Attorney-General v WIN Television Qld Pty Ltd
[2003] QSC 157
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Notable Unreported Decision
- Attorney-General v WIN Television Qld Pty Ltd[2003] QSC 157
- Add to List
Attorney-General v WIN Television Qld Pty Ltd[2003] QSC 157
Attorney-General v WIN Television Qld Pty Ltd[2003] QSC 157
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application |
DELIVERED ON: | 28 May 2003 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 8, 18 November 2002 |
JUDGE: | Wilson J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT – WHAT CONSTITUTES – INTERFERENCE WITH COURSE OF JUSTICE AND ADMINISTRATION OF LAW – PREJUDICING FAIR TRIAL OF ACCUSED – NEWSPAPER, RADIO OR TELEVISION REPORT – where accused on trial for two counts of murder, two counts of indecent dealing with a circumstance of aggravation, and two counts of deprivation of liberty – where accused on trial almost 30 years after the alleged offences – where television report was prepared whilst the jury was deliberating – where there was a hung jury – where the television report was aired nationally immediately after the jury was discharged – where the television report contained statements from witnesses in the trial of accused – where television report suggested the accused was guilty – where it was admitted by counsel that statements from one witness amounted to contempt – whether statements from another witness amounted to contempt – whether statements were a fair and accurate report of proceedings in open court PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – IN GENERAL – where reporter met with registrar of the court and counsel to discuss whether the story should be broadcast – where decided that the story would not be broadcast while the jury was deliberating –where story was broadcast despite the possibility of a retrial – whether this amounted to recklessness or carelessness on the part of the second respondent – where second respondent is a large public company – where second respondent admitted to contempt in one instance and apologised – where admission and apology occurred only upon the commencement of hearing – whether the second respondent had adequate systems in place to reduce the risk of unintentional contempt PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – IN GENERAL – where first respondent is a regional broadcaster – where first respondent received the television program from the second respondent, with no opportunity to review it – where first respondent was expected by second respondent to broadcast the program in the form in which it was supplied to it – where first respondent relied upon second respondent to alert it to possible contempt – where first respondent admitted contempt and apologised to the Court at an early stage Attorney-General for New South Wales v Radio 2UE Sydney Pty Ltd & Laws (NSWCA, No 40236/96, 11 March 1998, unreported), considered Attorney-General for New South Wales v TCN Channel Nine Pty Limited (NSWCA, No 40138/90, 11 October 1990, unreported), applied Attorney-General for New South Wales v TCN Channel Nine Pty Limited (1990) 20 NSWLR 368, cited Director of Public Prosecutions (Commonwealth) v United Registrar of the Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, No 40478/92, 21 April 2003, unreported), cited Director of Public Prosecutions (New South Wales) v John Fairfax & Sons Ltd (1987) 8 NSWLR 732, applied Director of Public Prosecutions v Wran (1987) 7 NSWLR 616, applied Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255, applied Hinch v Attorney-General (Victoria) (1987) 164 CLR 15, applied R v 6IX Southern Cross Radio Pty Ltd; ex parte Director of Public Prosecutions (Western Australia) [1999] WASCA 254, considered R v Nationwide News Pty Ltd ex parte Director of Public Prosecutions (Commonwealth) (WASC, FC No 2014/96, 25 September 1997, unreported), considered R v Nationwide News Pty Ltd ex parte Director of Public Prosecutions (Western Australia) (WASC, FC No 1763/95, 16 September 1996, unreported), considered R v Pearce (1992) 7 WAR 395, considered R v Thompson [1989] WAR 219, considered R v West Australian Newspapers Ltd (1996) 16 WAR 518, cited Telecasters Sydney Limited (1992) 7 BR 364, cited |
COUNSEL: | RV Hanson QC and PJ Flanagan for the applicant DK Boddice SC for the first respondent RA Mulholland QC for the second respondent |
SOLICITORS: | Crown Solicitor for the applicants Biggs & Biggs for the first respondents Minter Ellison for the second respondent |
[1] WILSON J: In August 1970 two little girls, Judith and Susan Mackay, were sexually assaulted and murdered in the Townsville district of north Queensland. The horror of their killing and the hunt for the perpetrator of the crimes received widespread publicity, but no charges were laid for almost thirty years. In late 1998 Arthur Stanley Brown, who was by then aged 86, was arrested and charged with two counts of deprivation of liberty, two counts of indecent dealing with a circumstance of aggravation and two counts of murder. He was tried in the Supreme Court at Townsville in October 1999, but the jury could not agree upon verdicts. The trial was adjourned to the next criminal sittings of the Court at Townsville.
[2] Shortly after the jury was discharged on 28 October 1999, an edition of the television program A Current Affair went to air across the country. It contained a story (referred to in this application as “the story”) with references to the trial. The story was produced in Sydney by the second respondent, which sent the edition of A Current Affair by satellite to the first respondent, an unrelated company that operated channel 9 in Townsville.
