R v Spectator Staff Pty Ltd [1999] VSC 107

20. The trial was re-scheduled for hearing in Melbourne, and eventually concluded on 20 October 1998 when his Honour Judge Jones acceded to an application on behalf of the accused to stay the last remaining charge.

23. The article which was published in the newspaper set out, in considerable detail, the submissions which had been made to the trial judge in the absence of the jury. In his reasons for decision in discharging the jury, Judge Stott made a number of observations about the report which had appeared in the newspaper. In the first place, his Honour noted, the newspaper reported that he, as trial judge, had accepted some of the submissions made by counsel for the accused and had rejected others, thereby, apparently, "conferring a sort of judicial imprimatur" to the validity of the count of rape which he had refused to stay. Secondly, his Honour said, the article reported matters which had been discussed by counsel which were not the subject of evidence before the jury, in two respects, namely, that the complainant had raised the matter with the police in 1986 but the police had not pursued the matter at that time, and also that the complainant had been unable to pick out the accused man in a line-up. His Honour was concerned that those matters might adversely affect the credit of the complainant in the eyes of the jury. Thirdly, his Honour said, the article reported a statement made by counsel for the accused who said that her instructions were that the defendant did not know if he had had sexual intercourse with the girl in a car in Hamilton, as alleged, but that he would have remembered the occurrence had it been rape. As noted, above, the accused did not, in fact, give evidence at his trial. Fourthly, the article incorrectly reported that the complainant had contacted the police, regarding the matter, in July 1963.

26. It is to be noted, too, that the article also reported the prosecutor as saying to the trial judge that the complainant's claim that there had been a lack of consent to sexual intercourse had been "fairly black and white". The article also noted that in giving his decision to proceed on the charge of rape, his Honour "briefly ran through the alleged facts and the sequence of events which followed. This included that DNA testing of blood samples from the defendant, alleged victim and her son, had been performed".

29. The author of the article, Mr Houston, had been a journalist with the Hamilton Spectator for approximately eighteen months at the time of its publication. Prior to joining that paper he had been a journalist with the Murrumbidgee Irrigator, in New South Wales, for 15 months, and it was whilst at that newspaper that he undertook his one year cadetship. He has a degree in political science and has completed half of a Solicitors' Admission Board Law Course and has completed the majority of a Masters Degree in Australian Cultural Studies at Sydney University. He had been the court reporter for the Hamilton Spectator from July 1997 until the date of publication of the article, on 4 June 1998. Apart from court reporting he covered police calls, political stories, industrial stories and other rostered stories, as directed. Occasionally he did feature stories.

32. In an affidavit, Mr Houston deposed that he received on-the-job training as the court reporter, and that when he had commenced court reporting duties he had very limited prior experience of such reporting. He said that when he began court reporting he received from his editor written material concerning the reporting of court cases and the legal issues which might arise. He conceded in his affidavit, and also in his oral evidence, that his understanding of the content of these publications was, in fact, inadequate although he thought otherwise at the time. At the time of publication of this article he had believed himself to have known his obligations when reporting court proceedings.

35. Mr Houston gave oral evidence before me in addition to the evidence contained in his affidavit. He conceded that among the notes which he was provided with at the time when he began court reporting was a 10 page summary of relevant information provided to the newspaper by Ms Prue Innes, the court's information officer with the Supreme Court. That material was dated 14 March 1996 and quite clearly stated in one passage:

"It is also a contempt to report anything said in court, in a trial, in the absence of the jury. There are often parts of a trial called the voire dire, a term which loosely refers to a judge deciding whether evidence should be admitted and heard by the jury, or other legal argument about what can be said to the jury. The court will not be closed, and reporters are able to stay. But they must not report anything said in the absence of the jury. If there is anything newsworthy or interesting, it must wait until after the trial is over, and there is no longer a risk of the jury hearing material which has been excluded. It is common for pre-trial issues to be sorted out by the trial judge in criminal trials, to save time and interruption once the case opens before a jury. They often involve issues such as admissibility of evidence. As with the voire dire, these proceedings should be regarded as part of the trial, and not able to be reported, as they are made in the jury's absence."

