R v The Age Company Ltd & Ors [2006] VSC 479

2 Mr Towle was arrested by police at 3.23am the next morning, Sunday 19 February 2006. That day he was charged with the offences I have described, and appeared before an out-of-sessions court. On Monday 20 February 2006 he appeared before the Magistrates' Court at Mildura. A brief service date was set for 15 May 2006 and a committal mention date was set for 26 June 2006. No application for bail was made. No evidence was led. The proceedings lasted but a few minutes. Mr Towle was remanded in custody.

3 The next day, Tuesday February 21, 2006 the first respondent published an article as its leading article on page 1. Most of page 1 was devoted to the tragedy. A moving photograph of two stricken students at a memorial was published. The main headline stated:

"Mildura tragedy: The children were screaming 'Daddy, what have you done?'"

"The four-year-old son of the driver charged over Saturday night's smash that killed six teenagers was allegedly sitting on his father's lap when their car ploughed into a group of party-goers.

A police incident fact sheet compiled immediately after the accident is believed to say that Thomas Towle's son Thomas, 4, was sitting on Towle's lap at the time. His nine-year-old daughter Samantha was also in the car.

Acting Inspector Mick Talbot of the major collision investigation unit told The Age that, while he could not comment on the fact sheet, the position of Towle's children in the car at the time of the crash was 'the crux of the investigation'.

Six teenagers aged 15 to 17 were killed, while 15-year-old Marco Medici is fighting for his life in Melbourne's Alfred hospital where he is in a critical but stable condition. Three others were also injured.

Towle, 34, from Red Cliffs outside Mildura, faced the Mildura Magistrates' Court yesterday on six counts of culpable driving causing death, four counts of negligently causing serious injury and failing to stop and provide assistance at the scene of an accident.

Towle has appeared in court at least eight times since 1992 for driving while disqualified. He was released from prison three months ago after serving an 18-month sentence for a firearms-related offence. He has also faced charges of burglary, criminal damage, theft and possession of amphetamines.

Towle sat holding his head throughout yesterday's short court appearance. No evidence was led and Towle, who was represented by the Victorian Aboriginal Legal Service, did not apply for bail.

If convicted, Towle could face up to 20 years' jail for each of the culpable driving counts. The case was adjourned to June 26.

Outside court, Inspector Talbot said drugs and speeding were being investigated as factors.

But police will not be able to establish whether Towle had been drinking because he fled the scene and was not blood tested. Towle allegedly hid in a vineyard before going to a relative's house, where he called police. His children are believed to have wandered through the crash site before being taken to a relative's house."

Where appropriate I shall refer hereafter to this extract as "the publication".

4 On 7 April 2006 the applicant filed in this Court an originating motion and a summons thereon, seeking orders that the first and second respondents be adjudged guilty of contempt of court and convicted for the publication in "The Age" set out in the preceding paragraph and that the three respondents be so adjudged and convicted for the continuing publication on a publicly accessible computer webpage from Tuesday 21 February 2006 of a like article. The online article was removed between 7 and 10 April 2006 upon service of the motion and summons. The proceedings are brought by the applicant pursuant to s.21(1)(ba)(ii) Public Prosecutions Act 1994.

5 "The Age" newspaper and the relevant website are owned and controlled by the first respondent. The second respondent is the editor-in-chief of both "The Age" newspaper and the website. The third respondent is a senior editor of the website.

6 In the originating motion, numerous elements of the publication (in "The Age" on 21 February 2006 and on the website) were pleaded as incidents of contempt. However by the time of trial last week, the elements relied on were the publication of the defendant's criminal record and past custodial history. The various other elements (such as "son sat on lap" and "he fled the scene") which at the time of the filing of the originating motion were alleged to be contemptuous because of their tendency to interfere with the administration of justice by giving rise to a risk of prejudice to the fair trial of the defendant, are not now pursued. It is said on behalf of the applicant that that is because those allegations now are in the public domain through other court proceedings. Whether such material could or would constitute contempt is unnecessary to consider. The issue before me is whether the publication of the prior convictions and custodial history of the defendant constitutes contempt.