[3] This is an application that the respondents be punished for contempt in publishing or causing to be published in the television program material which was prejudicial to the administration of justice in the matter of R v Brown, which was then proceeding in the criminal jurisdiction of this Court at Townsville. The application against the first respondent was filed on 20 January 2000. That day an order was made suppressing publication of the proceedings, and on 28 January 2000 the hearing of the application was adjourned by consent until after the conclusion of the retrial of Brown. On 1 August 2001 the Crown entered a nolle prosequi in relation to the indictment against Brown. On 23 November 2001 an order was made by consent by which (inter alia) the second respondent became a respondent to the application and the suppression order was vacated. The substantive application was heard over two days in November 2002.
The offending material
[4] The basis of the alleged contempt was that the story suggested that Brown was guilty of the charges. The applicant relied on all of the words used as recorded in a transcript of the story. After an introduction by the presenter (Mr Mike Munro) the story consisted of “voice overs” by the reporter (Ms Leila McKinnon) and “grabs” of persons with some association with the case - the investigating police officer Mr Charles Bopf, Mr Bill Hankin, Mrs Jean Thwaite and Mr Neil Lunney. At the hearing the focus was on those aspects of the story which related to Mrs Thwaite and Mr Lunney.
[5] Mrs Thwaite operated a service station at which a car stopped for petrol. It was driven by a man, and there were two little girls travelling with him. In the material broadcast the television reporter, Ms McKinnon, said of Mrs Thwaite -
“Mrs Thwaite remembers having a good look at the man driving the two girls. Just last week she testified that eighty-seven year old Arthur Brown was that man.”
In fact Mrs Thwaite had not identified Brown in court. Ms McKinnon asked Mrs Thwaite -
“So you think the police have got the right man?”
She responded -
“Oh yes, I think so.”
[6] Ms McKinnon introduced the Lunney material by saying –
“Jean Thwaite was not the only person who recalls seeing the girls in a car resembling a Holden later that morning. Vietnam veteran Neil Lunney had good reason to remember the driver.”
There was then a “grab” of Mr Lunney saying –
“This guy wouldn’t let me pass and I had my wife with me, and he tried to roll us as we came off the bridge, down an embankment, but it was just my military training saved me.”
He claimed to have been pressured by police to identify the wrong man in a line up. The story included –
“LUNNEY: That’s the man I saw driving the car with the two little girls. I’ll take that to my grave. I mean, I don’t think there’s anything’ll ever make me change my mind.
McKINNON: Neil Lunney was so certain he had to restrain himself in court during the trial.
LUNNEY: What are we doing this for? That’s the man. That’s the man I saw there and I was on the verge of losing it, jumping the counter and racin’ over there to him.”
[7] The first respondent’s counsel advised the Court that from its point of view “there [was] no issue in relation to whether the program constituted a contempt”, without drawing any distinction between the Thwaite material and the Lunney material. He drew attention to the apology given by his client’s general manager Rodney John Hockey in an affidavit filed on 6 September 2001.
[8] Senior counsel for the second respondent conceded that the publication of the Thwaite material amounted to contempt, and apologised to the Court at the commencement of the hearing on 8 November 2002. He submitted that the Lunney material was a fair report of what he had said at the trial or alternatively that it so closely approximated what he had said that the necessary tendency to interfere with the administration of justice had not been established. In his final address he said that if the Court nevertheless made a finding of contempt in reliance on that passage, then his client would wish to apologise for it.
Whether publication of Lunney material contempt
[9] Liability for contempt depends on the potential effect of a publication on legal proceedings, assessed as at the time of the publication rather than in the light of subsequent events. The test has been formulated as whether the publication had a real and definite tendency, as a matter of practical reality, to prejudice or embarrass particular legal proceedings: Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 at 34, 46, 70 and 88. The necessary tendency must be proved beyond reasonable doubt. However, a publication will not constitute a contempt, even if it may be prejudicial to a case, if it is a fair and accurate report of proceedings in open court. A report is fair and accurate if it is “one which a person of ordinary intelligence using reasonable care might regard as giving a fair summary of the proceedings”: Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255 at 259.
[10] A comparison of the Lunney material with the transcript of his evidence at the Brown trial reveals that the material set out in paragraph [6] above was a fair report of what he said at the trial. There was an adequately close approximation between his evidence at the trial and the material broadcast with respect to what happened as he and his wife came off the bridge and his reliance on his military training. Further, it was a fair summary of his evidence to say that he claimed to have been pressured by police to identify the wrong man in a line up. During his evidence Mr Lunney did become distressed and frustrated with the questioning to which he was subjected. Several times the trial judge reminded him that he had to answer questions unless they were ruled improper, and at one point the trial judge told him to sit down. When he was being taken through some of his evidence at the committal, Mr Lunney said -
“He’s - he’s sitting there. What are we talking about this for? He’s sitting right there.”
