Amalgamated Television Services Pty Limited v John Marsden

Amalgamated Television Services Pty Limited v John Marsden - [2001] NSWCA 32 - NSWCA 2001 case summary — Zoe

COUNSEL : (Claimant): W H Nicholas QC/N J Williams (Opponent): In Person SOLICITORS : (Claimant): Mallesons Stephen Jaques (Opponent): In Person CATCHWORDS : CONTEMPT - criminal contempt - standard of proof "beyond reasonable doubt" - CONTEMPT - knowledge of orders essential element of contempt charges - level of knowledge required - knowledge of substance of orders sufficient - lack of evidence showing requisite knowledge - CRIMINAL LAW - "no case" submission - can be made at close of claimant's case in criminal contempt - standard of proof "beyond reasonable doubt" - difference between jury trials and cases where judge/magistrate sitting alone - whether it is permissible for judge/magistrate sitting alone to assess evidence qualitatively and make factual findings - "no case" submission question of law - determination of guilt question of fact - preference to keep questions of fact and law separate - wrong for judge/magistrate to make factual findings at "no case" submissions stage. D Re De Beaufeu's Application [1949] Ch 230 Re X [1975] Fam. 47 Re R [1975] Fam. 89 Re F [1977] Fam. Re X [1984] 1 WLR 1422 P v P (1985) 2 NSWLR 401 John Fairfax & Sons Pty Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 R v Bilick & Starke (1984) 36 SASR 321 Witness v Marsden ((2000) 49 NSWLR 429 Witham v Holloway (1995) 183 CLR 525 R v Murphy (1985) 63 ALR 53 R v Serratore (1999) 48 NSWLR 101 CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Protean (Holdings) Limited v American Home Assurance Company [1985] VR 187 Commissioner for Corporate Affairs v Green [1978] VR 505 Rasomen Pty Limited v Shell Company of Australia Limited (1997) 75 FCR 216 Zanetti v Hill (1962) 108 CLR 433 Haw Tua Tau v Public Prosecutor [1982] AC 136 Torrance v Cornish (1985) 79 FLR 87 Short v Davey, Ex Parte Short [1980] Qd R 412 R v Sutton [1986] 2 Qd R 72 Myers v Claudianos (1990) 100 FLR 362 Cox v Salt (1994) 12 WAR 12 Morrison v Kiwi Electrix Pty Limited (1998) 19 WAR 482 Sun Newspapers & Ors v Brisbane TV Limited & Ors (1989) 92 ALR 535 Attorney-General for New South Wales v Mayas Pty Limited (1988) 14 NSWLR 342 DECISION : 1. No case submission by Opponent upheld; 2. Application dismissed; 3. The Claimant to pay the Opponent's costs.

[6]

Facts: The claimant and opponent (Mr Marsden) are parties to defamation proceedings before Levine J. In that action Levine J made orders in relation to an application by a witness to give evidence at the defamation trial under a pseudonym. His Honour dismissed the application and this decision was reversed by the Court of Appeal, reported as Witness v Marsden (2000) 49 NSWLR 429. During these proceedings the Court of Appeal made a series of orders both interim and final. On 10 March 2000, at the commencement of the hearing the Court ordered that; "Until further order there will be no publication of the name of the witness involved." The Court further ordered at the close of the hearing on 15 March 2000; "Until further order, there be an order prohibiting publication referable to proceedings in the Court of Appeal of any material that would identify or be likely to identify the witness." In the judgment handed down on 22 March 2000 the Court made the following orders, which are relevant to these contempt proceedings; "4. The Witness is to be addressed and referred to in the court only by a pseudonym. 5. Any matter which is likely to lead to identification of the Witness is not to be reported by those in court." The claimant sought a declaration that Mr Marsden was guilty of contempt in relation to these orders of the Court of Appeal. It was alleged that Mr Marsden acted in breach of the orders of 10 and 15 March 2000 and that he acted with the intention of frustrating, thwarting and subverting order 5 of 22 March 2000. The contempt charges related to Mr Marsden's conduct on 22 March 2000 when he gave or showed an article from 13 February 1999, identifying the protected witness, to a number of journalists and discussed the matter with them. At the close of the claimant's case it was submitted by Mr Marsden that there was no case for him to answer as the evidence did not establish that he had the requisite knowledge of the orders upon which the contempts were based and further, that the evidence did not establish that he acted to frustrate, thwart or subvert the purpose of order 5

[8]

