13.1 This chapter is principally concerned with sanctions that may be imposed after a person is convicted of contempt of court. The main penalties for contempt of court are fines and imprisonment. However, there are no upper limits for these penalties. Theoretically, a sentencing judge may impose any amount of fine and any term of imprisonment as there is no legislation nor common law rule which puts a cap on the punishment for contempt. Additionally, the chapter discusses whether imprisonment should continue to be used as a sanction for contempt and whether legislation should provide for alternatives to a custodial sentence. Finally, the chapter looks at the remedies of sequestration, injunction and civil actions for damages as they relate to sub judice contempt.

13.2 As with the previous chapter, the proposals in this chapter are written in a manner that would cover not only sub judice contempt but criminal contempts more generally. Where a proposal on procedure and sanctions may apply to other forms of criminal contempt, the Commission has decided to extend the proposals to criminal contempts generally. This will prevent the absurdity of having special rules for sub judice contempt, only where such special treatment is not warranted and may lead to confusion.

FINES

13.3 A fine is the usual penalty courts impose in sub judice contempt cases. The court may also impose a sentence of imprisonment, in addition to or instead of a fine, when the contemnor is not a corporation,¹ although the penalty of imprisonment is rarely used in sub judice contempt. It has been observed that with respect to a body corporate which has been found guilty of contempt, such as a media proprietor, a fine is the appropriate penalty.² Nevertheless, courts may take into account the fact that the fine imposed upon a corporation in reality punishes the shareholders rather than those responsible for the contempt.³

13.4 Fines have been imposed on newspaper publishers,⁴ radio⁵ and television licensees,⁶ speakers at public meetings,⁷ journalists⁸ and media interviewees.⁹

13.5 The Supreme Court may make an order for the imposition of a fine on terms, including a suspension of such fine.¹⁰

13.6 In determining the appropriate fine to be imposed upon a person or organisation found guilty of contempt by publication through breach of the sub judice principle, the matters which the court may take into account include the following:

(1) Purpose of punishment. Deterrence is the principal justification for punishment of sub judice contempt.¹¹ In determining the appropriate penalty, courts are careful to ensure that it would have the effect of deterring not just the offender but others as well from committing a similar act.

(2) Intention. An intention to interfere with the administration of justice is acknowledged to be relevant to liability for sub judice contempt, though it is not a pre-requisite. It is also relevant to penalty.¹² Where the contemnor intended to influence those who heard his or her public statements, the court will fix a penalty which will reflect the seriousness of the act.¹³ On the other hand, the absence of any intention to prejudice may be relevant in determining whether any penalty should be imposed, and if so, what penalty is appropriate.¹⁴

(3) Effects of the prejudicial publication. The potential or actual effects of the prejudicial publication are relevant to the question of penalty. The discharge of the jury, for example, although not determinative of liability for sub judice contempt,¹⁵ has been held to be relevant to the penalty which follows a finding of guilt.¹⁶

(4) Existence of a system to prevent prejudicial publications. The absence or inadequacy of procedures in a media organisation to prevent the publication of prejudicial publication may aggravate the penalty.¹⁷ The existence of such a system, as well as the adoption of more rigorous rules and procedures after the contempt proceedings were commenced to avoid a repetition, may induce the court to be lenient in fixing a penalty.¹⁸

(5) Legal Advice. A media organisation will often have to rely on legal advice on whether or not to publish certain material. A decision not take legal advice when the nature of the publication makes it obvious that it would constitute serious contempt could be considered an aggravating circumstance.¹⁹ On the other hand, if legal advice was taken, the nature of that advice is highly relevant. If the advice was to the effect that it was “safe” to publish the material, the court will consider this a mitigating factor.²⁰ However, if the advice was not to publish or that there was a risk in publishing, a subsequent decision to publish in the face of that advice may be seen as an exacerbating factor.²¹

(6) Size of the business and financial circumstances of the defendant. The size of the contemnor’s business is relevant not only to the objective seriousness of the offence but also to the size of the financial penalty to be imposed in aid of deterrence.²² The court is entitled to take into account the fact that the business of the contemnor is one of large size and substantial assets and that a fine that might be appropriate for an individual may be inadequate for an organisation of such size and assets.²³ However, it has been said that it is not the function of the court to impose a penalty that would put a company out of business or produce liquidation.²⁴ Moreover, evidence of dire financial circumstances of the corporate wrongdoer could possibly justify leniency.²⁵

(7) Plea of guilty. The fact that the contemnor acknowledged the contempt and thereby spared the Attorney General and the community the additional cost of a trial mitigates the seriousness of the contempt.²⁶ However, this consideration becomes less significant if the concession was not made until shortly before the hearing was fixed to commence.²⁷ Conversely, a plea of not guilty by the accused may aggravate the penalty because “this necessarily diminishes whatever weight manifestations of contrition might have had in his favour.”²⁸

(8) Apology. The offer of an apology and an undertaking not to repeat the offence will mitigate the offence.²⁹ The apology must manifest contrition on the part of the contemnor; it must be sincere and not given grudgingly.³⁰ An expression of contrition may be rejected as a mitigating circumstance if the accused pleaded not guilty.³¹

(9) Prior record. As with any criminal offence, the contemnor’s prior record is relevant, particularly insofar as any previous convictions for contempt are concerned. A good record, such as no prior convictions, will invariably be taken into account in the contemnor’s favour,³² while a bad record may show that the offence was not aberrant. In one case, the fact that it was the first offence of the media organisation was held to be a mitigating factor.³³ When the same media organisation was convicted a second time, the court, after noting the number of years which have elapsed since it was first licensed and the thousands of hours of broadcasts it must have made during that time, considered that two convictions for sub judice contempt was a good record, and accordingly took this factor into account as a mitigating circumstance.³⁴

Creation and maintenance of official records of contempt convictions

13.7 Information about an offender’s record of criminal conviction is regularly used by courts in sentencing. The Director of Public Prosecutions relies on the Police Service which maintains a Criminal Histories System on offenders who have been dealt with by a court following an arrest.³⁵ The Department of Corrective Services and the Department of Juvenile Justice also maintain information about criminal histories but only in a limited way. The Department of Corrective Services holds information, in its Offender Records System, about offenders sentenced to prison, while the Department of Corrective Services maintains records, in its Juvenile Index System, of court outcomes concerning youth offenders.³⁶

13.8 There is no statutory basis for the Police Service, the Department of Corrective Services and the Department of Juvenile Justice to create and maintain records of criminal histories. The Attorney General’s Department, in a Discussion Paper published in 1998 on the Criminal Records Act 1991 (NSW),³⁷ proposed that legislation be introduced to recognise the right of these agencies to create and maintain criminal histories.³⁸ It was further recommended that the proposed legislation should cover the use of and access to criminal history information.³⁹ The proposals have not yet been implemented by the Government.

13.9 At present, there is no formal central registry of court outcomes in contempt prosecutions. The Crown Solicitor’s Office relies on its own files to obtain information on prior convictions for contempt, for the purpose of assisting the sentencing court by identifying any relevant previous convictions.⁴⁰

13.10 The Commission considers that there is a need to establish a formal system that would allow the prosecution and courts to determine accurately of an accused’s past conduct involving contempt of court. A formal registry is desirable to facilitate a closer scrutiny of the type of information created and maintained. It would also promote consistency in the information recorded. The Commission considers it important that the use of such information be limited to sentencing and bail proceedings.

13.11 As to which agency should be invested with the authority to maintain the registry, the basic principle with respect to offences generally is that authorities involved with prosecution, specifically the police, maintain records of prior convictions and the Director of Public Prosecutions brings those records to the court for sentencing purposes. If they do not provide evidence of prior convictions, the court proceeds on the basis that there are none. The Commission is of the view that the same approach should apply to criminal contempt: that is, the Attorney General, as the authority responsible for bringing prosecutions, should maintain and bring forward evidence of relevant past convictions.

PROPOSAL 26

The Attorney General should create and maintain a registry of court outcomes of criminal contempt proceedings. The information in the registry should be used only for sentencing purposes.

Establishing upper limits for fines

13.12 The main issue with respect to fines as a form of penalty in sub judice contempt cases is whether or not there is a need to provide a statutory maximum penalty.

