Contempt – balancing act

• The notion of the balancing of interests:– The public interest in maintaining the

administration of justice. – The interest of ensuring the right of an accused to

enjoy a fair trial.VS

– The broader public interest in freedom of expression and freedom of press.

Pearson pp: 98-99; 103-4; 111-12

http://www.studentatlaw.com/articles/125/3/Contempt-and-Open-Justice/Page3.html

The fair administration of Justice

Therefore the public interests of administration of justice and accused’s rights are not absolute interests

Justice seen to be done

Importantly for the media this also involves the right (or privilege) to report on the justice system and about the justice system in a way that contributes to the fair administration of justice.

CONTEMPT OF COURT

• Competing rights at work: • Right to free speech v. Right to a

fair trial – to be presumed innocent until proven guilty

• Both can’t co-exist

Striking a Balance

• The law seeks to strike a balance between freedom and justice

• The interests of justice take precedence over some other rights

• Free speech is sometimes temporarily curtailed or suspended while judicial process does its work

• An ethico-legal paradox in action

A compact of reduced rights

• Rights of the media – enacting free speech – are curtailed by law in the interests of the broader public interest of justice

• The news media agrees to this in order to gain some access to courts

• Access is often at the mercy of judges.

CONTEMPT OF COURT

• Interfering with justice is a criminal matter

• Punished by fines and imprisonment

• BUT • The laws are often not clear• Enforcement is infrequent• Enforcement is unpredictable• Often covers stories where there

is a great deal of public interest• Journalists ask “what can we get

away with?”

CONTEMPT OF COURT

• Contempt can apply in a large number of situations:

• INTERFERING WITH WITNESSES

• INTERFERING WITH JUSTICE AND THE LEGAL PROCESS

• WRONGLY IDENTIFYING THOSE INVOLVED

• DEALING WITH JURORS

• DISOBEYING COURT ORDERS

• SUPPRESSION ORDERS

• SCANDALISING THE COURT

SUB JUDICE CONTEMPT • The most common form of

contempt.

• Mainly involves crime and court reporting.

• Particularly concerned with “prejudice” – interference that will “pre-judge” a matter before the court has judged it

• Often labelled ‘trial by media”

• Trials can be cancelled if journalists get it wrong

Veteran broadcaster Derryn Hinch expects he'll end up in jail if convicted for contempt of court over the Jill Meagher case.

Hinch says he has been issued with a writ for contempt of court for publishing details about Ms Meagher's killer.

Read more: http://www.theage.com.au/victoria/hinch-on-contempt-charge-over-meagher-case-20130625-2ov7m.html#ixzz2dnl1GiOy

SUB JUDICE CONTEMPT

• CRIME………INVESTIGATION……..• ARREST……

• Sub Judice Period Begins – reporting restrictions start

AG (NSW) v. TCN Channel Nine Pty Ltd 1990 – “the rules of contempt come into operation at the time of arrest because that is the time of initiation of criminal proceedings”

SUB JUDICE TIMELINE

• Very important to understand the ‘timeline’ of the judicial process:

• Different amounts of information can be reported at different stages

•CRIME………INVESTIGATION……..

•ARREST……..CHARGE……..

•PRE- TRIAL HEARINGS……..

•TRIAL………

•PLEA……..

•VERDICT

•SENTENCE………APPEAL

•….FINAL APPEAL

SUB JUDICE CONTEMPT

• ARREST……..CHARGE……..PRE- TRIAL HEARINGS……PLEA ……TRIAL……..VERDICT

• What can be reported during the ‘sub judice’ period? -

Packer v. Peacock 1912 -• “extrinsic ascertained facts to which any

eyewitness could bear testimony, such as the finding of a body and its condition, the place in which it was found, the persons by whom it was found, the arrest of a person accused and so on”

SUB JUDICE CONTEMPT - DEFENCES

• Can still discuss important general issues of public interest even if this poses a risk of prejudicing a case

• HOWEVER, the closer you get to specific detail about the key issues in the case, the less likely the defence will apply

• Often a very fine line between what is acceptable and what is not

SUB JUDICE CONTEMPT

• Intending to prejudice a case is always likely to be in contempt

• But intent isn’t necessary – the court is only interested in the RISK of prejudice

• There doesn’t need to be evidence that anyone was actually prejudiced

• It’s sufficient if there was a SERIOUS RISK that someone MIGHT be prejudiced by the publication

• Cases that are interstate can’t usually be prejudiced by reports confined to a different state

SUB JUDICE CONTEMPT

• You shouldn’t report on anything that may be contested in court

• ESPECIALLY not on the guilt or innocence of the accused

• Mustn’t mention inadmissible evidence – like a previous criminal record

• Beware of possible Identification issues and also prejudicial photos

• But archived reports and online archives are usually okay

SUB JUDICE CONTEMPT

• WHAT POSES A ‘SERIOUS RISK’ OF PREJUDICE?