39. That was a clear and unambiguous (and accurate) warning to journalists. In addition, Mr Houston conceded that he had also been provided with a publication entitled "The ABC of Journalism" which in a section relating to contempt of court once again expressly stated that contempt would include the publication of evidence which was given whilst a jury was absent from a court, and extended to the publication of a statement that evidence had been excluded from a jury.

42. Mr Houston said his experience in court reporting had largely been with the Magistrates' Court and he had only covered one other County Court trial which had involved a jury. Having observed the pre-trial argument as to the stay application, he thought the matter would be of interest to his editor, and discussed the story with his colleagues when he returned to the newspaper office. He then had a discussion with the sub-editor, Mr Brian Ryan. He suggested to Mr Ryan that the story would make a good lead story. When he had later written the article he showed it to another journalist, who made some suggestions for changes, but merely to ensure that the reader's attention was more firmly and quickly seized. Mr Houston told me that it never occurred to him that the article could be in contempt of court. He did not realise that he could not publish proceedings which had occurred in the absence of the jury. He said neither his sub-editor nor any of the other journalists at the newspaper with whom he had discussed the story, in advance of its publication, suggested that there was any problem about its publication.

45. In his affidavit, Mr Houston asserted, apparently by way of mitigation or explanation, that at no time had the judge said that the material could not be published, nor did the judge's associate or prosecutor (with whom he had conversations about the case in order to check details of the identity of the accused) warn him that he could not publish. As I pointed out to Mr Houston when he gave his evidence in this regard, neither the judge nor his staff (nor counsel) would have considered it necessary to state what would have seemed to them to have been so obvious a proposition, namely, that it would be contempt of court to publish proceedings which had been conducted in the absence of the jury.

48. Mr Houston told me that he had no intention of jeopardising the trial and I accept that that is so. He is no longer the court reporter and was formally reprimanded by the editor. With some modest exceptions, all of his stories are now checked by the editor before publication. Since publication of this article he has attended two sessions to observe a training video concerning defamation and contempt law and has been given, and read, additional literature on these topics. He says that he is now very much aware of the potential legal pitfalls in writing such a report. He has never previously been charged with or been involved in a contempt of court.

51. The editor of the Hamilton Spectator, Ms Jan Leishman, has been editor since 1994 and has 31 years experience as a journalist. She was previously the editor of the Western District Farmer between 1987 and 1994.

54. In her affidavit and oral evidence she told me that the newspaper employed both cadet and experienced journalists and all journalists received on the job training from herself. Mr Houston had been employed as a qualified journalist who had one year's experience. He was required to undertake post-cadet training through a specialised three year course for country journalists which was conducted by Deakin University. That obligation is part of the award for a journalist. When Mr Houston joined the newspaper he had already completed one year as a journalist and, according to the affidavit of Ms Leishman, he therefore joined the post-cadet course in year two of that course when he commenced at the Hamilton Spectator, and had not, so it seems, attended year one of the course, at all. Ms Leishman deposed that issues concerned with court reporting are covered in year one of the post-cadet course, and that this meant that Mr Houston did not receive court reporter training as part of the post-cadet course.

57. It is not clear to me how it could be that Mr Houston could have avoided the first year of what is said to be a compulsory three year post-cadet course. The affidavits are somewhat vague on this question. However, in his own affidavit, Mr Houston did not suggest that Ms Leishman's understanding was incorrect; he did not assert that he had received court reporting training as part of any course of study or training while employed at the Murrumbidgee Irrigator. In any event, Mr Houston's new editor, Ms Leishman, said that she simply assumed, when Mr Houston joined the Hamilton Spectator, that he had been appropriately trained in court reporting at his previous newspaper, as part of what she assumed had been the first year of his post-cadet training.

60. Whether or not Ms Leishman was correct in her assumption that Mr Houston had received court reporting training as a component of the first year of a post-cadet course, she, rightly, considered it to be her own responsibility to ensure that Mr Houston was given accurate information before he commenced court reporting for the Hamilton Spectator. To that end Ms Leishman provided material to Mr Houston, both when he joined the newspaper and when he commenced court reporting, dealing with the relevant law and practice relating to contempt and defamation. Copies of that material were provided to me.

