REGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and SHELLER JJA 16 and 17 February 1993, 21 April 1993 [1993] NSWCA 229 The second opponent, a journalist employed by the first opponent, researched, wrote, and submitted for publication an article attacking the credibility of an important defence witness in a criminal trial. The article was published in the first opponent's newspaper during the trial. The first opponent pleaded guilty and the second opponent not guilty to charges of contempt of court "in that [they] caused to be published.... matter which was likely to interfere with the administration of justice... ". There was evidence that the second opponent knew that the trial was continuing, expected that the article would be published before the end of the trial, but believed that the article would be checked by the first opponent's lawyers before publication. It was never submitted to the first opponent's lawyers. Held: The First Opponent 1. The publication of the article was a serious contempt resulting from the first opponent's defective system of control; a penalty sufficiently severe to act as a deterrent would be appropriate. The Second Opponent 2. (Mahoney and Sheller JJA) The second opponent, in preparing a contemptuous article and submitting it for publication in the expectation that it would be published during the trial, sufficiently caused the publication, and was consequently in contempt of court when it was so published. (Priestley JA, dissenting). The second opponent's intention was that the article should be published after legal checking and not in the form in which she had written it if that were contemptuous, so the case against her was not proved. District Court Act 1973 Her Majesty's Attorney General for New South Wales v Radio 2UE Sydney Pty Ltd and Jones (Court of Appeal, 28 August 1992, unreported) Murphy v The Queen (1985) 158 CLR 596; (1985) 4 NSWLR 42; (1986) 5 NSWLR Sankey v Whitlam (1978) 142 CLR 1 Jackson v The Queen (1987) 8 NSWLR 116; (1987) 11 NSWLR 318 Greiner and Moore v Independent Commission Against Corruption (Court of Appeal, 21 August 1992, not yet reported) The Queen v Glennon (1992) 173 CLR 592 Hinch v Attorney General for Victoria (1987) 164 CLR 15 Dietrich v The Queen (1992) 67 ALJR 1 John Fairfax and Sons Ltd v McRae (1954) 93 CLR 351 Director of Public Prosecutions v John Fairfax and Sons Ltd (1987) 8 NSWLR 732 Her Majesty's Attorney General for New South Wales v Radio 2UE Sydney Pty Ltd and Jones (Court of Appeal, 19 March 1993, not yet reported) March v E and MH Stramare Pty Ltd (1991) 171 CLR 506 Barnes v Hay (1988) 12 NSWLR 337 Attorney General for New South Wales v TCN Channel 9 Pty Ltd (1990) 20 NSWLR 368 R v Parke [1903] 2 KB 432 2 UNREPORTED JUDGMENTS Attorney General for New South Wales v Dean (1990) 20 NSWLR 650 Director of Public Prosecutions v Wran (1986) 7 NSWLR 616 Daw v Eley (1868) LR Equity 49 Ex parte Hovell (1869) 8 SCR (NSW) L 163 Attorney General (NSW) v Willesee (1980) 2 NSWLR 143 R v Griffiths, Ex parte the Attorney General [1957] 2 QB 192 R v Evening Standard Co Limited [1954] 1 QB 578 R v Odhams Press Limited, Ex parte the Attorney General [1957] 1 QB 73 International Covenant on Civil and Political Rights, Article 14 Borrie and Lowe's Law of Contempt, 2nd ed Mahoney JA The defendant Miss Jones prepared and the defendant John Fairfax Group Pty Ltd ("Fairfax") published an article which was a breach of the law: Fairfax admits that it was so. But it did not publish it with the intent to breach the law. The publication took place because the routines which had been set up by Fairfax to prevent that happening had not been observed. The main issue to be determined is whether a fine should be imposed for such a breach of the law and what it should be. In order to do this it is necessary to examine the nature of the offence and the function to be served by punishment for it. 1. THE NATURE OF THE OFFENCE: What is here involved is the right to a fair trial. Those who have seen the inside of a gaol will understand why the criminal law protects it as it does. The defendant Miss Jones prepared and the defendant Fairfax published an article which, if read by the jury, would probably have prejudiced the fairness of a trial for a serious offence. When it was published, the trial had been proceeding for a number of days and at the end of it the accused was sentenced to gaol because of it. By good fortune, the jury did not read it. The judge's general direction to them had proved effective: it might not have been. The law protects the fairness of a trial for, amongst others, two reasons: one social and the other monetary. It sees a fair trial as central to a free society. A fair trial is a safeguard against the abuse of power, by government, police, those in public office, and those in the private area who, for good reason or bad, would have a person sent to gaol otherwise than as the law provides. A fair trial is not a privilege of the guilty. In this case, the person being tried was found guilty. But, as has been said, if the guilty do not have a fair trial, the