13.13 At common law there is no upper limit on the fine that can be imposed. It has, however, been suggested that this rule is not absolute because the safeguards expressed in the Tenth Article of the Bill of Rights 1688 (Eng) against the imposition of cruel or unusual punishment or “excessive fines” operate to limit the court’s powers in relation to the imposition of penalties for contempt.⁴¹

13.14 The Phillimore Committee examined the issue of upper limits. It took the view that courts must be able to impose a penalty which will be an effective punishment to an individual or organisation with substantial assets and also operate as a deterrent to others. The Committee noted that there must be scope for a heavier penalty for repeated offences. It recommended that there should continue to be no limit upon fines which may be imposed for contempt by the superior courts. The Contempt of Court Act 1981 (UK) followed this recommendation, imposing no upper limit upon the amount of a fine that can be ordered by a superior court.

13.15 The Australian Law Reform Commission (“ALRC”), in its Report on Contempt,⁴² recognised the strong deterrent effect of the absence of an upper limit for fines as it prevents a media organisation from engaging in a “cost-benefit exercise” in the publication of prejudicial material. It also noted the desirability of giving courts flexibility in fixing the amount of the fine including a power to take into consideration the contemnor’s financial resources. Nevertheless, it recommended the adoption of an upper limit (without specifying an amount) as it considered that unlimited penalties are not a desirable feature of the criminal law.

13.16 The 1991 Position Paper published by the Federal Attorney General’s Department on the ALRC’s Report on Contempt supported the recommendation on the establishment on upper limits on sanctions.⁴³ The draft bill prepared by the Federal Government in 1993, but not introduced into Parliament, specified that the maximum amount of a fine which may be imposed on the offences contained in the bill must be 60 penalty units for a natural person and 300 penalty units for a body corporate.

The Commission’s tentative view

13.17 The Commission agrees with the recommendation of the ALRC that there should be an upper limit on fines that can be imposed. Sub judice contempt should be in line with most other offences for which penalties have ceilings. Establishing a maximum amount for the fine which may be imposed ensures certainty for those most likely to have to deal with the principles of sub judice, such as media practitioners, about the possible penalty, if such principles are breached.

13.18 The Commission has not formed a position as to a specific maximum fine for sub judice contempt and it welcomes submissions on this matter. In setting the maximum fine for sub judice contempt, it is important to remember that the primary function of a penalty for sub judice contempt is to deter the accused and others from violating the sub judice rule. To achieve this purpose, the maximum penalty should not be too low as to deprive courts of the flexibility required to impose a fine that is appropriate according to the circumstances. The maximum fine should be sufficient to deter corporate entities from flouting the sub judice rule.

13.19 In sub judice contempt convictions in New South Wales between 1980 and 1999, the highest fine which a New South Wales court has imposed on a corporate offender has been $200,000.⁴⁴ This amount has been imposed in four cases in the last nineteen years.⁴⁵ The second and third highest fines imposed have been $120,000⁴⁶ and $100,000,⁴⁷ respectively. Apart from the fines imposed so far in New South Wales, guidance may also be had from other legislation that imposes fines on bodies corporate. For example, the Trade Practices Act 1974 (Cth) imposes the fine of $200,000 on companies that breach most of the provisions of its Part 5 (Consumer Protection)⁴⁸ and $750,000 or $10,000,000 for breaches of the provisions of Part 4 (Restrictive Trade Practices).⁴⁹

13.20 The Commission also seeks submissions on whether there should be a difference in the maximum fine that can be imposed on bodies corporate as opposed to that which may be meted out to individual offenders, such as journalists, radio announcers, editors or individuals interviewed by the media. The fines imposed on bodies corporate are generally higher than those on individuals on the basis that the former are in a far superior financial position than the latter. An amount which is sufficient to have a deterrent effect on an individual may not have the same effect on a corporate offender, while a fine appropriate to a body corporate may be excessive if imposed on an individual. However, the Commission notes that there may be instances when the financial resources of an individual media personality are such that a court may be justified in imposing an amount which is comparable to those imposed on bodies corporate.⁵⁰ The Commission further notes that as a matter of practicality, fines imposed on individuals who work in the media are generally paid by the media organisations that employ them. In such a situation, the fine, regardless of the amount, may not have a direct impact on the individual offender. Such an arrangement undermines the desired deterrent effect on the individual offender. However, imposing a large amount of fine on the individual may influence the employer organisation to ensure the maintenance of a system to prevent the commission of the offence by its employees.

IMPRISONMENT

13.21 Imprisonment has always been available as a sanction in cases of contempt. At common law, the maximum period of imprisonment to be imposed by a superior court is unlimited,⁵¹ although it is arguable that the unexpressed limits derived from constitutional principles prevent the imposition of an excessive term of imprisonment if this amounts to a cruel and unusual punishment.⁵²

13.22 Although there is no limit on the length of the sentence which could be ordered, the practice is to fix the term of the imprisonment when it is imposed.⁵³ In New South Wales, it has been held that the Sentencing Act 1989 (NSW) applies to the sentencing of a person for contempt and consequently, the court may either impose a fixed term⁵⁴ for the imprisonment or impose a minimum and additional term.⁵⁵

13.23 In New South Wales, the Supreme Court has the power to suspend the execution of a sentence of imprisonment imposed for contempt. The Supreme Court Rules 1970 (NSW) Part 55 r 13(3) allows the court to “make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such terms as the court may approve for good behaviour and performs the terms of the security.”

13.24 The Supreme Court of New South Wales has the power to discharge a contemnor before the expiry of the term of the imprisonment.⁵⁶ The power to discharge will normally be exercised only where there has been some change in the circumstances since the sentence was imposed.⁵⁷ For example, this power may be exercised where the contemnor has purged his or her contempt⁵⁸ or where no good purpose will be served by further detaining the contemnor.⁵⁹

13.25 A decision to imprison a contemnor and the decision as to the duration of the imprisonment should give proper weight to all relevant circumstances, particularly the culpability of the contemnor, the prejudicial effect of the conduct on the administration of justice and the need to deter the contemnor and others from repeating the same conduct.⁶⁰ Where persons other than the contemnor have published the contemptuous material but have not been prosecuted, this may be taken into account.⁶¹

13.26 While imprisonment is an available sentence in contempt by publication, it is not often invoked.⁶² Australian courts have occasionally imposed prison sentences on persons found guilty of contempt by scandalising.⁶³ In the only recorded Australian case of imprisonment for breach of the sub judice principle, an important factor which the trial judge considered was the fact that the contemnor, a radio compere, continued to publish the offending material on two occasions after having been warned not to do so by the Solicitor-General.⁶⁴ While the term of imprisonment was reduced on appeal from six weeks to twenty-eight days, the Full Court of the Supreme Court of Victoria nevertheless found a custodial sentence to be appropriate in that case. It is considered that because no other sentence would adequately mark the seriousness of the offence and at the same time act as a deterrent to the contemnor and to others engaging in trial by media in this country.⁶⁵

Retaining imprisonment as a penalty but imposing an upper limit

13.27 There are two issues with respect to the penalty of imprisonment. The first is whether this should continue to be a sentencing option in sub judice contempt cases. The second is whether, if it does, there is a need to set an upper limit on the period of imprisonment.

13.28 The Phillimore Committee did not consider the first issue but recommended the adoption of a maximum term for sentences of imprisonment. It suggested a period of two years as a maximum term that superior courts could impose in contempt cases.⁶⁶ It gave two reasons for recommending the imposition of a maximum limit. The first stems from the fact that a summary procedure is used for contempt, and it would be anomalous if a person could be given a heavier penalty for conduct which is dealt with on summary process than he or she could be given after a conviction on trial by indictment for the same behaviour. Secondly, it observed that a serious contempt might also constitute an offence under the general criminal law. Where considerations of urgency were not present in a case, the Committee approved of the practice of dealing with such a case by criminal proceedings. A limitation on sentencing powers for contempt would reinforce this practice.

13.29 Effect was given to the Phillimore Committee’s recommendations by the Contempt of Court Act 1981 (UK) s 14(1) which provides that in England and Wales, the maximum term of imprisonment on any one occasion is two years in the case of superior courts and one month in the case of inferior courts.

13.30 A few years after the report of the Phillimore Committee came out, the Criminal Law and Penal Methods Reform Committee of South Australia also recommended that “all committals to prison for contempt should be for fixed terms, save that the court should always retain power to release a person who has purged his contempt or should be released for any other reason.”⁶⁷ This recommendation has not been implemented.

13.31 The Law Reform Commission of Canada, in its Report on Contempt of Court, decided that the maximum sentence for the indictable offences it was proposing should be two years.⁶⁸ It mentioned a study of Canadian case law which showed that sentences for contempt rarely exceeded two years imprisonment. It also cited the recommendation of the Phillimore Committee. In addition to the recommendation of the Law Reform Commission of Canada, it was stated in R v Cohn⁶⁹ that no Canadian case was cited where a final sentence for contempt exceeded two years. A bill⁷⁰ was introduced in 1984 in the Canadian Parliament to implement the recommendations of the Law Reform Commission, including the establishment of a maximum sentence of two years for the proposed statutory offence which would have been the equivalent of the common law offence of sub judice contempt. The bill was not adopted by the Canadian Parliament.