The trial judge reminded him again not to make statements of that nature. The material broadcast contained a fair approximation of his behaviour in court and of his identification of the accused in court. There is nothing in the transcript approximating the passage –
“That’s the man I saw driving the car with the two little girls. I’ll take that to my grave. I mean, I don’t think there’s anything’ll ever make me change my mind.”
Nevertheless it is consistent with the whole tenor of his evidence.
Principles relating to penalty
[11] The Court must consider all of the circumstances surrounding the publication of the Thwaite material in deciding what, if any, penalty it should impose on each of the respondents. General deterrence is the primary objective of the penalty to be imposed: Director of Public Prosecutions (Commonwealth) v United Telecasters Sydney Limited (1992) 7 BR 364 at 376 (NSWCA per Kirby P). The usual penalty in the case of a corporate contemnor is a fine: Uniform Civil Procedure Rules rule 930(3); Registrar of the Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, No 40478/92, 21 April 1993, unreported per Mahoney JA). However, the Court has a discretion to decline to make any order even though it is satisfied that a contempt has been committed: Director of Public Prosecutions (New South Wales) v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 742; R v Sun Newspapers Pty Ltd; ex parte Attorney-General [1993] 1 QdR 682 at 690.
The second respondent
[12] A Current Affair was produced in Sydney. Its executive producer (Mr David Hurley) and its presenter (Mr Mike Munro), as well as its then corporate counsel (Mr Ben Reichel) all worked there. It had a bureau in Brisbane, headed by Ms Lisa Ryan, who had a general supervisory role and who was responsible for producing stories and liaising with the Sydney office.
[13] The trial of R v Brown commenced in the Supreme Court at Townsville on Monday 18 October 1999. On Thursday 21 October Mrs Thwaite and Mr Lunney gave evidence. On Tuesday 26 October Ms Ryan sent Ms McKinnon and a crew to Townsville to cover the trial. Ms Ryan instructed Ms McKinnon to liaise with Ms Melanie Wendt, a journalist who had been reporting on the trial for National Nine News, and to interview various people to obtain “grabs” for the story. Ms Ryan provided Ms McKinnon with a five page brief summarising information already obtained from potential interviewees. That relating to Mrs Thwaite read as follows –
“WITNESS:JEAN THWAITE
FORMER AYR SHELL SERVICE STATION
ATTENDANT
[ADDRESS]
[TELEPHONE NUMBER]
JEAN WILL ONLY SPEAK TO US. SHE SAYS SHE’LL ‘NEVER FORGET THE LOOKS ON THE CHILDRENS FACES THAT DAY’. SHE CLAIMS TO HAVE HEARD ONE OF THE GIRLS ASK BROWN “WHEN ARE YOU GOING TO TAKE ME HOME TO MUMMY”. SHE COULDN’T I.D. HIM FROM ANY OF THE PHOTOGRAPHS BUT HAD NO TROUBLE IDENTIFYING HIM FROM THE WITNESS BOX.”
[14] Early in the morning of Wednesday 27 October Ms McKinnon interviewed Mrs Thwaite. Prior to the interview Ms McKinnon understood that Mrs Thwaite had identified Mr Brown in Court, and she told her that all she had to do was tell her what she had told the Court. She asked Mrs Thwaite whether she thought the police had got the right man, to which she replied yes.
[15] Ms McKinnon arranged for tapes of the interviews to be sent to Ms Ryan in Brisbane through broadcasting facilities of the first respondent in Townsville. They worked on the script in the course of Wednesday and Thursday communicating by fax and by telephone. By Wednesday afternoon the script contained two possible endings - one based on a guilty verdict and one based on a not guilty verdict.
[16] Some time on Wednesday 27 October the jury retired to consider its verdict. The next morning they informed the trial judge that they were having difficulty agreeing on a verdict. Ms McKinnon telephoned Mr John Muldrew in Sydney, who was responsible for sub-editing the story. He suggested that a third possible ending be prepared, based on a hung jury. There were further discussions between Ms Ryan and Ms McKinnon. At 11.17 am on Thursday 28 October Ms McKinnon faxed Ms Ryan a further script containing a hung jury ending. Ms Ryan forwarded it to Mr Reichel in Sydney. Mr Hurley also faxed a copy to Mr Reichel about half an hour later. (The scripts could be transmitted electronically from Brisbane to Sydney, and it seems likely that he printed it in Sydney and then faxed it to Mr Reichel.)
[17] The scripts sent to Mr Reichel contained the following –
| “V/O | Just last week Mrs Thwaite testified that 87 year old Arthur Brown was that man. |
| JEAN GRAB 0821 | ‘I had a bit of a shock I really did |
| Q | So you think police have got the right man |
| I really think so’ 0829” |
Mr Reichel put a large “X” against this passage because he was aware that it raised the issue of the accused’s identification; as there was a possibility of a hung jury and therefore a retrial, he was concerned to ensure that this evidence had been given. In an affidavit filed on 8 November 2002 Mr Reichel said –
“22.I believe that I spoke with Leila McKinnon later that day, after speaking with Lisa Ryan. I believe that I asked Leila McKinnon whether that evidence was given and, if so, how she was aware that it had been given. This was my practice at the time. I cannot however recall what her response was. I do not recall having been told anything that led me to believe that Mrs Thwaite had not given such evidence.