(ii) Per Ipp AJA, Powell JA and Giles JA, agreeing in part; (a) (Per curiam) Mr Marsden's knowledge of the orders of 10 and 15 March 2000 was an essential element of the contempt charges, thus the claimant was required to show that Mr Marsden had knowledge of the substance of the orders "at, or immediately after, the time it was made". The question of knowledge was dealt with by the claimant by relying on the evidence of various journalists, an discussion of 9 June 2000 and a proposed speech written by Mr Marsden. Whilst Mr Marsden acknowledged that he knew that the judgment in question involved an order as to the non-disclosure of the identity of the witness this did not resolve that he had knowledge of the relevant orders, or their substance. Thus the evidence did not establish beyond reasonable doubt that Mr Marsden had the requisite knowledge of the relevant orders and the case in regard to the contempt charges based on those orders fails. (a) (Per Giles JA) Taking the evidence of the journalists and the discussion of 9 June 2000 as a whole it would be open to find that Mr Marsden knew of order 5 of 22 March 2000 which prohibited the identification of the witness. However the evidence is not capable of proving beyond reasonable doubt that Mr Marsden knew of this order or its substance. (iii) Per Ipp AJA, Giles JA and Powell JA, agreeing in part; (a) (Per Ipp AJA, Giles JA agreeing) The construction of order 5 of 22 March 2000 was such that it was intended to have prospective effect and extend the protection of the witness afforded by the order of 15 March 2000 to the resumption of the defamation proceedings before Levine J. Therefore the substance of order 5 was to prohibit those who were present in the Court of Appeal or at Levine J's court from reporting any matter that may be likely to lead to the identification of the witness. In this sense the order was capable of being frustrated, thwarted or subverted by Mr Marsden, however the evidence of the journalists and the exchange of 9 June 2000 was insufficient to prove this beyond reasonable doubt. (b) (Per Powell JA on the issue of construction of order 5) In relation to the construction of order 5 it must be taken into account that the judgments of Levine J and the Court of Appeal took place in different circumstances, one being in closed court, the other in open court. However it was clear that the evidence of the witness was not intended to be given in closed court before Levine J. As a result the relevant order was intended to prevent the publication of material likely to identify the witness whilst in court giving evidence.

[16]

3 GILES JA: I have had the advantage of reading the reasons of Ipp AJA in draft. Save as to Mr Marsden's knowledge of order 5 made on 22 March 2000, I am respectfully content to adopt his Honour's reasons. In what follows in relation to Mr Marsden's knowledge of order 5, I gratefully draw upon what his Honour has written. 4 Whether Mr Marsden knew of order 5, or its substance, depends upon a consideration of the evidence as a whole. The material constituents of the case for his knowledge come from the evidence of Mr Price, the evidence of Mr Mitchell, the exchange of 9 June 2000, the evidence of Ms McClymont, and the speech proposed to be given by Mr Marsden. 5 For the reasons given by Ipp AJA, I do not think the last two of these contribute to establishing knowledge at the material time, that is between about 10.35 am and about 11.15 am on 22 March 2000. 6 I agree with Ipp AJA that the evidence of Mr Price is not capable of establishing that Mr Marsden was in court when judgment was delivered and when the orders made on 22 March 2000 were read out. It is capable of establishing that, after the orders were made, Mr Marsden was outside the courtroom conversing with others, including his junior counsel. While of itself falling far short of proof of knowledge of order 5, or its substance, it provides evidence of an occasion on which Mr Marsden might have become aware of the orders made when the judgment of the Court of Appeal was delivered. 7 The judgment of the Court of Appeal was delivered at about 10.15 am on 22 March 2000. Levine J sat on level 10 of the Supreme Court building at 10.30 am on that day. There was reference to calling the Witness and his Honour said, "We will be sitting in Court 12 and I will commence his evidence-in-chief at 2 o'clock". There was then reference to looking at the judgment of the Court of Appeal, and his Honour said that he would adjourn "till 2 in Court 12". 8 Mr Mitchell was in Levine J's court at this time. On leaving the courtroom he saw Mr Marsden, and according to Mr Mitchell there occurred the suggestion to Mr Mitchell that he should arrange for the publication of the Witness' name in his newspaper and the equivalent suggestion to Mr Grimm. 9 According to Mr Mitchell, Mr Marsden handed to him a photocopy of a newspaper article concerning the Witness and containing his name. 10 Mr Marsden said, "That's the man whose name they have suppressed. He is to appear anonymously. It's a disgrace." Mr Marsden made some comments about the Witness and said, "You should use his name in the paper. You can take it from the newspaper cutting and publish his name." Mr Mitchell replied, "Wouldn't that be against the court order?", and Mr Marsden said, "No, you can just say you are publishing facts from another newspaper article". 11 As Ipp AJA observes, it is apparent from this exchange that Mr Marsden knew that a court order has been made. The initial references by Mr Marsden to suppression and anonymity must have been at least to order 4 made on 22 March 2000. Mr Marsden was quite clearly referring to the substantive orders made by the Court of Appeal governing the giving of evidence by the Witness. Order 4 required the use of a pseudonym, reasonably described as suppression of the name of the Witness and his appearing anonymously, although arguably what Mr Marsden said was referable to any identification of the Witness and was capable of reflecting order 5. 12 Of more significance is Mr Marsden's suggested reason for publication of the Witness' name not being against the court order. If the substance of the court order were that the name of the Witness not be published, or even that any matter likely to lead to the identification of the Witness was not to be reported, to say that there was no more than publishing facts from another newspaper article would not be an excuse. Mr Marsden's suggestion was arguably explicable only on the basis that the publication of the name of the Witness would not be a consequence of being in court. This would involve knowledge of order 5 made on 22 March 2000. 13 I go then to the exchange of 9 June 2000. It has been set out and analysed in the reasons of Ipp AJA, but I set it out again - "Q. You were in Court when the witness who is now known as D20 made his application for a pseudonym order, were you not? A. Yes. Q. And you heard the whole of his evidence in respect of that application? A. Yes. Q. You were in the Court of Appeal when the appeal from that decision of his Honour was heard, were you not? A. I was advised by Mr Barker not to go because -- HIS HONOUR: Q. The answer is - where you there or not. A. No. STITT: Q. Did you become aware of the judgment of the Court of Appeal when it was handed down? A. Yes. Q. You knew that the judgment of the Court of Appeal involved, amongst other things, an order that the identity of D20 not to be [sic] disclosed? A. True. Q. You regarded the Court of Appeal judgment as a disgrace, did you not? A. Yes. Q. And you publicly stated your view of the judgment to people who were standing near to the Court where D20 was to give evidence, isn't that so? A. When I was told, yes. Q. You knew that the terms of the Court of Appeal order were couched so as to protect the identity of D20 so that it was not to be disclosed? A. Yes."

