Contempt of Court and laws against the naming of victims of sexual assault are relevant to the media and anyone who publishes articles or posts to the internet on a regular basis.
Contempt of Court Generally
Contempt of Court is a criminal offence which is prosecuted by the Police in each State and Territory of Australia. The elements of the offence must be proven beyond reasonable doubt. Contempt of Court is essentially publication of matter which interferes with the administration of justice.
Pearson and Polden1 state that there are five main categories of contempt:
- Sub judice contempt – publishing material that tends to undermine public confidence in the administration of justice;
- Scandalising the court – publishing allegations that tend to undermine public confidence in the administration of justice;
- Revealing the deliberations of juries;
- Contempt in the face of the court – improper behaviour in a courtroom during a hearing
- Disobedience contempt – failure to comply with a court order or undertaking given to a court, such as refusing to answer a question in court or to deliver notes or other materials to a court or quasi-judicial body.
However, if a report of what has taken place in an open court is confined to an account of the evidence given and the submissions made by the parties and the report is fair and accurate, it is not published in contempt of court. The report must be published in good faith and without malice and must be reasonably contemporaneous with the proceedings2.
Sub Judice Contempt
The term “sub judice” means “under judicial consideration and therefore prohibited from public discussion elsewhere”3. Once somebody is arrested and charged the matter is thereafter sub judice. The reason for this offence is to ensure a fair trial. Jurors may be influenced by what the media states and the publication of material about the case may prevent relevant witnesses from coming forward. Trial judges give juries warnings that they should base their decisions on the evidence they hear and see in the courtroom and ignore any reports in the media.
It is a contempt of court to publish material4:
- intending to prejudice the trial; or
- that has a tendency to do so.
In R-v-Hinch5, the well-known radio broadcaster, journalist and politician, Derryn Hinch, was found guilty of contempt of court for breaching a suppression order by publishing material about an accused’s criminal record in the case of the rape and murder of Jill Meagher in Melbourne.
Derryn Hinch was again charged with contempt of court in the case of Hinch-v-Attorney-General (Vic)6, when he made three sub judice radio broadcasts relating to an upcoming trial of a former Catholic priest who was being tried with child molestation charges. Hinch detailed the history of the priest’s charges some of which he had been acquitted of and others he had been found guilty of. He also questioned why the priest should remain in the role of governing director of a youth foundation. In that case, Hinch was jailed for 28 days and fined $10,000.
In Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd7, a bread carter had commenced a defamation action against Bread Manufacturers Ltd, which represented almost 90% of Sydney’s bakers. The company allegedly defamed the bread carter in a letter. Around the same time, a newspaper published several articles alleging bakers acted as cartels. The newspaper was charged with contempt of court on the grounds that the articles were likely to influence the administration of justice by prejudicing the jurors involved in the upcoming defamation case. The contempt of court charge failed because it was held that the newspaper had not intended to influence jurors and did not even know about the upcoming defamation trial.
The Bread Manufacturers Case is authority for the protection of sub judice publications discussing upcoming court proceedings if that part of the publication was minor compared with the discussion of a predominant issue of public interest.
Scandalising the Court
This type of contempt arises if the courts or judges or magistrates are described in scurrilous terms by for example, alleging they are corrupt or lack integrity. There have been numerous cases of this kind. One example is DPP-v-Francis & Anor (No. 2)8, in which veteran broadcaster Bob Francis was given a nine-week suspended jail sentence and fined $20,000 for opposing the magistrate’s decision in granting bail to a man convicted of possessing child pornography on his radio program. Francis said “Oh, smash the judge’s face in.” The magistrate also settled her defamation claim out of court for a reported $110,000 in compensation.
Revealing the Deliberations of Juries
Legislation in all States and Territories of Australia forbids anyone from seeking information from jurors, even after the conclusion of a trial.
Contempt in the face of the Court
There have been numerous cases of contempt in the face of the Court ranging from minor breeches such as a ringing mobile phone to a person undressing in the court room. In Kennedy-v-Lovell9, a Western Australian author was fined $30,000 for contempt of the Western Australian Police Royal Commission by refusing to enter the witness box and then leaving the commission stating that he was going to have a cup of tea.
In Registrar of the Supreme Court of South Australia-v-Moore-McQuillan10, frustrated litigants told a magistrate to ‘get fucked’.
This type of contempt arises when a person fails to comply with a court order, or an undertaking given to the court. In Law Institute-v-Nagle, Justice Gillard stated11:
“It is vital to the administration of justice in this State that a person bound by an Order obeys it. Disobedience of an order poses a threat to the administration of justice and attacks its very foundation. It threatens the rule of law and its destruction results in anarchy and a return to the law of the jungle. If a person bound by an order wilfully refuses to obey it and is not severely punished for wilful disobedience then parties in litigation will have no confidence in the legal system. Respect for the system must be maintained. There is a public interest factor in punishing a contemnor in most cases, especially where the contempt is a criminal one.”
Naming of Sexual Assault Victims
Legislation in all States and Territories of Australia prohibits the publication of the identity of a victim of sexual assault. In Doe-v-Australian Broadcasting Corporation & Ors12, the Plaintiff was raped by her husband, ‘YZ’. ’YZ’ was convicted of rape amongst other offences and sentenced. On the day of his sentencing, ABC broadcasted soties about the matter on three bulletins. The reports named ‘YZ’, described the offences as ‘rapes within marriage’, and named the suburb. One of the bulletins went further and identified the victim by name. The journalists responsible pleaded guilty to publishing the identifying material. In subsequent proceedings, the Plaintiff sued the ABC and both journalists responsible for identifying her, seeking damages for breach of statutory duty, negligence, breach of privacy and breach of confidence. She was awarded $234,190 in damages.
In Queensland, the Northern Territory and South Australia, the identity of the accused in a sexual assault case cannot be published until he or she has been committed for trial.
In R-v-The Age Company Ltd and Steven Harris and Michael Gawenda13, Steve Randall, a former test cricket umpire, was convicted and sentence to four years in jail by the Supreme Court of Tasmania on fifteen counts of indecent assault against nine schoolgirls. He committed offences when he was a teacher in the 1980s. One of the complainants agreed to be interviewed and photographed outside the court after sentencing. The following day The Age newspaper in Melbourne ran the story naming her and showing her photograph. The newspaper company, its editor, Michael Gawenda, and its editor-in-chief, Steve Harris, were all charged with contempt for identifying the victim of sexual assault. Gawenda and the newspaper company were fined $20,000 each, while editor-in-chief Steve Harris escaped a fine because he was not involved in the decision to publish.
Restrictions on Naming Other Parties
Legislation in all States and Territories of Australia also prohibits the naming of:
- Juvenile offenders;
- Child witnesses;
- Family members of accused adults;
- Wards of the State;
- Children in child custody proceedings;
- Adopted children;
- Children the subject of child protection orders;
- Identification of parties to Family Court proceedings;
- Persons involved in guardianship proceedings;
- Jurors; and
- Identification of ASIO (Australian Security Intelligence Organisation) officers;
Legislation in all States and Territories of Australia also prohibits the media from interviewing prisoners.