OVERVIEW
9.1 A publication will not constitute a contempt, even if it may be prejudicial to a case, if it is a fair and accurate report of proceedings that take place in open court. For example, a fair and accurate report of bail proceedings may not breach the sub judice rule, even if it contains reference to the previous convictions of the accused, if that information has been revealed in open court in the course of the bail proceedings.
9.2 The courts justify fair and accurate reporting as a ground of exoneration by emphasising the public interest in the administration of justice as an open process.1 The principle of open justice is considered to be of vital importance, not only as a means of informing the public of the processes of the courts, but also to ensure that those processes are carried out fairly, without abuse, and are seen to be carried out fairly. This public interest is considered to be of such significance that it takes precedence over the public interest in protecting legal proceedings from possible prejudice and influence by media publicity.
9.3 For this ground of exoneration to apply, a number of conditions must apply:
(1) The report must be of proceedings which are held in open court.2
(2) The report must not be of material which is the subject of a suppression order3 or which for some other reason is not permitted to be reported.
(3) The report must not relate to matters which are said in the absence of the jury (albeit in open court). Consequently, it has been held that a newspaper which reported allegations of a confession by the accused which were the subject of arguments as to admissibility during a voir dire could not rely on the immunity.4 However, once the jury reached its verdict, such a report would be permissible.5
(4) The report must not reveal any material which the trial judge has refused to allow to be put before the jury.6
(5) The report must be of “proceedings”. This includes events occurring in the vicinity of the relevant hearing, arising out of it and directly connected with it, such as a shouted interjection by a spectator in the courtroom or a demonstration outside the court asserting strong views as to what the outcome should be.7
(6) The report must be presented as a report. The immunity will not apply where the fact that the relevant prejudicial statements were made during court proceedings is not mentioned.8
(7) The report must be fair and accurate. A report is fair and accurate if it is “one which a person of ordinary intelligence using reasonable care might regard as giving a fair summary of the proceedings”.9 A report may be unfair by virtue of its mode of presentation or its content, for example, by the inclusion or exclusion of testimony,10 the inclusion of extraneous matters or comment,11 or an absence of a proper balance.12 An inaccurate report is capable of constituting a contempt.13
(8) The report must be published in good faith. A report is not published in good faith if it is published for its news value and in complete and serious disregard of its consequences on the trial of an accused.14 An intention to prejudice a trial is unnecessary.15 An unfair report16 or a delay in reporting the proceedings17 may be evidence of the absence of good faith.
POSSIBLE UNCERTAINTIES IN THE LAW
9.4 It may be argued that it is not always clear when a publication will constitute a fair and accurate report of proceedings. Certainly, a publication need not be a verbatim account of proceedings in order to be a fair and accurate report. A summary of a part of the proceedings may instead be sufficient.18 There are, however, no clear guidelines on what is permissible to include and exclude from a summary of proceedings. In one case, the court pointed to the mode of presentation of the report, comments or opinions expressed by the reporter about the proceedings, and emphasis given to particular aspects of the proceedings, as factors which may affect the fairness of the report.19 Following this reasoning, a report which recounts only, for example, the morning’s portion of proceedings, and omits the afternoon’s portion, may be seen not to constitute a fair and accurate report.20 Similarly, it is arguable whether a report which focuses solely or primarily on the previous convictions of an accused person, as revealed in bail proceedings, would be found to be unfair.
9.5 In addition to being fair and accurate, it appears that a publication must also be shown to be in good faith in order for the publisher to be exonerated from liability. It has been suggested in a number of cases that a publication may be found to be in bad faith if it is not published contemporaneously with the proceedings to which it relates.21 For example, a report of committal proceedings which is published one year after the proceedings and shortly before the commencement of the relevant trial has been found to be in bad faith and to amount to a contempt.22 However, the courts have arguably not given clear guidance as to how long after proceedings a publication may occur and still qualify as a fair and accurate report in good faith.
9.6 It is also unclear whether the law on fair and accurate reporting operates as a defence to a charge of sub judice contempt, or whether, as with the public interest principle, it is a factor which is considered in determining if liability arises. If it is a defence, the burden of proving that a publication is a fair and accurate report will rest on the defendant, and will have to be proven on the balance of probabilities. If, on the other hand, it operates as a component of liability, it will be for the prosecution in contempt proceedings to prove, beyond a reasonable doubt, that the publication was not a fair and accurate report, if this issue is raised.
