Procedure - Contempt, attachment and sequestration - Power of court to punish for contempt - Supreme Court - Generally - Newspaper article identifying victim of sexual assaults - Contravention of the Evidence Act 1910 (Tas), s103AB

Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732, followed.

Judgment Number: [2000] TASSC 62

1 The Crown applies for orders that Steven Harris and Michael Gawenda, the editor-in-chief and the editor of The Age newspaper respectively, be committed for contempt of court and that The Age Company Ltd, the publisher of the newspaper, be fined for contempt of court. The particulars provided in support of the application are:

"1 On Saturday the 14th day of August 1999 following the conviction in the Supreme Court of Tasmania of Steven Grant Randell of charges inter alia of indecently assaulting (a named complainant whom I shall refer to as 'Z') contrary to section 127 of the Criminal Code they did publish or cause to be published in The Age newspaper distributed and sold in Tasmania the following material:-

On page 1 a photograph of Z and an accompanying report identifying Z as one of International cricket identity Steve Randell's nine victims.

2 The above matter contravened Section 103AB(1)(a)(i) and (b) of the Evidence Act 1910 and pursuant to Section 103AB(4) constituted a contempt of the Supreme Court of Tasmania."

2 The Evidence Act 1910 ("the Act"), s103AB, relevantly provides:

"(1) A person shall not, in relation to any proceedings in any court in respect of any offence, publish or cause to be published in any newspaper, ...-

(a) the name, address, or any other reference or allusion likely to lead to the identification of -

(i) any person in respect of whom a crime is alleged to have been committed under section 127 ... of the Criminal Code; or

(b) any picture purporting to be a picture of any such person -

(4) A person who publishes or causes to be published anything in contravention of this section commits a contempt of court and is liable to punishment for that contempt as if it had been committed in the face of the court against which the contempt is committed and on similar proceedings as in that last-mentioned case."

3 In August 1999, Steven Grant Randell was tried on 18 counts of indecent assault, contrary to the Criminal Code 1924, s127. Z was the complainant in relation to three of those counts. The remaining counts involved eight other complainants. Mr Randell, a schoolteacher, was a well known international cricket umpire. Each complainant had been a student at a school where Mr Randell was teaching at the time of the offences. Mr Randell's trial attracted considerable publicity. Mr Gawenda says he regarded the trial as a matter of great public interest.

4 On 10 August 1999, Mr Randell was convicted on 15 counts of indecent assault, including three counts which related to Z. On 13 August 1999, Mr Randell was sentenced to four years' imprisonment for his offences.

5 The photograph and article which are the subject of these proceedings appeared in The Age on Saturday 14 August 1999. The first portion of the article appeared on the front page and was published below a coloured photograph of Z and her mother. The caption to the photograph was: "Vindicated: Z, left, one of Steve Randell's victims, and her mother after yesterday's sentence." The article read:

"For Z, one of international cricket identity Steve Randell's nine victims, the world now looks like a better place.

The former teacher and Australia's most successful Test umpire was jailed yesterday for four years on 15 counts of indecent assault, and according to his counsel, faces being shunned and vilified forever.

For Z, the sentence marked the end of a self-described crusade for justice. She said she felt safer and better now about bringing up her daughter, whose birth sparked her three-year campaign.

'Instead of feeling like the world's a bad place, I just feel like there's some bad people,' said Z, whose relationship with her own mother was temporarily destroyed by the effects of the experience with her former teacher.

Randell, 43, sat impassively in the dock of the Hobart Criminal Court as Mr Justice Peter Underwood condemned as brazen his assaults in 1981 and 1982 on schoolgirls Randell had felt free to treat as sexual playthings.

'These crimes are to be regarded as serious paedophilia,' he said. 'They were not isolated impulsive acts. You actively fostered and encouraged the children and their parents to trust you, and grossly breached that trust by indecently assaulting the former in order to satisfy your perverted sexual lust.'

Defence counsel, Mr Peter Barker, said a psychiatrist's report indicated Randell's offences were the result of some form of arrested development that followed the profound shock of his mother's early death.

But Mr Barker agreed there was no evidence of psychiatric illness. 'He has, by what he did, become a pariah, and ... he will never be rehabilitated in the public eye,' Mr Barker submitted to the court. 'He will be shunned and vilified forever.'

