Contempt of Court: Report (html)

10. Sub judice contempt: restricting the publication of prejudicial information

Overview

• The law protects a person’s right to a fair hearing by preventing people from publishing information that may improperly influence a jury or witness. This is known as sub judice contempt.

• It is increasingly difficult to protect jurors from information in an online age. There should be more emphasis on other ways of managing the risk of jurors being exposed to prejudicial material.

• Sub judice contempt is still relevant. In an age where everyone can be a publisher, it is important to define sub judice contempt in legislation, so the law is clear, certain and accessible.

• Sub-judice contempt should be renamed as contempt by publishing material prejudicial to legal proceedings.

• The proposed Act should give greater weight to freedom of expression. There should be a defence of reasonable care and clearer guidance about how to balance the risk to a fair trial against other matters in the public interest.

• The proposed Act should prevent a person from publishing evidence not heard by a jury or ruled inadmissible while the matter is before the court.

• The general procedure set out in Chapter 5 should apply to sub judice contempt.

• The maximum penalty for sub judice contempt for an individual should be two years imprisonment.

What is sub judice contempt and what is its purpose?

10.1 A person may commit contempt by publishing material which, when it is published, has a ‘real and definite tendency’ to prejudice legal proceedings.^[1] This is known as sub judice contempt.

10.2 Sub judice contempt is most common in criminal proceedings, which are the focus of this chapter. However, it may also occur in civil and other types of legal proceedings, which are discussed later in the chapter.^[2]

10.3 Sub judice contempt is an exception to the principles of freedom of expression and open justice. These principles normally require that the public knows and can discuss information before and about the courts. Public scrutiny keeps judges accountable and helps the law reflect the values of a community.

10.4 Freedom of expression is a fundamental human right. It includes the right to receive information and ideas of all kinds. A free press is one of the cornerstones of a democratic society.^[3]

10.5 The right to a fair hearing includes the right to a public hearing,^[4] so people can see that the hearing has been run fairly and understand why and how a decision has been reached, even if they do not agree with the decision.^[5]

10.6 Such purposes, however, cannot be served if the hearing itself is not fair. A fair hearing means a jury must make its decision based on the evidence before it and by applying legal rules, including the presumption of innocence.

10.7 Sub judice contempt protects against these risks. However, it is only one of the ways in which the law restricts the publication of information. A court also has the power to order that particular kinds of information should not be published about or during court proceedings (suppression orders). Former Court of Appeal Justice Frank Vincent has recently reviewed the main legislation governing suppression orders, the Open Courts Act 2013 (Vic).^[6]

10.8 A court can order published material to be taken down (take-down orders). (See Chapter 14.)

10.9 Legislation also makes it a crime to publish certain kinds of information about and during court proceedings. An example is the Judicial Proceedings Reports Act 1958 (Vic) (see Chapter 12).^[7] That Act limits the information that can be published about pre-trial proceedings.^[8] It also protects interests beyond that of a fair hearing, such as the privacy of victims.

10.10 This chapter discusses five questions:

• Is sub judice still relevant?

• Should sub judice be defined as a category of conduct that can be dealt with as a contempt in the proposed Act?

• How should sub judice contempt be defined?

• What should be the procedure and penalties for sub judice contempt?

• Should sub judice contempt apply to civil proceedings?

Is sub judice still relevant?

10.11 The law of sub judice contempt assumes that:

• Media can divert a jury from making their decision on the evidence before them.

• Jurors will continue to be influenced by prejudicial material, even if the judge directs them to ignore it.

• Jurors find this material through traditional media such as newspapers, which can be controlled through preventing publication or take-down orders.

10.12 These assumptions should be questioned. As discussed in Chapter 9, there is conflicting judicial opinion and research about whether jurors can and should be trusted to follow directions and apply the law, regardless of prejudicial material.^[9]

10.13 More importantly, people publish, share and consume information online. Anyone can now publish and share information, and jurors can find and read it readily, including old material.^[10]

10.14 It has become difficult to prevent people overseas from publishing prejudicial information accessible in Victoria. (See Chapter 13.)

10.15 The pressure of online publishing has changed traditional media. The Australian Competition and Consumer Commission (ACCC) stated in a recent report that media organisations have fewer and less experienced reporters. Fewer reporters and decreasing profits have led to fewer stories being published in the public interest. Publishers and journalists are also under greater pressure to publish quickly and continuously.^[11]

10.16 Meanwhile, online intermediaries or digital platforms, such as Google and Facebook, are becoming the main ways in which people consume news.^[12] (See Chapter 13.)

10.17 These changes affect the way jurors understand and receive information. If sub judice contempt can no longer control the flow of information, it may no longer be useful.

Responses

10.18 The consultation paper asked whether sub judice contempt should be retained.^[13] Stakeholders broadly agreed that the law was still important and should be retained.^[14]

As Dr Denis Muller argued:

The care taken by Australian courts to ensure that the presumption of innocence is protected and that juries arrive at their verdicts based on admissible evidence heard in court represents a protection for individual liberties that is of the first importance.^[15]

10.19 The courts emphasised that even though jurors are true to their oath and follow the directions they are given, the ‘law recognises that some information has a tendency to create a cognitive bias that is difficult to overcome on a subconscious level’.^[16]

10.20 Researchers on jury decision making stated it was important to help jurors by shielding them, where possible, from information that prejudices a fair hearing.^[17]

10.21 Most stakeholders still saw value in sub judice contempt, despite information ‘now spread[ing] across the internet like wildfire’.^[18] However, they disagreed about how great that value was.^[19]

10.22 The Director of Public Prosecutions (DPP) and Dr Denis Muller both observed a greater trust in traditional media, which still had a greater reach, and so the law still served a purpose.^[20]

10.23 Stakeholders also said that although few cases attract international coverage, it was challenging to enforce the law against overseas publications.^[21] The issue of enforcing sub judice contempt outside Victoria is discussed in Chapter 13.

Commission’s conclusions: retain sub judice contempt

10.24 There is still value in retaining sub judice contempt. While jurors are and should be trusted to perform their role, they inevitably have their own biases. In this context, the law of sub judice contempt still aids jurors to perform their vital task.

10.25 While controlling information is increasingly difficult, sub judice contempt focuses on the publications posing the greatest risk to a trial. Even though publishing can be global, the greatest media interest will still be local. The greatest risks will come from widespread distribution by credible media organisations rather than social media.

10.26 However, there is a need to respond to changing media by adding tools that manage the risks to a fair hearing. In the age of social media, it is no longer realistic to expect sub judice contempt to control the risks of prejudice.

Other approaches

10.27 Chapter 9 deals with measures to limit the risk of jurors researching or disclosing information that could undermine a fair hearing. In that chapter, the Commission recommends improving the information and guidance given to juries. It also recommends that jurors and judges should be educated on the use and risks of social media. Finally, it recommends making it clear in legislation that jurors can ask questions of the judge during the trial, so they do not feel they need to do their own research.

10.28 Even if jurors do not research or disclose prejudicial information, such information can come to them without their doing anything. The consultation paper asked whether there was a need for more use of other approaches to reduce and deal with this risk. These approaches include questioning jurors about their exposure to information, using jury directions, and legal education about social media and sub judice contempt.^[22]

10.29 The consultation paper referred to other ways of managing the risk, including postponing a trial, changing its venue, sequestering a jury, or having the trial heard by a judge rather than a jury. These options are used in the United States.^[23]

10.30 This inquiry has not considered the option of judge-alone trials, as the Victorian Government is currently reviewing their feasibility.^[24]

Responses

10.31 Although most stakeholders agreed that sub judice contempt should remain, some supported emphasising other options.^[25] Some said it might be safer to assume that jurors had been exposed to some prejudicial information.^[26]

10.32 Victoria Legal Aid supported courts being given a suite of powers, including take-down powers and the power to postpone or stay trials.^[27] In some very high-profile cases and in certain categories of crime and offender it may not be possible to guarantee a fair trial and there needed to be a way to protect the integrity of the criminal trial process.^[28]

10.33 The DPP said preventative measures were an important way of protecting a fair trial and it was easier to prevent a juror being exposed than to ‘cure’ the prejudice later.^[29]