[17]

14 I am prepared to put to one side that part of the exchange from the question concerning public statement of Mr Marsden's views of the judgment to people who were standing near to the court where the Witness was to give evidence. As well as being at Levine J's court on level 10 of the Supreme Court building at about 10.30 am on 22 March 2000, Mr Mitchell was in or outside court 12, on a different level of the building, shortly before 2 pm on that day. Court 12 was the court where the Witness was to give evidence. Whoever the people were who were standing near to the court where the Witness was to give evidence, the occasion must have been different from the occasion on which Mr Marsden spoke to Mr Mitchell outside Levine J's court on level 10. This question and answer can therefore carry no inference as to Mr Marsden's knowledge of order 5 prior to 11.15 am on 22 March 2000, and on the flow of the questioning the following question directly going to his knowledge of "the terms of the Court of Appeal order" could not be regarded as addressing Mr Marsden's knowledge at a time earlier than when he publicly stated his view of the judgment to people who were standing near to the court where the Witness was to give evidence. 15 But I do not think that the earlier part of the exchange of 9 June 2000 can be similarly put aside. Mr Marsden first agreed that he became aware of the judgment of the Court of Appeal when it was handed down. He then agreed that he knew that the judgment of the Court of Appeal involved an order that the identity of the Witness not be disclosed, and agreed that he regarded the judgment of the Court of Appeal as a disgrace. Mr Marsden must have regarded the judgment of the Court of Appeal as a disgrace for a reason, and on the flow of the questioning the reason arguably was that it involved an order that the identity of the Witness not be disclosed. The last of the questions and answers was fairly clearly descriptive of Mr Marsden's state of mind upon his becoming aware of the judgment of the Court of Appeal, and so the preceding question and answer can be taken to represent his knowledge at that time. 16 This understanding of Mr Marsden's evidence would be assisted by the evidence of Mr Mitchell, according to which Mr Marsden described the outcome in the Court of Appeal as "a disgrace". The understanding of Mr Marsden's evidence could found a conclusion that he knew more than that the name of the Witness had been suppressed and he was to appear anonymously, and that he knew that it had been ordered that his identity not be disclosed. 17 Taking all these matters together, in my opinion it would be open to be found that Mr Marsden knew, at the time he spoke to Mr Mitchell at about 10.30 am on 22 March 2000, that those in court were prohibited from reporting any matter likely to lead to the identification of the Witness, with the purpose of affording to the Witness protection from disclosure of his identity. 18 The question then is whether that is open to be found beyond reasonable doubt. As Ipp AJA has said, the standard of proof in a no case submission is proof beyond reasonable doubt, and this Court must be satisfied that the relevant knowledge on the part of Mr Marsden, as one of the ingredients of charges 5 and 8, could be found beyond reasonable doubt. In R v Bilick (1984) 36 SASR 321, to which Ipp AJA has referred, King CJ said at 337 - "The case against the appellant Starke was circumstantial in character. The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea , there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct 'evidence' is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? That, as it seems to me, was the question which the learned trial Judge was required to answer in deciding on the submission of no case to answer." 19 For this purpose the evidence of Mr Price and Mr Mitchell must be taken to have been accepted, and the reasonably open view of the exchange of 9 June 2000 most favourable to the claimant must be taken. There is then an exercise in judgment. In my opinion the evidence brought by the claimant is not capable of producing satisfaction beyond reasonable doubt that Mr Marsden knew of order 5 made on 22 March 2000, or of its substance. Charges 5 and 8 fail on the standard of proof. 20 Accordingly, in agreement in the result with Ipp AJA, I would dismiss the claimant's application and order that it pay Mr Marsden's costs.

[20]

The no case submission: the law 31 At the close of the claimant's case on all 12 charges, Mr Marsden submitted that there was no case for him to answer. There were two limbs to this submission. Firstly, he argued that the evidence did not establish that he knew of the three orders concerned and therefore he could not lawfully be convicted of any of the contempts charged. Secondly, in regard to the charges that he performed acts with the intention of frustrating, thwarting and subverting the purpose of order 5 of 22 March 2000, he submitted that the evidence, even if accepted in its entirety, did not establish the contempts alleged. 32 The claimant accepted that the present application was criminal in nature and the criminal standard of proof applied. Accordingly, the matter was argued on this basis. The claimant was undoubtedly correct in the approach it took: Witham v Holloway (1995) 183 CLR 525. 33 The claimant further accepted that, as the proceedings were criminal in nature, Mr Marsden was entitled to make a no case to answer submission at the close of the claimant's case, and the parties accepted that the general principles governing such submissions were of application. 34 The standard of proof to be applied in a no case submission, made at the close of the case for the prosecution, is proof beyond reasonable doubt: R v Murphy (1985) 63 ALR 53 at 78. 35 The general principles otherwise applicable were stated by Dunford J (with whom Greg James J and Smart AJ agreed) in R v Serratore (1999) 48 NSWLR 101 at 130 to be as follows: "In determining whether there is a case to answer, the question to be decided is not whether on the evidence as it stands, the accused ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted: May v O'Sullivan (1955) 92 CLR 654 at 658. In considering such an application, the judge does not consider the probative value of the evidence as a whole, but only that evidence which, if believed and uncontradicted, could be accepted as proof of the Crown case: R v Towers (1984) 75 FLR 77 at 79, Doney v The Queen (1990) 171 CLR 207 at 214-215; R v R (1989) 18 NSWLR 74; and in a case of circumstantial evidence, such as the present, a finding of no case to answer is not open if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be postulated: R v JMR (1991) 57 A Crim R 39 at 44."