Randell has lost a $70,000 contract as a senior umpire with the Australian Cricket Board and been dismissed as a teacher by the Tasmanian Education Department. His wife, Angela, 38, a teacher who stood by him throughout the case, is left as breadwinner and carer for their daughter, six, and a four-year-old autistic son.

Randell, who has stood in an Australian record 36 Tests, was tried on 18 counts and found guilty on Tuesday of 15 charges of indecent assault against nine girls while teaching grade six at a Catholic school in Burnie in 1981 and 1982.

He will serve his sentence at Risdon jail on the edge of Hobart, as a prisoner needing maximum protective security.

After a grimacing Randell was taken down from the dock to begin his jail term, one of his victims, Z, agreed to be identified, photographed and interviewed. 'Four (years) is good, but I don't think it's going to help him much,' she said. 'Throwing him in jail's not going to help him at all.' More needed to be learned, she said, about the sexual abuse of children to help Randell and to stop others like him.

'It will take a long time and a lot of different people and a lot of research to find out why people are moved to sexually abuse children.'

Z, a 28-year-old Hobart croupier, had told the court she was indecently assaulted in her bedroom in 1982. She said coming to terms with the assault was, for her as well as the other victims, 'a long process of people being honest with themselves'.

'The final straw was having my own daughter and realising how unprotected I'd been,' she said. This crisis led to depression, panic attacks and problems with her own mother, who was not allowed to see the baby. Z also separated from her partner. 'It's made it very hard for me and the others to maintain a relationship.'

About six months after (her baby's) birth, Z rang police, but their investigation yielded no result. 'It was a case of one person's word against another's, and so it didn't go any further. Then I remembered a witness that I had and I tried to find her. In looking for her, it dug up a lot of other people.'

When Z caught up with seven other former school friends at a dinner about 18 months ago, comments made about Randell made her realise that others had been similarly dealt with by him.

'That was the start of it. As soon as other people came in, it was a team. We didn't ever discuss individual complaints, but we had to support each other emotionally. I made contact with a police officer in Burnie, and anyone who said they wanted to talk, I gave her number.'

Z said she now had a happy relationship with her mother, but her experience had made her more wary for her baby's safety. 'I'm trying to make her as independent as I can. I felt so unsafe for such a long time that I want her to feel safe living in the world.'"

6 The respondents' counsel acknowledges that the publication of the article naming Z as a person in respect of whom Mr Randell had committed a crime in breach of the Criminal Code, s127, and the publication of the photograph of Z over a caption identifying her as one of Mr Randell's victims, breached the Act_,_ s103AB(1)(a) and (b) respectively. For the purposes of s103AB(4), I am satisfied that The Age Company Ltd published the contemptuous material and that Mr Harris and Mr Gawenda caused the material to be published. It was not submitted otherwise on behalf of the respondents. They are liable to punishment for their contempt as if it had been committed in the face of the court.

7 On 13 August 1999 when Mr Randell was sentenced, Z was the only complainant who attended the court. After the sentencing she agreed to be interviewed by journalists who were at the court and said she did not mind being identified. Her interview was recorded by television cameras. Her mother was present while she was interviewed. Following the interview, Z and her mother posed for photographs. A report of these events which identified Z as a victim of Mr Randell's offences was forwarded for publication in The Age. Victims of Mr Randell's offences had not been identified in any previous reports on his prosecution published in The Age. Those responsible for the preparation and publication of the reports were apparently well aware of the requirements of the Act, s103AB(1). Upon receipt of the report which identified Z as a victim, one of those involved in editing the newspaper sought legal advice on publishing the report together with a photograph of Z. The advice obtained was passed on to Mr Gawenda. As to the advice, Mr Gawenda said:

"... The legal advice was that technically we would be in breach of the Act if we published, but given that the victim had clearly consented and had indeed wanted her name used and her details used, the risk to The Age was minimal".

8 Mr Gawenda says he authorised the publication notwithstanding this advice as Z wanted to be identified and she wanted the matter to be publicised. He said she had been on a crusade and for her, the process of healing involved telling her story. In further justification of the publication, Mr Gawenda said the Act was about protecting the privacy of victims and Z did not want her privacy protected. He said the material would not have been published if he had not been convinced that Z wanted her story told.