13.32 The ALRC, in its Report on Contempt,⁷¹ expressed the view that there is only a residual role for imprisonment. It considered imprisonment to be an undesirably harsh measure in cases where the offending publication was the outcome of inadvertence or recklessness only. On the other hand, if a deliberate or reckless contempt is committed by an employed journalist, the likelihood that the fine will be paid by the employer undermines the effectiveness of the fine as a penalty. The ALRC stated that imprisonment should only be available where it is established that the relevant defendant acted with mens rea. It did not, however, recommend a formal provision to this effect in view of possible complications it would have on the trial procedure.

13.33 The ALRC also recommended the adoption of an upper limit for imprisonment as a sanction for contempt by publication but did not specify a figure as to what the maximum term of imprisonment should be. The 1991 Position Paper published by the Federal Attorney General’s Department on the ALRC’s Report on Contempt supported the recommendation on the establishment of upper limits.⁷² The draft bill prepared by the Federal government in 1993, but which was not introduced in Parliament, specified that the imprisonment which may imposed for the offences contained in the bill must be for a fixed term and must not exceed a period of one year.

The Commission’s tentative view

13.34 The Commission shares the view of the ALRC that imprisonment as a sanction should be retained. While it is a harsh penalty when a prejudicial publication is the result of inadvertence or carelessness, imprisonment may be appropriate when the breach of the sub judice principle is deliberate or the result of recklessness on the part of an individual as to the consequences of the publication.⁷³ The fact that a penalty of fine is usually paid by an employer corporation undermines the effectiveness of this form of penalty and courts must have imprisonment as an option to deter a breach of the sub judice principle which is intentional or reckless.

13.35 The Commission considers however that an upper limit must be established for the penalty of imprisonment. The penalty for sub judice contempt should be in line with other criminal offences for which the courts’ power of sentencing has been limited in almost every sphere to a maximum by legislation.⁷⁴ The Commission has no firm proposal as to the specific maximum period. The penalty of penal servitude for fourteen years for the statutory offence of perverting the course of justice,⁷⁵ which theoretically could apply to a breach of the sub judice principle if there is an intent to pervert the course of justice, seems excessive to the Commission, especially in cases where summary procedure is utilised. Instead, the Commission notes that the maximum custodial period imposed in convictions for sub judice contempt and criminal contempts does not normally exceed two years.⁷⁶ In England for example, two years is the maximum custodial period for contempt of court committed in superior courts.⁷⁷ Two years was also the recommendation of the Law Reform Commission of Canada. On the other hand, the draft bill entitled Crimes (Protection of the Administration of Justice) Amendment Bill (Cth) prepared by the Federal government in 1993 specified a period of one year. The Commission further notes that in the only sub judice contempt case in Australia where imprisonment was used,⁷⁸ the court imposed a term of imprisonment for twenty-eight days.⁷⁹

PROPOSAL 27

Legislation should provide appropriate upper limits on prison sentences and fines which may be imposed on persons convicted of criminal contempt.

13.36 In addition to, or as alternatives to, the traditional penalties of imprisonment and fine, courts have, in a number of contempt by publication cases, reprimanded the offender,⁸⁰ accepted an apology⁸¹ made to the court and/or required the offender to pay an amount by way of costs.⁸² In some of these cases, these alternative forms of punishment were deemed sufficient to justify the non-imposition of the formal penalties of fine and/or imprisonment.⁸³

13.37 For offences generally, the law provides alternatives to the penalty of imprisonment such as community service orders,⁸⁴ good behaviour bonds,⁸⁵ dismissal of charges and conditional discharge of the offender,⁸⁶ deferral of sentencing for rehabilitation,⁸⁷ and suspended sentences.⁸⁸ The law also provides alternatives to traditional full-time detention in prisons through schemes such as periodic detention⁸⁹ and home detention.⁹⁰ In addition, parole is available to offenders sentenced to prison which allows them to be discharged from custody prior to the expiry of the maximum term of imprisonment, provided that they agree to abide by certain conditions, with the intention that they serve some portion of their sentence under supervision in the community and subject to recall for misconduct.⁹¹

13.38 One issue for consideration in this reference is whether the sentencing options available in criminal offences generally may be exercised in criminal contempt cases, and if not, whether they should be.

13.39 In New South Wales, the Court of Appeal has decided in Attorney General (NSW) v Whiley⁹² that the Sentencing Act 1989 (NSW)⁹³ applies to a sentence of imprisonment for contempt of court for the purposes of imposing minimum and additional terms.⁹⁴ This decision was followed in Young v Jackman.⁹⁵ In Whiley, the Court of Appeal reasoned that contempt is not one of the categories of cases which are excluded from the operation of the Act. The court observed that the legislative intention behind the Act was to create a code in respect of the procedures to be followed where a person is sentenced to imprisonment by a court. Finally, the court noted the strong policy reasons for applying the Act to contempt cases, including providing consistency in sentencing, giving the offender the opportunity to have parole and serve part of the sentence in the community, and providing a more flexible approach to sentencing which will take into account the interests of both the community and the offender. As a result of the Court of Appeal decisions that the Sentencing Act 1989 (NSW) applies to contempt cases, parole is available to a contemnor who has been sentenced to imprisonment.

13.40 Following these decisions, the Supreme Court (Administrative Law Division) imposed fixed terms of imprisonment pursuant to s 6 of the Sentencing Act 1989 (NSW) in a contempt case.⁹⁶

13.41 In contrast to these decisions, the Court of Appeal held that it does not have any express power to impose an obligation of community service under the Community Service Orders Act 1979 (NSW) in a case involving contempt of court.⁹⁷ The court stated that “[a]lthough punishment for contempt of court in criminal in nature, it derives from the inherent power of the Supreme Court. It therefore does not attract the express statutory provisions relating to community service.”⁹⁸

13.42 The situation with respect to other sentencing options, such as probation, good behaviour bonds, home detention and periodic detention, remains unclear as courts have not had the opportunity to consider whether the statutes or common law that govern them would allow the courts to use those sentencing options for persons found guilty of criminal contempt.

13.43 The New South Wales Parliament recently passed legislation repealing and re-enacting in three main Acts the provisions of the various statutes dealing with the sentencing of offenders and the administration of sentences.⁹⁹ They have not, however, clarified the application of the various sentencing options to criminal contempt. Section 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides for a maximum penalty of 5 years for most offences for which no penalty is provided by or under that Act or any other Act. This section, however, was not intended to apply to common law offences such as contempt.¹⁰⁰

13.44 It may be argued that there is no need to adopt legislation to make the various sentencing options, such as community service, home detention, periodic detention and suspended sentence, applicable to criminal contempt. Two reasons may be suggested. First, the inherent power of superior courts to punish contempt of court give them broad discretion in the imposition of penalties. The power of courts to impose the informal penalties of censure, apology and costs, discussed above, illustrate this flexibility in the imposition of penalties. It has also been observed that the power of the Supreme Court under Supreme Court Rules 1970 (NSW) Part 55 r 13 to impose the penalties of fine and imprisonment and to impose conditions on those penalties is not exhaustive but merely demonstrative.¹⁰¹ Hence, for example, although it was conceded that courts do not have the express power to issue a community service order under the Community Service Orders Act 1979 (NSW), they may impose an obligation of community service as a condition for suspending the operation of a fine which would otherwise be imposed.¹⁰²

13.45 Secondly, the Supreme Court Rules 1970 (NSW) Part 55 r 13(3) provides: “The court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner as the court may approve for good behaviour and perform the terms of the security.” This provision may very well be construed by courts to allow them to issue sentences that are effectively the equivalent of suspended sentences, probation orders, or conditional bonds. Moreover, it may even be interpreted more broadly by the courts to allow them to impose conditions on how the penalty of imprisonment should be served, for example by issuing custodial sentences which amount to home detention orders or periodic detention orders.