10.34 Most stakeholders agreed that the intensive style of pre-trial questioning used in the United States would not suit Australia.^[30] MinterEllison submitted that it was worth considering as an alternative.^[31]

10.35 The Commercial Bar Association Media Law Section Working Group (CommBar—Media Law Section) considered it better for judges to put questions to potential jurors after hearing submissions from counsel on the form of the question.^[32] Australia’s Right to Know coalition (ARTK) supported jurors completing pre-trial questionnaires about their media consumption and exposure to prejudicial material.^[33]

10.36 In consultations, members of the Bar said there was a role for specific questions about exposure to particularly prejudicial material, and this type of questioning already occurred on an ad hoc basis. They considered that there would be some value in regularising this procedure.^[34] The Juries Commissioner said that judges had used juror questionnaires as part of the empanelment process in high-profile trials.^[35]

10.37 Jurors are already able to say they know of the case or parties through the current process of excusing jurors, although this relies on jurors knowing of and choosing to disclose the risk of prejudice.^[36]

10.38 The Supreme Court noted that having to exclude people from the jury because of their exposure to prejudicial material can distort jury composition. One of the aims of sub judice contempt is to ensure the jury pool reflects a broad cross-section of the community and is not narrowed by exclusions caused by pre-trial publicity.^[37]

10.39 Stakeholders also supported greater use of jury directions^[38] and more education of jurors and judges in the use and risks of social media.^[39]

10.40 Some stakeholders emphasised that jurors should be trusted more to act in accordance with jury directions and referred to the existing prohibitions on jury research.^[40] The CommBar—Media Law Section supported further research on the effect of publicity on potential jurors.^[41] Others, including the Supreme Court, stated their strong faith and respect in jurors, but observed:

The essence of matters which are prejudicial is that they have the tendency to assume undue significance in the human reasoning process, be that of a juror or a judge. The cognitive process of excluding prejudicial information from a reasoning process is a difficult one, even for the judiciary.^[42]

10.41 The Criminal Bar Association said judges should have the power to postpone a trial, despite this being a costly and significant measure.^[43]

10.42 Some also indicated support for judge-alone trials, especially in high-profile cases,^[44] although the DPP observed that in practice the accused person will almost always seek a jury trial.^[45]

10.43 Finally, several stakeholders pointed to the need to improve the relationship between the media and the courts.^[46]

Commission’s conclusions: new procedures needed

10.44 Although sub judice contempt remains relevant, the challenges posed by online publishing will require greater reliance on other measures. This is a key reason for the recommendations in Chapter 9 for improving jury and judicial education and guidance.

10.45 Judges should have a broad range of choices to deal with risks to a fair hearing. As discussed in Chapter 9, this should begin with making sure that jurors understand why they should limit what they read about a trial, and how to deal with any exposure to prejudicial information, including information that is prejudicial but was lawfully published at the time.

10.46 It appears that some judges are already asking jurors about their media consumption and exposure to information about the trial. Courts should develop procedures to make this more routine. Courts could, with the help of the Juries Commissioner, develop general questionnaires on media consumption for jurors to complete.

10.47 Courts should also develop standard questions for jurors to answer during the excuse process about their exposure to prejudicial material. Judges can then determine if there are ways to manage this risk other than by removing the person from the jury or jury pool (for example, by giving appropriate jury directions).

10.48 Courts should develop a procedure for a judge to put more specific written questions to jurors. Courts should use this procedure where, for example, the parties want to find out if the jury has become aware of specific material during the trial that would prejudice the trial. The procedure should require the court to hear the parties on the form of the questions.

10.49 Judges should use such procedures before they exercise stronger powers such as issuing a take-down order (see Chapter 14) or moving, postponing or staying a trial.^[47]

Recommendation

75 The courts should develop procedures to identify and manage the risks of jurors being exposed to prejudicial material before or during a trial, including through:

• the use of juror questionnaires

• questions to be put in the excuse process

• jurors answering written questions about their potential exposure.

Should sub judice be defined in the proposed Act?

10.50 In Chapter 4, the Commission recommends that legislation should define the law of contempt, including specific categories of contempt. This would make the law clearer, more certain and more accessible, and therefore make it more likely people will comply with the law. That chapter also discusses the general views of stakeholders on whether legislation is needed.

10.51 The consultation paper asked whether legislation should replace the common law of sub judice contempt.^[48] This section briefly discusses stakeholder views on this question, focusing on concerns specific to sub judice contempt.

Responses

10.52 Stakeholders divided on the value of defining sub judice contempt in statute. Most, including the Supreme Court and the County Court, supported defining sub judice contempt in statute. As discussed in that chapter, legislation would make the law clearer and more accessible, especially for publishers outside the mainstream media.^[49]

10.53 Media lawyers and academics, and the DPP, preferred the flexibility and responsiveness of the common law. They also considered the common law was clear enough.^[50] However, some supported clarifying the procedure in legislation, or a partial restatement of the common law.^[51]

10.54 Some believed the main problem was not the law, but an increasingly distrustful relationship between the courts and the media. Stakeholders differed as to whether legislation would make the media too cautious or too careless.^[52]

Commission’s conclusions: define sub judice contempt in legislation

10.55 The Commission recommends defining sub judice contempt in legislation. It is important that this restriction is clearly stated and made accessible to the blogger, tweeter or citizen journalist. Legislation would be especially useful for sub judice contempt, as other types of restriction on publication are set out in legislation or in court orders. The need for flexibility can be managed by careful restatement of the principles.

10.56 Further, for the reasons discussed below, there should be changes to the law of sub judice contempt to better balance the competing rights and interests. Legislation is needed to limit the scope of liability, and this would be clearer if expressed in terms of a comprehensive statement of the law.

Recommendation

76 The proposed Act should recognise ‘sub judice contempt’ as a distinct category of contempt and redefine it as ‘contempt by publishing material prejudicial to legal proceedings’.

Defining sub judice contempt—the test for liability

10.57 The High Court has stated the test for sub judice contempt as whether:

the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice. The impugned material must exhibit a real and definite tendency to prejudice or embarrass pending proceedings.^[53]

10.58 As discussed in the consultation paper, there are four ways in which this test could be made clearer and more accessible in any proposed Act:

• The ‘tendency’ test could be more clearly expressed as a ‘substantial risk’.

• The legislation could more clearly focus on the potential influence on jurors and witnesses.

• The legislation could include a list of relevant factors for assessing ‘tendency’.^[54]

• The legislation could include a list of types of information that may be prohibited by sub judice contempt.^[55]

10.59 Another potential reform, the definition of ‘publication’, is addressed in Chapter 13.

10.60 As discussed in the consultation paper, other law reform commissions have proposed similar reforms. The New South Wales Law Reform Commission (NSW Commission) recommended that publication should amount to contempt if it:

• creates a ‘substantial risk’ that jurors or witnesses would become aware of the publication and recall the content of the publication at the relevant time

• by virtue of those facts, the fairness of the proceedings would be prejudiced.^[56]

10.61 Similarly, in New Zealand, sub judice contempt legislation requires the court to consider the availability of the publication to jurors. The offence includes a list of factors the court must consider in assessing whether a publication creates a real risk of prejudice to a person’s fair trial. These factors are:

• the likely effect of the publication as a whole

• whether the publication is likely to be available to jurors or potential jurors

• the medium in which the publication is presented and its potential accessibility and durability

• the content of the publication

• the character of the publication, including the language and tone

• any other relevant circumstances relating to the likely effect of the publication.^[57]

10.62 The legislation provides that, in assessing the content of the publication, the court may, without limitation, consider whether the publication includes certain kinds of prejudicial information, such as information imputing the bad character of the accused.^[58] The legislation prohibits publication of previous convictions once proceedings have commenced for certain offences, and gives a court the power to temporarily suppress other trial-related information.^[59]

Responses

10.63 Most stakeholders supported clarifying the common law test in legislation.^[60] Several also supported raising the threshold of harm to ‘serious injustice’ or ‘serious interference’.^[61] ARTK and others also favoured a new requirement that the injustice could ‘not be overcome by other reasonably available means’.^[62] ARTK favoured a defence that there was no actual interference with the administration of justice.^[63]