innocent will not: Her Majesty's Attorney General for New South Wales v Radio 2UE Sydney Pty Ltd and Jones (Court of Appeal, 28 August 1992, unreported). In recent memory, criminal charges have been brought against a senior judge: Murphy v The Queen (1985) 158 CLR 596; (1985) 4 NSWLR 42; (1986) 5 NSWLR 18; a Prime Minister: Sankey v Whitlam (1978) 142 CLR 1; a cabinet minister: Jackson v The Queen (1987) 8 NSWLR 116; (1987) 11 NSWLR 318; cf Greiner and Moore v Independent Commission Against Corruption (Court of Appeal, 21 August 1992, not yet reported); a clergyman: The Queen v Glennon (1992) 173 CLR 592; and prominent media identities: Hinch v Attorney General for Victoria (1987) 164 CLR 15; Her Majesty's Attorney General for New South Wales v Radio 2UE Sydney Pty Ltd and Jones (Court of Appeal, 28 August 1992, unreported). The right to a fair trial is central to individual human rights: see the International Covenant on Civil and Political Rights, Article 14. It stands high in the values of the Australian community: Dietrich v The Queen (1992) 67 ALJR 1 at 2, 18, 33, 38. UFEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Mahone9 JA) There are also practical monetary reasons why the fairness of a trial is protected. Criminal trials are costly, to the public and to the parties involved. A publication such as the present can cause a trial to be stopped, the jury discharged, and the trial recommenced. The cost to the public and the parties will often be great. The cost may be so great that the crime will not be pursued and the offender will not be punished. Those who publish for profit must be conscious of this; the evidence for Fairfax showed that they are. They are expected to act accordingly. Considerations such as these show why the law protects the fairness of a trial and why interference with it is dealt with as it is. The offence of interfering with a fair trial does not depend upon the intention to do so: John Fairfax and Sons Ltd v McRae (1954) 93 CLR 351 at 371; Hinch v Attorney General for Victoria (1987) 164 CLR 15 at 46 et seq. Like the driver on a public road who must take care not to injure those in his way, those whose actions may affect the fairness of a trial must take care that they do not do so. Precautions must be taken. In this regard, care is not a virtue but a duty. What was done here could have had serious results. Mr Nicholas QC, for the defendants, did not suggest otherwise. If the jury had read what was published, the trial judge would have had to discharge them and direct a retrial: at least, that probably would have happened. If the judge had not learned that the jury had read it, the person on trial could have been convicted and sentenced to gaol unfairly. It was by good fortune and the prior direction of the judge that that did not happen. What was done by Fairfax was wrong and obviously wrong. The accused had called a witness to corroborate a defence which he had set up. The defence depended upon that witness being accepted: at least, the acceptability of the witness was important. While the trial was still going on, the defendants published a full page article in a Sunday paper suggesting that the witness was a person such that a juror who read it would hardly accept him. Had that been done wilfully, the sanction for it must have been very serious. The then editor of the publication, Mr Hickie, whose evidence I accept, was conscious of the damage that such an article could do. He detailed the routines which had been established to prevent such a thing happening. He and his senior staff were, he said, conscious of the problem. But in this case the routines were not observed. The evidence did not satisfactorily explain why they were not observed. 2. THE SANCTION FOR THE OFFENCE: I come now to consider the sanction for such an offence. The present proceeding is a summary trial for an indictable offence. Conventionally the sanctions are imprisonment or fine for an individual and sequestration or fine for a body corporate: see generally John Fairfax and Sons Ltd v McRae (1954) 93 CLR 351 at 360 et seq. It is not suggested here that, if a sanction is to be imposed, it should be otherwise than a fine. Subject to what I shall say in respect of Miss Jones, neither Fairfax nor Miss Jones did what they did deliberately: their default lay in failing to do what they should have done to avoid interfering with the trial. The problem is to determine whether a fine should be imposed and, if it should, the quantum of it. The purposes of criminal sanctions have sometimes said to be four: to punish the offender; to mark the offence; to deter further offences; and to assist rehabilitation. The last of these may be put aside in such cases as this. 4 UNREPORTED JUDGMENTS Punishment of an offender is legitimate: if there were no punishment for crime, the purpose of declaring it criminal might be defeated. But the need for punishment and, accordingly, the extent of the punishment is affected by, amongst other things, the subjective element of what was done. In some cases, there may be little point in punishing an offender. The