23.I believe that I would have said words to the effect of ‘if that is the evidence that was given in court, then the story is ok’.
24.I took the comments in paragraphs 18 and 19 above, taken together as they appear in the scripts, to mean that Mrs Thwaite had testified that the man that Mrs Thwaite saw driving a car with two girls in it was the man who had been arrested by police, being Arthur Brown. In other words, I took it to be evidence regarding the identity of the person Mrs Thwaite saw driving the car.
25.At the time of reviewing the script I believed that the comments in paragraphs 18 and 19 above were a fair record of the criminal proceedings. I believe I would have confirmed this with either Lisa Ryan or Leila MacKinnon, as set out in paragraphs 14 and 22 above.”
He considered whether as a matter of practical reality the proposed segment had a real and substantial tendency to prejudice any retrial, but concluded that it did not, apparently on the basis that any retrial was unlikely to occur for several months. That such a time lapse was likely was pure speculation on his part.
[18] Mr Hurley described the production of the story as more difficult than many for several reasons: it was being prepared remotely from a regional area; there were three possible eventualities; it had to be fully edited to enable it to be broadcast on the evening the jury returned; and daylight-saving was operating in New South Wales (with the result that Sydney time was one hour ahead of Queensland time). He was eager for the story to go to air, and on the afternoon of Thursday 28 October he telephoned Ms McKinnon and asked her to find out whether the jury had a television, because he wanted to broadcast the story that evening even if the jury had not reached a verdict. She expressed reservations about broadcasting it in those circumstances, however Mr Hurley asked her to find out nonetheless.
[19] Ms McKinnon telephoned the associate to the trial judge with her inquiry. He said he would revert to her after speaking to the judge. While she was waiting for his call, Mr Hurley telephoned her again, and informed her that it had been decided not to broadcast the story if the jury were still deliberating.
[20] About 15 minutes later there was a meeting in the otherwise empty courtroom attended by the registrar of the Court (Mr Raymond Keane), the prosecutor (Mr James Henry), the defence counsel (Mr Mark Donnelly) and Ms McKinnon. Mr Keane expressed the Court’s concern that the story not be broadcast while the jury was still deliberating, particularly if it went beyond reporting facts given in evidence before the jury or if it held the accused out as guilty. Ms McKinnon informed those present of the decision not to broadcast while the jury was still out.
[21] In an affidavit sworn on 18 January 2000 Mr Henry recalled Mr Donnelly saying to Ms McKinnon that if the jury were discharged without returning a verdict it would be unwise and unfair to the accused to broadcast the story because of the possibility of a retrial. Ms McKinnon responded in an affidavit sworn on 7 November 2002 that she recalled him saying something like that. Mr Keane said in an affidavit sworn on 20 August 2001 that Mr Donnelly expressed the view that even if the jury were to return it would be unwise and unfair to his client to air the story, and that he mentioned that there could be a retrial. In cross-examination Mr Keane said that as soon as Ms McKinnon said that the story would not be broadcast while the jury was still out, he left the room and that there was no further conversation in his presence. I am satisfied that what Mr Keane said in his affidavit was correct, and that there was further conversation in his presence. I accept that with passage of time he had forgotten the subsequent conversation, which did not relate to his purpose in convening the meeting – which was to prevent the story being aired while the jury was still deliberating. I am satisfied beyond reasonable doubt that Mr Donnelly warned Ms McKinnon of the possibility of a retrial. I accept Mr Henry’s evidence that Mr Donnelly raised the possibility of a retrial; Ms McKinnon not only conceded in her affidavit that he said words to that effect, she expressly admitted in cross-examination that that afternoon when she was in the courtroom while the jury was still deliberating she appreciated that there was a possibility of a retrial. I accept her evidence that she also understood from Mr Donnelly’s comments that charges might be laid against the accused in respect of allegations that he had molested family members, that any further trial could be prejudiced by the airing of allegations that the accused had molested members of his own family at the creek bed where the Mackay sisters’ bodies were found. I accept that she said she had no intention of interviewing anyone who had not given evidence at the trial, that the story would be confined to the case and not to any other allegations, and that they had not interviewed any member of the accused’s family.
[22] Ms McKinnon, Ms Ryan, Mr Reichel and Mr Hurley all knew that to publish material suggesting that the accused was guilty while a trial was pending would amount to contempt of court. However, it did not occur to Ms McKinnon, Ms Ryan or Mr Reichel, or, it seems, Mr Hurley, that the story would need rewriting if there were a hung jury. Similarly it did not occur to anyone that the story should not be published in the Townsville district if there were a hung jury. (It would have been possible to have broadcast it in all states except Queensland, or even to have broadcast it in parts of Queensland other than Townsville.)