10.64 Several stakeholders supported defining the test for liability as requiring a ‘substantial risk’ rather than a ‘tendency’.^[64] Some expressly endorsed the statutory test proposed by the NSW Commission.^[65] ARTK favoured the ‘real and definite tendency as a matter of practical reality’.^[66]

10.65 Some stakeholders supported an inclusive list of factors to be considered in determining the risk posed by a publication, as adopted in New Zealand.^[67]

10.66 Stakeholders divided on whether to list kinds of information that may be restricted. The Supreme Court said it could be helpful to have a clear rule against disclosure of prior convictions.^[68] The Criminal Bar Association favoured such a list, provided these were only presumed to fall within sub judice contempt.^[69]

10.67 Other stakeholders did not favour such a list, because everything depended on the context.^[70] The DPP expressed concern that even an inclusive list could lead people to avoid publishing that information where there was no prejudice.^[71] MinterEllison opposed any automatic suppression on criminal history as an undue restriction on freedom of expression.^[72]

10.68 However, most supported prohibiting the publication of evidence given at trial in the jury’s absence or that had been ruled inadmissible. Some emphasised that this was not a form of sub judice contempt. Rather, it was a contempt because the court had already determined the jury should not hear such information.^[73] The legislation could simply prohibit publication of this kind of material without requiring a further test of a risk to the administration of justice.^[74]

Commission’s conclusions: clarify the test for liability

10.69 The Commission recommends adopting the statutory test proposed by the NSW Commission. This sets out clearly the proper threshold and the potential risk of interference with the administration of justice.

10.70 The test should include a list of factors relevant to whether there is a substantial risk. This gives clarity and guidance to those looking to publish information. The list in the New Zealand legislation provides the basis for the Commission’s recommendation.

10.71 There are two minor changes to the proposed list. First, the test for liability should require consideration of the accessibility of the information to jurors. This factor therefore does not need to be repeated. Secondly, there is some repetition in including ‘the likely effect of the publication as a whole’ twice in the list of factors.

10.72 The legislation should not list kinds of information that may fall within sub judice contempt. The Commission considers such a list may discourage people from publishing material that falls within the list even if there is no substantial risk, and may also encourage publication of material outside the list that may create a substantial risk. Instead, a legislative note could provide examples that, while still forming part of the legislation, more clearly indicate their nature as examples.^[75]

10.73 Finally, once a trial has commenced,^[76] there should be a clear prohibition on publishing information that has been heard in the jury’s absence or ruled inadmissible. This rule does not depend on an assessment of risk. Instead, it is the result of the decision or legal rule that the evidence should not be heard by a jury.

Recommendation

77 The proposed Act should provide that a person may be dealt with by a court for contempt by publishing material prejudicial to legal proceedings when a person publishes material, while proceedings are pending, that creates a substantial risk that jurors or witnesses (or potential jurors or witnesses) will:

• become aware of the material, and

• recall the material at the time of the proceeding.

Recommendations

78 The proposed Act should include the factors a court must consider in determining whether the published material creates a substantial risk of prejudicing a person’s right to a fair hearing. This list should include:

• the medium in which the publication is presented and its potential accessibility and durability

• the content of the publication

• the character of the publication, including the language and tone

used in it

• any other relevant circumstances relating to the likely effect of the publication.

79 The proposed Act should provide that it is a contempt of court to publish material, once a trial has commenced and remains pending, that was heard in the absence of the jury or was held to be inadmissible by the court.

Defining sub judice contempt—limits of the offence

The fault element

10.74 A person can be responsible for a publication if the person was involved in producing or distributing the material, even if the person did not make the offending statements.^[77] This issue is also relevant to the liability of online intermediaries (see Chapter 13).

10.75 A person can be responsible even if they did not know of the material or did not intend to interfere with the administration of justice. These matters are considered when a court decides whether to exercise its powers and decides on the appropriate penalty.^[78]

10.76 The justification is that the purpose of this contempt is to protect a fair hearing and there needs to be a higher standard to ensure media organisations take reasonable care. However, this position has been criticised for not reflecting general principles of criminal responsibility, and for unduly restricting freedom of expression.

10.77 These concerns could be addressed in one of the following ways:

• introducing an actual intention or recklessness element to the test for liability

• introducing a requirement of negligence by the accused

• creating a defence when a person is not at fault and reasonable care has been taken.^[79]

10.78 Most law reform commissions have recommended a defence of reasonable care,^[80] though they vary in how widely they are framed.

10.79 For example, the Contempt of Court Act 2019 (NZ) includes a defence if a person can prove that, at the time of publication and ‘after taking all reasonable care’, the person ‘did not know or could not reasonably have known of [the accused’s] arrest or charge or the possibility or existence of a jury trial’.^[81]

10.80 The NSW Commission framed its recommended defence more broadly, by providing for a defence if a person proves, on the balance of probabilities:

a) that the person did not know a fact that would cause the publication of the matter to be criminal contempt

b) that before the matter was published, the person took reasonable steps to ascertain any fact that would cause the publication to be a criminal contempt and to prevent its publication if any such fact was ascertained.^[82]

10.81 The consultation paper asked whether fault should be an element of sub judice contempt or whether there should be a defence to cover the absence of fault.^[83]

Responses

10.82 Most stakeholders who addressed this issue favoured introducing some form of fault element. Many favoured a requirement that a person must have intended interference, or have been reckless as to the potential of interference, with the administration of justice.^[84] Some favoured limiting this to an intention to cause prejudice to the administration of justice or an intention to prejudice proceedings.^[85] MinterEllison also favoured a defence of reasonable care.^[86]

10.83 The Supreme Court opposed requiring an element of intent, since this would undermine the positive obligation of publishers to avoid contempt.^[87] The DPP opposed any fault element, because it would be impossible to prove and greatly weaken the law.^[88]

10.84 ARTK argued that a defence would require publishers to ‘go to considerable expense in pleading such matters in defence’.^[89]

10.85 The Law Institute of Victoria argued that a defence was unnecessary and would undermine fundamental rights, including the right to be presumed innocent until guilty. However, if a defence was adopted, it preferred the model proposed by the NSW Commission.^[90]

Commission’s conclusions: include a defence of reasonable care

10.86 The power to punish a person for a contempt should not be used where they did not know and could not have known that the material would interfere with the administration of justice. That is neither consistent with the general principles of criminal responsibility nor a proportionate restriction of freedom of expression. The Commission therefore agrees with most stakeholders that there should be some requirement of fault.

10.87 However, it would be too difficult to prosecute sub judice contempt if intention or recklessness had to be proved. This would significantly undermine the purpose and value of the restriction.

10.88 The problem arises because the intention or recklessness must be in relation to creating a substantial risk to a fair hearing. That is much harder to prove than, for example, that a person intended or was reckless about breaching the terms of a suppression order. In that case, the connection between the act and the result is much closer, and the intent or recklessness can be more readily inferred.

10.89 The circumstances are also different. In the case of a suppression order, a judge has already determined that the material, if published, would pose a risk to a fair hearing. In sub judice contempt, the publisher must assess whether the material creates a risk. There is a greater possibility of the publisher creating such a risk even without intending to do so or being reckless as to the risk.

10.90 The circumstances warrant imposing a positive obligation on publishers to take reasonable care. At stake is the fundamental right to a fair hearing. If a person is aware of a legal proceeding, the person should have to take care about what he or she publishes about it. This is a well-known norm that is key to the fairness of our justice system.

10.91 A better approach would be to include a defence of reasonable care. Although framing it as a defence imposes a burden on the accused, a publisher who has taken reasonable care will be better placed than the prosecution to present evidence of the steps they have taken.^[91]

10.92 The defence should be framed in the broader way proposed by the NSW Commission. This provides a better balance between the competing rights at stake.

10.93 This defence involves a degree of uncertainty as to the requirements of ‘reasonable care’. This is a common problem with any such standard but is a trade-off for the flexibility to adapt to a wide variety of conditions and circumstances.

10.94 It could be useful for the courts and media to discuss the practical content of this standard. A relevant forum may be the mechanism recommended by the Vincent Review for improving the relationship between the courts and media. Courts could consider this as part of their regular media liaison practices.