publication may have occurred, for example, without the malice or the negligence of the party charged. In the present case, it was suggested, routines had been set up by Fairfax to prevent the publication of such material where the fairness of a trial might be prejudiced and the publication occurred by an unfortunate accident. The suggestion was that the company's legal advisers, if consulted, would have prevented the publication; that procedures had been established to ensure that editors and reporters referred such material to the legal advisers before publication; and that the reason why, in this case, the legal advisers did not see it was because Mr Hickie thought it had been referred to the legal advisers by his senior staff, his senior staff did not refer it because they thought he had referred it, and Miss Jones did not take precautions to ensure it was referred because she assumed that those above her would have done so. I accept that publication was, to an extent, the result of mistaken assumptions of this kind but I do not accept that that was the complete explanation. The point of establishing safeguards is defeated if the safeguards are not observed. Mr Hickie, in his evidence, spoke frankly about this matter. I agree with Sheller JA that what was done by those concerned was less than was to be expected of them. The article was a full page feature article. What was said in it and the publication of it at the time were so obviously wrong that, as the Solicitor General suggested, it is proper to conclude that less than full care was taken in relation to it. In Director of Public Prosecutions v John Fairfax and Sons Ltd (1987) 8 NSWLR 732 at 748 to 749, in a dissenting judgment, I referred to the significance of precautions taken to prevent the commission of such an offence as this. In that case, I concluded that, in view of the precautions that had been taken, a fine was not required. The majority of the court took a different view. Similar precautions were referred to in the present case. But to publish the present article when it was published was so plainly wrong that I see this case as different from the case there under consideration. It is proper to mark the public disapproval of the commission of a crime, particularly a serious crime. This can sometimes be done merely by what a court says upon conviction. But it has been accepted, as a general principle, that the imposition of an appropriate sentence is one way in which the seriousness of the crime is to be brought home to the person who committed it and generally to the community. The extent to which this factor should weigh in determining whether a sentence should be imposed and the nature of it is, in my opinion, to be weighed with care. The need to mark a crime with public disapproval does not, I think, justify a sentence which operates unjustly to the individual or in the circumstances of the case. But it remains a matter to be taken into account. To do this is not, as such, criticism of what Fairfax did in an endeavour to ensure that such articles as these be not published. But if public disapproval is to be marked, a fine is, in the circumstances, the only way in which that can effectively be done. The factor of deterrence raises different issues. It involves deterrence not merely of Fairfax and those for whose conduct it is responsible but of others who may offend similarly. I am conscious that Fairfax has demonstrated, by what Mr Hickie has said, the desire and the purpose of avoiding offences of this kind. But in this case those for whose conduct it is responsible failed to carry through the UFEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Mahone§ JA) procedures which had been set up. In Director of Public Prosecutions v John Fairfax and Sons Ltd (1987) 8 NSWLR 732, the members of the court took into account the procedures which then had been set up in the organisation for this purpose. Some allowance was, I think, made on that occasion upon the belief that those procedures would be observed and the commission of such offences avoided. That has not happened. The company now before the court is a different company but the organisation and some of the persons involved are common. This is relevant in determining the effect by way of deterrence which the previous fine had and what the present offence warrants. In the circumstances of this case, I see no practical alternative to the imposition of a significant fine. It is accordingly necessary to determine the size of it. Fairfax should, I think, have the advantage of the fact that, by good fortune, no actual damage was done. Had the trial been aborted, the penalty would have been greater. In fixing the fine, it is proper to have regard to the circumstances of Fairfax. The court is entitled to know that the article was published as part of a substantial newspaper published for profit. The publication was made not as an isolated act but as part of that continuing business. The possibility of repetition and the need for deterrence are therefore relevant. And the court may know that the business is one of large size and substantial assets. It is not for this purpose necessary to pursue its liabilities. This is significant because a fine which would satisfy sentencing requirements in the case of an individual would be and be seen to be inappropriate to an organisation of such size and assets. A small fine would not accord with the seriousness and purpose of the occasion. I agree with the penalty proposed by Sheller JA. It accords with the circumstances of the case and is not inconsistent with the level of fines previously imposed in other cases: cf recently Her Majesty's Attorney General for New South Wales v Radio 2UE Sydney Pty Ltd and Jones (Court of Appeal, 19 March 1993, not yet reported). 