[21]

36 There is some controversy as to whether these principles apply only to jury trials, or whether they apply to all criminal cases, including those before a judge alone, or a magistrate. In some cases, not involving trial by jury, it has been held that the presiding judicial officer is entitled to weigh up and make qualitative judgments as to the evidence, and may prefer one inference over another. The rationale for this approach is that it is unrealistic and impractical to require judicial officers, sitting without juries, to remove from their minds the impressions as to the credibility of witnesses that will inevitably intrude into their consciousness and that are likely to inform their judgment at the conclusion of the evidence and closing addresses when they are required to determine whether the prosecution has proved its case beyond reasonable doubt. 37 The other view is based squarely on the difference between the functions performed when deciding a no case to answer submission, on the one hand, and deciding whether an accused person is guilty beyond reasonable doubt, on the other. In the former situation, the judicial officer is determining a question of law; in the latter, a question of fact. It has been said that the two cannot be merged. 38 Support for the first-mentioned approach is usually sought in the following remarks of Windeyer J in Jones v Dunkel (1959) 101 CLR 298 at 330 to 331: "When there is no jury, the proposition "no case to answer" may obviously mean far more than, 'is there evidence on which a jury could find for the plaintiff?' it may mean, 'would you, the judge, on the evidence given, find for the plaintiff?'" 39 These remarks were relied on by the Victorian Full Court in Protean (Holdings) Limited v American Home Assurance Company [1985] VR 187. Young CJ (with whom Fullagar J agreed) said that a judge, in deciding to uphold a no case to answer submission, "is entitled to draw all proper inferences from the evidence". In the same case, Tadgell J (at 239) said: "If a judge sitting alone receives a submission [concerning the quality of evidence that has been led] and decides to rule on it,… he must be entitled in doing so to assess the quality of the evidence. Were it otherwise the Judge, being the tribunal of fact, would be placed in an impossible position: he would have to assess the validity of the case for the respondent party without being able to assess the worth or weight of the evidence led in support of it."

[22]

His Honour referred to the remarks of Windeyer J in Jones v Dunkel , to which I have referred, and proceeded: "If it falls to the Judge to decide whether he could find for the respondent party on the evidence so far led, it is quite unrealistic to expect him to do so without being able to consider all questions which bear on the sufficiency of the evidence and without power to draw or to decline to draw all inferences from the evidence given on which the respondent party might seek to rely. Moreover (or perhaps this is no more than another aspect of the same view) the Judge, being also the arbiter of the law, could not sensibly be required, in considering a submission [concerning the quality of evidence that has been led], to say whether the evidence could establish the case in favour of which it was adduced while shutting his mind to the question of its sufficiency in terms of quality. It might be possible to achieve such a measure of detachment in a clear case but in most or very many cases it would not". 40 The Protean decision is consistent with Commissioner for Corporate Affairs v Green [1978] VR 505. In the latter case, McInerney J held that a magistrate had rightly acceded to a no case submission where the inference that the respondent had used information in contravention of statutory prohibition was of no more than equal degree of probability with the inference that he had not. 41 In Rasomen Pty Limited v Shell Company of Australia Limited (1997) 75 FCR 216, the Full Court of the Federal Court followed the reasoning in the Protean case. The Court observed (at 226) that the authorities relied on by the appellant concerned trials before a judge and jury and the statements of principle in those judgments "must be understood in that context with the trial judge as the arbiter of the law but not of the facts". The Court pointed out that, in trials conducted before a judge alone, the judge is arbiter both of the law and the facts "and the principles require modification to reflect that different considerations apply". Their Honours referred to Windeyer J's remarks in Jones v Dunkel and the Protean case and said (at 228): "In our opinion the trial judge did not err in her approach, or in the test of sufficiency of the evidence, when deciding the submission that there was no case to answer. In a case like this, the function to be performed by a trial judge sitting without a jury who has decided to entertain a no case submission is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the ordinary way and who has to give final judgment. In both situations, the judge must make findings of fact, after assessing the quality of the evidence. Consequently, when there is a challenge on appeal to the conclusions of fact arrived at by a judge in disposing of a no case submission, the approach of the appeal court should be the same as that taken to appeals against findings of fact made by a judge who has given final judgment in the ordinary way…."

