that earlier cases in the United Kingdom supported a view that some sort of intention or negligence was required to establish liability: see Daily Mirror; Ex parte Smith [1927] 1 KB 845; C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 284. However, later cases have rejected this approach: see especially the discussion of the Daily Mirror case in Ex parte Auld; Re Consolidated Press Ltd (1936) 36 SR (NSW) 596 at 598-599 (Jordan CJ).

2. See McLeod v St Aubyn [1899] AC 549 at 562; Registrar, Supreme Court, Equity Division v McPherson [1980] 1 NSWLR 688 at 696-697 (Moffitt P and Hope JA); Attorney General (SA) v Nationwide News Pty Ltd (1986) 43 SASR 374 at 408 (Olsson J).

3. See R v Odhams Press Ltd; Ex parte Attorney General [1957] 1 QB 73; See also the criticisms of this approach in Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 at 655 (Kirby P).

4. See Thomson Newspapers Ltd; Ex parte Attorney General [1968] 1 All ER 379.

5. See R v Australian Broadcasting Corp [1983] Tas R 161.

6. See R v Pacini [1956] VLR 544.

7. See, for example, Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682; Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650; John Fairfax & Sons Pty Ltd v McRae (1954) 93 CLR 351 at 371 (Dixon CJ, Fullagar, Kitto and Taylor JJ); Attorney General (SA) v Nationwide News Pty Ltd (1986) 43 SASR 374 at 386-387.

8. Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650; Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 52-53 (Deane J), at 69-70 (Toohey J), at 43 (Wilson J), at 86 (Gaudron J).

9. See Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 42 (Wilson J).

10. Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616; Attorney General (NSW) v Dean (1990) 20 NSWLR 650.

11. See Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242 at 250-251 (Jordan CJ) (Davidson J concurring), at 254 (Bavin J); John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 359 (Dixon, Fullagar, Kitto and Taylor JJ); R v David Syme & Co Ltd [1982] VR 173 at 179 (Marks J).

12. See R v Pearce (1992) 7 WAR 395 at 428-429 (Malcolm CJ).

13. See R v Odham’s Press Ltd; Ex parte Attorney General [1957] 1 QB 73.

14. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371 (Dixon CJ, Fullagar, Kitto and Taylor JJ); Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 69 (Toohey J).

15. For example, regulatory offences such as speeding, driving a vehicle on a public road that is overweight, riding on public transport without paying the fare, selling liquor to a person under 18 years, and those offences relating to health and safety, hygiene, and weights and measures.

16. See Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v The Queen (1985) 157 CLR 523; Hawtgorne v Morcam Pty Ltd (1992) 29 NSWLR 120.

17. This example comes from D Brown, D Farrier, D Neal and D Weisbrot, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (2nd edition, Federation Press, Sydney, 1996) Volume 1 at para 4.7.3. See also Hawthorne v Morcam Pty Ltd (1992) 29 NSWLR 120, which concerned the classification of an offence created by the Pure Food Act 1908 (NSW) (which has since been repealed).

18. See, for example, Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 at 658 (Kirby P); S Walker, The Law of Journalism in Australia (Law Book Company, Sydney, 1989) at 43-44; C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 21. See also Australian Broadcasting Commission, Letter to the Attorney General (20 September 1997) in Submission at 2; John Fairfax Publications Pty Limited and News Limited, Joint Submission to Attorney General at 5.

19. See Hawthorne v Morcam Pty Ltd (1992) 29 NSWLR 120 at 132 (Hunt CJ); He Kaw Teh v The Queen (1985) 157 CLR 523.

20. He Kaw Teh v The Queen (1985) 157 CLR 523 at 564 (Brennan J), at 594-595 (Dawson J), at 529-530 (Gibbs CJ).

21. But see Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 at 652-654 (Kirby P).

22. See Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 at 652-654 (Kirby P).

23. This was the argument put forward by the Canadian Law Reform Commission in its Working Paper on contempt: see Canada, Law Reform Commission, Contempt of Court: Offences Against the Administration of Justice (Working Paper 20, 1997) at 40.

24. See He Kaw Teh v The Queen (1985) 157 CLR 523 at 594-595 (Dawson J); Hawthorne v Morcam Pty Ltd (1992) 29 NSWLR 120 at 125-126 (Mahoney JA).