Recommendations

80 The proposed Act should provide that for a person to be liable for contempt by publishing material prejudicial to legal proceedings, the court must be satisfied that the person intended to publish the material.

81 The proposed Act should provide that it is a defence to this form of contempt if at the time of publication, and after taking all reasonable care, the person:

• did not know, or could not reasonably have known, of a fact that caused the publication to be in contempt, or

• reasonably relied on another person to take such reasonable care before publishing the material.

Pending proceedings

10.95 Sub judice contempt only restricts publication while legal proceedings are ‘pending’. The consultation paper asked stakeholders whether the pending period should be defined and, if so, when the period should begin and end.^[92]

10.96 As discussed in the consultation paper, there is some uncertainty about when the pending period begins. There are three possible starting points: when a warrant for an arrest is issued, when a person has been arrested, or when a person is charged.^[93]

10.97 The pending period ends once all avenues of appeal have been exhausted or an appeal judgment has been handed down,^[94] although there is less risk to a trial once a verdict has been reached.^[95] One reform would be to end this period earlier, at the time of verdict or acquittal. This would be consistent with the view that the purpose of the law was to prevent influencing the decision of a jury.^[96]

Responses

10.98 Several stakeholders supported clarifying the pending period in statute. They supported ending the pending period at the point of verdict,^[97] and most supported beginning the period again if a re-trial was ordered.^[98] As the County Court stated, this approach recognised that it would be too onerous to continue the pending period beyond verdict, because ‘appellate time frames are uncertain and subject to change’.^[99]

10.99 The Criminal Bar Association and the CommBar—Media Law Section preferred to leave the pending period to the common law.^[100] The Criminal Bar Association said it would be difficult to define this period and ‘may result in conduct aimed at delaying or bringing forward the commencement to suit a particular purpose’.^[101] The CommBar—Media Law Section considered that any specific pending period would necessarily be arbitrary.^[102]

10.100 MinterEllison supported defining the period in which proceedings are pending. For criminal proceedings, it preferred starting the period when a person is charged and ending at the time of verdict,^[103] and beginning again if a re-trial is ordered after an appeal. For civil proceedings, it stated that this period should begin when a form of initial process is filed and end when judgment is handed down or preferably when the decision is reserved.^[104]

10.101 The Children’s Court of Victoria noted that the prohibition on publication in its legislation does not clearly apply until a charge sheet is filed. This caused problems when footage of children engaging in offending behaviour had been widely distributed before a charge was filed.^[105]

10.102 Dr Denis Muller’s research on juror recall of media coverage indicated that the focus should be on publicity that occurs during the trial or very shortly beforehand. He found that extensive media coverage was unlikely to leave indelible impressions on potential jurors, unless other factors were present.^[106]

Commission’s conclusions: define the ‘pending’ period

10.103 The Commission recommends defining a clear beginning and end of the pending period to provide certainty and clarity for those who are exercising what is otherwise a fundamental freedom. This is especially important as more people are now likely to be publishers.

10.104 Criminal proceedings should be defined as ‘pending’ once a person is arrested or otherwise when criminal proceedings are commenced. The pending period should end when there is a verdict or when criminal proceedings end otherwise (for example, because the person is released without charge, the proceeding is discontinued, or a person pleads guilty).^[107] It should restart if a re-trial is ordered after an appeal against conviction.

10.105 Publications before an arrest would not pose a great enough risk, but beginning the pending period later, at the time of being charged, could undermine the purpose of the restriction. This concern is reinforced by the experience of the Children’s Court.

10.106 The pending period, however, only defines one element of sub judice contempt, and there must still be a substantial risk even if the publication occurs within this period. The timing of publication, therefore, will still be relevant to evaluating risk.

10.107 A publisher may not have any way of knowing of an arrest. In that case the publisher can rely on the recommended defence of reasonable care.

10.108 As discussed below, the Commission also recommends extending sub judice contempt to civil proceedings, where the harm is the risk of prejudicing a jury. For the same reasons, the period should similarly be defined for civil proceedings.^[108]

10.109 This period should apply from the time an initiating process is filed and should end at the time of verdict or when the proceeding has otherwise concluded.

10.110 A different period may need to apply in the context of other forms of contempt, such as interferences with witnesses, in both civil and criminal proceedings.^[109]

Recommendations

82 The proposed Act should provide that liability for contempt by publishing material prejudicial to legal proceedings only arises where the legal proceeding is ‘pending’ at the time of publication.

83 For criminal proceedings, the proposed Act should provide that a proceeding is ‘pending’:

• from the date on which an arrest or charge is made until the date on which either the verdict is delivered or the criminal proceeding ends otherwise, and

• recommences from the date on which a retrial is ordered until the date on which the retrial concludes.

84 For other legal proceedings, the proposed Act should provide that a proceeding is ‘pending’ from the date on which the initiating process is filed until the date on which a final decision is delivered, or when the proceeding ends otherwise.

The ‘public interest’ principle

10.111 The common law has recognised that, even where a publication creates a substantial risk to a fair hearing, it may not be a contempt because, on balance, its publication is still in the public interest. For example, publishing the identity of a criminal at large in the community may be necessary to protect the right to life and public safety.

10.112 This principle is often referred to as the ‘public interest’ defence. However, once the defendant has raised the issue, the prosecution bears the burden of proof.^[110]

10.113 In practice, whether a publication is in the public interest is generally considered before a person is prosecuted. As discussed in Chapter 5, the DPP applies prosecutorial guidelines to determine whether a prosecution is in the public interest.^[111]

10.114 The scope of the public interest principle is unclear in Australia, although it is more developed here than elsewhere. The High Court has made clear that a court must balance the interests of the administration of justice against the freedom of discussion of public affairs, and that the principle can apply to publications dealing specifically with legal proceedings, although the circumstances in which it would apply in such cases is unclear.^[112]

10.115 Cases in Australia and overseas have considered as relevant:

• the extent to which the publication focuses on specific legal proceedings

• the character of the offending material, such as whether it focuses on the guilt or innocence of the accused

• the prominence of the offending material within the context of the investigation

• the subject matter of the publication and its relevance to areas of significant public concern

• the timing of the publication, including the value of publishing it at that time and whether it continued an existing discussion

• the contribution the publication made to the public debate by the extent of research or investigation and the tone of the publication.^[113]

10.116 For example, in New South Wales, a court held that it was open to a judge to find that it was not a contempt to publish material that clearly implied an accused was guilty of being a drug dealer, even though the person was facing similar charges. The court held that the information was published as part of a ‘wide ranging, serious in-depth journalistic investigation of a major social problem with significant public policy implications’, which was in the public interest.^[114]

10.117 Many other aspects of the law remain unclear. For example, there is little guidance on how the balancing exercise is to be undertaken, including how much weight should be given to the principle of freedom of expression and what types of public interest might outweigh the risk to the administration of justice.^[115]

10.118 Law reform commissions have taken different approaches to clarifying the public interest principle.^[116] The Australian Law Reform Commission (ALRC) recommended narrowing the scope of the principle, which the NSW Commission originally proposed as well.^[117]

10.119 However, after hearing from stakeholders, the NSW Commission chose instead to restate the common law more precisely in its proposed legislation.^[118] It recommended that a person charged with sub judice contempt on account of responsibility for the publication of material should not be found guilty if:

a) the material relates to a matter of public interest

b) the public benefit from the publication of the material, in the circumstances in which it was published, and from the maintenance of freedom to publish such material, outweighs the harm caused to the administration of justice by virtue of the risk of influence on one or more jurors, potential jurors, witnesses, potential witnesses and/or litigants created by the publication.^[119]

10.120 As part of its review of Australia’s uniform defamation law, the Council of Attorneys-General has recently proposed including a public interest defence for defamation (see Chapter 13). The draft legislation specifies factors in determining whether the publication is ‘responsible communication’ for the purposes of that defence but does not address what is in the public interest.^[120]

Responses

10.121 Stakeholders who addressed this issue supported restating the public interest principle, with the Law Institute of Victoria endorsing the approach of the NSW Commission.^[121]

10.122 Dr Denis Muller said it would ‘help the media immensely’ to provide more guidance on the scope of the public interest.^[122] He observed it would be desirable to consolidate some of the types of interest already identified by the media and in case law and rules of practice into an agreed statutory definition.^[123]

10.123 The Criminal Bar Association supported instead including a defence of ‘necessity’.^[124] Consistently with its general approach, the CommBar—Media Law Section considered there was no need to restate the public interest principle in legislation.^[125]

Commission’s conclusions: clarify ‘public interest’

10.124 Although it has rarely been used successfully, the public interest principle is an important way for the common law of contempt to balance competing public interests including, most importantly, the principle of freedom of expression.