9.7 A final issue of uncertainty is the extent to which the reporting of prejudicial material, which was contained in a document involved in court proceedings but was not actually mentioned in any open court hearing, is protected by the principle. The important determining factor is whether, under the law governing access to such documents, the reporter was lawfully entitled to view and report on the contents of the document. That issue is canvassed in Chapter 11. The proposals made in that chapter will affect the scope of the fair and accurate reporting principle.
RECOMMENDATIONS OF OTHER LAW REFORM BODIES
9.8 Both the Phillimore Committee in the United Kingdom, and the Australian Law Reform Commission (“ALRC”) recommended the introduction of legislation to clarify the defence of fair and accurate report.23 Both recommended that the legislation include a requirement that the report be not only fair and accurate, but also be published contemporaneously with, or within a reasonable time after, the proceedings to which it related. The Phillimore Committee also recommended that legislation expressly provide for the report to be made in good faith. The ALRC, on the other hand, did not consider it desirable to include a requirement of good faith in the legislative formulation of the defence. It took the view that a requirement of good faith would require a difficult and unsatisfactory inquiry into the motive or purpose behind a particular publication, which generally would have been prepared by a team of individuals within a media organisation. Moreover, it considered that the right of the media to perform their function of reporting the operations of the courts should be absolute, and not subject to inquiries as to their motivation in reporting.
9.9 The recommendation of the Phillimore Committee was substantially adopted into legislation by s 4 of the Contempt of Court Act 1981 (UK). However, that section does not expressly spell out whether it is to operate as a defence or an element of the offence of contempt.
THE COMMISSION’S TENTATIVE VIEW
9.10 At this stage, the Commission is not inclined to propose any changes to the common law position on the accurate and fair reporting principle. It considers that the issues mentioned above, such as whether the fair and accurate reporting principle operates as a defence or as a component of liability, what constitutes good faith and what is an accurate summary of proceedings, are best left for the courts to clarify. However, the Commission welcomes submissions on these issues and any other matter concerning the fair and accurate reporting principle.
FOOTNOTES
1. Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255 at 257-258; R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281 at 286-287 (Byrne J).
2. Scott v Scott [1913] AC 417 at 452 (Lord Atkinson).
3. See Chapter 10.
4. R v Day [1985] VR 261.
5. Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 19 (Hunt J).
6. Ruse v Sullivan [1969] WAR 142.
7. Ex parte Fisher; Re Associated Newspapers Ltd (1941) 41 SR (NSW) 272 at 278-9 (Jordan CJ).
8. R v Scott and Download Publications Ltd [1972] VR 663 at 673 (Menhennitt J).
9. Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255 at 259 (Jordan CJ).
10. Minister for Justice v Western Australian Newspapers Ltd [1970] WAR 202 at 207 (Jackson CJ).
11. Attorney General v Davidson [1925] NZLR 849.
12. Minister for Justice v Western Australian Newspapers Ltd [1970] WAR 202 at 207 (Jackson CJ).
13. Ex parte Norton; Re John Fairfax & Sons Pty Ltd (1952) 69 WN (NSW) 312; R v Evening Standard Co Ltd [1954] 1 QB 578; R v West Australian Newspapers Ltd; Ex parte The Minister for Justice (1958) 60 WALR 108.
14. R v Scott and Downland Publications Ltd [1972] VR 663 at 675 (Menhennitt J).
15. R v David Syme & Co Ltd [1982] VR 173.
16. Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255 at 259 (Jordan CJ).
17. R v Scott and Download Publications Ltd [1972] VR 663 at 675 (Menhennitt J).
18. See Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255.
19. Minister for Justice v Western Australian Newspapers Ltd [1970] WAR 202.
20. This was a concern expressed in I Freckelton, Prejudicial Publicity and the Courts (Australian Law Reform Commission, Reference on Contempt of Court, Tribunals and Commissions, Research Paper 4, 1986) at 97.
21. See Minister for Justice v Western Australian Newspapers Ltd [1970] WAR 202; R v Scott & Downland Publications Ltd [1972] VR 663; R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281.
22. See R v Scott & Downland Publications Ltd [1972] VR 663.
23. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 141; Australian Law Reform Commission, Contempt (Report 35, 1987) at para 321-328, Appendix A (Administration of Justice (Protection) Bill 1987 (Cth) cl 28).