The Commission’s view

13.46 The range of sentencing options available to crimes in general should be available for the courts to utilise in criminal contempt proceedings. The aim of these sentencing options is to give flexibility to the sentencing courts to allow them to achieve the purposes of penal sanctions, primarily the rehabilitation of the offender but also deterrence of the commission of crimes not just by the particular offender but by others as well. It also allows courts to spare an offender from the brutalising and oppressive effects of penal institutions. Moreover, these alternative sentencing schemes relieve some pressure on the prisons system. The Commission considers that the same policy considerations underlying the “alternatives” to imprisonment apply equally to criminal contempt cases. Parole for example is, subject to certain exceptions,¹⁰³ an integral part of a custodial sentence for crimes generally. It mitigates the harshness of the sentence by reducing the time a prisoner spends in custody and is part of the continuum of punishment of the offender. A person convicted of criminal contempt and sentenced to imprisonment should, like any other offender meted with a custodial sentence, have the benefit of mitigating effects of parole. Home detention is also appropriate because while it deprives the offender of liberty and thus serves the deterrence goal, it provides a cheaper alternative to full time imprisonment and spares the offender the ordeal and contamination of prison. Although criminal contempt is a grave offence because it is an affront to the proper and efficient administration of justice, the offender, by such offence alone, does not pose an unacceptable threat to the public safety as to make home detention not viable. Periodic detention and community service may also be applicable and more appropriate for persons convicted of criminal contempt because these sentencing options still register disapproval of the offender’s behaviour without the negative effects of full-time imprisonment. They allow the offenders to compensate the damage which their behaviour might have inflicted on the community without having to give up employment or have their domestic relations severely disrupted.

13.47 The Commission acknowledges that courts have demonstrated a flexibility in sentencing persons found guilty of contempt of court and it is quite possible that the Supreme Court’s powers under its rules to punish criminal contempt may continue to be construed broadly by them. However, the Commission is of the view that sentencing of criminal contempt should not be left to common law where the nature and direction of its development is uncertain. It considers that legislation is required to expressly empower courts with more options when sentencing persons convicted of criminal contempt. Legislation which would apply the current sentencing options to contempt would afford those convicted of criminal contempt the same options as those convicted of other crimes. Such legislation would create certainty for the courts, the accused and their advocates about the availability of alternative sentencing options which might be more appropriate than the traditional ones, such as imprisonment. It would also establish consistency so that when the courts use their power to hand out these alternative sentences, they will have to abide by the criteria set by Parliament rather than relying on their broad discretionary sentencing powers at common with respect to contempt.

13.48 The Commission notes that a large number of those convicted of sub judice contempt are corporations rather than individuals. This means that certain sanctions, in particular imprisonment and its alternatives (eg, home detention, periodic detention, etc), will not be appropriate. Special consideration needs to be given as to the most appropriate alternative sentencing options for corporate offenders. However, the Commission has a current reference on sentencing and one of the topics to be examined is sentencing of corporations. It may be sufficient to state, at this stage, that the Commission considers criminal contempt to be an appropriate area in which to explore new techniques of punishing corporations when it prepares its report on corporate sentencing.

PROPOSAL 28

Legislation should expressly provide that the various alternatives to and methods of serving a custodial sentence, including community service orders, good behaviour bonds, dismissal of charges and conditional discharge of the offender, deferral of sentencing, suspended sentences, periodic detention orders, home detention orders and parole, are available in criminal contempt proceedings.

13.49 Another remedy which may be available in contempt proceedings is the writ of sequestration. This is a method of enforcing judgments or orders which require a person: (a) to do an act within a specified time; or (b) to do an act forthwith or forthwith upon a specified event; or (c) to abstain from doing an act.¹⁰⁴ Historically, it is an old weapon of the Chancery Court to compel a party’s obedience to mesne process or a decree and used for the purpose of enforcing compliance with such processes or decrees rather than to punish disobedience.¹⁰⁵ It is coercive or compensatory in nature rather than punitive.¹⁰⁶

13.50 Sequestration is a process of the law of contempt,¹⁰⁷ and as such, the writ is normally available as a means of enforcing a coercive order against someone who has committed contempt by disobeying the order.¹⁰⁸ It only lies against a person actually in contempt.¹⁰⁹ The Supreme Court Rules 1970 (NSW) confirm the availability of this remedy in contempt proceedings by providing that where the contemnor is a corporation, the court may punish contempt by sequestration.¹¹⁰

13.51 A writ of sequestration is directed to named sequestrators who are required to take possession of the contemnor’s property and to retain it until the contempt has been purged and the court has made appropriate orders.¹¹¹ The writ binds real and personal property from the time it is issued.¹¹² It places property belonging to the contemnor temporarily into the hands of sequestrators who, in the case of land, manage the property and receive the rents and profits.¹¹³ The legal effect of sequestration has been explained by the High Court as follows:

[W]hen the property of the contemnor is actually sequestered and held under sequestration it is not confiscated. The contemnor is deprived of the enjoyment of his rents and profits for the duration of the sequestration; but he does not forfeit the property in them. When whatever is considered necessary to clear the contempt has been done, the sequestration is discharged by order of the court: and the sequestrators must then give up possession on having their costs and expenses. As it is put in Bacon’s Abridgment under “Sequestration”, “Then whoever hath been seized shall be accounted for and paid over to him (the party whose property was sequestered). However, the courts have the whole under their power, and may do therein as they please and as shall be most agreeable to the justice and equity of the case.” Sometimes it may be appropriate that the proceeds of the sequestration, or part thereof, should be applied to the discharge of an equitable obligation, as for example by a direction that equitable debts, the non-payment of which had led to the sequestration, be first paid out of the fund; or that the fund be applied so far as necessary in reparation of the damage caused by the contemnor’s disobedience.¹¹⁴

13.53 A writ of sequestration may be issued to enforce a fine imposed on a finding of contempt. For example, in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd,¹¹⁶ the Federal Court issued an interlocutory injunction to restrain a union and its officers from, among other things, imposing a ban on the provision of goods or services to the employer company and from maintaining a picket line in the vicinity of the workplace. When the union and its officers wilfully disobeyed the interlocutory injunctions, the Federal Court issued another order which required the union and its officers to pay fines. Because neither the injunction order nor the subsequent order for fines were complied with, the Federal Court issued a writ of sequestration against the union to enforce the order for fines. The High Court upheld the sequestration order stating:

Having regard to the important public interest which the armoury of remedies available to a superior court is designed to serve, there is no reason in principle why the undoubted power to order the sequestration of assets of a contemnor should not be employed to aid the effectiveness of other remedies to which resort may have been had.¹¹⁷

13.55 The writ may also be relevant in sub judice contempt where an injunction has been issued to restrain the publication of material which would be in breach of the sub judice principle or which would be a repetition of such breach. Disobedience of such an injunction would be a breach of an order requiring a person to abstain from doing an act under Supreme Court Rules 1970 (NSW) Part 42 Rule 6, which could, therefore, attract the issue of a writ of sequestration.

13.56 The Commission, however, notes that sequestration is a most drastic remedy and courts are reluctant to issue the writ except in the clearest cases. Sequestration lies at the top end of the scale of severity in the means by which courts can enforce their orders.¹²¹ In Quality Pizzas v Canterbury Hotel Employees’ Industrial Union v Industrial Union,¹²² the New Zealand Court of Appeal observed that sequestration:

is both drastic and blunt in its operation. It may also have devastating consequences on innocent third parties – as it would have had here on the employees of the company if the sequestration had continued in is simple custodial form- and that is obviously a powerful consideration militating against the making of an order.

13.57 An injunction to restrain an actual or threatened contempt of court may be granted by a superior court which has power both to punish and to issue injunctions.¹²³ An injunction is an order of the court which, in the context of sub judice contempt, would restrain the publication of allegedly prejudicial material.

13.58 The jurisdiction of courts to issue injunctions in the context of contempt by publication is used very sparingly. Two of the reasons for this reluctance were explained by an English Court ¹²⁴ thus:

Where the contempt would consist of impeding or prejudicing the course of justice, [an injunction] will rarely be appropriate for two reasons. The first is that the injunction would have to be very specific and might indirectly mislead by suggesting that other conduct of a similar, but slightly different, nature would be permissible. The second is that it is the wise and settled practice of the courts not to grant injunctions restraining the commission of a criminal act – and contempt of court is criminal or quasi-criminal – unless the penalties available under the criminal law have proved to be inadequate to deter the commission of the offences.