10.125 The public interest principle also enables the balancing of rights and interests beyond that of freedom of expression or political communication. For example, public order and public safety could also be considered under the public interest principle, as in the case of publishing the identity of a criminal at large to protect the community.^[126]

10.126 Even where other rights and interests are not involved, the application of the balancing test may nevertheless favour publication. A key element of the balancing tests is a consideration of the individual circumstances. It would be rare but not impossible for a publication to contribute to a discussion whose importance and urgency outweighed its small risk to the trial.

10.127 The Commission therefore concludes it is important to restate the public interest principle in the proposed legislation. However, it agrees with the NSW Commission that the principle should be clarified.

10.128 The Commission supports the NSW Commission’s recommendations, including its more precise definition of ‘risk to a fair hearing’ and its framing of the principle as an exclusion rather than as a defence. However, the Commission would extend that recommendation in two ways.

10.129 First, the balancing test in this area of contempt was developed before the constitutional protection for political communication was developed, and before the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) was adopted. Both the constitutional doctrine and the Charter already include balancing tests.

10.130 All these tests balance competing interests. The tests under both the constitutional doctrine and the Charter are more useful and analytically stronger than under the common law of contempt. It therefore makes sense for the legislation to refer, as part of the balancing test, to the freedom of expression under the Charter as well as the freedom of political communication.

10.131 The legislation should also make clear that the balancing test may also protect other rights and interests, such as the right to life and physical integrity, and to reasonable limitations on the grounds of public order and public safety. This would make unnecessary a separate exclusion in the cases of public safety, as recommended by the NSW Commission.

10.132 The Commission also recommends listing relevant factors to guide the balancing test, and to include examples of matters in the ‘public interest’ in a legislative note. This would make the law clearer, more certain and more useful.

10.133 The factors listed in the recommendation draw from the existing case law in sub judice contempt. However, the case law provides only limited guidance, and other relevant factors might be drawn from the constitutional and Charter contexts.

10.134 More clarity could be provided through practical guidance for the use of the media. Examples of responsible reporting could be included in the education and training recommended for members of the media (see Chapter 16).

Recommendations

85 The proposed Act should provide that a person is not liable to contempt for publishing material prejudicial to legal proceedings if the extent of prejudice is outweighed by the competing public interest in publication, including the effect of restricting publication on freedom of expression and on the principle of open justice.

86 The proposed Act should include the relevant factors a court must consider in determining the balance between the competing interests. These should include the extent to which the publication:

• refers to specific court proceedings

• refers to the guilt or innocence of the accused

• refers to the offending material, in the context of the publication as a whole

• raises an issue of significant public concern

• is relevant to public discussion at the time it is published

• contributes to public debate including through the extent of any research or investigation and the tone of the publication

• contributes to the effective and fair working of the criminal justice process.

Fair and accurate reports

10.135 A fair and accurate report of court proceedings published in good faith is not a contempt of court, even if prejudicial.^[127] Like the public interest principle, this is often referred to as a defence but is better described as a ground of exoneration.^[128]

10.136 A fair and accurate report must be one ‘which a person of ordinary intelligence using reasonable care might reasonably regard as giving a fair summary of the proceedings’.^[129] It can be unfair or inaccurate if, for example, it is partial or lacking in balance, or is selective in its choice of evidence or misrepresents the importance of information that is unfavourable to the accused.^[130]

10.137 The report must be made in good faith. The timing of publication is relevant in showing the presence or absence of good faith.^[131]

10.138 Law reform commissions have agreed that the common law principle should be retained in any legislation.^[132] Both the United Kingdom and New Zealand included it as an exclusion from liability in their respective legislation.^[133]

10.139 Both countries also require that the report be published contemporaneously and in good faith. The ALRC had recommended that the ‘good faith’ requirement should be removed, because it was unnecessary if the publication must be contemporaneous and would mean the prosecution must inquire into the motives for publication.^[134] However, the NSW Commission considered that the contemporaneous requirement was only one of the factors that was considered in the common law test of good faith, and recommended no reform of the principle.^[135]

10.140 While the consultation paper did not identify any issues with the role of this principle, the DPP considered that this defence was uncertain and might make it necessary to rely on suppression orders instead.^[136] One stakeholder raised the concern of how the law would deal with a series of tweets which, while factually accurate, might present a distorted view through its selection of the evidence.^[137]

Commission’s conclusions: restate the exception for fair and accurate reports

10.141 This common law principle should be restated as an exception to liability for sub judice contempt under the proposed Act. In general, the common law principles do not appear in need of significant reform.

10.142 However, the position should be clarified for social media posts that report on a proceeding sequentially. A series of publications by a single author or publisher, such as tweets or a series of blog posts, should be treated together for the purposes of determining whether the report is fair and accurate. This would enable the common law requirements of balance and representation to apply across the series of posts.

10.143 Sub judice contempt cannot properly address the risks of prejudice created by multiple tweets covering a trial from different publishers. Although together such tweets could cause a risk of prejudice, it is not appropriate to punish a person for the risks created by other people, especially where the fundamental right of freedom of expression is engaged.^[138] Such risks may be better managed through clear jury directions on the use of social media (see Chapter 9).

10.144 The exception for fair and accurate court proceedings does not apply to evidence that has been ruled inadmissible or is not heard by a jury. The Commission recommends prohibiting this as a separate provision to make it clear.

10.145 The Commission agrees with the NSW Commission that the publication must be in good faith, and that the timing of publication is relevant to that requirement. There is no reason why a fair and accurate report should not be protected even if published after the court proceedings, if the report is not being used for another purpose.

Recommendation

87 Subject to Recommendation 79, the proposed Act should provide that it is not a contempt of court to publish in good faith a fair and accurate report of a court proceeding, including where a report is published in sections or as a series.

What should be the procedure and penalties for sub judice contempt?

The proposed procedure for sub judice contempt

10.146 Chapter 5 of this report discusses the arguments for and against the use of the summary procedure in contempt law. That chapter outlines the Commission’s proposals for a procedure that includes protections reflecting the criminal nature of contempt.

10.147 The Supreme Court, the DPP in criminal proceedings, and the Attorney-General can all start proceedings under this proposal. It can also be commenced by a party to a proceeding in relation to which the contempt occurs.

10.148 The question is whether there is any need to change this procedure in the case of sub judice contempt. It can be argued that sub judice contempt is distinctive because:

• Hearing the contempt proceeding is not urgent and is already dealt with usually after the main criminal proceedings.^[139]

• The main evidence is the publication itself, so it does not raise the same evidentiary issues as in contempt in the face of the court.

• There are issues of fact that could be determined best by a jury, such as the ‘substantial risk’ test proposed and the defence of reasonable care.^[140]

Responses

10.149 Very few submissions addressed this issue specifically although, as discussed in Chapter 3, some stakeholders submitted that contempt should be redefined in terms of ordinary criminal offences, subject to the usual criminal procedures.

10.150 The DPP argued it was important for the DPP to retain the power to commence proceedings to deal with matters speedily. The DPP considered the current procedure was workable and fair. The DPP also argued for a reform to the costs procedure, discussed in Chapter 5.^[141]

10.151 The DPP was open to a requirement to send a letter prior to starting a proceeding with an opportunity to provide material before a decision is made to begin proceedings, which had been the practice in recent cases.^[142]

10.152 The County Court of Victoria indicated that it should also retain the power to commence proceedings, although in practice judges often raised the matter informally with the DPP. This was important to ensure it was not dependent on the executive to protect its proceedings, and in exceptional cases such a right may be needed if a member of the executive branch may have committed contempt.^[143]

Commission’s conclusions: the same procedure for sub judice as for other forms of contempt

10.153 The strongest reasons for reforming the summary procedure have been considered in the procedure proposed in Chapter 5. There is no compelling reason to adapt the procedure and such reforms may introduce unjustified complexity and costs. The procedure outlined in Chapter 5 should also apply to sub judice contempt.