[24]

His Honour went on to say (at 442-443) that there was no reason: "why a weakness in the prosecution's case may not be eked out by something in the case for the defence, or why a prima facie inference which by itself would not be strong enough to exclude reasonable doubt may not be hardened into satisfaction beyond reasonable doubt by a failure of the defendant to provide satisfactory evidence in answer to it when he is in a position to do so." 44 In Haw Tua Tau v Public Prosecutor [1982] AC 136 at 151; [1981] 3 WLR 395 at 403 the Privy Council held that the principles to be applied when a no case submission is made before a judge and jury apply equally to criminal trials where the combined roles of decider of law and decider of fact are vested in a single judicial officer. The underlying reason for this decision was the difference in functions to be performed by the judicial officer when a no case submission is made at the close of the prosecution case and the determination of guilt when all the evidence has been led. 45 In Torrance v Cornish (1985) 79 FLR 87 Yeldham J dealt with an appeal by way of a case stated from a decision of a magistrate in a summary prosecution for false pretences where, at the end of the Crown case, the magistrate held that as there were competing inferences of guilt and innocence there was no evidence that the defendant had the required intent to defraud. The magistrate dismissed the information. His Honour considered that the magistrate should have found that there was a case to answer. He was of the view that there was no difference between the test to be applied in a trial by judge and jury, on the one hand, and a trial before a magistrate of judge alone. 46 This appears to be the approach in Queensland (see Short v Davey, Ex Parte Short [1980] Qd R 412; R v Sutton [1986] 2 Qd R 72; (1985) 20 A Crim R 280.) 47 In Myers v Claudianos (1990) 100 FLR 362 Miles CJ followed Haw Tua Tau v Public Prosecutor and said (at 369): "The magistrate misdirected himself in not observing the distinction drawn, in May v O'Sullivan (1955) 92 CLR 654 and other cases, between the decision to be made on a submission made at the end of the prosecution evidence on the question whether there is a prima facie case upon which the defendant might lawfully be convicted, and the decision to be made at the end of all the evidence on the question whether the prosecution has been made out to the requisite degree, that is to say, beyond reasonable doubt. The first question is a question of law and the second question is a question of fact. The distinction is more readily observed in a criminal trial where the judge makes the first decision and, if the case goes to the jury, the jury makes the second decision. In summary proceedings the magistrate acts as both judge and jury, but only if the question of law is answered in the affirmative, may the second question, the question of fact, be asked at all."

[28]

Mr Marsden's knowledge of the orders of 10 March 2000 and 15 March 2000 51 I have mentioned that five charges allege that Mr Marsden published "the name of the Witness in breach of the order of 10 March 2000" and five allege that he published material that would identify or be likely to identify the Witness in breach of the order of 15 March 2000. Mr Marsden's knowledge of the applicable order is an essential element of each of the ten charges in question. 52 The particulars to each of the ten charges allege that Mr Marsden knew of the Court's orders of 10 March 2000 or 15 March 2000, as the case may be, "at, or immediately after, the time it was made". A failure to prove knowledge, as alleged, would have the inevitable result that these charges would fail. 53 It is not necessary for the claimant to show that Mr Marsden was aware of the full and precise terms of the relevant orders. It is sufficient for the claimant to establish knowledge of the substance of the orders: Sun Newspapers v Brisbane TV Limited & Ors (1989) 92 ALR 535 at 538; Attorney-General for New South Wales v Mayas Pty Limited (1988) 14 NSWLR 342 at 355 to 356. 54 The substance of each of the orders of 10 March 2000 and 15 March 2000 cannot readily be expressed otherwise than by using more or less the very words in which they are couched. The substance of the order of 10 March 2000 is that there should be no publication of the name of the Witness. The substance of the order of 15 March 2000 is that there should be no publication, referrable to proceedings in the Court of Appeal, of material that would identify or be likely to identify the Witness. 55 There was no evidence that the orders of 10 March 2000 and 15 March 2000 were served on Mr Marsden, nor was there direct evidence that he was informed of their making or content. Rather, the claimant sought to establish by inference from other evidentiary material that Mr Marsden knew of the orders concerned or their substance. 56 The claimant submitted that, on 9 June 2000, when Mr Marsden was being cross-examined in the trial proceedings before Levine J, he acknowledged that he knew of the substance of the orders. The passages on which the claimant relied are the following: "Q. You were in the Court of Appeal when the appeal from that decision of his Honour was heard, were you not? A. I was advised by Mr Barker not to go because -- HIS HONOUR: Q. The answer is - were you there or not? A. No. STITT: Q. Did you become aware of the judgment of the Court of Appeal when it was handed down? A. Yes. Q. You knew that the judgment of the Court of Appeal involved, amongst other things, an order that the identity of D20 not to be [sic] disclosed? A. True. Q. You regarded the Court of Appeal judgment as a disgrace, did you not? A. Yes. Q. And you publicly stated your view of the judgment to people who were standing near to the Court where D20 was to give evidence, isn't that so? A. When I was told, yes. Q. You knew that the terms of the Court of Appeal order were couched so as to protect the identity of D20 so that it was not to be disclosed? A. Yes."