3. THE LIABILITY OF REPORTERS: Thave to this point dealt with the position of Fairfax. The defendant Miss Jones pleaded not guilty. I come now to consider her position. It is clear that in some cases a reporter who has prepared the report which is published will be guilty of the present crime; in other circumstances she will not. Stated in general terms, the present crime consists in doing that which, in a real sense, is apt to interfere with the fairness of the trial. It is not necessary to pursue the precise nature of the offence. The principles have recently been referred to in Hinch v Attorney General for Victoria (1987) 164 CLR 15. In circumstances such as the present, the vice of what was done lies not in the mere preparation of the article but in the public publication of it; a private statement of what was said in it would ordinarily not have the relevant tendency. It is public publication which, special cases apart, will be the nub of the offence with which a reporter is concerned. The reporter does not ordinarily do those physical acts which are the publication of the article to the public. Her role will be to prepare the material which is to be published. Her liability will therefore ordinarily be secondary, that of an accessory or person knowingly concerned in that which constitutes the offence, the publication of the article. There may be circumstances in which the reporter's liability goes beyond this. The reporter may be actually concerned in the publication of the article or, whilst not concerned in the physical acts constituting publication, may in the relevant sense cause the publication to take 6 UNREPORTED JUDGMENTS place. In such cases, the reporter may, to adapt language more appropriate to other offences, be liable in the first degree rather than as a party in the second degree. If the liability of the reporter is not for publication as such or causing publication but arises only from the assistance given to the publication, it will be necessary to determine whether what the reporter did had such a connection to the ultimate publication as constituted an offence. This will require consideration of the kinds of questions arising in other cases in which liability of a secondary kind has been considered. This may be illustrated by reference to the facts of the present case. The vice of the action of Fairfax lay not in the publication of the article alone; it lay in the publication of it at a time and in circumstances such that the publication was apt to prejudice the fairness of the trial. If the reporter wrote an article for publication but did so upon the basis that it would not be published at a time or in circumstances when the publication would prejudice the relevant trial, then ordinarily the reporter would not be accessory to the criminal publication of it. On the other hand, if the reporter knew the article was for publication and was to be published during the trial when prejudice would be apt to result, then her actions would ordinarily be sufficiently accessory to the ultimate publication as to involve criminal liability. In the present case, at the commencement of the hearing the charge against Miss Jones was, without objection, amended to charge that she had "caused" the publication of the article. Discussion took place at the hearing upon the question whether what Miss Jones had done satisfied such a description of the offence and whether, if it did not, she should be acquitted. There is, I think, a distinction to be drawn between the offence or charge itself and the statement of the particulars of it in the instant case. I am inclined to the view that the description of Miss Jones' offence by use of "caused" is a statement of the particulars rather than the charge. But, however that be, I agree with Sheller JA that the facts proved establish the charge. The use of "caused" in this context does not require that it be proved that Miss Jones pressed the button to activate the printing apparatus or that she delivered the printed material to the public. "Caused" is there used in the more extended sense referred to in March v E and MH Stramare Pty Ltd (1991) 171 CLR 506 at 509, 522, 529; see also Barnes v Hay (1988) 12 NSWLR 337 at 339 to 340; 350 to 356. In the present case, I agree with Sheller JA that when Miss Jones prepared the article in its final form, by inclusion of the paragraphs referring, inter alia, to