13.60 An injunction, in sub judice contempt proceedings, is usually an order to restrain the publication and distribution of the prejudicial material. However, it may also require the publisher to retrieve copies of the magazine which have already been released.¹²⁶ Moreover, if it is proper to seek an injunction against a threatened contempt, there is no reason why there should not be an application for an injunction to restrain a repetition of an already committed contempt, if there is a real danger of repetition.¹²⁷

13.61 An application for an injunction may be made to the Supreme Court,¹²⁸ which has jurisdiction to punish sub judice contempt. It would appear that although sub judice contempt proceedings are assigned to the Common Law Division of the Supreme Court, an application for an injunction in connection with such proceedings may be lodged with other Divisions, for example with the Equity Division.¹²⁹

13.62 In proceedings for an injunction to restrain an apprehended contempt, the instigating party must prove the relevant matters on the balance of probabilities. This adoption of the civil standard of proof for injunction proceedings is well supported by authority.¹³⁰ But it has also been said that the standard should be taken to vary according to the importance of the matters in issue, including, for instance, the seriousness of the alleged contempt and, in case of contempt by publication, the gravity of the consequences if an injunction is granted – namely, a prior restraint upon freedom of speech.¹³¹

13.63 An applicant for an injunction on grounds of an apprehended contempt must identify with reasonable precision the material to be covered by the injunction. This does not, however, necessarily entail submitting to the court a draft or other version of the precise publication.¹³² He or she must also satisfy the court that the essential ingredients of the alleged contempt would be present if the material were published and that the contempt would be of sufficient seriousness to justify departing from the general principle that a prior restraint on a publication is regarded as “inimical to the institutions of a free society”.¹³³

13.64 In addition, where an injunction being sought is an interlocutory one, the applicant must satisfy the normal equitable requirements that the degree of probability of success at trial is sufficient to warrant preservation of the status quo by the injunction, and that the inconvenience to the applicant resulting from refusal of the injunction would outweigh the hardship that would be caused to the respondent through an injunction being granted.¹³⁴

13.65 It is accepted that the Attorney General has standing to seek an application for an injunction to restrain the publication of prejudicial material.¹³⁵ Nevertheless, a private individual who is deemed to have a sufficiently proximate interest may also apply.¹³⁶ Such a person must have some special interest over and above that enjoyed by all members of the public in the due administration of justice.¹³⁷ The most obvious example of a private citizen who has a special interest is somebody who is an accused.¹³⁸ By contrast, it has been held that a witness, who attends the proceedings out of a sense of public duty and whose obligation is to give his evidence fairly and truthfully, does not have an interest sufficient to seek injunctive relief in relation to the broadcast of a television program.¹³⁹

13.66 Despite the fact that a private individual has standing to apply for an injunction to restrain an anticipated (or the likely repeat of a) breach of the sub judice principle, the view has been expressed that it is preferable for the Attorney General to be the moving party in such applications, even when the threatened breach would create a risk of prejudice to civil, not criminal, proceedings. The Supreme Court of New South Wales has stated that:

The Attorney General is an appropriate plaintiff to such a application. He acts in the public interest to uphold the administration of justice: Regina v Duffy [1960] 2 QB 188 at 192; Attorney General Times Newspapers Ltd [1974] AC 273 at 293-294. 30, 311, 314, 321, 326; Attorney General v News Group Newspapers Ltd [1987] QB 1 at 16. As the cases make it clear, it is preferable that he should usually be the moving party in such applications, so that no suggestion can fairly be made that the purpose of an application by a party to the litigation alleged to have been affected by the publication is simply to prevent the disclosure of embarrassing (but not prejudicial) facts.¹⁴⁰

13.67 The Commission supports the rule that private individuals who possess a sufficient interest should be able to apply for an injunction to restrain the publication of material which would be in breach of the sub judice principle. The Attorney General may refuse to act to restrain such publication and a private individual, such as the accused, should be allowed to make the application for an injunction. The accused in criminal proceedings, for example, should have a remedy to stop the publication of prejudicial material which could potentially result in the trial being aborted, delay the resolution of the criminal charge against him or her, prolong his or her incarceration and add to the costs of the proceedings. Such a person should not have to rely on the Attorney General to prevent the publication of material which could jeopardise the proceedings to which he or she is a party to.

13.68 The Commission is of the view that the right of private individuals to apply for injunctions should not be subject to a consent requirement by the Attorney General for the same reasons that such requirement should not be imposed on the right of individuals to commence sub judice contempt proceedings, discussed in Chapter 12.¹⁴¹ First, the Commission is not aware that there is a current problem of private parties abusing this privilege by, for example, applying for injunctions to prevent the disclosure of embarrassing but not prejudicial information. Secondly, the Commission considers that, even if such cases do arise, this is a matter which courts are well suited to understand and have sufficient powers to deal with. It is for the courts and not for the Attorney General to decide whether or not an application has merit or was made simply for an improper purpose.

13.69 The Commission considers also that a private individual who intends to apply for an injunction to stop the publication of material which would be in breach of the sub judice principle or which would be a repetition of such a breach, should notify the Attorney General, and, if the material relates to criminal proceedings, the relevant Director of Public Prosecutions. This is consistent with the Commission’s Proposal 24. The reasons for Proposal 24 concerning the need for coordination of efforts in the prosecution of the same act of contempt and prevention of waste of resources¹⁴² apply equally to the need for individuals to notify the relevant public law officers before they apply for an injunction. As with Proposal 24, the notice requirement for injunction applications by individuals does not give the Attorney General or the Director of Public Prosecutions the right to veto the application.

13.70 The Commission is also of the view that legislation should be adopted to allow the Director of Public Prosecutions to apply for injunctions in relation to sub judice contempt. The Director of Public Prosecutions has the power at common law to prosecute sub judice contempt. The Commission considers it useful for the DPP to possess an ancillary power to deal with an apprehended commission or an anticipated repetition of such offence. If both the Attorney General and the Director of Public Prosecutions have power to institute and maintain sub judice contempt proceedings at common law, there is no sound policy reason why they both should not be able to apply for injunctions with respect the same matter. Where, for example, the DPP has instituted sub judice contempt proceedings and the accused is planning further publication of the prejudicial material, the DPP should have authority to apply for an injunction instead of relying on the Attorney General to do it.

13.71 Consistent with its general position in favour of locus standi for parties to the relevant proceedings, the Commission considers that the Commonwealth Director of Public Prosecutions should also have the power to apply for injunctions to stop an apprehended contempt where the relevant proceedings in question (including those heard in state courts) involve prosecution for a Commonwealth offence. However, any legislation on this matter is a matter for the Commonwealth government to consider. In relation to Proposal 30 below, the Commission intends that the proposal would be confined to sub judice contempt and should not authorise the Director of Public Prosecutions to apply for injunctions with respect to other forms of criminal contempts like scandalising the court. This is because the Director of Public Prosecutions only has standing to prosecute contempts allegedly affecting criminal proceedings by virtue of his or her position as a party to the proceedings.¹⁴³

PROPOSAL 29

Legislation should provide that a private individual who intends to apply for an injunction to stop an apprehended criminal contempt shall, prior to such application, notify the Attorney General and the parties to the proceedings (if any) allegedly involved.

PROPOSAL 30

Legislation should provide that the Director of Public Prosecutions may apply for an injunction to restrain the publication of material relating to criminal proceedings which would be in breach of the sub judice principle or which would be a repetition of such breach.

13.72 It seems that at common law an action for damages does not lie for contempt as such, except in relation to damages for the costs incurred by the failure of a witness to comply with a subpoena to attend a court.¹⁴⁴ The leading authority on the unavailability of this remedy in contempt is the English case of Chapman v Honig.¹⁴⁵ The decision is based upon the notion that the court’s jurisdiction in contempt is concerned with a wrong against the administration of justice rather than against an individual.¹⁴⁶ However, in United Telecasters Sydney Ltd v Hardy, the New South Wales Court of Appeal suggested that the law might recognise an action on the case for damages for the loss suffered by an accused, where the criminal proceedings are aborted as result of publications which breached sub judice principle. Justice Samuels discussed the tort of collateral process, which he described as a “public wrong in the sense that the administration of justice was abused” and proceeded to suggest that the law can grant remedy for damage inflicted on parties by contemnors:

[I]n the case of contempt of court, the interference with the administration of justice is a public wrong. Provided a victim of contempt can prove that he suffered actual damage as a result of the contempt, it may well be arguable that the generative forces of the law which rose to meet the problem of abuse of court processes can accommodate the challenge of remedying damage inflicted by contemnors. Contempts by the media are an increasingly common problem in the administration of criminal justice, and a common consequence is the need to abort trials. An accused who is not legally aided must bear his costs of the trial. He thus incurs a substantial loss because of the wrong of a third party; and the same might be said of legal aid services. This loss must been seen in its typical context, namely, that it is likely that an accused will have to face a new trial and new costs. The accused must retain legal representation in the interim until his new trial, and bear the costs occasioned by delay. It might be said that to deny him an action on the case would be to leave him uncompensated for his substantial loss, a loss for which he was in no way responsible. For these reasons, it is, I think, fairly open to argue, by analogy with the tort of collateral abuse of process, the law in such circumstances should recognise an action on the case to recover damages for loss occasioned to an accused by a criminal contempt of court occasioning the need for a pending trial to be aborted.¹⁴⁷

13.74 In light of the apparent lack of remedy for damages for loss resulting from sub judice contempt, the Costs in Criminal Cases Amendment Bill 1991 (NSW) was introduced. This bill and the broader issue of compensation for loss suffered as a result of contemptuous publication will be examined in greater detail in the next chapter.