63. Whilst the texts provided at that time by Ms Leishman were generally very useful for informing journalists at the newspaper as to the relevant legal principles, there were some deficiencies, and inaccuracies, in some of the articles. Since publication of this contempt, however, the editor and managing director have taken steps to ensure that all material now provided is up-to-date and accurate. What must be said about the material which was supplied to Mr Houston, however, is that at least two of the publications provided to him did spell out that it would be a contempt of court to publish proceedings which had taken place in the absence of a jury. He conceded that he had been given that material, and had been encouraged to read and absorb it.

66. In essence, the evidence of Ms Leishman was that she had believed at the time of the publication of this contempt that the Hamilton Spectator had a comprehensive programme in place to ensure that any of its journalists who engaged in reporting of court proceedings knew their legal obligations. She conceded, however, that the procedures which were in place were, in fact, inadequate. Demonstrably, that was so. As Ms Leishman accepted, not one of the journalists - including the sub-editor - who were aware of the story, and its proposed publication, apparently anticipated any problem in its publication.

69. The sub-editor, Mr Ryan, had been sub-editor for over 10 years and had been a journalist for 27 years, at the time of these events. He had been editor of the Hamilton Spectator for a period of three years. He also had four years experience as a court reporter. He performed the role of acting editor when Ms Leishman was unavailable. It was his duty to oversee the final page proofing of the newspaper, although a final check of the pages, by a visual scanning, was conducted by Ms Leishman. Ms Leishman, in fact, did not see the front page on this day, having been engaged in interviewing a prospective employee. Ms Leishman conceded that a reading of the article should have led to no doubt whatsoever that it was the report of proceedings which had occurred in the absence of the jury. When she learned of the judge's concern about the article, and read it for the first time, she immediately appreciated that it constituted a contempt of court. Plainly, she expected that that fact should have been equally obvious to her sub-editor, and, indeed, to any of the other journalists at the paper, so as to have prevented its publication.

72. Publication of this material which was so plainly in contempt of court, represents a comprehensive failure of the systems which were in place to ensure that contempt of court did not arise. Once Ms Leishman learnt of the concern of the court about publication of the article, and then of the trial being aborted, she acted very quickly to ensure that an apology was tendered to the court and, indeed, when the trial was aborted the newspaper prominently published that fact and made it plain that the fault was that of the newspaper. I am quite satisfied that substantial steps have been taken by Ms Leishman to ensure that such a disastrous miscalculation does not occur again.

75. The Hamilton Spectator Partnership publishes the Hamilton Spectator and five other country newspapers. Mr Richard Beks, the managing director of Hamilton Spectator Partnership (the eighth respondent), deposed that the Spectator is one of the few regional newspapers in Victoria which publishes court reports as part of its routine business. He noted that in so doing the paper subjected itself to threats to withdraw advertising by those who were subject to court proceedings. He said that publication of the court reports was regarded as part of a moral obligation which fell on the newspaper to publish matters in the public interest. He said he had been with the newspaper for 40 years and there had never been a case of contempt of court brought against it. The newspaper is published three times each week, has a circulation of about 8,000 copies and a readership of about 24,000. The newspaper has been published since 1859, and in that time has never been found guilty of a contempt of court. That is a fine record, to which I have regard when considering the appropriate penalty for this offence.

78. A conviction for contempt of court is a conviction for an offence which is criminal in nature: per Kirby P (Registrar of the Court of Appeal v Maniam [No.2] (1992) 26 NSWLR 309 at 314. For the purpose of imposing penalty various categories of contempt of court have been long recognised. Kirby P., at 314-315, held that the least serious category was that of technical contempts, then, more seriously, there were contempts which were wilful - in the sense that they were done consciously - but without the intention of interfering with the administration of justice, and, finally, the most serious instance of contempt, was that of contumacious contempt, that is, deliberate defiance of the authority of the court. In my view the contempt in the present case falls within the middle category.

81. Mr D. Beach, counsel for all of the respondents, submitted that the penalty which I should impose on his clients should be a relatively modest one. Were I to make an order of costs against his clients, he submitted, that would suffice as punishment. It should not be necessary to go further, he submitted, so as to impose a fine or further penalty. The payment of costs and the fact of having to face trial on such a matter would be sufficient punishment, in all the circumstances. In making that submission, Mr Beach noted that it has, indeed, been recognised that it is not necessary for a court to impose any punishment over and above the penalty suffered by the contemnor by the very fact of being prosecuted, facing the trial and the threat of punishment, together with the incurring of costs in defending the complaint: Attorney General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 370; R v David Syme & Co [1982] VicRp 16; [1982] V.R. 173 at 178. Mr Beach urged that I adopt that approach, and in support of that submission he identified a number of matters which he suggested favoured a lenient approach being taken towards penalty.