[29]

57 In context, it is apparent that Mr Marsden was being cross-examined about the judgment of the Court of Appeal delivered on 22 March 2000 and the orders made on that date, and not the earlier orders. Mr Marsden's acknowledgment that he knew that that judgment involved an order that the identity of the Witness not be disclosed has no bearing on whether he knew of the orders of 10 March 2000 and 15 March 2000 or their substance. 58 Furthermore, in context, Mr Marsden's acknowledgment that he knew that an order had been made in terms couched so as to protect the identity of the Witness (so that it was not to be disclosed) was in regard to an order made on 22 March 2000 and not to any other order. 59 Accordingly, in my view, nothing in the exchange that occurred on 9 June 2000 assists the claimant in regard to the allegation that Mr Marsden knew of the orders of 10 March 2000 and 15 March 2000 or their substance. 60 The claimant then pointed to the fact that, in paragraph 152 of the judgment of Heydon JA in Witness v Marsden, his Honour recited the orders of 10 March and 15 March. There is nothing, however, in the exchange of 9 June 2000 (or any other evidentiary material) that establishes that Heydon JA read paragraph 152 out loud in Court when delivering the decision of the Court of Appeal, or that Mr Marsden was in court at the relevant time or that Mr Marsden read the judgment of Heydon JA at any time material to the charges. 61 The claimant submitted that, as Mr Marsden was a party to the proceedings before the Court of Appeal and was represented by senior and junior counsel in those proceedings, it should be accepted that he knew of the substance of all the orders that were made in those proceedings. This argument is based on the proposition that it should be inferred, without more, that Mr Marsden's counsel would have told him of the substance of the orders of 10 and 15 March. The criminal standard of proof applies, however, and in my opinion, in the absence of any other evidence, it cannot be said - beyond reasonable doubt - that counsel would have acted as submitted. 62 Mr Nicholas QC, leading counsel for the claimant, eventually conceded that he could not submit that Mr Marsden was aware of the substance of the particular orders of 10 March and 15 March 2000. He was driven to submit that Mr Marsden was aware, generally, that he was prohibited from disclosing the identity of the Witness, albeit that the evidence did not establish that he knew the source of that prohibition. But Mr Marsden was not charged with having committed breaches of some unidentified order whereby he was prohibited from publishing the Witness's name or material likely to identify him. He was charged with having breached the specific orders of 10 and 15 March 2000. I repeat that Mr Marsden's knowledge of those orders or their substance was an essential element of the charges based on the alleged breaches of them. Accordingly, in my view, the concession made by Mr Nicholas (which was made entirely correctly) is fatal to the claimant's case in regard to the ten charges based on those orders.

[33]

McHugh JA went on to say (at 356): "It is not necessary that the person should intend to interfere with the order. But it must be apparent to anyone who was aware of the order that its purpose would be frustrated by the particular kind of act done by the defendant. The doing of such an act with knowledge of the order and with actual or imputed knowledge of its purpose is prima facie a contempt of court." 71 Mr Alex Mitchell, a newspaper journalist, testified that on 22 March 2000 Mr Marsden suggested to him that he should arrange for the publication of the Witness's name in his newspaper. Mr Mitchell also testified that he heard Mr Marsden suggesting to Mr Nick Grimm, a television journalist, that he, Mr Grimm, should arrange for the publication of the Witness's name on ABC television. Mr Grimm testified that he had no recollection of Mr Marsden asking him to publish the Witness's name. Nevertheless, taking the evidence of the claimant at its highest, as the Court at this stage is required to do, there is sufficient evidence from Mr Mitchell on which the Court could find beyond reasonable doubt that, on 22 March 2000, Mr Marsden solicited Mr Mitchell and Mr Grimm as alleged by the claimant. 72 On this basis, were the Witness's name to have been published through the efforts of Messrs Mitchell and Grimm, the purpose of order 5 would have been frustrated. That would be so even though the soliciting by Mr Marsden occurred prior to the resumption of proceedings before Levine J and even though not one of Messrs Marsden, Mitchell and Mr Grimm may have been "in court". Once it is accepted that the purpose of order 5 was to extend the protection against identification to the resumption of proceedings before Levine J, conduct, prior to that resumption, calculated to cause identifying material to be published after the resumption, is conduct calculated to frustrate the order. 73 Therefore, in my opinion, subject to there being adequate evidence as to Mr Marsden's knowledge of order 5, or its substance, the Court could find that Mr Marsden attempted to frustrate, thwart and subvert the purpose of order 5, as alleged in charges 5 and 8. 74 It is therefore necessary to consider the next argument raised by Mr Marsden, namely, that the claimant has failed to prove that he had the requisite knowledge of order 5.

[34]