1. Supreme Court Rules 1970 (NSW) Pt 55 r 13(1) provides “Where the contemnor is not a corporation, the Supreme Court may punish contempt by a fine or imprisonment or both”.

2. Registrar of the Court of Appeal v John Fairfax Group Pty Ltd (NSW, Court of Appeal, No 40478/92, 21 April 1993, unreported) at 5 (Mahoney J).

3. R v Wattle Gully Gold Mines NL [1980] VR 622; Hinch v Attorney General [1987] VR 721 at 732 (Young CJ).

4. R v West Australian Newspapers Ltd; Ex parte The Minister for Justice (1958) 60 WALR 108; R v Regal Press Pty Ltd [1972] VR 67; R v Scott and Downland Publications Ltd [1972] VR 663; Attorney General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362; Attorney General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374; R v David Syme & Co Ltd [1982] VR 173; Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616; Director of Public Prosecutions (Cth) v John Fairfax & Sons Ltd (1987) 8 NSWLR 732.

5. R v Pacini [1956] VLR 544; Hinch v Attorney General [1987] VR 721; Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, No 40236/96, 11 March 1998, unreported).

6. Attorney General (NSW) v Willesse [1980] 2 NSWLR 143; Director of Public Prosecution (Cth) v United Telecasters Sydney Ltd (in liquidation) (1992) 7 BR 364; R v Australian Broadcasting Corp [1983] TasR 161; Director of Public Prosecutions (Cth) v Australian Broadcasting Corp (1987) 7 NSWLR 588.

7. Re Brookfield (1918) 18 SR (NSW) 479.

8. Registrar of Court of Appeal v John Fairfax Group Pty Ltd (NSW, Court of Appeal, No 40478/92, 21 April 1993, unreported).

9. Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616.

10. Supreme Court Rules 1970 (NSW) Pt 55 r 13(3). For illustrations of the imposition of the penalty of fine on terms, see Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; Registrar, Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309.

11. Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (in liquidation) (1992) 7 BR 364; Attorney General (NSW) v Nationwide News Pty Ltd (NSW, Court of Appeal, No 40141/90, 11 October 1990, unreported); Hinch v Attorney General (Vic) [1987] VR 721 at 731 (Young J); Attorney General (NSW) v United Telecasters Sydney Ltd (NSW, Court of Appeal, No 40139/90, 11 October 1990, unreported); Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 419; Registrar of Court of Appeal v John Fairfax Group Pty Ltd (NSW, Court of Appeal, No 40478/92, 21 April 1993, unreported).

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

13. Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616 at 640-641.

14. R v David Syme & Co Ltd [1982] VR 173 at 178 (Marks J); Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, No 40236/96, 11 March 1998, unreported).

15. In the following cases, the jury trial was aborted as a result of the publicity but the contempt proceedings failed: Registrar, Court of Appeal v Willesee (1985) 3 NSWLR 650; R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281; Attorney General (NSW) v Television and Telecasters (Sydney) Pty Ltd (NSW, Supreme Court, No 11752/97, 10 September 1998, unreported). See also M Chesterman, “Media Prejudice During a Criminal Jury Trial: Stop the Trial, Fine the Media, or Why Not Both?” (1999) 1 University of Technology Sydney Law Review 71.

16. Attorney General (NSW) v John Fairfax & Sons Ltd (NSW, Court of Appeal, No 371/87, 21 April 1988, unreported); R v Thompson [1989] WAR 219 at 225 (Wallace J); Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (in liquidation) (1992) 7 BR 364. Contrast Hinch v Attorney General (Vic) [1987] VR 721 at 731 (Young CJ), at 748 (Kaye J).

17. R v David Syme & Co Ltd [1982] VR 173 at 182 (Marks J); Harkianakis v Skalkos (NSW, Court of Appeal, No 40514/96, 15 October 1997, unreported) at 6-9 (Mason J); Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, No 40236/96, 11 March 1998, unreported) at 22-26 (Priestly J), at 6-11 (Powell J).

18. See, for example, Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (in liquidation) (1992) 7 BR 364.

19. Director of Public Prosecutions (Cth) v Wran (1986) 7 NSWLR 616 at 642.

20. R v Australian Broadcasting Corp [1983] TasR 161 at 178-180 (Neasey J); Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (in liquidation) (1992) 7 BR 364 at 374 (Kirby J).

21. Attorney General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 at 390; Attorney General (NSW) v Time Inc Magazine Co Pty Ltd (NSW, Court of Appeal, No 40331/94, 21 October 1994, unreported).

22. Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 419.

23. Registrar of the Court of Appeal v John Fairfax Group Pty Ltd (NSW, Court of Appeal, No 40478/92, 21 April 1993, unreported).

24. Attorney General v Mayas Pty Ltd (NSW, Court of Appeal, No 174/83, 28 March 1984, unreported).

25. Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (NSW, Court of Appeal, No 40139/90, 11 October 1990, unreported); Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (in liquidation) (1992) 7 BR 364 at 375 (Kirby J).

26. Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 419.

27. Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (NSW, Court of Appeal, No 40139/90, 11 October 1990, unreported).

28. Director of Public Prosecutions (Cth) v Australian Broadcasting Corp (1987) 7 NSWLR 588 at 615.

29. Attorney General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405 at 410 (Kirby J); Attorney General (NSW) v Time Inc Magazine Co Pty Ltd (NSW, Court of Appeal, No 40331/94, 21 October 1994, unreported).

30. Attorney General (NSW) v Mirror Newspapers (1980) 1 NSWLR 362 at 391.

31. Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, No 40236/96, 11 March 1998, unreported).

32. Director of Public Prosecutions (Cth) v Australian Broadcasting Corp (1987) 7 NSWLR 588 at 615; Hinch v Attorney General [1987] VR 721 at 752 (Kaye J); Attorney General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405 at 410 (Kirby J); Attorney General (NSW) v Time Inc Magazine Co Pty Ltd (NSW, Court of Appeal, No 40331/94, 21 October 1994, unreported).

33. Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (NSW, Court of Appeal, No 40139/90, 11 October 1990, unreported).

34. Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (in liquidation) (1992) 7 BR 364 at 376 (Kirby J).

35. New South Wales, Attorney General’s Department, Criminal Records Act 1991 (Discussion Paper, 1998) at 6. See also Royal Commission into the New South Wales Police Service, Final Report (1997) Vol 2 at para 7.182-7.184.

36. New South Wales, Attorney General’s Department, Criminal Records Act 1991 (Discussion Paper, 1998) at 6.

37. This Act limits the effect of a person’s conviction for a relatively minor offence (sentences for up to six months imprisonment) if the person completes a crime-free period (ten years, except in the case of an order of the Children’s Court where the period is three years). On completion of the period, the conviction is regarded as spent. If a conviction of a person is spent, (a) the person is not required to disclose information about the spent conviction, (b) a question concerning the person’s criminal history is taken to refer only to convictions which are not spent, and (c) in the application to the person of provision of an Act, a reference in the provision to a conviction or the person’s character or fitness is not to be interpreted to include a spent conviction.

38. New South Wales, Attorney General’s Department, Criminal Records Act 1991 (Discussion Paper, 1998) at 7.

39. New South Wales, Attorney General’s Department, Criminal Records Act 1991 (Discussion Paper, 1998) at 7.

40. D Norris (Senior Solicitor, Crown Solicitor’s Office), Letter to the Executive Director of the NSW Law Reform Commission (29 October 1999) at 2.

41. Registrar v Maniam (No 2) (1992) 26 NSWLR 309 at 314 (Kirby J) citing Smith v The Queen (1991) 25 NSWLR 1. Compare with La Trobe University v Robinson and Pola [1973] VR 682 where the Supreme Court of Victoria held that the Bill of Rights 1688 (Eng) did not take away the right to issue a writ of attachment in respect of a contempt of court, and indefiniteness of detention is inherent in the use of that writ.

42. Australia, Law Reform Commission, Contempt (Report 35, 1987) at para 482.

43. Australian Attorney General’s Department, The Law of Contempt (Position Paper, 1991) at para 56-57.

44. See Appendix C. For a comparison of penalties imposed in the different Australian states for sub judice contempt, see R Williams, “Contempt of Court: Prejudicing the Administration of Justice” [1995] Gazette of Law and Journalism (No 30) 2.

