Applicant v Respondent

1 The respondent, Nationwide News Pty Ltd, has pleaded guilty before me to a charge of contempt of court in relation to the publication on 8 February 2006 in The Australian newspaper of a news article. Proceedings in this Court were brought by the applicant pursuant to Rule 75.06(3) by summons and originating motion filed on 14 July 2006 seeking a declaration that the respondent be adjudged guilty of contempt of court for publication of the news article and punishment therefor.

2 On the night of Monday 6 February 2006, Mr Mario Condello was shot dead outside his Brighton home. The offending news article was published by The Australian on Wednesday 8 February 2006. In The Australian of 8 February 2006 appeared a large front page article (with photographs) headed "Gatto 'next target' as gang war flares" reported on the death two nights earlier of Mr Mario Condello. The article continued on page 4 (with another photograph). On page 4 under the heading "Gatto the next target" the news article in relevant part stated:

"Condello had been due in court this week to face a trial for inciting murder against Carl Williams and two other men.

One cannot be named and the other is possibly underworld figure Terrence Chimirri, who appeared in court yesterday on charges of threatening to kill, assault and aggravated burglary.

He was defended by gangland lawyer Zarah Garde-Wilson, herself notorious for her liaison with slain gangster Lewis Caine."

3 The context of the publication was that in the week commencing Monday 6 February 2006, Mr Chimirri himself was standing trial in the County Court of Victoria on five counts including making a threat to kill (count 3). On 6 February 2006 a jury had been empanelled. On 7 February 2006 the jury was discharged (for reasons unconnected with these contempt proceedings and unconnected with the respondent). The trial judge directed that a new trial commence on 8 February 2006. All this was known to the respondent when it published the offending article. As a direct consequence of the publication, the proposed trial had to be adjourned. It is yet to be heard, and currently is listed for 29 November 2006.

4 The vice in the publication is that on the day the respondent knew that the accused Mr Chimirri was to face jury trial it published an article describing him as an "underworld figure" and placed him in a criminal context namely being possibly the subject of incitement to murder in Melbourne's gandland wars.

5 The learned trial judge in the County Court was astute to the prejudice which the offending news article could cause the accused Mr Chimirri (hereafter "the accused" or "the present accused" according to context). Accordingly he vacated the trial date and adjourned the matter. By reason of the pressure of trials in the County Court, the trial has not been able to be listed until 29 November. In the intervening period, as well as the dislocation such adjournment necessarily has involved, there has been especial impact upon the accused, who has been on bail upon strict terms, which was then revoked by reason of other matters, and also now is in custody awaiting trial. All these are consequences of the publication by the respondent of the offending article.

6 For those reasons the contempt committed is serious.

7 Substantial affidavit material and exhibits thereto have been filed in the Court.

8 The affidavits filed are as follows. For the applicant are affidavits of Ms A Matheson, Registrar of the County Court of Victoria, sworn 6 July 2006; of Mr S J Lee, solicitor for the applicant, sworn 13 July 2006; and of Ms S E Morrison, solicitor for the applicant, sworn 26 October 2006 and 1 November 2006. For the respondent are affidavits of Mr J H Quill, solicitor for the respondent, sworn 31 October 2006 and 2 November 2006; of Mr W R Beeby, director and Group Editorial Manager of the respondent, sworn 28 September 2006; of Mr J C Madden, journalist and news reporter employed by the respondent, sworn 28 September 2006; of Mr P J Murphy, journalist and news reporter employed by the respondent, sworn 29 September 2006; of Ms A T Fussell, Editorial and Administration Manager of the respondent, sworn 25 October 2006; of Ms E J Simpson, journalist and court reporter of The Herald Sun, sworn 1 November 2006; and of Ms K J Lapthorne, journalist and court reporter of The Herald Sun, sworn 2 November 2006. There are voluminous exhibits to the affidavits filed, including transcript and a video.