[23] At about 5.32 or 5.33 pm Queensland time the jury returned not having reached a verdict. A Current Affair had just commenced in Sydney (at 6.30 pm Sydney time). In Ms McKinnon’s words “It was tight”, and she left the courtroom immediately to telephone Mr Muldrew (the sub-editor) in Sydney. She told him it was a hung jury and therefore to play that ending. The story was broadcast shortly afterwards. In Queensland it was broadcast an hour later.
Allegations of Recklessness
[24] The originating application against the first respondent was filed on 20 January 2000. It contained the following particular of contempt (inter alia) –
“(d) The conduct of the [first] respondent in publishing the television program and the publication itself was reckless and carried out with indifference as to whether it would:-
(i) interfere with and/or prejudice the due course of justice in a re-trial;
(ii)influence potential jurors in the re-trial to convict the accused.”
The second respondent was joined in November 2001 and the application was amended accordingly. There was an allegation of recklessness in similar terms, as well as allegations (inter alia) -
“(g) The second respondent ignored a warning that publishing the television program could prejudice the trial of Arthur Stanley Brown.
(h) The second respondent did not warn the first respondent that to broadcast the television program could prejudice the trial of Arthur Stanley Brown.”
The second respondent sought further and better particulars. This was the response (insofar as the request related to recklessness) –
(i)on 18 October 1999 the trial of Arthur Stanley Brown for deprivation of personal liberty, indecent dealing of a child under the age of sixteen years and murder commenced at the Supreme Court at Townsville before His Honour Justice Cullinane and a jury;
(ii)on 28 October 1999, while the jury were out deliberating on their verdict, in the Court Room of the Supreme Court at Townsville, Layla [sic] McKinnon of the television program “A Current Affair” was told by Defence Counsel Mr Donnelly in the presence of the Registrar of the Supreme Court at Townsville Mr Keane and the Crown Prosecutor Mr Henry, that it would be unwise and unfair to the accused to broadcast the story because of the possibility of a retrial;
(iii)Ms McKinnon said she had personal reservations about the story going to air while the jury were still out and she had contacted her superiors and it had been decided not to run the story that evening while the jury were still out;
(iv)Subsequently on 28 October 1999 the jury were unable to reach a verdict and His Honour Justice Cullinane adjourned the trial of accused to the next criminal sittings of the Supreme Court at Townsville and granted bail to the accused;
(v)At 6.30pm on 28 October 1999 the program “A Current Affair” was broadcast by the respondents in the Townsville region.”
The same further and better particulars were relied on in relation to the failure to warn.
[25] The intention with which material is published is not relevant to whether its publication amounts to contempt, but questions of intention and recklessness are relevant to penalty: Director of Public Prosecutions v Wran (1987) 7 NSWLR 616 at 629 - 630.
[26] I accept that none of Ms McKinnon, Ms Ryan, Mr Reichel or Mr Hurley intended to prejudice or embarrass the accused’s trial. They were all aware that they could report evidence actually given in court, but they failed to carry out any adequate check into what Mrs Thwaite had actually said in her evidence. They were all aware that material suggesting that the accused was guilty or innocent should not be published while his trial was pending. They were all aware of the possibility of a hung jury: indeed a third ending was prepared to meet this outcome. However, they seem to have blithely assumed that a retrial, if it occurred, would be some time away, and they did not give any consideration to the necessity to rewrite the story to remove any material suggesting the accused was guilty. No one gave any consideration to the possibility of not broadcasting the story in the Townsville district. In their haste to put the story to air, they failed to give due consideration to its potential effect.
[27] Having regard to the criminal nature of contempt proceedings, a finding of recklessness can be made only if the allegation, as particularised, is proved beyond reasonable doubt. The sequence of discussions at the meeting in the courtroom was not as particularised in paragraphs (ii) and (iii) of the further and better particulars of recklessness. Indeed, I am satisfied beyond reasonable doubt that it was the reverse of what is alleged. This is significant because the particulars suggest that Ms McKinnon’s response to the warning not to broadcast the story because of the possibility of a retrial was to assure those present that it would not be broadcast while the jury was still out. In fact, that was something she had told them in the first part of the meeting, and her response to what Mr Donnelly said was that she had no intention of interviewing anyone who had not given evidence at the trial, that she was confining the story to the case and not to any other allegations, and that “we” (by which I assume she meant those acting on behalf of the second respondent) had not interviewed any members of the accused’s family. In short, I am not satisfied beyond reasonable doubt that the second respondent’s conduct was reckless as alleged.
[28] In assessing the seriousness of the second respondent’s contempt, it would be superficial to look only at the conduct of the persons principally responsible for the production and publication of the story. Attention needs to be focused also on whether it had established systems to reduce the risk of unintentional contempt, and the extent to which such systems were reinforced among its employees: Director of Public Prosecutions (New South Wales) v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 742. Its attitude to the contempt proceedings is also relevant to penalty.