9 Mr Gawenda gave no consideration to the risk that the identification of Z as one of Mr Randell's victims might lead to the identification of other victims. The article reported that Mr Randell was convicted of charges of indecent assault against nine school girls while teaching Grade 6 at a Catholic school in Burnie in 1981 and 1982 and that Z found out that others had been affected by Mr Randell's behaviour at a meeting with former school friends. This information, coupled with the naming of Z, identified and circumscribed the group of school girls from which the victims came.

10 I accept that Mr Gawenda would not have authorised the publication if he had not been convinced that Z wanted the publicity. I am not, however, persuaded that his concern about Z's wish to have the story published was a significant factor in his thought process. The story could have been published without identifying her. Mr Gawenda did not consider taking that course. Mr Gawenda described the story referable to Mr Randell as important. In my view, the primary motivation for his decision was that the article was likely to attract more reader interest if Z was identified and the publication was accompanied by her photograph.

11 The print run for the Saturday Age published on 14 August 1999 was 358,000 copies. Less than 1 per cent of the print run, about 2,600 copies, were destined for Tasmania, the only jurisdiction where there was a prohibition against identifying Z. To distribute copies in Tasmania without breaching the Act, s103AB(1), it was necessary to omit the photograph of Z and edit the article by removing information which identified Z as one of Mr Randell's victims. Mr Gawenda decided to proceed with the publication and more significantly, the distribution of copies in Tasmania, without attending to these matters. He quite wrongly dealt with the publication of the material in Tasmania as if it was a matter about which he had a discretion. In explaining his decision to proceed with the publication he said the advice which he had received was that the risk was minimal. I infer that he would not have authorised the publication had he perceived that by doing so he was exposing himself and his employer to substantial penalties. The extent of the risk of adverse consequences flowing from the publication should not have played any part in Mr Gawenda's decision once he was made aware that the publication of the material in Tasmania would breach the law of this State. At that point his clear obligation was not to authorise the dissemination of the material in Tasmania, regardless of his assessment of the risks involved in doing so.

12 The evidence of what took place on the day of Mr Randell's sentencing leaves me in no doubt that Z consented to being identified by the media as one of his victims and that she encouraged the media to publicise her involvement. This view is confirmed by her subsequent participation in an interview for a "60 Minutes" television programme which was broadcast throughout mainland Australia on 12 September 1999.

13 One of the purposes of s103AB is to protect victims of sexual offences from the consequences which may flow from media publicity. In Tasmania, this protection is imposed regardless of whether the victim seeks the publicity or not. In some jurisdictions, it is a defence to a charge of breaching a provision similar to the Act, s103AB(1), if the victim has given permission for the publication. See, for example, the Judiciary Proceedings Repeal Act 1958 (Vic), s4(1B). The Act, s103AB, contains no provision allowing a victim to consent to his or her identity being publicised. There are good reasons for this. Such a provision may encourage representatives of the media to pester victims to consent to publicity. It is undesirable to expose victims to this pressure at a time when they are likely to be in considerable emotional turmoil and may be ill-equipped to weigh up and assess the consequences of publicity. One benefit of a provision such as s103AB is community knowledge that those who make complaints about sexual offences are protected from publicity. This protection encourages people who might otherwise have been deterred from reporting sexual offences to come forward. The perception that victims are protected from publicity would be diminished if the media was able to publish details of victims who consented to that course.

14 In addition to Z's consent, matters relied on by the respondents' in mitigation of their conduct include the comparatively small number of copies of The Age distributed in Tasmania on 14 August 1999 and the fact that other media outlets in both Tasmania and on the mainland identified Z as one of Mr Randell's victims. These matters are relevant to the impact of the publication on Z. As Z is 28 years of age and sought the publicity, I expect that it has not had an adverse impact on her. There is no evidence before me to suggest otherwise.

15 The respondents rely on the good record of The Age Company Ltd which has published The Age for 144 years and in that time has only been convicted of contempt on two occasions. It has been convicted once in Victoria (R v David Syme & Co Ltd [1982] VicRp 16; [1982] VR 173) and once in Western Australia (R v David Syme & Co Ltd, Supreme Court of Western Australia, Full Court, 10 July 1996).