the pending trial, she did so knowing and expecting that the article she prepared was to be published on the following Sunday, during the pendency of the trial. What she did was for the purpose of the article so finalised being published at that time. In my opinion, what she did was sufficiently related to the publication to constitute the offence and her actions fell within the statement of the charge or its particulars relied upon by the Solicitor General Mr Mason QC. I agree with the findings of Sheller JA in this regard and with the sentence which he has proposed. Priestley JA I have had the benefit of reading the reasons Of Mahoney JA and Sheller JA in these cases. I agree with the view of the facts reached by Sheller JA, and with the exception of the conclusion about Miss Jones, agree generally with what both Mahoney JA and Sheller JA say. UFEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Shelle# Janewspaper Article) In regard to the case against Miss Jones both Mahoney JA and Sheller JA take (1 think) the legal position to be that if a person submits material to a newspaper for publication, intending that it be published, and if it is then published and is contemptuous, then that person is guilty of contempt. I agree with this formulation. However, differently from Mahoney JA and Sheller JA, I do not think that Miss Jones had an unconditional intention that the article she prepared should be published in the form she prepared it. What she wanted to be published was her article after it had been "legalled" (to use the term current at the newspaper). In these circumstances it does not seem right to me that she should be held criminally liable for the subsequently published but unlegalled and contemptuous article. Intent to commit contempt is not a necessary ingredient in the offence; Attorney General for New South Wales v Dean (1990) 20 NSWLR 650 at 655, and cases there collected, but intent to do the thing that constitutes the contempt, whether or not the person doing it knows that a contempt is being committed, is a necessary ingredient of the offence; Attorney General for New South Wales v Dean at 656. Thus, in the present case the Crown needed to show that Miss Jones intended the article to be published in the form in which it was published before she could be found guilty of contempt. I do not think, having heard Miss Jones, that that was her intention. Her intention was that, subject to legalling, her article should be published. In my opinion that does not meet what the Crown had to prove. In my opinion the case against Miss Jones should be dismissed. I otherwise agree with the orders proposed by Sheller JA. Leaving aside altogether the history of penalties imposed upon ancestors of the company conducting the newspaper, and taking account of penalties imposed upon media organisations for serious contempts in recent years, the penalty proposed by Sheller JA seems to me to be relatively moderate. The orders I would propose therefore are: 1. Declaration | as asked. 2. Order that the first opponent be fined $75,000 for such contempt of court. 3. The first opponent to pay the claimant's costs of the proceedings. Sheller Janewspaper Article On 3 February 1992 the trial of Joseph Ladislaus Meissner, which became known as the "Love Boat" trial, began before Ducker DCJ in the District Court at Sydney. On 6 February 1992 Mr Meissner was indicted on a charge of attempting to pervert the course of justice between 4 May 1985 and 23 April 1986 in that he improperly endeavoured to influence Virginia Perger to enter a plea of guilty to a charge of making a false declaration. A jury was empanelled on the same date. Mr Meissner pleaded not guilty and after the Crown closed its case on 26 February 1992 he gave evidence and called witnesses including Victor Camilleri who gave evidence on 5 March 1992 in support of his defence. The Crown Prosecutor in the course of his cross examination attacked Mr Camilleri's credit. The case for Mr Meissner and the Crown case in reply were completed on 5 March 1992. The trial concluded with a verdict of guilty on 17 March 1992. On Sunday 8 March 1992 during the trial, John Fairfax Group Pty Ltd ("Fairfax") published an article in the "Sun Herald" entitled "Victor Camilleri - His Interesting Career". The article, which covered a page in a section of the newspaper called "The Naked City", was almost entirely devoted to attacking the 8 UNREPORTED JUDGMENTS reputation and credibility of Mr Camilleri. It fell into four parts: a short introduction; material about the hearing of an illegal betting charge against Mr Camilleri in a local court and later on appeal in the District Court; a list of Mr Camilleri's convictions and criminal associations; and a report of the evidence he had given in the trial of Mr Meissner which was said to have been given "last week". Two photographs, one with the caption "VICTOR CAMILLERI: Gave evidence in last week's 'Love Boat' trial" and the other with the caption "POLICE raided this Oxford Street block of units following a tip off' were part of the article. The following