[29] Mr Andrew Stewart has been the second respondent’s permanent corporate counsel since July 2000. In an affidavit sworn on 6 November 2002 he said that there were a number of processes in place to prevent material that might be in contempt from being broadcast -
(a)internal training - a presentation at each licensee (QTQ, TCN and GTV) on average yearly;
(b) 24 hour access to corporate counsel responsible for “legalling” stories;
(c)access to external advice;
(d)Nine’s Legal Guide for Journalists - a document prepared by Gilbert & Tobin, the second respondent’s legal advisers in Sydney, which was available to all journalists and which was regularly updated and circulated. It contained a pithy and accurate statement of the principles of sub judice contempt, with an unequivocally expressed list of material not to be published without legal advice.
[30] These processes were probably sufficient in theory, but there were shortcomings in their implementation. Although the script was sent to Mr Reichel for “legalling”, he did not advert to the need to rewrite the story if there were a hung jury or to the possibility of not broadcasting it in the Townsville district (as I have already observed). Although the legal guide may well have been available to all journalists some time before the Brown trial, its contents do not seem to have been prominent in the minds of anyone involved in the production of this story, and Ms Ryan and Ms McKinnon gave evidence of receiving it in November 2002. I am not satisfied that Mr Hurley, Ms Ryan or Ms McKinnon attended training sessions regularly. There seems to have been some attempt to remedy these deficiencies, at least in terms of reducing the risk of future contempts, but largely only after the hearing of this application had commenced. In making these findings, I have had regard to the following evidence:
(a)This application was heard over two days ten days apart (8 and 18 November 2002). Mr Hurley, A Current Affair’s executive producer, was cross-examined by telephone on the first day. He is a journalist of about 30 years’ experience; since the mid to late 1980’s he has worked in television, and he has been with Channel 9 since 1988. He was questioned as follows by senior counsel for the applicant -
HANSON QC: “Does Channel 9 have a set of guidelines for journalists and broadcasters dealing with the possibility of committing contempt of Court and how to avoid that?
HURLEY: We’ve had – not in the accepted sense of laid down written material originally, but certainly we have had in more recent years briefings and updates from our legal counsel, both in-house and advisory.
HANSON QC: At the time of this broadcast with which we’re concerned were there written guidelines in place as to how to avoid committing contempt of Court?
HURLEY: Not that I – look, not that I can honestly recall, but certainly I’m not in any sense trying to retreat from general awareness within our profession of those considerations, both of contempt, trespass, defamation and other issues.”
(b)Mr Stewart was present in Court when that evidence was given. After lunch on the first day he gave oral evidence. The following occurred in re-examination -
“MULHOLLAND QC: You heard the questions asked of him in relation to written guidelines?
STEWART: I heard those questions, yes.
MULHOLLAND QC: You heard him say that he was not aware of written guidelines?
STEWART: Yes.
MULHOLLAND QC: Can you help us – help the Court in relation to that, are there written guidelines issued to journalists?
STEWART: There are written guidelines issued to journalists. The attachment to my affidavit is an extract of those. I believe Mr Hurley must have been mistaken about his evidence or perhaps misunderstood the question. On the 19 – over the luncheon period I have contacted my office and from the records at my office, I can confirm my recollection I conducted a training program on the 19th of June this year with an external lawyer from Sydney attended by Mr Hurley and I recall handing out copies of the latest version of the guide at that time to the people attending including Mr Hurley.
MULHOLLAND QC: So, what, you were somewhat surprised to hear Mr Hurley say that?
STEWART: Very surprised.
MULHOLLAND QC: What action do you intend to take about that, having heard that given in evidence this morning?
STEWART: I intend to do two things: firstly, I intend to raise the – remind Mr Hurley that I had, in fact, distributed the guide to him but I also intend to send an e-mail to all journalists within the network attaching a copy of the latest version and reminding them of their responsibilities to make themselves familiar with it.
MULHOLLAND QC: When do you intend to do that?
STEWART: Monday.”
(c)On 11 November 2002 Mr Stewart sent an email message to “all users within TCN, GTV, QTQ and NTD”. Against “Subject” appeared –
“MESSAGE FROM THE LEGAL DEPARTMENT: HOW TO AVOID GETTING SUED OR GOING TO JAIL”.
Recipients of the message were told to read the attachments which were a memorandum from Mr Stewart to all journalists and a copy of the Legal Guide for Journalists.
(d)Ms McKinnon has been a journalist employed by the second respondent since January 1996. She gave oral evidence on the second day of the hearing. She said she had first seen the legal guide in 1997. She had been trained to understand that she could not run a story saying that a person was guilty if his/her trial was still pending. She had received a copy of the legal guide two weeks before giving evidence, and again as part of Mr Stewart’s email (which she had received on 16 November 2002, having been on assignment in the meantime).