• Each case is different – the legal authorities will consider some or all of the following factors:

• How much is already in the public domain

• The prominence of the article or broadcast

• The area and extent of publication

• The images accompanying it

SUB JUDICE CONTEMPT • The time between publication and trial

• The authority of the maker of the contemptuous statements

• The likelihood that the case will be contested (i.e. a ‘Guilty’ plea)

• Whether a jury will be involved (Appeal Judges are harder to prejudice)

• BUT THESE ARE ONLY FACTORS FOR GUIDANCE – THEY CAN’T BE RELIED ON

CONTEMPT CHECKLIST• Concerns ‘prejudice’ – pre-judging

the outcome of a criminal trial before the courts or disrupting the judicial process

• 1. Is the case at a point between arrest and verdict? If so, restrictions apply

• 2. Would what you’d like to report cause a “substantial risk” of prejudice?

• Consider the different risk factors

SUB JUDICE CONTEMPT - DEFENCES

• THE PUBLIC INTEREST DEFENCE (‘Bread Manufacturers’ Case, 1937)

Bread Manufacterers’ Decision

• “The discussion of public affairs and the denunciation of public abuses…. cannot be required to be suspended merely because the discussion or denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant”

SUB JUDICE CONTEMPT - DEFENCES

• “Fair and Accurate” reports of proceedings in parliaments and the courts

• Must be part of the official record

• Usually covers proceedings of Parliamentary committees and the evidence of witnesses

• Can also cover reports and written documents

• BUT MUST BE IN COURT/PARLIAMENT – outside does not have protection

Contempt of court: a matter of legal judgment

UK law on contempt applies to any publication that creates 'a substantial risk' of prejudicing the course of justice

http://www.theguardian.com/media/2011/jan/10/contempt-of-court

OTHER FORMS OF CONTEMPT• INADMISSIBLE EVIDENCE• Previous convictions (and even

charges) are always prejudicial and must not be disclosed until after the verdict

• They do not play a part until sentencing – because of the presumption of innocence

• Any evidence presented in court with the jury absent must also not be reported

OTHER FORMS OF CONTEMPT• INTERFERING WITH WITNESSES • Once a case is ‘sub judice’, interviews

with witnesses can be prejudicial• Problem is of rehearsing their evidence• Sometimes witnesses grandstand for the

media and then repeat this in court• Paying witnesses can ruin their

credibility • See - ‘Luna Park’ inquest case 1980

OTHER FORMS OF CONTEMPT

• OFFENCES CONCERNING JURORS • Each state has a different law

covering juries• Problems with:• - Identifying jurors• - Contacting jurors, • - Seeking information from jurors• - Revealing the deliberations of

juries • See Laws case 2000

OTHER FORMS OF CONTEMPT

• DISOBEDIENCE CONTEMPT• Disobeying a court order. • Usually involves courts ordering

journalists to reveal confidential sources in the interest of justice.

• Can lead to imprisonment – Nicholls1993• Harvey and McManus case 2007• New Shield laws – will mean that sources

won’t need to be revealed unless vital to the outcome of the case

OTHER FORMS OF CONTEMPT

• CONTEMPT IN THE FACE OF THE COURT• No special rights for journalists in court

although we do often get reserved seats

• Must not disrupt the court or show disrespect – no laughing. No mobile phones! But Twitter???

• Always ask before using tape recorders, cameras and sketching in court

• Some courts are now experimenting with audio and video sentencing and verdict

http://media.heraldsun.com.au/audio/sentence_freeman_11apr11_hires_trimmed.mp3

OTHER FORMS OF CONTEMPT• SCANDALISING CONTEMPT• Publishing things about the courts or

judges which would tend to reduce people’s faith in the legal system

• Defences of ‘truth’ and ‘fair comment’

• The BLF cases1972 + 1983• The “Cretin” case 2003• The Bob Francis case 2006

OTHER FORMS OF CONTEMPT

• SUPPRESSION ORDERS• Judges have wide-ranging powers to order

the suppression of reporting at any stage of a trial

• Prevents disclosure of prejudicial evidence

• Big growth in orders in the past few years • Orders can be challenged• See - Gangland trials - Underbelly

OTHER FORMS OF CONTEMPT• REPORTING RESTRICTIONS • A variety of state laws deal with this• Identifying the victim of a sexual crime

is forbidden (and the defendant before committal in Queensland, SA and NT)

• Children involved in crimes as victim or perpetrator usually are protected

• Reporting of family law cases (divorce, child custody)

Privilege • An expression of

public trust• Accountability for the

exercise of privilege• Immunity?• Rights & Benefits• Privilege & Power• A grant in the form of

a franchise or monopoly

Privilege

noun • a special right,

advantage, or immunity • granted or available

only to a particular person or group

• something regarded as a special honour

expression• education is a right, not

a privilege [mass noun]

• he has been accustomed all his life to wealth and privilege

• I had the privilege of giving the Sir George Brown memorial lecture

Absolute Privilege

absolute privilege• especially in a

parliamentary context• the right to say or write

something without the risk of incurring punishment or legal action for defamation

• the right of a lawyer or official to refuse to divulge confidential information

• he called on MPs not to abuse their privilege [mass noun]

• a breach of parliamentary privilege

Qualified Privilege

• Reporting of what is said in Parliament

• Reporting what is said in courts of law

• Reporting local government

• Reporting comments made at media events

To qualify for this defense, a report must be one of a public meeting/press conference that is:• Fair

• Accurate

• Published without malice

• Subject to the right of reply in the form of a letter that gives explanation or contradiction

• It need not be contemporaneous (depending on publication), where it has to be for absolute privilege