excerpts assert matters which were not in evidence at the trial of Mr Meissner: In the introductory passage, referring to Mr Camilleri: "And last year he was found not guilty on charges of conspiring, with colourful characters Tom Domican and Kevin Theobald, to murder assassinated underworld figure Michael Sayers. " In the material about the illegal betting hearing: "The second man - Victor Camilleri - was a familiar face to the officers. At the time, Camilleri had been committed for trial in connection with the murder of underworld figure Michael Sayers in 1985." "The ledger - which District Court Judge Downs later described, on appeal, as a 'classical ledger' - recorded a total of $35,800 in bets. Const Thompson told the Downing Centre court that he saw Camilleri running towards the unit's sliding glass doors with the ledger in hand, and 'I'd say that he was just about to open the sliding door and throw the racing ledger out the > window'. "Judge Downs went so far as to say some of the evidence presented by the defence was 'an insult to my intelligence'. Camilleri told the Downing Centre Local Court he was on sickness benefits and living in a Housing Commission home at Chippendale at the time of his arrest. He also told the court he was illiterate, being able to write figures and the oar alphabet, but that he 'couldn't write a letter' and was a 'very, very poor reader'. In the section referring to Mr Camilleri's convictions and criminal associations: "His name has been long associated with a number of Sydney's underworld figures including murdered mobsters Barry McCann and Roy Thurgar, convicted heroin trafficker George Savvas, notorious criminal Tom Domican and missing hit man Chris Flannery. At the 1989 drug trial of George Savvas, a protected witness giving evidence under the court name Roger Ford told Katoomba Supreme Court about a group of 'mates' involved in importing heroin. Ford named members of the group - George Savvas, Tom Domican, Roy Thurgar, Victor Camilleri and Barry McCann." "Tn sentencing Savvas, Justice Hunt said Savvas 'has had a social relationship with Barry McCann and Tom Domican, Roy Thurgar, Kevin Theobald (and) Victor Camilleri... who were described in the evidence as the gang's hit men or enforcers '. More recently Camilleri - along with Domican and Kevin Theobald - was charged with conspiring to murder Sydney racecourse punter and drug dealer Mick Sayers. (Sayers had been gunned down outside his Bronte home in February 1985) " UFEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Shell Janewspaper Article) None of this material was in evidence at the trial of Mr Meissner. Its admissibility was a question to be raised and decided at the hearing. Most if not all of it would appear to be inadmissible. If any member of the jury had read the article while the trial continued that juror may well have been influenced by it in considering what weight to attach to Mr Camilleri's evidence. The publication of the article resulted in a risk that the jury would determine whether Mr Meissner was guilty or not guilty of the charge brought against him other than solely on the basis of the evidence admitted at the trial. The combination of the material published and the time it was published clearly had the potential to prejudice the fair trial of Mr Meissner. As it happened Ducker DCJ had previously instructed the jury while the trial continued not to read newspaper material relating to it and was satisfied as the result of a questionnaire given to each jury member that none had read beyond the headline and the two photographs. Accordingly his Honour felt able to refuse an application made on Monday, 9 March 1992 on behalf of Mr Meissner to discharge the jury. The trial, which by that time had been proceeding for over a month, was allowed to continue. Had it been necessary to abort the trial because a member or members of the jury had read the article the costs thrown away would have been substantial. I am quite satisfied that any journalist who read the article knowing that the subject of it, Mr Camilleri, had just given evidence in a trial which was still proceeding should have recognised that it amounted to a flagrant contempt of court. Mr Hickie who was at the time the editor of the "Sun Herald" gave the following answers to questions by the presiding judge: "\.... If the trial was still going on and if the article contained in this last column referred to his evidence and if the general effect of the article was to suggest he was a person whose credit was doubtful, how could anybody publish this article? A. All I can say is, you know, now I don't have a recollection that I was aware of those things and I don't have an answer that I can give truthfully. Q. Whatever be the number of occasions this was looked at, was it not obvious that you were publishing an article suggesting no credit about a person who was then a witness in a trial? A. It's certainly obvious to me now, but at that stage didn't know anything about who he had been a witness for or anything else. I have a vague recollection of the fact we were informed