(e)Ms Ryan has been a journalist employed by the second respondent for about nine years. She also gave oral evidence on the second day of the hearing. She had received the guide the week before and been told to read it, which she had done. She said that had not been the first time she had heard of the sorts of things set out in the guide, and she recalled having been required to attend a training session at QTQ in Brisbane conducted by Mr Stewart. He gave evidence of conducting a training session in Brisbane, attended by about 15 journalists including Ms Ryan, in about October 2001.
[31] The second respondent first learnt that contempt proceedings had been initiated in January 2000, but it did not appreciate their seriousness, and indeed forgot about them, until late 2001 when steps were taken to join it as a respondent. The mitigating force of its admission that publication of the Thwaite material amounted to contempt and its apology to the Court is tempered by the consideration that they were not made until the commencement of the hearing on 8 November 2002 (almost a year after it was joined as a party). In making these findings I have relied on the evidence summarised in the succeeding sub-paragraphs, and I have not overlooked the fact that there was a suppression order in force from January 2000 to November 2001.
(a)In his affidavit filed on 8 November 2002 Mr Reichel swore that he was not aware that any contempt proceedings had been commenced in relation to the story until late 2001, possibly in August or September. Mr Stewart said in his affidavit sworn on 6 November 2002 that he was not aware of any contempt proceedings until on or about 13 September 2001 when he received a letter from the applicant’s solicitor.
(b)Between the two hearing days Ms Ryan reviewed the contents of A Current Affair’s central filing system in Brisbane and located two files, only one of which she had previously provided to Mr Stewart. On the file not previously sent to Mr Stewart were a number of copies of a fax from Mr Hockey of the first respondent to her dated 21 January 2000. She said she had no recollection of receiving any of those faxes. There was also a fax cover sheet completed in her handwriting, addressed to Mr Reichel and Mr Hurley and dated 27 January 2000, to which was attached a complete copy of the fax from Mr Hockey. There was a fax cover sheet on the first respondent’s letterhead. The message, which was handwritten and signed by Mr Hockey, was addressed to Ms Ryan and marked -
“cc Ian Muller
Lee Anderson”.
Mr Muller was the chief executive officer of QTQ 9, and Mr Anderson was its news director. Three fax numbers were shown, one of which was that of A Current Affair. The message was in these terms -
“Lisa
As discussed find following Court order received today. Our advice is that this is a very serious situation. Subsequently I would like to discuss a plan to red flag any future possibilities of this occurring again.”
Copies of correspondence from the applicant’s solicitor dated 20 January 2000, the originating application, an ex parte application, the affidavit of Mr Henry and the suppression order were attached. Ms Ryan said she believed she would have sent the fax to Mr Hurley and Mr Reichel, but she had no recall whether she in fact did so.
(c)Mr Hurley said in an affidavit sworn on 13 November 2002 that he had no recollection of receiving the fax, and, despite a search of all the files in both his office and in the unit manager’s office, he had not located it. He had no recollection of any discussion with Mr Reichel in relation to such a fax.
(d)Mr Reichel swore a further affidavit on 13 November 2002, to which he exhibited a copy of a fax to him from Ms Ryan dated 27 January 2000. The fax consisted of a cover sheet, and all of the material faxed by Mr Hockey to Ms Ryan (including the cover sheet with Mr Hockey’s handwritten message). On the cover sheet addressed to Mr Reichel, he had handwritten notes of a telephone conversation between him and Ms McKinnon as follows –
“T/T Leila McKinnon
- Hurley asked her to check whether story could go to air before jury returned
- prosecutor & defence didn’t want ACA to mention the fact that Brown being investigated for molesting grandkids
- she called Registrar - he said up to us to take risk - then they called her in to ct-room for a chat (prosecutor, defence, registrar, & poss. bailiff).
(ie aff para 11 is incorrect).”
There was an arrow connecting the note about Mr Hurley to that about her calling the registrar, and another arrow connecting the investigation for molesting grandchildren to the note about paragraph 11 of the affidavit. Mr Reichel said in his affidavit that he still had no independent recall of receiving the fax or of the conversation with Ms McKinnon. He said in cross-examination on the second hearing day that he had no recollection of any discussion with Mr Hockey to prevent a recurrence of what had taken place, and that he was not aware of any changes to the procedure for reviewing stories to avoid a risk of contempt.
(e)Ms McKinnon said in an affidavit sworn on 14 November 2002 that she recalled being aware of contempt proceedings a few months after the story, but she could not recall how she came to be aware of them.
(f)In his affidavit of 13 November 2002 Mr Stewart said that after Ms Ryan had located the further file in Brisbane, he had arranged a further search of the legal department’s files which had revealed the existence of the fax from Ms Ryan to Mr Reichel, including the cover sheet bearing his handwritten note of his conversation with Ms McKinnon.
[32] There never was a retrial of the accused, for reasons unconnected with the broadcast of this story. While that would have been irrelevant to the question of whether there was a contempt (had that been in issue), it is nevertheless relevant to penalty: see R v West Australian Newspapers Ltd (1996) 16 WAR 518 at 533 - 534.