16 In R v Thomson Newspapers Ltd; Ex parte Attorney-General [1968] 1 All ER 268, at 269, Lord Parker CJ, in delivering the judgment of the Court, said:

"In the opinion of this court, the question of the seriousness of a contempt of court can be looked at from two angles: first, the seriousness of the contempt judged by the likely prejudice to the fair trial of an accused, and secondly, the seriousness of the contempt from the point of view of what I may call the culpability of those concerned."

17 This observation brings into focus two aspects of contemptuous conduct which require attention when gauging its seriousness. Counsel for the respondents submits that this contempt is at the lower end of the range of seriousness. That is so in relation to the likely prejudice and mischief caused by the conduct; the contrary is the case when it is viewed from the point of view of the culpability of Mr Gawenda. This was a knowing breach. The courts take an especially serious view of such a contempt. An important consideration in determining an appropriate penalty is the need to deter others from similar conduct; Director of Public Prosecutions v Wran (1986) 7 NSWLR 616 at 629 - 631 and 636 - 637, Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741 - 742, and Hinch v Attorney-General [1987] VicRp 62; [1987] VR 721 at 733 and 750.

18 The circumstances which invoke the law of contempt are varied, and the penalty, if any, must depend on the facts of the particular case. Most significant contempts involving publications relate to matters which have a real tendency to interfere with pending proceedings. This is not such a contempt. Whilst the disparity between the various cases of contempt which come before the court for consideration must be recognised, there is also a need for consistency in the approach of courts when punishing a contempt. In Director of Public Prosecutions v John Fairfax & Sons Ltd (supra) Kirby P (as he then was) said at 742:

"It is obviously desirable that punishment for contempt, as for other acts and omissions which are criminal or criminal in character should, so far as possible, be imposed by the courts in a principled and even-handed way. An attempt should be made to ensure consistency between the approach to like cases, so that the imposition of penalties, if any, is seen to be coherent and not simply the idiosyncratic opinion of particular judges. ... However, pursuit of the principle of equal treatment of like cases is not simple. There are no maximum penalties imposed by the law. The number of cases coming before the courts for determination is relatively few: cf Davis v Baillie [1946] VicLawRp 76; [1946] VLR 486 at 495. When examined, those recent cases which are cited are rarely comparable because of the numerous considerations that must be kept in mind ...".

19 With consistency in mind, I have considered the penalties imposed in the following cases. They have provided little assistance as the circumstances dealt with in each case differ markedly from the circumstances before me:

R v Australian Broadcasting Corporation [1983] Tas R 161;

R v Day and Thomson [1985] VicRp 22; [1985] VR 261;

R v Spectator Staff Pty Ltd [1999] VSC 107;

R v The Herald & Weekly Times Ltd, Woodroffe & Blunden [2000] VSC 35;

Director of Public Prosecutions for Western Australia v Rural Press Regional Media (WA) Pty Ltd (Full Court, 22 December 1998, unreported);

Attorney-General (New South Wales) v John Fairfax & Son Ltd [1980] 1 NSWLR 362;

Attorney-General (New South Wales) v Mirror Newspapers Ltd [1980] 1 NSWLR 374;

Attorney-General (New South Wales) v Willesee [1980] 2 NSWLR 143;

Attorney-General (New South Wales) v Mayas Pty Ltd (Court of Appeal, 28 March 1984, unreported);

Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588;

Director of Public Prosecutions v John Fairfax & Son Ltd (supra);

Attorney-General (New South Wales) v Radio 2UE Sydney Pty Ltd and John Laws [1998] NSWSC 28.

20 Mr Gawenda's contempt is serious. In the knowledge that publication of the material in Tasmania would breach the law of this State, he authorised the publication as he considered that the risk of doing so was minimal. It is necessary that I impose penalties directed to chastising Mr Gawenda and deterring the respondents and others from acting in a similar manner in the future. I am satisfied that these objectives will be achieved by the imposition of a fine of $20,000 upon Mr Gawenda, and a fine of the same amount on The Age Company Ltd. Whilst Mr Harris was the editor-in-chief of The Age, and in that sense, responsible for its publication, he was not involved in and had no knowledge of the offending publication prior to its distribution. Mr Gawenda assumed sole responsibility for authorising the publication. In the circumstances, I consider it appropriate to impose no penalty on Mr Harris.