25. J P Allen and T Allen, “Publication Restrictions and Criminal Proceedings” (1994) 36 Criminal Law Quarterly 168 at 181-184.

26. See Reference re: Motor Vehicle Act (1985) 23 CCC (3d) 289.

27. See Attorney General for Manitoba v Groupe Quebecor Inc (1987) 45 DLR (4th) 80; R v Southam Inc (1992) 6 Alta LR (3d) 115. Contrast with the position taken by the Canadian Supreme Court in United Nurses of Alberta v Attorney General for Alberta (1992) 89 DLR (4th) 609 in relation to contempt by disobedience of a court order: Justice McLachlin held at 637 that for that type of contempt, the prosecution was required to prove knowledge or recklessness on the part of the accused that disobedience will tend to depreciate the authority of the court.

28. See R v CHBC Television (British Columbia, Court of Appeal, No 24128, 8 February 1999, unreported); R v Bowes Publishers Ltd (1995) 30 Alta LR (3d) 236 at 240 (Perras J). In contrast, in New Zealand, it appears that the courts still do not require any element of fault in order to impose liability for sub judice contempt: see, for example, Solicitor-General v Radro Avon Ltd [1978] 1 NZLR 225 at 232; Solicitor-General v Radio NZ Ltd [1994] 1 NZLR 48; Duff v Communicado Ltd [1996] 2 NZLR 89. Although New Zealand has the Bill of Rights Act 1990, that Act does not appear to provide, in the same way as the Canadian Charter, for the right of an accused person to “fundamental justice”.

29. See Ireland, Law Reform Commission, Contempt of Court (Consultation Paper, 1991) at 324.

30. See Attorney General (NSW) v Dean (1990) 20 NSWLR 650 at 656.

31. See para 5.39-5.40.

32. Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 at 652-658.

33. Reckless indifference would require the defendant to foresee the probability that his or her act would result in interference with the administration of justice.

34. The Bill introduced in the Canadian Parliament in 1984 required that the offending publication must have been made “knowingly”: Bill C-19 (1984) cl 33. This is different from the wording of the Bill prepared by the Law Reform Commission of Canada, which did not require intention: Canada, Law Reform Commission, Contempt of Court (Report 17, 1982) at 54.

35. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 260; Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.10, (Consultation Paper, 1991) at 322-323.

36. For example, offences centring on risk-producing conduct, such as negligent driving and culpable navigation.

37. See Chapter 13.

38. See Canada, Law Reform Commission, Contempt of Court (Report 17, 1982) at 54-55.

39. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 262; Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.10, (Consultation Paper, 1991) at 329; United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 133. (The recommendation of the Phillimore Committee in the United Kingdom built on existing legislation which provided a defence of innocent publication).

40. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 262.

41. Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.10; (Consultation Paper, 1991) at 329-330.

42. See Contempt of Court Act 1981 (UK) s 3. This follows the recommendation of the Phillimore Committee, which in turn was based on an existing legislative defence at the time the Committee was conducting its review: see United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 133; Administration of Justice Act 1960 (UK) s 11(1). The South Australian Criminal Law and Penal Methods Reform Committee favoured the approach taken in the United Kingdom: see South Australia, Criminal Law and Penal Methods Reform Committee, The Substantive Criminal Law (Report 4, 1977) at para 3.10.2.

43. The liability of distributors of printed material is discussed in para 3.37-3.39.

44. C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 302.

45. See Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, a defamation case, where it was held that if the television broadcaster which took no part in the production of the program but had the ability to supervise and control the material televised but chose not to, the publication was not innocently disseminated.

46. See Window v 3AW Broadcasting Co (County Court of Victoria, 5 March 1986, unreported) for an illustration of liability for defamation for statements in radio talk-back where the radio station failed to use the so-called “panic button”. See also Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 for an illustration of the application of the defence of innocent dissemination in defamation in the context of a live television interview.

47. See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 152.

48. See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 152.

49. For a criticism of the Phillimore Committee’s position of this issue, see C J Miller, Contempt of Court (Clarendon Press, Oxford, 1989) at 304-305.