9 The following matters are established by the affidavit material and the exhibits:

(a) the offending part of the news article rehearsed in paragraph 2 above was not written or contributed to by the journalists Messrs Madden and Murphy below whose names the article appeared (paragraph 6 of Mr Madden's affidavit and paragraph 9 of Mr Murphy's affidavit);

(b) the offending part of the news article was added to the journalists' article by pre-sub-editorial staff in Sydney called "the back bench" (paragraphs 5 to 8 of Mr Beeby's affidavit and paragraph 7 of Ms Fussell's affidavit);

(c) the respondent did not obtain legal advice before publication (paragraphs 7 and 8 of Ms Fussell's affidavit);

(d) the pre-sub-editorial staff were aware of the potential for interference with the administration of justice because it was intended that the news article not be published in Victoria (paragraph 8 of Ms Fussell's affidavit);

(e) however by a mistake in the nature of a slip the added item was not removed from publication in Victoria (paragraph 8 of Ms Fussell's affidavit).

10 As a consequence of the affidavit material filed revealing that Messrs Madden and Murphy had not written the offending part, the proceedings, which originally were brought against not only the present respondent but also against the two journalists, were discontinued as against both the journalists. That was a correct decision. Neither Mr Madden nor Mr Murphy wrote the offending part; and both are journalists who bear excellent reputations.

11 The author or authors of the offending part was a member of the respondent's pre-sub-editorial staff in Sydney. Affidavits filed on behalf of the respondent do not reveal who the author was, if it be known. The affidavits on behalf of the respondent reveal that the decision to insert was a joint one by the pre-sub-editorial staff in Sydney. The affidavits of Mr Beeby (paragraphs 5 to 8) and of Ms Fussell (paragraph 7) reveal that the respondent's procedure upon receipt of the raw article from Melbourne was to have it processed in Sydney by an entity known as "the back bench". This it did with this raw article. The back bench consisted of the News Editor, Deputy News Editor and senior journalists. The back bench processes articles (and did so in this case) for insertion in the newspaper, including by amending, reducing and adding to articles filed by journalists. The back bench did so in this instance. The author of the offending part remains faceless.

12 The applicant relies not only upon the objectively serious nature and consequences of the contempt rehearsed above but also upon its gratuitous and speculative character. Gratuitous it was; the Melbourne journalists well knew that. The faceless author and inserters interstate pressed ahead. It also was speculative, as the word "possibly" denotes in the passage cited in paragraph 2 above. That speculation of itself was not wholly unreasonable; as the latterly-filed affidavits reveal, there was earlier material in the public domain of the existence of three (not two) subjects of the incitement to murder: the Condello informations filed in the Magistrates' Court alleged three persons the subject of incitement (the third being unnamed and the present accused's name being not stated) whereas the Condello presentment filed in this Court on 22 August 2005 alleged only two persons the subject of incitement (both named and neither being the present accused). The applicant's point is that such speculation is hazardous. Indeed it is.

13 The respondent in mitigation rightly relies upon a consistent course of conduct since the publication of the offending news article. It immediately appeared before the learned County Court judge and through senior counsel proffered its apology. Likewise before me. It has not equivocated about its error. It has put in place prophylactic procedures (affidavit of Ms Fussell paragraphs 9 to 12). The applicant says that the courts have heard much of this before. Perhaps so; but the procedures stated by Ms Fussell should be accepted by the Court as evidence of responsibility by the respondent, and are so accepted.

14 The relevant authorities are well known and need no rehearsal by me. They are Director of Public Prosecutions v Australian Broadcasting Commission & Ors;[1] Attorney-General for New South Wales v Nationwide News Pty Ltd;[2] R v Nationwide News Pty Ltd; ex parte Commonwealth Director of Public Prosecutions;[3] Attorney-General for New South Wales v Radio 2UE Pty Ltd & Anor;[4] R v Nationwide News Pty Ltd;[5] and Attorney-General for New South Wales v Radio 2UE Sydney Pty Ltd & Anor.[6] I particularly commend to the media the test propounded by Gillard, J in R v Nationwide News Pty Ltd (18 February 1998 at page 4):

"All members of the media would be well advised to proceed on the basis that other than reporting the actual proceeding sin the court, nothing should be stated in the media concerning the trial, the court, the accused or witnesses. If it is thought that a fact or comment concerning the trial should be published then legal advice from those experienced in media law should be obtained."

