ATTORNEY GENERAL FOR NEW SOUTH WALES v TCN CHANNEL NINE PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, KIRBY P and PRIESTLEY JA 20 September 1990, 11 October 1990 [1990] NSWCA 8 CONTEMPT — penalty — relevant facts set out in judgment published on 31 August 1990 — objective features serious — subjective matters taken in mitigation including no prior convictions, full apology — HELD — an appropriate penalty was a fine of $75,000. Gleeson CJ, Kirby P and Priestley JA. On 31 August 1990 we indicated, for reasons published on that day, that we proposed to make declarations to the effect that the Opponent was guilty of contempt of court by reason of its conduct in respect of two television broadcasts both of which occurred on 30 July 1989. Subsequently we heard evidence and argument on the matter of penalty. It was agreed between the parties that, notwithstanding that there were two acts of contempt, if we were of the view that the imposition of a pecuniary penalty were otherwise appropriate in all the circumstances it would be appropriate to impose one fine rather than two. We intend to deal with the matter on that basis. The relevant facts are set out in our reasons for judgment published on 31 August 1990 and we shall not repeat them. The additional evidence tendered following the publication of those reasons consisted of an affidavit of a gentleman who is now (but was not at the relevant time) the Director of Broadcast Policy of the Opponent. His evidence was not in dispute. It showed that on 30 July 1989 there were in existence certain guidelines prepared by the Opponent for the benefit of its employees and dealing with the subject of the law of contempt of court. Those guidelines were widely disseminated throughout the Opponent's organisation. Following the decision of this Court on 31 August 1990 the guidelines have been re-drafted in certain respects. It was submitted on behalf of the Opponent that both the original and the amended guidelines demonstrated that at all material times the Opponent has made genuine and serious efforts to draw to the attention of its employees the importance of observing the law relating to contempt of court and to explain to them, in a manner appropriate to the performance of their duties, the practical operation of that law. We accept that submission. It is of interest to note that the guidelines as they existed in July 1989 commenced with the following statement: "A basic principle underlying all crime and court reporting is that everyone is innocent until proven guilty. It doesn't matter whether we think a defendant is guilty, or whether the police believe he is. Until he is tried and convicted, all our reporting must be on the basis that any criminal deeds attributed to him are no more than claims or allegations which may or may not be true. A second important principle is that courts have absolute power to ensure a fair trial and we must do nothing to prejudice a defendant's chances." 2 UNREPORTED JUDGMENTS As appears from our earlier reasons for judgment, the evidence in the present case made it clear that those in the Opponent's organisation concerned with the production of the relevant material, and in particular the journalist Mr Barrett, were conscious of the law of contempt, and of the risk involved in the instant case, and Mr Barrett in certain respects set out to reduce that risk by moderating or qualifying some of the language used by the police in informing the media of what had occurred concerning the apprehension of Mr Mason and his subsequent confessions. The Opponent is entitled to some credit for what was done in that regard although, as has earlier been said, it does not operate to remove guilt. The objective features of the case are serious. We have already described them in detail. On the other hand, there are some matters which go to mitigate the penalty which would otherwise be imposed. Two of them are mentioned above. Of particular importance in favour of the Opponent is the circumstance that, since 1957, it has carried on an extensive business of television broadcasting without ever having previously been found guilty of an offence of the kind now charged. The Opponent comes before the Court as a first offender. We take this as an indication of a consistent and conscientious effort, over the years, to observe its legal obligations. Further, it reflects the fact that the Opponent operated a system designed to prevent occurrences of the kind that have given rise to these proceedings, although, regrettably, the system broke down in the present case. According to that system the persons involved in the production in question were instructed to seek legal advice and we accept that it was their failure to do so that is largely responsible for what occurred. Finally, after having been found guilty of contempt, the Opponent, by its senior counsel, offered to the Court a comprehensive apology. We do not doubt the sincerity of that apology. Nevertheless, we consider that the case warrants the imposition of a fine. It is important that the Court should mark its disapproval of publications of the kind here involved, having a distinct and significant tendency to interfere with the proper administration of criminal justice. It is also important that the Court should recognise the need for deterrence, both general and particular. There are certain features of the present case which illustrate that need. We believe that the journalists in question were conscious that they were at least running a risk, and we cannot avoid the conclusion that their willingness to run that risk was related at least in part to the competitive pressures under which they were operating and the need to keep up with their rivals in the prompt publication of sensational matter. Pressures of that kind explain, but do not excuse, the conduct in question. Their existence, which is bound to continue, underlies the need for courts to be conscious of the practical importance of taking appropriate deterrent measures. Reliance on good intentions is not sufficient. The Opponent is a corporation with extensive business and, no doubt, financial resources appropriate to the operation of such a business. We have no detailed evidence before us as to the finances of the Opponent, but the evidence as to the extent of its broadcasting operations and audience makes it obvious that we are dealing with a large media organisation. The size of the Opponent's business is relevant to the objective seriousness of the offences, in that the extent of the viewing audience of the broadcasts in question is closely affected by that matter. It is, however, also relevant to the question of the extent of any financial penalty imposed in aid of deterrence. (XL Petroleum NSW Pty Limited v Caltex Oil Pty Limited (1984-5) 155 CLR 448 at 461-472; Borrie and Lowe, Law of Contempt (2nd Ed 1983), 368). UWRJORNEY GENERAL FOR NEW SOUTH WALES v TCN CHANNEL NINE PTY LIMITER (Gleeson Cu, Kirby P and Priestley JA) In the circumstances, and having particular regard to the strong subjective matters relied upon by the Opponent, we consider that an appropriate fine is $75,000. Accordingly we make the following declarations and orders. 1. » DECLARE that the Opponent is guilty of contempt of court for broadcasting on television on 30 July 1989 matter which was likely or had a tendency to interfere with the administration of justice in connection with the trial of Paul Gerald Mason on three charges of murder and one charge of attempted murder. DECLARE that the Opponent is guilty of contempt of court for providing the said matter to TWT Limited ("WIN") a licensee under the Broadcastine Act 1942 and the operator of television channel WIN knowing that the said matter would be likely to be broadcast on television by WIN, as it was in fact broadcast on television by WIN, on 30 July 1989. ORDER that the Opponent be fined $75,000 for such contempt of court. ORDER that the Opponent pay the Attorney General's costs of and incidental to the proceedings. Counsel for the Claimant: Mr BM James QC, P Lakatos Counsel for the Opponent: Mr FM Douglas QC, J Simpkins Solicitors for the Claimant: Mr HK Roberts, State Crown Solicitor Solicitors for the Opponent: Allen Allen and Hemsley