84. First, Mr Beach submitted, the offence was not deliberate in the sense of being published for the purpose of interfering with the trial. That is undoubtedly true, however it must also be observed that publication was deliberate in the sense that prior to this publication it was almost unheard of for the newspaper to report court proceedings on page one. The reason it was done in this case was because the facts were relatively sensational, and had acute local interest. I conclude that the enthusiasm for publishing an exciting lead article must have been a factor in the inexplicable and remarkable failure on the part of any of the journalists, especially the sub-editor, to have adverted to the danger of its publication. Their senses of care and caution were not so acute as they needed to be.

87. In a training video dealing with the law of defamation and contempt of court, which the editor now provides to employee journalists, the commentator, at one point, offers the rather unwise observation that the key to effective court reporting is "working to the boundaries of the contempt laws without overstepping the mark". The video generally provides much useful information, but that passage by the commentator betrays an understanding of the contempt laws as being something akin to the rules of a sporting contest. It does not disclose any understanding that the rules of contempt in this regard arise out of the Court's concern to ensure a fair trial. The particular advice would, if followed, be likely to lead to many more journalists and editors appearing in the dock in answer to contempt proceedings. I do not suggest that the respondents in this case adopted such a calculated and foolish approach; clearly, in their excitement for a good story, the journalists did not contemplate that publication of such a story even threatened to breach the laws of contempt, let alone grasp that it would inevitably do so.

90. One relevant consideration in imposing a penalty in this case must be to ensure that the orderly administration of the system of justice is vindicated, and, at the same time, to ensure that other journalists, editors and proprietors appreciate that appropriate caution in the reporting of legal proceedings must be applied at all times, whatever might otherwise be the public interest in the story which constitutes the contempt of court.

93. Mr Beach also submitted that the publication was not reckless, in the sense of being made with indifference as to whether it was contemptuous, was not published out of personal animus, and did not impute guilt to the accused man. Each of those points has some merit, albeit limited. Some jurors, for example, may well have read the article as imputing guilt to the accused man, and, equally seriously, other jury members may have drawn an adverse impression of the complainant, not by virtue of evidence heard at the trial, but by virtue of apparent adverse inferences concerning her conduct which the article invited to be drawn.

96. In my opinion, publication of this article demonstrated gross negligence, and where gross negligence accompanied publication the courts have not considered that a finding of guilt, alone, was sufficient penalty for the contemnor: see DPP v Wran, (1987) 7 NSWLR 616 at 639; DPP v John Fairfax & Sons, (1987) 8 NSWLR 732, at 742.

99. The fact that an article led to a trial being aborted is not a relevant factor in determining whether the article was, as a matter of fact or law, contemptuous: see Hinch v Attorney General [1987] V.R.721, at 731, per Young C.J., and at 748, per Kaye J. That is so because when the trial judge makes a decision on an application to abort a trial, in such circumstances, the judge does not have the benefit of any submissions made on behalf of the newspaper proprietor or editor, and, in any event, the considerations relevant to the issue before the trial judge are different to those with which I am concerned. However, I respectfully agree with Gillard J. (The Queen v Nationwide News Pty Ltd, unreported 18 February, 1998, at p.10) that the fact that a trial aborted is relevant to the question of penalty.

102. It is also relevant to my decision on penalty that this newspaper has been published for so many years without prior incidence of publication of an article in contempt of court. Furthermore, I am impressed by the efforts which have been undertaken by the editor and proprietors since this incident to ensure that training of staff, in future, not merely gives journalists the further opportunity to learn the relevant principles of law relating to contempt, but is supported by a system of checks and balances which ensures that even if the journalist fails to grasp or to apply the appropriate principles, an article written by the journalist will not be published in breach of those principles.