[33] The second respondent is a very large public company. The nature of its business is such that it has the capacity to exert great influence on members of the community, both individually and collectively. It has a commensurate obligation to use its power responsibly. Regrettably it failed to do so on this occasion, exceeding the bounds of legally acceptable conduct. Its position in the community and its financial resources are relevant to the assessment of the penalty to be imposed: Attorney-General for New South Wales v TCN Channel Nine Pty Limited (NSWCA, No 40138/90, 11 October 1990, unreported). So, too, is the fact that it has not previously been found guilty of contempt in its history of broadcasting since 1957: Director of Public Prosecutions (New South Wales) v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 742. (There has been just one previous finding of contempt against a related company; it concerned a broadcast in 1989: Attorney-General for NSW v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.)
[34] A large number of cases, mostly from New South Wales and Western Australia, was put before the Court in relation to the quantum of the fine that might be imposed. They included Attorney-General for New South Wales v TCN Channel Nine Pty Limited (NSWCA, No 40138/90, 11 October 1990, unreported); Director of Public Prosecutions v Wran ((1986) 7 NSWLR 616; Attorney-General for New South Wales v Radio 2UE Sydney Pty Ltd & Laws (NSWCA, No 40236/96, 11 March 1998, unreported); Director of Public Prosecutions (Commonwealth) v United Telecasters Sydney Limited (1992) 7 BR 364; R v Thompson [1989] WAR 219; R v Pearce (1992) 7 WAR 395; R v West Australian Newspapers Pty Ltd (1996) 16 WAR 518; R v Nationwide News Pty Ltd ex parte Director of Public Prosecutions (Commonwealth) (WASC, FC 2014/96, 25 September 1997, unreported); R v Nationwide News Pty Ltd ex parte Director of Public Prosecutions (Western Australia) (WASC, FC No 1763/95, 16 September 1996, unreported); and R v 6IX Southern Cross Radio Pty Ltd; ex parte Director of Public Prosecutions (Western Australia) [1999] WASCA 254. The fines imposed ranged between $2,500 and $200,000 in Wran’s case, where recklessness was established.
[35] The quantum of the fine must be adequate to serve as a general deterrent to broadcasters and to others, and it must reflect all of the circumstances of the contempt, including the absence of intention or recklessness. In my view the second respondent should be fined $80,000.
The First Respondent
[36] The first respondent is a regional broadcaster, much smaller and with far fewer resources than the second respondent. It produced its own news programs but lacked the resources to produce current affairs type programs. It entered into an arrangement with the second respondent for A Current Affair to be sent to it by satellite so that it could in turn broadcast it to local audiences. No employee of the first respondent was involved in the preparation or presentation of the program, and there was no practical opportunity for the first respondent to review, edit or alter it before it was broadcast. The second respondent acknowledged that this was so, and that it expected that the first respondent would broadcast the program in the form in which it was supplied to it.
[37] The system used by the first respondent to guard against the commission of contempt in the broadcasting of material obtained in this manner from the second respondent depended upon the second respondent’s alerting it to any potential legal problem in relation to it. There was no provision for the making of an independent judgment in the absence of such a warning. Mr Hockey said -
“Although such occasions are rare, the system has worked well in the past and WIN has always erred on the side of caution so as to exclude material from being broadcast”.
[38] The inadequacy of this system was recognised by Mr Hockey in his fax to Ms Ryan of 21 January 2000, where he said he wanted “to discuss a plan to red flag any future possibilities of this occurring again”. However, there was no evidence put before the Court to suggest that anything has since been done to improve the system.
[39] There is no basis for a finding of recklessness against the first respondent.
[40] The first respondent has not previously been charged with or convicted or any contempt. To its credit, it admitted the contempt and apologised to the Court at an early stage.
[41] Counsel for the first respondent urged the Court not to make any order in respect of its contempt because it was a mere conduit in the transmission of the program. To adopt that course would be to condone the first respondent’s effective abrogation of responsibility for material it put to air. In the regions in which it operated, its potential influence on viewers was substantial, and its duty to uphold the integrity of the justice system by avoiding contempt was direct, not in any sense derivative.
[42] In my view the first respondent should be fined $10,000.
[43] I will ask counsel for submissions on the form of the orders and on costs.
Addendum
[44] After the publication of these reasons, the parties agreed upon the terms of the orders. Accordingly, I make orders in these terms:
(i) that the first respondent is guilty of contempt and is fined the sum of TEN THOUSAND DOLLARS ($10,000.00) to be paid to the Registrar of the Supreme Court of Queensland within 28 days from the date of this order;
(ii)that the second respondent is guilty of contempt and is fined the sum of EIGHTY THOUSAND DOLLARS ($80,000.00) to be paid to the Registrar of the Supreme Court of Queensland within 28 days from the date of this order;
(iii) that the first and second respondents pay the applicant’s costs of and incidental to the Originating Application to be assessed.