10.154 In the ordinary case, the DPP should commence proceedings where needed. This reduces the apparent conflict of the court’s role in the proceedings and better enables the arguments to be presented. While the Commission has considered whether the legislation should indicate this preference, it cannot see any practical need for reform and concludes it could introduce complexity.

10.155 The DPP’s practice of providing an opportunity for comment before deciding to commence proceedings can be useful and could benefit from being expressed in a public policy document, such as in the Director’s Prosecution Guidelines or in a practice note. This would clarify the status of such an invitation and the kinds of information relevant to the Director’s exercise of its powers. The Commission does not consider that this needs to be set out in legislation.

The maximum penalty for sub judice contempt

10.156 The question of maximum penalties for restrictions on publications is dealt with in Chapter 15. The Commission recommends that sub judice contempt should attract a maximum penalty of two years imprisonment for an individual or 240 penalty units or both, with a maximum fine for bodies corporate of 1200 penalty units.

10.157 Other law reform commissions have considered the appropriateness of recovering costs for aborted trials from publishers.^[144] This was not an option raised by the Commission or discussed by stakeholders in submissions or consultations, so it is not appropriate to make any recommendation in this respect.

Should sub judice contempt apply to civil proceedings?

10.158 Sub judice contempt applies to civil proceedings. However, as there are very few juries in civil proceedings and usually less media coverage, in practice it is rare for this form of contempt to arise in civil proceedings.

10.159 For these reasons, the consultation paper did not discuss the application of sub judice contempt to civil proceedings. Stakeholders did not address the issue in submissions or consultations.

10.160 However, as the Commission is proposing a comprehensive Act, it is necessary to make clear how the proposed Act should deal with sub judice contempt in civil proceedings.

Sub judice contempt in civil proceedings

10.161 There are three main ways in which sub judice contempt can apply to civil proceedings. Publications can:

• improperly influence jurors or witnesses, in a comparable way to criminal proceedings

• place improper pressure on litigants to change the way they approach litigation (for example, by shaming them into settling or dropping a case)

• ‘prejudge’ the issue being determined by civil proceedings by, for example, publishing an article alleging that a drug company has been negligent when that company is being sued for negligence (the ‘prejudgment principle’).

10.162 The last two forms can also apply to criminal proceedings, although they rarely appear in that context.

10.163 There are many uncertainties in the law in relation to civil proceedings. For example, it is unclear whether in practice jurors or witnesses in civil proceedings can be influenced in the same way as in criminal proceedings.

10.164 Similarly, it is unclear whether there is any need to protect litigants from improper pressure. It is also difficult to define when pressure becomes improper.^[145]

10.165 The NSW Commission noted divergent views on whether this part of the law was still needed. The New South Wales Solicitor General preferred to abolish this law because it served no purpose. The Victorian Bar Council supported a narrower form of contempt in terms of vilifying a litigant with the intention of exerting pressure on them.^[146]

10.166 The balance between the right to freedom of expression and the right to a fair hearing also shifts when proceedings are not criminal in nature. There is a greater need to protect the right to a fair hearing in criminal proceedings, as these involve the punishment of the individual by the state and can affect the liberty of a person.^[147]

10.167 The prejudgment principle is especially controversial. No case in Australia has applied the principle.^[148] Kirby P (as he then was) concluded that there should not be a general rule preventing a person from suggesting the proper outcome of a case, as this was too great a restriction on freedom of expression.^[149] The principle has been held by the European Court of Human Rights to breach freedom of expression.^[150] The scope of the principle is unclear and broad.^[151] Its abolition or exclusion has been universally recommended by law reform commissions.^[152]

Reform options

10.168 The New Zealand Law Commission chose to leave the issue of contempt in civil proceedings to be developed by the common law under its general contempt powers.^[153] This preserves the flexibility of the common law and avoids the need to restate an unsettled and complex area of the law.

10.169 The NSW Commission recommended:

• extending to civil proceedings the statutory sub judice contempt as it applies to jurors or witnesses

• creating a narrower statutory offence of vilifying the character of litigants so that a party to civil (or criminal proceedings) will make a different decision in relation those proceedings

• excluding the prejudgment principle.^[154]

10.170 The ALRC recommended that:

• there should be a more limited sub judice offence about influencing jurors in the context of civil trials

• the risks of ‘improper pressure’ should be dealt with through an offence of reprisals against parties.

• the prejudgment principle should be excluded.^[155]

Commission’s conclusions: civil proceedings

10.171 The issue of civil proceedings was not canvassed by this inquiry. However, it is desirable to address the application of sub judice contempt to civil proceedings in the proposed legislation for reasons of clarity and accessibility. The Commission has taken as a starting point the recommendations of earlier law reform commissions which considered the issue, including the views of stakeholders.

10.172 The Commission recommends extending the proposed sub judice contempt to civil jury trials. The reasons for protecting juries apply also to civil trials, although with lesser force because of the different context.

10.173 The weight of competing principles and rights is different in the civil context. This can be dealt with by listing the civil or criminal nature of proceedings as one of the factors that a judge should weigh in determining any risk.

10.174 The Commission recommends stating that the prejudgment principle does not apply in Victoria. The principle is too great a restriction on freedom of expression and, since it has never been used in Australia, it cannot serve any compelling need.

10.175 The Commission’s preliminary view is that there is no compelling need to protect against improper pressure in civil proceedings. However, further consultation is needed.

10.176 Improper pressure on litigants can also be considered as interference with those involved in proceedings. This issue therefore overlaps with the category of contempt of interference with witnesses or parties.

10.177 In Chapter 4, the Commission recommends that interference with witnesses or parties should be recognised as a distinct category of contempt, but does not further define the scope of that category. These two issues should be considered together if a new Contempt of Court Act is introduced.

Recommendation

88 The proposed Act should provide that contempt by publishing material prejudicial to legal proceedings applies in civil proceedings where there is a jury and that:

• the nature of the proceeding is a relevant factor in determining the risk to a fair hearing

• the prejudgment principle does not apply.

1. John Fairfax & Sons Pty Ltd v McRae (1995) 93 CLR 351, 372.

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2. For example, sub judice contempt can arise where publications may create risks that witnesses in a coronial inquest may change their testimony: see, eg, A-G (NSW) v Mirror Newspapers Ltd [1980] NSWLR 374.

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3. United Nations Human Rights Committee, General Comment No. 34 (Article 19: Freedoms of Opinion and Expression), UN Doc CCPR/C/GC/34 (12 September 2011) [11], [13].

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4. In Victoria, these rights are set out in Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24 (right to a fair hearing).

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5. For a full discussion, see Frank Vincent, Open Courts Act Review (Report, September 2017) Chs 6, 7 <https://engage.vic.gov.au/open-courts-act-review>.

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6. Ibid. The Victorian Government has supported most of those recommendations, including that this inquiry be conducted.

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7. See also Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) s 182 (although publication of the prohibited information can be authorised by a court); Children, Youth and Families Act 2005 (Vic) s 534 (although publication of the prohibited information can be authorised by a court).

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8. Judicial Proceedings Reports Act 1958 (Vic) s 3(1)(c).

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9. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 97–9 [7.103]–[7.115].

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10. Ibid 101–2 [7.130]–[7.133].

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11. For a detailed discussion, see Australian Competition & Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019) Ch 6; see also Submission 17 (Dr Denis Muller).

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12. Australian Competition & Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019) 51–4.

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13. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 111, Question 27.

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14. Submissions 11 (Victoria Legal Aid), 17 (Dr Denis Muller), 18 (Commercial Bar Association Media Law Section Working Group), 20 (Criminal Bar Association), 22 (Law Institute of Victoria), 23 (MinterEllison Media Group), 27 (Australia’s Right to Know coalition), 28 (Director of Public Prosecutions), 29 (Supreme Court of Victoria), 31 (County Court of Victoria); Consultation 5 (Media lawyers and academics on contempt by publication). However, there was some dissent: see Submission 2 (David S Brooks).