The two charges based on order 5 of 22 March 2000: the evidence of Mr Price 75 In asserting that Mr Marsden knew of order 5 of 22 March 2000, or its substance, the claimant relied on several pieces of evidence. The first was evidence of a solicitor, Mr David Charles Price, that, according to the claimant, proved that Mr Marsden was in court on 22 March 2000 when Heydon JA read out the terms of order 5. 76 Mr Price stated in an affidavit that, at 10.15 am on 22 March 2000, when the Court of Appeal delivered judgment, he "observed that Mr Marsden was also present in the President's Court at that time". In a later affidavit, Mr Price made it clear that he did not intend to say that he had observed Mr Marsden in the President's Court when the orders were read out. According to this later affidavit, Mr Price arrived at the President's Court shortly prior to 10.15 am on 22 March 2000. As he was about to enter the Court he saw a group of people, including Mr Marsden, standing inside the entrance to the courtroom. After Heydon JA had delivered the orders of the Court of Appeal, Mr Price left the Court and noticed Mr Marsden, outside the courtroom, conversing with others, including his junior counsel. In his oral testimony Mr Price conceded that he could not say that Mr Marsden was in court the instant that Heydon JA delivered the orders. All he could say was that Mr Marsden was "there prior to the Court coming onto the bench, and immediately after I left the courtroom". 77 All in all, I am not persuaded that Mr Price's testimony is capable of establishing that Mr Marsden was in Court when judgment was delivered and when the orders made on 22 March 2000 were read out. 78 In Sun Newspapers Pty Limited v Brisbane TV Limited & Ors (1990) 92 ALR 535 Pincus J said at 538: "If a person sitting in court heard most, but not all, of the terms of an injunction pronounced by a judge and then promptly left to arrange matters so that what he knew to be the court's intention would not take effect, it does not seem likely that his not having heard the full terms of the order would be a defence to a charge of contempt, whether or not he was a party to the proceedings."

[36]

The two charges based on order 5 of 22 March 2000: the exchange of 9 June 2000 79 The next piece of evidence relied on by the claimant was the exchange in the cross-examination of Mr Marsden on 9 June 2000 that I have set out above. The claimant submitted that, in that exchange Mr Marsden admitted that he knew that an order had been made that the identity of the Witness not be disclosed, and he knew that the terms of the order were couched so as to protect the identity of the Witness so that it was not to be disclosed. 80 Both charge 5 and charge 8 allege that Mr Marsden committed contempt of court in relation to order 5 made on 22 March 2000 by his actions between about 10.35 am and about 11.15 am on that day. It follows that the claimant is required to prove that Mr Marsden knew, that day, of the substance of order 5 prior to 10.35 am, or prior to 11.15 am at the latest. Mr Marsden submitted that there was nothing in the exchange of 9 June 2000 that identifies the time when he had the knowledge to which he, therein, admitted. 81 The first part of the exchange is as follows: "Q. You were in the Court of Appeal when the appeal from that decision of his Honour was heard, were you not? A. I was advised by Mr Barker not to go because -- HIS HONOUR: Q. The answer is - were you there or not? A. No." 82 The next part of the exchange relates specifically to Mr Marsden's knowledge of the "judgment", and the time when it was delivered. The relevant question and answer are as follows: "STITT: Q. Did you become aware of the judgment of the Court of Appeal when it was handed down? A. Yes." 83 Knowledge of the "judgment" is not equivalent to knowledge of order 5, and the claimant did not argue that it was. In effect, however, the claimant argued that the succeeding questions and answers all proceed on the unstated assumption that they are concerned with the same time at which Mr Marsden first learned of the judgment (that is, when it was handed down), or that Mr Marsden's succeeding answers are to be understood as relating to that particular time. 84 The very next question and answer are critical. These are: " Q. You knew that the judgment of the Court of Appeal involved, amongst other things, an order that the identity of D20 not to be disclosed? A. True." 85 The claimant's argument depends, in effect, on an inference being drawn that this question was implicitly qualified by the words "when you first learned of it". In other words, the argument is that the question should have been understood by Mr Marsden as meaning, "You knew, when you first learned of it, that the judgment of the Court of Appeal involved, amongst other things, an order that the identity of D20 not to be disclosed?" The drawing of such an inference is significant because of Mr Marsden's admission that he became aware of the judgment when it was handed down. 86 Before commenting on this argument, it is convenient to go the remainder of the exchange, which proceeds: "Q. You regarded the Court of Appeal judgment as a disgrace, did you not? A. Yes."

[38]

It is to be noted that "D20" is the pseudonym for the Witness. As Mr Marsden admitted that he publicly stated his views to people standing outside the trial court, it is necessary to determine when Mr Marsden was outside that court talking to people who were standing there. 88 At about 10.30 am, on 22 March 2000, after the Court of Appeal had handed down its judgment in Witness v Marsden, Levine J resumed proceedings in the trial court and, after a short discussion as to what had occurred in the Court of Appeal, adjourned those proceedings until 2.00 pm. According to the evidence, Mr Marsden was sitting outside the trial court at about 10.30 am on 22 March 2000. He was also sitting in or outside the trial court shortly before 2.00 pm that afternoon. There is no evidence of other people standing outside the trial court that day. It follows that the evidence on this issue is simply too vague to determine, precisely, when Mr Marsden publicly stated his views to people standing outside the trial court. It could have been at about 10.30 am on 22 March 2000, or shortly before 2.00 pm that afternoon, or, indeed, at any other time on some other day. 89 Although no reliable inference can be drawn as to the specific time when Mr Marsden publicly stated his views, it must have been at a time different to that when the judgment of the Court of Appeal was handed down and he became aware of it. This follows because Mr Marsden became aware of the judgment shortly after 10.15 am when he was standing outside the President's Court, whereas he publicly stated his views some time later to people standing outside the trial court. This difference is important as it tends to counter-balance any suggestion that the exchange as a whole (and the critical questions, in particular) is governed by the initial question concerning the time when Mr Marsden became aware of the judgment of the Court of Appeal. 90 The second critical question then follows: "You knew that the terms of the Court of Appeal order were couched so as to protect the identity of D20 so that it was not to be disclosed?"