50. See para 5.24-5.28.

51. Information provided D Bacon, Chief Executive Officer of the Federation of Australian Radio Broadcasters Ltd (4 May 2000).

52. Information provided D Bacon, Chief Executive Officer of the Federation of Australian Radio Broadcasters Ltd (4 May 2000).

53. Information provided D Bacon, Chief Executive Officer of the Federation of Australian Radio Broadcasters Ltd (4 May 2000).

54. See Broadcasting Services Act 1992 (Cth) Sch 5 cl 3.

55. See Broadcasting Services Act 1992 (Cth) Sch 5 cl 8(1).

56. See para 3.37.

57. See para 3.33-3.34.

58. J Eisenberg, “Safely Out of Sight: the Impact of the New Online Content Legislation on Defamation Law” (2000) 6 University of New South Wales Law Journal 23.

59. Broadcasting Services Act 1992 (Cth) s 4(3).

60. See generally Broadcasting Services Act 1992 (Cth) Sch 5 Pt 4.

61. http://www.crimenet.com.au/menu.html, 4 May 2000.

62. See Tesco Supermarkets Ltd v Nattrass [1972] AC 153. See generally, D Brown, D Farrier, D Neal and D Weisbrot, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales Volume 1 at para 4.8.4-4.8.6; Australia, Criminal Law Officers Committee of the Standing Committee of Attorneys General, Model Criminal Code: Chapter 2: General Principles of Criminal Responsibility (Discussion Draft, July 1992) at 95-97; G Borrie, Borrie & Lowe’s Law of Contempt (3rd edition, Butterworths, London, 1996) at 384-385.

63. See G Borrie, Borrie & Lowe’s Law of Contempt at 385.

64. See Australia, Criminal Law Officers Committee of the Standing Committee of Attorneys General, Model Criminal Code: Chapter 2: General Principles of Criminal Responsibility (Discussion Draft, July 1992) at 95; (Final Report, December 1992) at 105; B Fisse, “Recent Developments in Corporate Criminal Law and Corporate Liability to Monetary Penalties” (1990) 13 University of New South Wales Law Journal 1 at 3-4.

65. B Fisse and J Braithwaite, Corporations, Crime and Accountability (Cambridge University Press, Melbourne, 1993) at 46-47.

66. See Industrial Chemicals (Notification and Assessment) Act 1989 (Cth) s 109; Ozone Protection Act 1989 (Cth) s 65. See also the recommendation of the Criminal Law Officers Committee of the Standing Committee of Attorneys General, Model Criminal Code: Chapter 2: General Principles of Criminal Responsibility (Final Report, December 1992) at proposed s 501.4.

67. It was suggested in the following cases that proof of intention is sufficient to establish liability, with no additional requirement that the conduct had a tendency to interfere with proceedings: see Attorney General (NSW) v John Fairfax [1980] 1 NSWLR 362 at 369; Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682 at 691 (Moffitt P). See also Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554 at 561, where Justice Hunt commented that a public statement which is intended to influence a party to proceedings amounts to a contempt. Justice Hunt made no reference to any additional requirement that the public statement be shown to have a tendency to influence. But see The Prothonotary v Collins (1985) 2 NSWLR 549 at 550-555 (Kirby P), at 571 (McHugh JA), in which it was held that intention to interfere is not sufficient on its own to establish liability, but must be accompanied by an act which has the requisite tendency.

68. See John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371 (Dixon CJ, Fullagar, Kitton and Taylor JJ), in which it was said that the “ultimate question is as to the inherent tendency of the matter published”. See also Lane v Registrar, Supreme Court (NSW) (1981) 148 CLR 245; The Prothonotary v Collins (1985) 2 NSWLR 549 at 550-551 (Kirby P), at 570-571 (McHugh JA).

69. See Harkianakis v Skalkos (1997) 42 NSWLR 22 at 28 (Mason P).

70. I Freckelton, Prejudicial Publicity and the Courts (Australian Law Reform Commission, Reference on Contempt of Court, Tribunals and Commissions, Research Paper 4, 1986) at 92-94.

71. See D Brown, D Farrier, D Neal and D Weisbrot, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (2nd edition, Federation Press, Sydney, 1996) Volume 1 at 327.