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15. Submission 17 (Dr Denis Muller).

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16. Submissions 29 (Supreme Court of Victoria), 31 (County Court of Victoria).

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17. Consultation 2 (Academics on juror decision making and juror contempt),

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18. Submission 23 (MinterEllison Media Group).

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19. Some considered there was an argument it was redundant: Submission 23 (MinterEllison Media Group).

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20. Submissions 17 (Dr Denis Muller), 28 (Director of Public Prosecutions).

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21. Submissions 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston), 17 (Dr Denis Muller), 20 (Criminal Bar Association); Consultations 2 (Academics on juror decision making and juror contempt), 17 (Victorian Bar).

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22. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 107–11 [7.166]–[7.196].

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23. Ibid 107 [7.169]–[7.170].

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24. Farrah Tomazin and Sumeyya Ilanbey, ‘Andrews Government Considers “Judge-Only” Trials for Criminal Cases’, The Age (online, 13 December 2018) <www.theage.com.au/national/victoria/andrews-government-considers-judge-only-trials-for-criminal-cases-20181213-–p50m5u.html>.

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25. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 23 (MinterEllison Media Group).

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26. Consultation 17 (Victorian Bar).

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27. Submission 11 (Victoria Legal Aid).

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28. Consultation 6 (Victoria Legal Aid).

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29. Submission 28 (Director of Public Prosecutions).

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30. Submissions 11 (Victoria Legal Aid), 31 (County Court of Victoria); Consultations 4 (Juries Commissioner, Victoria), 17 (Victorian Bar).

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31. Submission 23 (MinterEllison Media Group).

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32. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 23 (MinterEllison Media Group), 27 (Australia’s Right to Know coalition).

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33. Submission 27 (Australia’s Right to Know coalition).

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34. Consultation 17 (Victorian Bar).

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35. Consultation 4 (Juries Commissioner, Victoria).

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36. Consultation 17 (Victorian Bar).

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37. Submission 29 (Supreme Court of Victoria).

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38. Submissions 20 (Criminal Bar Association), 23 (MinterEllison Media Group), 27 (Australia’s Right to Know coalition).

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39. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 20 (Criminal Bar Association), 23 (MinterEllison Media Group).

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40. Submission 23 (MinterEllison Media Group).

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41. Submission 18 (Commercial Bar Association Media Law Section Working Group).

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42. Submission 29 (Supreme Court of Victoria).

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43. Submission 20 (Criminal Bar Association).

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44. Submissions 11 (Victoria Legal Aid), 27 (Australia’s Right to Know coalition).

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45. Submission 28 (Director of Public Prosecutions).

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46. Submission 17 (Dr Denis Muller); Consultation 5 (Media lawyers and academics on contempt by publication).

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47. For example, this may be necessary if the judge considers it necessary to disqualify all or most of the potential jurors.

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48. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 111, Question 28.

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49. Submissions 11 (Victoria Legal Aid), 20 (Criminal Bar Association), 22 (Law Institute of Victoria), 27 (Australia’s Right to Know coalition), 29 (Supreme Court of Victoria), 31 (County Court of Victoria).

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50. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 23 (MinterEllison Media Group), 28 (Director of Public Prosecutions); Consultation 5 (Media lawyers and academics on contempt by publication). These stakeholders did, however, support some form of change to the existing law, as discussed later in this chapter.

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51. Consultation 5 (Media lawyers and academics on contempt by publication).

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52. Ibid.

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53. Hinch v A-G (Vic) (1987) 164 CLR 15, 34 (Wilson J).

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54. These factors include: the content of the publication; the nature of the proceedings that may be affected; the profile of the person making the statement or publishing the material; the size of the publication and the audience; the stage of the legal proceedings; the time between publication and the legal proceedings; and whether prejudicial material has already been published.

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55. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 85–7 [7.20]–[7.33].

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56. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) Recommendation 2, 71–4 [4.18]–[4.30].

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57. Contempt of Court Act 2019 (NZ) s 8(1). The Bill was amended to include express reference to jurors on the recommendation of the Ministry of Justice: Ministry of Justice (NZ), Departmental Report: Administration (Reform of Contempt of Court) Bill (2019) 55.

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58. Contempt of Court Act 2019 (NZ) s 8(2). This list also includes: information indicating that the accused has confessed to the charge, parts of the charge or conduct which might result in charge or conviction; information commenting on the credibility of the accused or a witness; information given at trial in the jury’s absence or information that has been ruled inadmissible at trial; and photographs, pictorial information, or other information that reveals the appearance of the accused if the identity of the accused is likely to be in issue at trial.

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59. Contempt of Court Act 2019 (NZ) sch 2 introducing ss 199A–D to the Criminal Procedure Act 2011 (NZ). At the time of writing, these provisions were not yet in force.

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60. Submissions 11 (Victoria Legal Aid), 17 (Dr Denis Muller), 20 (Criminal Bar Association), 22 (Law Institute of Victoria), 27 (Australia’s Right to Know coalition), 29 (Supreme Court of Victoria), 30 (Liberty Victoria), 31 (County Court of Victoria). However, as discussed earlier and in Chapter 2, others did not favour any legislation: Submissions 18 (Commercial Bar Association Media Law Section Working Group), 23 (Minter Ellison), 28 (Director of Public Prosecutions); Consultation 5 (Media lawyers and academics on contempt by publication) .

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61. Submissions 17 (Dr Denis Muller), 27 (Australia’s Right to Know coalition); Consultation 5 (Media lawyers and academics on contempt by publication).

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62. Submission 27 (Australia’s Right to Know coalition); Consultation 5 (Media lawyers and academics on contempt by publication). This requirement must be met for a suppression order on the grounds of a real and substantial risk of prejudice to the proper administration of justice under the Open Courts Act 2013 (Vic) ss 18(1)(a), 26(1)(a).

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63. Submission 27 (Australia’s Right to Know coalition).

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64. Submissions 11 (Victoria Legal Aid), 17 (Dr Denis Muller), 22 (Law Institute of Victoria), 23 (MinterEllison Media Group); Consultation 5 (Media lawyers and academics on contempt by publication).

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65. Submission 22 (Law Institute of Victoria); Consultation 6 (Victoria Legal Aid).

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66. Submission 27 (Australia’s Right to Know coalition).

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67. Consultations 6 (Victoria Legal Aid), 26 (Supreme Court of Victoria).

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68. Submission 29 (Supreme Court of Victoria).

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69. Submission 20 (Criminal Bar Association).

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70. Consultations 2 (Academics on juror decision making and juror contempt), 5 (Media lawyers and academics on contempt by publication), 8 (Law Institute of Victoria).

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71. Submission 28 (Director of Public Prosecutions).

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72. Submission 23 (MinterEllison Media Group).

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73. Consultation 5 (Media lawyers and academics on contempt by publication).

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74. Consultation 8 (Law Institute of Victoria).

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75. Interpretation of Legislation Act 1984 (Vic) ss 36, 36A.

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76. The time a trial commences is defined by the Criminal Procedure Act 2009 (Vic) s 210. Before a trial has commenced, other publication restrictions apply under section 3 of the Judicial Proceedings Report Act: see Chapter 12. This proposed prohibition would therefore only begin after a trial has commences and those protections lapse.

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77. A-G (NSW) v Willesee [1980] 2 NSWLR 143, 155–7.The selective prosecution of persons at the exclusion of others who also have responsibility for publication has been criticised. See Gallagher v Durack (1983) 152 CLR 238, 252–3 (Murphy J). See also Chapter 11.

    ↑

78. R v David Syme & Co Ltd [1982] VR 173, 178.

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79. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 91–2 [7.67]–[7.77].

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80. The Law Reform Commission, Contempt (Report No 35, December 1987) 145–6 [262]; Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) 54 [2.93] Recommendation 9; Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003) 41–2 Recommendation 14; New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) 104–9 [5.20]–[5.37] Recommendation 5.

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81. Contempt of Court Act 2019 (NZ) s 7(4)(a). Section 7(4)(b) also provides that an online content host or distributor has a defence if, after taking all reasonable care, the person did not know or could not reasonably have known that the publication contained information that created a real risk of prejudicing the person’s right to a fair trial.