[39]

Mr Marsden's answer is, "Yes." 91 The claimant's argument in regard to the second critical question similarly depends on an inference being drawn that it was implicitly qualified by the words "when you first learned of it", so that the question should have been understood as asking, "You knew, when you first learned of it, that the terms of the Court of Appeal order …". 92 Both critical questions are capable of being understood as independent and stand-alone questions. When looked at alone they do not support the claimant's argument. The issue is whether the context in which the questions were asked makes a material difference. It is to be observed that this exercise does not involve the drawing of inferences from circumstantial evidence. Rather, it is an exercise in construction. 93 The question is whether the meaning the claimant seeks to attribute to Mr Marsden's answers to the critical questions is reasonably open on the material contained in the exchange of 9 June 2000 (albeit, not necessarily the only meaning so open). That is another way of asking whether a jury could reasonably infer from the exchange of 9 June 2000 that Mr Marsden admitted therein that he knew, when he first learned of the judgment of the Court of Appeal, that an order had been made that the identity of the Witness not be disclosed and that the terms of the order were couched so as to protect the identity of the Witness so that it was not to be disclosed. 94 In my opinion, the answer to this question has to be in the negative. Of course, generally speaking, context may contribute to and even alter the meaning of words. But, in this case, there is very little in the context capable of altering the plain meaning of the words used. The fact that the critical questions were preceded by a question relating to the time when Mr Marsden learned of the judgment of the Court of Appeal is but fragile support for the claimant's argument. Whatever support is so provided is undermined, generally, by the numerous succeeding questions which were not concerned with issues of time, and, particularly, by the question concerning Mr Marsden's public statement as to his views of the judgment of the Court of Appeal, a statement which had to have been made at a different time. 95 I therefore would not uphold the claimant's submission in this regard.

[41]

and Mr Marsden replied: "No, you can just say you are publishing facts from another newspaper article". 97 It is apparent from this exchange that Mr Marsden knew that a court order had been made. It is however by no means clear to which order Mr Marsden was referring when he replied to the effect that the publication of the Witness's name would not be "against the court order". 98 Again, it is to be emphasised that in regard to charges 5 and 8, the claimant is required to prove that Mr Marsden knew of the substance, at least, of order 5 of 22 March 2000, this being the order pleaded as the basis of the contempt alleged. It is not sufficient for the claimant to prove that Mr Marsden knew, generally, that at some unidentified time in the course of the proceedings an order had been made prohibiting publication of the name of the Witness. That is not a charge Mr Marsden faces. 99 In an attempt to overcome this difficulty, Mr Nicholas submitted that, as the conversation between Mr Mitchell and Mr Marsden took place shortly after the Court of Appeal had delivered its orders, Mr Marsden's reference (in the course of that conversation) to the suppression of the Witness's name, and his statements that the Witness "is to appear anonymously" and that it (presumably an order of the Court of Appeal) was "a disgrace", were references to the orders made by the Court of Appeal on the morning of 22 March 2000. Thus, it was said, when Mr Mitchell inquired whether the publication of the name would be "against the court order" he was referring to those orders and Mr Marsden's reply has to be seen in that context. It was submitted that this material is capable of giving rise to the inference that Mr Marsden knew that a court order had been made suppressing the name of the Witness with the result that the Witness was to "appear anonymously". 100 I accept these submissions, but they do not resolve the issue. The difficulty is that the order suppressing the name of the Witness and requiring him to appear anonymously was order 4 of 22 March, and not order 5. Mr Marsden's knowledge of these matters arguably leads to a reasonable inference that he knew of order 4, but his knowledge of these matters does not give rise to a reasonable inference that he knew that an order had been made in the terms, substantially, of order 5. 101 The claimant then submitted that Mr Marsden's knowledge of order 5 could be inferred from evidence that had been given by a journalist, Ms McClymont, as to a conversation she had with Mr Marsden. According to Ms McClymont, however, her conversation with Mr Marsden occurred shortly before 2.00 pm on 22 March 2000. Charges 5 and 8 allege that Mr Marsden committed contempt of court by his actions between about 10.35 am and about 11.15 am on 22 March 2000. Whether Mr Marsden knew at about 2.00 pm of the substance of order 5 (as would arguably follow from the evidence of Ms McClymont), is irrelevant to these charges. 102 A further piece of evidence on which the claimant relied was a copy of a speech that Mr Marsden proposed to give some time after 22 March. No evidence was led to establish that the speech was in fact delivered but when the claimant sought to tender the document on the basis that it was a speech which Mr Marsden either delivered or proposed to deliver, Mr Marsden replied: "Now that's acceptable to me, propose to deliver" and the document was admitted into evidence. The copy of the speech contains an admission by Mr Marsden that he told the press about the Witness. In the copy, Mr Marsden complains that the Court of Appeal had allowed the Witness to make allegations against him in court by way of a pseudonym. I do not regard anything in the copy of the speech, particularly as it was made some time after 22 March 2000, as bearing upon Mr Marsden's knowledge at the relevant time. 103 In all the circumstances, I am not persuaded that there is evidence on which the Court could find that Mr Marsden had knowledge of the substance of order 5. It follows that I would uphold the no case submission in regard to charges 5 and 8 as well.

At a glance

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Judgment (43 paragraphs)

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Cases Cited (22)

Cited By (13)