105. As this case demonstrates, reporting of court proceedings should not be treated as the province of inexperienced, unsupervised, junior journalists. Accurate court reporting is an important part of an open and fair system of justice, and it is not overstating its importance to say that it is also a factor which contributes to a democratic society. It is, however, an area of journalism with many potential (and costly) pitfalls for the unwary journalist and his or her editors and proprietors. Reporting which interferes with the orderly administration of the legal system can cause great hardship, cost and inconvenience to parties, witnesses and jurors, and can deny justice to litigants. Training, supervision and systems for checking articles should be absolutely rigorous and not merely be provided for the sake of appearance. Although the ignorance of the journalist in this case - as to the rules relating to reporting proceedings which took place in the absence of the jury - is quite inexcusable, his ignorance would not have led to a contempt of court had it not been for the failures of his editor and sub-editor.

108. In D.P.P. v John Fairfax & Sons Ltd, supra, at 741, Kirby P held that apart from assessing the degree of culpability which accompanied publication of the contempt the primary task of the court is to ensure, whatever be the intent and culpability accompanying the publication, that the conduct was emphatically denounced and effectively deterred.

111. Rule 75.11 of the Rules of Civil Procedure of the Supreme Court provides for punishment for contempt of court, and expressly provides for penalty by way of fine, imprisonment, and sequestration (in the case of a corporation). The rule permits punishment to be on terms, including a suspension of punishment. The discretion of the Court as to penalty is not, however, constrained by the terms of R.75.11 (see Registrar of the Court of Appeal v Maniam, supra, at 314).

114. Although the journalist in this case, was grossly negligent, himself, in the part he played in publication of the article, it is my view, for the reasons discussed above, that the primary responsibility for the contempt lies with others, in particular his editor and sub-editor. They should have protected him by preventing the consequences which flowed from his own negligence. The sub-editor is not a party to these proceedings, but the editor is a party and so too is the managing director of the proprietorial partnership. The managing director must also bear a significant share of the blame for what occurred, the other proprietors not having a day to day involvement and leaving it in the hands of the managing director and editor to ensure the adequacy of the systems which were in place.

117. Mr Houston was a junior and inexperienced journalist. He has suffered a significant penalty in being admonished by his editor, being removed from court reporting and having the majority of all articles subjected to scrutiny by his editor. I saw him in the witness box, and I have no doubt that he will be a wiser journalist for his unfortunate experience. I gave serious consideration to the question whether it was necessary, in the circumstances, to impose a conviction on Mr Houston. It is an inevitable by-product of inexperience in any field of endeavour that errors may be made. In reviewing an event such as this it is easy to be unduly harsh in judgment, and inordinately wise in hindsight. I keep in mind that the rules relating to the publication of court proceedings are at times complex and capable of being misunderstood, even by experienced journalists and lawyers. Indeed, trials have aborted as often due to errors of judges and barristers as they have on account of the errors of journalists and editors.

120. The learned Solicitor General urged that Mr Houston be punished by way of a conviction and fine, in order that the seriousness of his conduct be emphasised. Having considered the matter, I have concluded that it is appropriate that a conviction be imposed on Mr Houston. The error that occurred here was not one which arose out any complexity of the principles relating to contempt of court. The rule which was offended could not be simpler. It does seem to me to be important that journalists, and not just editors, accept their own responsibility for the occurrence of a contempt of court which has such serious impact on the administration of justice. Mr Houston had actually received material before he took up his duty as court reporter which, in clear terms, warned him not to report proceedings which took place in the absence of the jury. Among the material was a very helpful paper by the Information Officer of the Supreme Court, published precisely out of the Court's concern that journalists understand the rules which must be applied. He could not have read that material with any care.

123. In the circumstances, I consider it necessary to impose a conviction on Mr Houston so as to ensure that other journalists might appreciate that they too have responsibilities in the reporting of court proceedings, and that training programmes which are offered to them to ensure that they understand the relevant rules should be taken seriously. I do not, however, consider it necessary to impose a fine on Mr Houston.