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82. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) Recommendation 5. The recommendation also includes a ‘reasonable reliance’ clause for those who relied on others to take such reasonable care. The recommendation is modelled on the ALRC’s recommendation: The Law Reform Commission, Contempt (Report No 35, December 1987) 145–6 [262].

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83. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 111, Question 28(b).

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84. Submissions 20 (Criminal Bar Association), 22 (Law Institute of Victoria), 27 (Australia’s Right to Know coalition), 30 (Liberty Victoria). The Criminal Bar Association also stated that consideration could be given to negligence as a fault element.

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85. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 23 (MinterEllison Media Group).

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86. Submission 23 (MinterEllison Media Group).

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87. Submission 29 (Supreme Court of Victoria).

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88. Submission 28 (Director of Public Prosecutions).

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89. Submission 27 (Australia’s Right to Know coalition).

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90. Submission 22 (Law Institute of Victoria).

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91. Attorney-General’s Department (Cth), A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (Report, September 2011) 50 [4.3.1] <https://www.ag.gov.au/Publications/Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf>.

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92. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 111, Question 28(iii).

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93. Ibid 90 [7.55]–[7.59].

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94. James v Robinson (1963) 109 CLR 593, 615, citing R v Duffy; Ex parte Nash [1960] 2 QB 188.

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95. See A-G v Nationwide News Pty Ltd (1986) 43 SASR 374, 405-8 (Olsson J).

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96. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 90–1 [7.60]–[7.66].

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97. Submissions 17 (Dr Denis Muller), 22 (Law Institute of Victoria), 31 (County Court of Victoria).

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98. Submissions 22 (Law Institute of Victoria), 31 (County Court of Victoria).

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99. Submission 31 (County Court of Victoria).

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100. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 20 (Criminal Bar Association).

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101. Submission 20 (Criminal Bar Association).

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102. Submission 18 (Commercial Bar Association Media Law Section Working Group).

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103. This was also supported by one member of the Law Institute of Victoria who considered it problematic to rely on the time of arrest as a starting point for when sub judice prohibitions commence because it is not always publicly known when an arrest took place: Submission 8 (Law Institute of Victoria).

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104. Submission 23 (MinterEllison Media Group).

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105. Submission 14 (Children’s Court of Victoria).

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106. Submission17 (Dr Denis Muller). The other relevant factors mentioned included features of the crime, such as its randomness and brutality, and the ability to identify with the victim and the circumstances of the crime.

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107. The equivalent UK provision provides for a definition of when criminal proceedings are concluded. This includes ‘any other verdict, finding, order or decision which puts an end to the proceedings’, ‘by discontinuance or by operation of law’, and in specific circumstances related to double jeopardy: Contempt of Court Act 1981 (UK) Sch 1 para 5.

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108. The NSW Commission provided that, where the risk was as to an influence on jurors, the pending period should begin at the time it is known a jury will be used in civil or coronial proceedings, and in relation to a risk of influence on witnesses or parties, from the issue of a writ or summons, and should end when proceedings are disposed of by judgment at first instance, settled or discontinued, and recommence when a re-trial is ordered: New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) Recommendations 15, 18.

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109. The NSW Commission recommended in the context of influencing witnesses or parties for civil or criminal proceedings, that the restrictions should apply until the appeal proceedings have ended or the expiry of any period of appeal or further appeal: New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) Recommendation 17.

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110. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) 200 [8.52].

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111. Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) Ch 1.

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112. Hinch v A-G (Vic) (1987) 164 CLR 15; Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 152 CLR 25.

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113. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) Ch 8.

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114. A-G (NSW) v X [2000] NSWCA 199; A-G (NSW) v X (2000) 49 NSWLR 653, [149] (Spigelman CJ).

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115. See ibid for a full discussion.

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116. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 93–4 [7.84].

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117. New South Wales Law Reform Commission, Contempt by Publication (Discussion Paper No 43, 2000) Proposal 19.

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118. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) 194–200 [8.31]–[8.52].

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119. Ibid Recommendation 20.

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120. Council of Attorneys-General, Department of Communities and Justice (NSW), Model Defamation Amendment Provisions 2020 (Consultation Draft) (Background Paper, December 2019) sch 1 para 22, Introduction s 29A <https://www.justice.nsw.gov.au/justicepolicy/Documents/review-model-defamation-provisions/defamation-final-background-paper.pdf>; ibid 20–2, Recommendation 11.

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121. Submissions 17 (Dr Denis Muller), 22 (Law Institute of Victoria), 23 (MinterEllison Media Group), 27 (Australia’s Right to Know coalition).

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122. Submission 17 (Dr Denis Muller).

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123. For example, public health and safety; the performance of public duties by public officials; the performance of public institutions and public companies; the expenditure of public money; the performance of markets; and the performance of any enterprise in which the public has been invited to invest money or trust. Dr Muller notes that this is not very far from the public interest test in the defence of comment in defamation law: Submission 17 (Dr Denis Muller).

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124. Submission 20 (Criminal Bar Association).

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125. Submission 18 (Commercial Bar Association Media Law Section Working Group).

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126. The examples given in the case law of a constitutional crisis or a nuclear disaster would be justified by these interests: Hinch v A-G (Vic) (1987) 164 CLR 15, 26 (Mason CJ).

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127. Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255, 257. A common example is the reporting of bail and committal proceedings, which often includes prejudicial material: Hinch v A-G (Vic) (1987) 164 CLR 15, 25–6, 43, 83.

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128. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) 184 [8.1]–[8.3].

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129. Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255, 259.

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130. See New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) 212–4 [9.3].

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131. Ibid 214–5 [9.5].

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132. Committee on Contempt of Court (UK), Report of the Committee on Contempt of Court (Cmnd 5794, December 1974) [141]; The Law Reform Commission, Contempt (Report No 35, December 1987) 185–6 [321]; New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) 219 [9.22].

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133. Contempt of Court Act 1981 (UK) s 4; Contempt of Court Act 2019 (NZ) s 7(5).

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134. The Law Reform Commission, Contempt (Report No 35, December 1987) 186–7 [322].

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135. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) 217–18 [9.15]–[9.18].

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136. Submission 28 (Director of Public Prosecutions).

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137. Submission 8 (Rachel Jane Hews).

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138. Law Commission (England and Wales), Contempt by Publication (Consultation Paper No 209, 2012) [2.33].

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139. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) 297–8 [12.62]–[12.65]; The Law Reform Commission, Contempt (Report No 35, December 1987) 276 [473].

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140. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) 299–300 [12.66]–[12.69]; The Law Reform Commission, Contempt (Report No 35, December 1987) 277 [473].

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141. Submission 28 (Director of Public Prosecutions).

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142. Ibid.

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143. Consultation 24 (County Court of Victoria).

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144. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) Ch 14.

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145. These include whether in practice there were any circumstances in which there was a substantial risk of influence on witnesses or jurors in civil proceedings; the test for determining when comment becomes ‘improper pressure’; the factors and scope of ‘improper pressure’; whether there must be an intention to deter the litigant; whether the test of improper pressure should be measured against the standard of a litigant of reasonable fortitude; and whether the prejudgment principle has been adopted in Australia: New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) 140–1 [6.34]–[6.37].

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146. Ibid 143 [6.44].

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147. The right to a fair hearing applies to both criminal and civil proceedings, but there are specific procedural guarantees for criminal proceedings for this reason: Charter of Human Rights and Responsibilities Act 2006 (Vic).

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148. For a discussion of the operation of the principle in other jurisdictions, see New South Wales Law Reform Commission, Contempt by Publication (Discussion Paper No 43, 2000) 215 [6.47].

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149. Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540, 560.

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150. Sunday Times v UK (1979) 2 EHRR 245.

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151. The Law Reform Commission, Contempt (Report No 35, December 1987) 236 [407].

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152. Ibid Ch 9; New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) Recommendation 11; Law Reform Commission of Western Australia, Contempt by Publication (Discussion Paper No 93(II), March 2002) Recommendation 15.

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153. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) 44–6, 55 [2.39]–[2.48], [2.97].

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154. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) Chapter 6.

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155. The Law Reform Commission, Contempt (Report No 35, December 1987) 198 [338]–[339].

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