7 The factual prior history of the defendant is set out in confidential exhibit PC1 to an affidavit herein of Acting Senior Sergeant P A Cripps. The defendant had appeared in court on four occasions since May 2002 on a total of nine charges of driving while disqualified. He had appeared in court on charges of burglary, theft, criminal damage, and possession of amphetamines. He had no convictions for firearm-related offences. His only term of imprisonment was from June 2002 to January 2003 and which was in relation to driving offences. Thus it is evident that the prior criminal and custodial history of the defendant as published by "The Age" was erroneous, and in not insignificant respects. However, on the question of liability, the issue is not whether the publication was accurate but whether it constitutes contempt.

8 For the applicant two affidavits were filed. They were of Acting Senior Sergeant P A Cripps, of the Major Collision Investigation Unit, sworn on 7 April 2006 and with three exhibits; and of Senior Sergeant M G Talbot of that Unit sworn on 7 April 2006.

9 For the respondents five affidavits were filed. They were of Mr D S Poulton, solicitor and partner, of 16 June 2006 with three exhibits, and of 27 November 2006 with two exhibits; two of Ms L M Christian, solicitor and senior associate, of 27 November 2006 and with four exhibits; and of Mr A Jaspan, the second respondent, of 27 June 2006 and with four exhibits.

10 The respondents had in place a comprehensive and careful system of checking the lawfulness of publications. The respondents obtained legal advice before publication. They were advised the publication was lawful. The advice was received from a senior and experienced solicitor, Mr Poulton.

11 The essential reasoning said to justify the publication is set out in paragraph 10 of the affidavit of Mr Poulton, as follows:

"In forming the view that the article could be published, I took into account that:

(a) A significant portion of the article concentrated on what appeared to be the objective facts of the case, together with proposed allegations which it appeared the police intended to investigate.

(b) Whilst there were several aspects of the article which were unfavourable to the accused, I was aware that typically contested criminal matters go through a process of a committal and in any event given trial waiting lists it was unlikely that any trial would take place during 2006.

(c) There have been many judicial decisions accepting that juries should be given credit for not being swayed by what they read in the media.

(d) There have also been judicial decisions where the delay which occurred between publication and trial meant that no contempt arises.

(e) I was also aware that there had been a significant trend in recent years for wider, more-in-depth reporting of police investigations which included the histories/background of accused persons prior to trial. In a number of high profile cases involving allegations of murder and other serious crimes, it has become not uncommon for such matters to be published.

(f) I was particularly conscious of publicity concerning criminal histories, including media reports that were published when convicted killer Keith George Faure was arrested and subsequently charged with murder and also when conspiracy to murder charges were laid against career criminal Sean Sonnet.

(g) Also in the cases involving accused persons such as Carl Williams, Mario Condello, and numerous others, in recent years the media coverage included their alleged criminal activities.

(h) There was also significant publicity regard Tony Mokbel's criminal connections while he was awaiting trial, including such matters as his banning from the premises from Crown Casino on the basis of his undesirable character.

(i) I was aware there had been media coverage of the Mildura incident that had reported a range of accounts of events and allegations.

(j) I had observed that the recent approach of the prosecution and the law enforcement authorities in matters such as this was not to prosecute for contempt of court or threaten to do so. Rather, by inaction, there appeared to be a tacit acceptance of the proposition that in such circumstances the effect of negative publicity would dissipate over a period of many months.

(k) I considered the publication of the article would not impair the ability of jurors to comply with their oath to render a fair verdict according to the evidence presented at any trial, particularly having regard to the length of time that would be likely to elapse prior to any trial.

(l) Having regard to the current state of law in Australia, which I believed had been stated in a number of appellate and High Court decisions, the article would not be regarded beyond reasonable doubt as presenting any real risk to the accused's fair trial and accordingly, could not reasonably be regarded as being in contempt of court.

(m) I considered that as the incident had occurred in a town the size of Mildura and as the magnitude of the disaster (six dead) was so great for a town this size and the potential impact on the community so great, I considered that the likely course of events would be that any future trial would probably be transferred from Mildura and take place in Melbourne to avoid any potential prejudice to the accused's fair trial."