45. Director of Public Prosecutions (Cth) v Wran (1986) 7 NSWLR 616; Attorney General (NSW) v Amalgamated Television Services Pty Ltd (1990) 5 BR 396; Attorney General (NSW) v Nationwide News Pty Ltd (NSW, Court of Appeal, 40141/90, 11 October 1990, unreported); Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, No 40236/96, 11 March 1998, unreported). The second and third cases belong to the so-called “Paul Mason cases” as they related to the media coverage of the criminal trial of Paul Mason for murder.

46. Attorney General v Australian Broadcasting Corp (NSW, Court of Appeal, No 40136/90, 11 October 1990, unreported). This is one of the “Paul Mason cases”.

47. Director of Public Prosecutions (Cth) v Australian Broadcasting Corp (1986) 7 NSWLR 588; Attorney General v Time Inc Magazine Co Pty Ltd (NSW, Court of Appeal, No 40331/94, 15 September 1994, 21 October 1994, unreported).

48. Trade Practices Act 1974 (Cth) s 79.

49. Trade Practices Act 1974 (Cth) s 76(1A). $750,000 applies to violations of the provisions on boycotts affecting trade and commerce (s 45DB) and those involving the prohibition on contracts, arrangements or understandings affecting the supply or acquisition of goods or service (s 45E or 45EA). $10,000,000 applies to any other violation of the provisions of Part 4.

50. In Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, 40236/96, 11 March 1998, unreported), Justice Meagher expressed the minority view that the appropriate fine on Mr Laws was $250,000 which was the same amount of fine which Radio 2UE Pty Ltd was ordered to pay. Justice Meagher reasoned: “As far as the second opponent (Mr Laws) is concerned, the fine should likewise be $250,000. To fine him $20,000 (or even $50,000) is ludicrous. It is the equivalent of a slap on the wrist. It would operate as a deterrent neither to him nor to anyone else. It would not hurt him. It is about the amount he would spend on a small cocktail party: it is a cost he would not feel. It would not pay for a fraction of the costs of the aborting of one trial and recommencing another. I regret to have to say so in plain language, but in my view it would a reproach to the court and an insult to the public. It would be a reproach to the court, because it is the court’s duty to make appropriate, and risible, orders. It would be an insult to the public, because the public would think that if you are rich and powerful enough you can get away with anything.” Justices Priestly and Powell held that the appropriate penalty for Mr Laws was $50,000. This is the highest fine for sub judice contempt imposed on an individual in New South Wales and is higher than the fines imposed on corporate offenders in a number of other cases: See Appendix C.

51. Registrar v Maniam (No 2) (1992) 26 NSWLR 309 at 314 (Kirby J); Attorney General (NSW) v Whiley (1993) 31 NSWLR 314 at 320. See also Gallagher v Durack (1983) 152 CLR 238 at 249 (Murphy J).

52. See Registrar v Maniam (No 2) (1992) 26 NSWLR 309 at 314 (Kirby J) citing Smith v The Queen (1991) 25 NSWLR 1. See also Gallagher v Durack (1983) 152 CLR 238 at 249 (Murphy J).

53. Attorney General (UK) v James [1962] 2 QB 637 at 641 (Goddard CJ). This was not always the case at common law. The early practice of the Court of Chancery in England, for instance, was to commit for an indefinite period leaving applications for release to be made until the contempt was considered to be purged. A contemnor would generally be regarded as having “purged” the contempt upon compliance with the relevant order of the court, or expression of contrition or when the contemnor was thought to have been sufficiently punished: See Re The Bahama Islands [1893] AC 138 at 145.

54. Registrar of the Court of Appeal v Gilby (NSW, Court of Appeal, No 40172/91, 20 August 1991, unreported).

55. Attorney General v Whiley (1993) 31 NSWLR 314.

56. Supreme Court Rules 1970 (NSW) Pt 55 r 14.

57. Young v Registrar of the Court of Appeal (1993) 32 NSWLR 262.

58. Crowley v Brown [1964] 1 WLR 147; Gray v Campbell (1830) 1 Russ & M 323; 39 ER 124; Hall v Etches (1817) 1 Russ & M 324; 39 ER 125.

59. Re Barrel Enterprises [1972] 3 All ER 631.

60. Durack v Gallager (1982) 44 ALR 272 at 286-287 (Northrop J); Director of Public Prosecutions (Cth) v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741-742 (Kirby J).

61. Gallagher v Durack (1983) 152 CLR 238; Attorney General (NSW) v Mundey [1972] 2 NSWLR 887.

62. A similar prudence in the use of this penalty is shown in other jurisdictions: See G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 527-528.

63. See, for example, R v Foster; Ex parte Roach (1951) 82 CLR 587 (sentence of six months); Durack v Gallagher (1982) 65 FLR 459 (sentence of three months – appeal against conviction dismissed: Gallagher v Durack (1983) 152 CLR 238).

64. Attorney General v Hinch (Vic, Supreme Court, No 90/86, Murphy J, 22 May 1986, unreported).

65. See Attorney General v Hinch [1987] VR 721 at 733 (Young CJ).

66. UK, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 199-205.

67. South Australia, Criminal Law and Penal Methods Reform Committee, The Substantive Criminal Law (Report 4, 1977) at para 3.12(d).

68. Canada, Law Reform Commission, Contempt of Court (Report 17, 1982) at 36.

69. (1984) 15 CCC (3d) 150.

70. Criminal Law Reform Act, 1984, Bill C-19, 32nd Parliament, 2nd session, 1983-1984 (1st reading 7 February 1984).

71. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 481-482.

72. Australian Attorney General’s Department, The Law of Contempt (Position Paper, 1991) at para 56-57.

73. In Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, 40236/96, 11 March 1998, unreported), Justices Meagher and Powell expressed the view the that had Mr Laws intended to interfere with the course of justice or had he been guilty of recklessness in the relevant sense, a custodial sentence would have been appropriate.

74. See, however, Verrier v Director of Public Prosecutions [1986] 2 AC 195 where it was held that the length of the term of imprisonment for a common law misdemeanour was not limited to a maximum but was at large and in the discretion of the court.

75. Crimes Act 1900 (NSW) s 319.

76. In R v Cohn (1984) 15 CCC (3d) 150, the Ontario Court of Appeal observed that there does not seem to be a case where the final sentence in a criminal contempt case has exceeded two years. See also R v Lamer (1973) 17 CCC (2d) 411 which contains a survey of sentences which have been imposed in contempt cases in Canada, England and the United States up to 1973.

77. Contempt of Court Act 1981 (UK) s 14(1).

78. The term of imprisonment imposed at first instance was for six weeks but this was reduced on appeal to twenty-eight days: See Attorney General v Hinch (Vic, Supreme Court, No 90/86, Murphy J, 22 May 1986, unreported); Attorney General v Hinch [1987] VR 721.

79. See also R v Foster; Ex parte Roach (1951) 82 CLR 587 (sentence of six months); Durack v Gallagher (1982) 65 FLR 459 (sentence of three months – appeal against conviction dismissed: Gallagher v Durack (1983) 152 CLR 238). However, while these cases involved contempt by publication, the contempt committed was scandalising the court and not sub judice contempt.

80. R v West Australian Newspapers Ltd; Ex parte The Minister for Justice (1958) 60 WALR 108 (the editor of the newspaper was censured but the corporate proprietor of the newspaper was fined for the breach of the sub judice principle).

81. See, for example, R v Gray [1900] 2 QB 36.

82. Attorney General (NSW) v Mundey [1972] 2 NSWLR 887; Attorney General (NSW) v Dean (1990) 20 NSWLR 650.

83. See, for example, Attorney General (NSW) v Mundey [1972] 2 NSWLR 887; Attorney General (NSW) v Dean (1990) 20 NSWLR 650.

84. Crimes (Sentencing Procedure) Act 1999 (NSW) s 8; formerly governed by the Community Service Orders Act 1979 (NSW).

85. Crimes (Sentencing Procedure) Act 1999 (NSW) s 9 and Pt 7. These provisions give statutory basis to the common law power – commonly known as the “Griffiths Remand” (see Griffiths v The Queen (1977) 137 CLR 293) – to release an offender pending sentence in order to assess the offender’s behaviour and capacity for rehabilitation before imposing sentence.

86. Crimes (Sentencing Procedure) Act 1999 (NSW) s 10 and Pt 8; formerly governed by the Crimes Act 1900 (NSW) s 556A.

87. Crimes (Sentencing Procedure) Act 1999 (NSW) s 11; formerly governed by the Crimes Act 1900 (NSW) s 558.

88. Crimes (Sentencing Procedure) Act 1999 (NSW) s 12. This section reintroduces the power of courts to order suspended sentences which has not been available in New South Wales since 1974.

89. Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 5; formerly governed by the Periodic Detention of Prisoners Act 1981 (NSW).

90. Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 6; formerly governed by the Home Detention Act 1996 (NSW).

91. See New South Wales Law Reform Commission, Sentencing (Report 79, 1996) at para 11.1.

92. (1993) 31 NSWLR 314.

93. The provisions of this Act have been repealed and re-enacted by the Crimes (Sentencing Procedure) Act 1999 (NSW), see particularly Pt 4.

94. The practice of imposing minimum and maximum terms has been abolished. Instead, a sentencing court is now required to first set the term of the sentence and then set a non-parole period for the sentence, which is the minimum period for which the offender must be kept in detention in relation to the offence: Crimes (Sentencing Procedure) Act 1999 (NSW) s 44.

95. (NSW, Court of Appeal, No 237/80, 2 June 1993, unreported). But see contrary view as to the application of this Act in contempt cases in Young v Registrar of the Court of Appeal (1993) 32 NSLWR 262 at 288 (Handley J). See also Wood v Galea (1996) 84 A Crim R 274 at 276-277 where Justice Hunt said that Attorney General v Whiley should be reconsidered but that he was nevertheless bound by the Court of Appeal’s decision in that case.

96. Wood v Staunton (1996) 86 A Crim R 183.

97. Registrar, Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309.

98. Registrar, Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 319 (Kirby J).

99. See the Crimes (Sentencing Procedure) Act 1999 (NSW), the Crimes (Administration of Sentences) Act 1999 (NSW) and the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW).

100. D Norris “Contempt in the Face of the Court: Compensation Court” (Unpublished paper, 2000) at para 4.2.

101. Registrar, Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314 (Kirby J).

102. Registrar, Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309.

103. See Crimes (Sentencing Procedure) Act 1999 (NSW) s 45, 46.

104. The Supreme Court Rules 1970 (NSW) Pt 42 r 6 provides that sequestration applies: “(a) where – (i) a judgment requires a person to do an act within a time specified in the judgment; and (ii) he refuses to do the act within that time or, if that time has been extended or abridged under Part 2 rule 3, within that time as so extended or abridged; and (b) where a judgment requires a person to do an act forthwith or forthwith upon a specified event and he refuses to do the act as the judgment requires; and (c) where – (i) a judgment requires a person to abstain from doing an act; and (ii) he disobeys the judgment”. See also Pt 44 r 3 which provides that a writ of sequestration shall not be issued without the leave of the court.

105. Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 498 (Windeyer J).

106. Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 501 (Windeyer J).

107. Pratt v Inman (1889) 43 Ch D 175 at 179 (Chitty J).

108. G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 606.

109. IRC v Hoogstraten [1984] 3 All ER 25. But see Webster v Southwark LBC [1983] QB 698 where it was held that a writ of sequestration might lie to enforce compliance by a local authority with its obligations, under the law relating to elections, as defined in a declaratory order. This was despite the fact that the parties had not been in contempt of that order. This judgement has, however, been said to be questionable: G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 606.

110. Supreme Court Rules 1970 (NSW) Pt 5 r 13(2).

111. See generally Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 498-501 (Windeyer J); Con-Mech (Engineers) Ltd v Amalgamated Union of Engineering Workers (Engineering Section) [1973] ICR 620 at 627 (Donaldson J); Trade Practices Commission v C G Smith Pty Ltd (1978) 30 FLR 368 at 379 (Bowen CJ).

112. Dixon v Rowe (1876) 35 LT 548.

113. G Borrie, Borrie & Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) at 606.

114. Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 501 (Windeyer J).

115. J Jacob, “Sequestration for Contempt of Court” (1986) 39 Current Legal Problems 219 at 220; C O’Reagan, “Contempt of Court and the Enforcement of Labour Injunctions” (1991) 54 Modern Law Review 385 at 388.

116. (1986) 161 CLR 98.

117. (1986) 161 CLR 98 at 115 (Gibbs CJ, Mason, Wilson and Deane JJ).

118. The High Court in this case discussed the difficulties in the classification between civil and criminal contempts: see (1986) 161 CLR 98 at 106-113 (Gibbs CJ, Mason, Wilson and Deane JJ).

119. Supreme Court Rules 1970 (NSW) Pt 42 r 6.

120. In Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSW, Court of Appeal, No 40236/96, 11 March 1998, unreported) the contemnors were ordered to pay the fines imposed within 28 days.

121. Howitt Transport v Transport and General Workers’ Union [1973] ICR 1 at 11 (Donaldson J). See also Showeering Ltd v Fern Vale Brewery [1958] RPC 462.

122. [1983] NZLR 612 at 617-618 (Richardson J).

123. Victoria v Australian Building Construction Employees’ and Builders’ Federation (1982) 152 CLR 25 at 42 (Gibbs J).

124. P v Liverpool Daily Post and Echo Newspaper Plc [1991] AC 370 at 381-382 (Lord Donaldson MR).

125. P v Liverpool Daily Post and Echo Newspaper Plc [1991] AC 370 at 425 (Lord Bridge of Harwich).

126. Attorney General (NSW) v Time Inc Magazine Co Pty Ltd (NSW, Court of Appeal, No 40327/94, 7 June 1994, unreported).

127. See, for example, Hardy v United Telecasters Ltd (1989) 4 BR 347; Doe v John Fairfax Publications Pty Ltd (1995) 125 FLR 372.

128. In contrast, it has been held that a judge of the District Court does not have power to order the prior restraint of a threatened contempt: United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323.

129. Waterhouse v Australian Broadcasting Corp (1986) 6 NSWLR 716 at 718-721 (Young J).

130. Waterhouse v Australian Broadcasting Corp (1986) 6 NSWLR 716 at 735 (Glass J); Attorney General (NSW) v TCN Channel Nine Pty (1990) 5 BR 10 at 13 (Hunt J). For a discussion of the difference between the standard of proof in a civil proceeding to restrain threatened conduct which would amount to sub judice contempt and a criminal proceeding for the punishment of past contempt, see Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 50-52 (Deane J).

131. Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10; Attorney General (NSW) v Time Magazine Co Pty Ltd (NSW, Court of Appeal, No 40327/94, 7 June 1994, unreported) at 6 (Kirby J).

132. Hardy v United Telecasters Ltd (1989) 4 BR 347; John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81.

133. Waterhouse v Australian Broadcasting Corp (1986) 6 NSWLR 733 at 735 (Glass J); See also Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554 at 566 (Hunt J); National Mutual Life Association of Australia Ltd v General Television Corporation Pty Ltd [1989] VR 747 at 760 (Ormiston J); Marsden v Amalgamated Television Services Pty Ltd (NSW, Court of Appeal, No 40229/96, 2 May 1996, unreported).

134. Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554; Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10; Marsden v Amalgamated Television Services Pty Ltd (NSW, Court of Appeal, No 40229/96, 2 May 1996, unreported).

135. Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 16 (Hunt J).

136. Waterhouse v Australian Braodcasting Corp (1986) 6 NSWLR 716 at 720 (Young J); Doe v John Fairfax Publications Pty Ltd (1995) 125 FLR 372 at 384 (Spender J). For English cases, see Peacock v London Weekend Television (1985) 150 JP 71; Leary v BBC (English Court of Appeal, 29 September 1989, unreported); P v Liverpool Daily Post and Echo Newspaper Plc [1991] 2 AC 370.

137. Leary v BBC (English Court of Appeal, 29 September 1989, unreported).

138. See, for example, Waterhouse v Australian Broadcasting Corp (1986) 6 NSWLR 716 at 720; Hardy v United Telecasters Ltd (1989) 4 BR 347; Doe v John Fairfax Publications Pty Ltd (1995) 125 FLR 372 at 384 (Spender J).

139. Leary v BBC (English Court of Appeal, 29 September 1989, unreported).

140. Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 16 (Hunt J).

141. See para 12.34-12.36.

142. See para 12.37.

143. Director of Public Prosecutions v Australian Broadcasting Corp (1987) 7 NSWLR 588. See also the discussion in para 12.10-12.15.

144. Roberts v J F Stoen Lighting and Radio Ltd (1945) 172 LT 240.

145. [1963] 2 QB 502. See discussion in United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 and in A Arlidge, A Arlidge, D Eady and A T H Smith on Contempt (2nd edition, Sweet & Maxwell, London, 1999) at 883-884.

146. A Arlidge, A Arlidge, D Eady and A T H Smith on Contempt (2nd edition, Sweet & Maxwell, London, 1999) at 880.