126. With respect to those proprietors of the newspaper against whom the applicant continued these proceedings, each individual respondent who is named as a proprietor has sworn an affidavit which constitutes an apology for the contempt, but which also discloses that the day to day affairs of the paper were not the province of the proprietor but were left to the editor and staff, and to the eighth respondent, the managing director of the Hamilton Spectator Partnership. I accept that the respondent proprietors have unblemished records, and in many instances have had very long-standing media experience. I accept that the proprietors did not play a direct role in the contempt, and, indeed, no proprietor had advance notice of publication of the article. Nonetheless, the responsibility for contempt in this case, which arises from a failure in systems which were in place, must be seen to entail responsibility on the part of proprietors, too, and I will convict and fine each proprietor. Although they can rightly say that they played no direct part in the contempt, the proprietors, who gain the benefit of the profits generated by the circulation gains attained by those who produce the newspaper, must accept significant indirect liability for the occurrence of the contempt.

129. The eighth respondent, Mr Beks, the managing director of the proprietors' partnership, was the publisher of the newspaper, and has more than 30 years of association with the newspaper. He deposed that his duties as managing director primarily related to the business affairs of the partnership, in which he took a managerial and financial role. Mr Beks said that he generally left the editorial decisions, and the day to day affairs of the newspaper, to the editor and sub-editor. On occasions, his advice would be sought if the editor thought that an article might have legal implications, if published. In those instances he and the editor would jointly decide whether to publish the article. He was not aware of the intended publication of this article, as no one had drawn it to his attention.

132. Since these events Mr Beks has taken a role, through the Victorian Country Press Association, in ensuring that the training of journalists and the procedures employed by country newspapers are improved so as to prevent contempt of court occurring. I accept his apology for the contempt which occurred in this instance, but in his capacity as managing director and publisher he must bear liability for the publication, in addition to that imposed upon him, through his company, as one of the proprietors.

135. As to the appropriate quantum for a fine, I was referred to a number of cases, including cases decided in this State, R v Day v Thomson [1985] VicRp 22; [1985] V.R. 261. per Gobbo J; The Queen v Herald & Weekly Times Ltd, unreported decision of Harper J, 15 April 1996; The Queen v Nationwide News Pty Ltd, supra, per Gillard J. There is only limited assistance which can be gained by reference to penalties imposed in other cases where the circumstances are not similar to those which arose in the instant case.

138. Had there been a single company which comprised the proprietor of the newspaper, I would have imposed a fine of $10,000 on that company, but given that there are a number of separate respondents - who jointly comprise the proprietor - I will allocate an appropriate sum as between them.

141. It is appropriate that a fine be imposed both on the managing director of the partnership and also on the editor. I will assume that the burden of those fines will be met by those individuals, and accordingly I will be modest in the fine imposed on them, given the fact that they have no prior convictions.

144. Mr Graham sought costs against the respondents on a solicitor-client basis. Such an order has frequently been made by courts when dealing with contempt proceedings, but there is no rule of law or practice which requires that costs be awarded on that basis, rather than on a party-party basis: see McIntyre v Perkes (1988) 15 NSWLR 417, at 426. In this case the respondents promptly admitted the contempt, published apologies to the court in a later edition of the newspaper, and took steps to ensure that such a contempt would not be repeated. In all the circumstances, I do not think it is appropriate that costs should be on a solicitor-client basis, the orders which I will make constituting sufficient penalty, so as to ensure that the seriousness of the contempt is well understood by all of the respondents, and others.

147. Subject to any submissions by counsel as to the form of the orders, I propose the following orders:

* 1. That the first respondent, Spectator Staff Pty Limited, be convicted on the count of contempt of court, and be fined $2000;

* 2. That the second respondent, Beks Holdings Pty Limited, be convicted on the count of contempt of court, and be fined $2000;

* 3. That the third respondent, E. Davis & Sons Pty Limited, be convicted on the count of contempt of court, and be fined $2000;

* 4. That the fourth respondent, Tortam Pty Limited, be convicted on the count of contempt of court, and be fined $2000;

* 5. That the fifth respondent, Raymond Davis, be convicted on the count of contempt of court, and be fined $2000;

* 6. That the eighth respondent, Richard Leopold Jacobus Beks, be convicted on the count of contempt of court, and be fined $1000;

* 7. That the tenth respondent, Jan Leishman, be convicted on the count of contempt of court and be fined the sum of $1000;

* 8. That the eleventh respondent, Ben Houston, is convicted on the count of contempt of court, but is discharged without further penalty.

* 9. I order that the first, second, third, fourth, fifth, eighth and tenth defendants pay the applicants' costs, on a party party basis.

* 10. I grant a stay on payment of the fines of 28 days.