15 The respondent has four relevant prior convictions. They are Attorney-General for New South Wales v Nationwide News Pty Ltd[7] wherein it was fined $200,000 for publications in the Daily Telegraph and the Daily Mirror; R v Nationwide News Pty Ltd; ex parte Commonwealth Director of Public Prosecutions[8] wherein it was fined $10,000 for a publication in The Australian; R v Nationwide News Pty Ltd[9] wherein it was fined $75,000 for a publication in The Australian; and Registrar of the Supreme Court

v Nationwide News Ltd & Ors[10] wherein it was fined $22,500. The widely differing penalties imposed reflect the widely differing circumstances in those cases. There are two other apparent convictions, in 1986 and 1989, referred to in Gillard, J's judgment in R v Nationwide News Pty Ltd but they were not admitted before me. I do not have regard to them because they have not been proved and in any event would not have added much to the admitted matters.

16 The applicant rightly relies upon the admitted prior convictions.

17 However, credit should be given where credit is due. Daily in Victoria the major newspapers - The Australian, The Age and The Herald Sun - accurately and responsibly report court proceedings. Likewise do regional newspapers. They all do so under significant pressure, in terms of time - deadlines - and content - reducing the complex to the readily accessible. It is to the credit of the media, including this respondent, that few serious errors are made. However, by reason of the nature and seriousness of judicial proceedings, unfortunately when errors do occur, they have significant consequences. The error in this case produced significant consequences, rehearsed above.

18 I consider that in favour of the respondent the following matters are relevant. First, as I have said, the respondent has been in the demanding business of daily reporting of judicial proceedings for many years and has discharged its functions accurately and responsibly in the vast majority of instances. Second, The Australian - the newspaper in which the offending item appeared - has over time including recent years showed a preparedness to address systemic issues (not merely personalities) in the legal and judicial landscape of this nation. Critical and fair analysis of public institutions is an essential public service. As the legal philosopher Jeremy Bentham said in the nineteenth century:

"Publicity is the very soul of justice .... It keeps the judge himself, while trying, under trial."[11]

On the question of penalty, I think the respondent deserves credit for that address.

19 Taking into account the relevant factual material and the applicable legal evidence, I consider that it is demonstrably necessary to impose a conviction of contempt of court upon the defendant. I do so. I fine the respondent the sum of $75,000 for that contempt. I order that the respondent pay the costs of the applicant of the proceedings on a solicitor-client basis, from 25 October 2006, to be taxed if not agreed. The costs before that date were dealt with by Master Kings at a directions hearing on 24 October 2006. I further order that the respondent pay the costs thrown away of counsel and of solicitor for the accused including disbursements in the County Court by reason of the adjournment on 8 February 2006.[12] I fix counsel's costs at $13,200 (three days lost) and of solicitor at $1,100 (one day) and of the disbursements of the accused at $844.10.

[1] (1987) 7 NSWLR 588.

[2] Supreme Court of New South Wales - Court of Appeal: No. 40141 of 1990: 11 October 1990.

[3] Supreme Court of Western Australia - Full Court: CIV 2014 of 1996: 25 September 1997.

[4] Supreme Court of New South Wales - Court of Appeal: No. 40236 of 1996: 16 October 1997.

[5] Supreme Court of Victoria - Gillard, J: No. 6129 of 1997: 22 December 1997 (conviction) and 18 February 1998 (sentence).

[6] Supreme Court of New South Wales - Court of Appeal: No. 40236 of 1996: 11 March 1998.

[7] Supreme Court of New South Wales - Court of Appeal: No. 40141 of 1990, 11 October 1990.

[8] Supreme Court of Western Australia, Full Court: CIV 2014 of 1996: 25 September 1997.

[9] Supreme Court of Victoria - Gillard, J: No. 6129 of 1997: 22 December 1997 (conviction) and 18 February 1998 (sentence).

[10] [2004] SASC 223; (2004) 89 SASR 113.

[11] Jeremy Bentham, Works of Jeremy Bentham (1843) 305.

[12] Perkes &Anor v Landon & Ors (1988) 15 NSWLR 408; McIntyre v Perkes & Anor (1988) 15 NSWLR 417.