12 It is plain from the above that the legal advice tendered to the respondents was considered advice. Unfortunately, it was wrong. There is clear authority (see paragraph 14 below) that prior convictions of accused persons should not be published before or during trial. That authority remains clear and firm today. Much of the material referred to by Mr Poulton was categorical or generic (as was the material I considered in DPP v Williams & Ors.[1]) In the present case, the forbidden line was crossed in publishing Mr Towle's prior convictions and custodial history. Further, that material was not previously in the public domain.

13 It is not appropriate to consider seriatim the items of reasoning set out in Mr Poulton's affidavit. The relevant fact is that unfortunately his conclusion of law was wrong. The simple and clear beacon is that every accused person is entitled to a fair trial. So too is the community. Ordinarily, publication of prior convictions and custodial history while a trial is pending is antipathetic to a fair trial. Thus it is contemptuous. So too here.

14 The law was stated clearly by Fullagar J in Davis v Baillie[2] as follows:

"It is an elementary principle of the administration of criminal justice that, apart from exceptional cases defined by statute, the bad character or prior convictions of an accused person cannot be proved, by means of cross-examination or otherwise, on his trial for an offence. Even where the statute does not peremptorily exclude such evidence, the Judge will often in his discretion disallow it: see R v Woolley (x). This elementary rule is stultified if public announcements of prior convictions are permitted. I think myself that any such public announcement made while proceedings are pending is prima facie a contempt of Court."

That passage was cited with approval by McInerney J in R v Regal Press Pty Ltd.[3]

15 The criteria on a contempt application are well known and need no rehearsal by me.[4] The standard of proof is the criminal standard. The elements to be established are that the publication had a serious tendency to prejudice a fair trial or interfere with the due course of justice. The question is to be determined as at the time of publication. Intention to prejudice a fair trial or interfere with the due course of justice is not a necessary element. Publication on the internet is publication for purposes of contempt.[5]

16 At the time of publication it was likely that there would be a considerable time lapse between publication and jury trial (possibly more than a year). That lapse is relied upon by the respondents.[6] However such lapse is of no avail with the publication of material such as was published here, that is, of relevant prior convictions and a custodial history published in a graphic and tragic context. Citizens rightly are concerned at the apparent impotence of the law in relation to repeat offender disqualified drivers. The material here published is unlikely to fade in persons' minds (even though the defendant apparently was licensed to drive at the time of the events). Further, the circumstance that the jury trial might be held not in Mildura but in Melbourne does not avail the respondents. Potential jurors in Melbourne

16 could be afflicted in the same way as those in Mildura, if not to the same extent, for the reasons I have just stated.

17 The necessary elements for contempt have been proved beyond reasonable doubt against each respondent. I find each respondent guilty of contempt of court.

18 I shall hear counsel on the questions of conviction and penalty.

[1] [2004] VSC 209; (2004) 10 VR 348.

[2] [1946] VicLawRp 76; (1946) VLR 486 at 496.

[3] [1972] VicRp 9; (1972) VR 67 at 73-74.

[4] R v Parke (1903) 2 KB 432 at 436; In Re Dunn [1906] VicLawRp 84; (1906) VLR 493 at 497-498; R v Regal Press Pty Ltd [1972] VicRp 9; (1972) VR 67 at 73-74; R v David Syme & Co [1982] VicRp 16; (1982) VR 173 at 177-8; Hinch v A-G (Vic) [1987] HCA 56; (1987) 164 CLR 15 at 27 and 46-7; John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351 at 370-1; R v Fletcher [1935] HCA 1; (1935) 52 CLR 248 at 258; R v Brett [1950] VicLawRp 42; (1950) VLR 226 at 231; A-G (NSW) v John Fairfax & Sons (1985) 6 NSWLR 695 at 697; DPP v Wran (1987) 86 FLR 92; A-G v Times Newspapers (1974) AC 273 at 303.

[5] See Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 597-598 [15]-[16].

[6] See Brych v The Herald and Weekly Times Ltd [1978] VicRp 67; (1978) VR 727 at 731; A-G for NSW v John Fairfax & Sons Ltd & Anor (1985) 6 NSWLR 695; Re National Safety Council of Australia Victoria Division (In Liq); Re Friedrich (1989) 1 ACSR 164 at 166 and [1990] VicRp 87; (1990) VR 995 at 1006; John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344; and Re an application: R v Williams (2004) VSC 413.