by Mr Gosman there was some material on the AAP wires about Camilleri, that the reporter had gone off to check out what that was about, a story had then gone to the lawyers, and that there had been no further problems. I just have no other recollection to be able to tell you truthfully what then occurred. Certainly in hindsight I can't imagine how it possibly got into the paper. I accept that. Q. That is what troubles me - how it could have got into the paper consistently with what we have been told? A. It troubles me too. " Contempt in the relevant sense has been described variously but in language which emphasises that the publication complained of must be found to have a tendency to interfere with or to preclude or to prejudice the fair and effective administration of justice as a matter of practical reality; Attorney General for New South Wales v TCN Channel 9 Pty Ltd (1990) 20 NSWLR 368 at 379. It was not argued that in this case the article served any competing public interest in the free discussion of matters of public importance or the exposure of public dangers and abuses. The reason why the court censures such publications is, in the language of Wills J in R v Parke [1903] 2 KB 432 at 437, "because their 10 UNREPORTED JUDGMENTS tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists - namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it. Their tendency is to reduce the court which has to try the case to impotence, so far as the effectual elimination of prejudice and pre possession is concerned. " The courts are concerned with the tendency of the publications and the risk of prejudice that follows; Attorney General for New South Wales v TCN Channel 9 Pty Ltd at 382. Such is the tendency and risk if publication of the article may bring matter critical of the reputation and credibility of a witness at a trial to the jury's attention other than to the extent and in a manner decided by the court. Responsibility does not depend upon whether or not as events turn out the publication resulted in prejudice to the fair conduct of the trial. PROCEEDINGS Ducker DCJ referred the matter to the Supreme Court for determination pursuant to s203 of the District Court Act 1973. On 19 August 1992 the Registrar of the Court of Appeal commenced proceedings in this Court by summons against Fairfax (the first opponent) and against Cindy Louise Jones (the second opponent) who had written those parts of the article other than the heading, the introductory part and the captions to the photographs. Miss Jones had not selected the photographs but had requested that a photograph of the block of units be taken. A word or two may have been changed in the text during the course of editing but no change of any significance was made to that part written by Miss Jones. The summons was amended by consent and with leave during the hearing. In its amended form the Registrar claimed: "1. A declaration that the First Opponent is guilty of contempt of court in that being the publisher of 'The Sun Herald' newspaper caused to be published in that newspaper on 8 March 1992 matter which was likely or calculated or had a tendency to interfere with the administration of justice in connection with the trial of the District Court, Sydney of Joseph Ladislaus Meissner on a charge of attempting to pervert the course of justice. 2. A declaration that the Second Opponent is guilty of contempt of court in that being a journalist writing for 'The Sun Herald' newspaper caused to be published in that newspaper on 8 March 1992 matter which was likely or calculated or had a tendency to interfere with the administration of justice in connection with the trial in the District Court, Sydney of Joseph Ladislaus Meissner on a charge of attempting to pervert the course of justice. 3. An order that the Opponents be punished or otherwise dealt with for such contempt of court. 4. Such further or other orders as to the Court seems fit including an order that the Opponents pay the costs of these proceedings." The Statement of Charge was in the following terms: "Tt is alleged that the Opponents are guilty of contempt of court in that: 1. On 8 March 1992 the First Opponent published matter, which matter was likely or calculated or had a tendency to interfere with the administration of justice in connection with the trial in the District Court Sydney of Joseph Ladislaus Meissner on a charge of attempting to pervert the course of justice. 2. On 8 March 1992 the Second Opponent caused to be published matter, which matter was likely or calculated or had a tendency to interfere with the administration of justice in connection with the trial in the District Court Sydney of Joseph Ladislaus Meissner on a charge of attempting to pervert the course of justice." UFEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Shelttt Janewspaper Article) To these charges the first opponent pleaded guilty and the second opponent pleaded not guilty. In light of these pleas, the Court proceeded first to hear evidence in the case against Miss Jones with a view, after that evidence was complete, to return to hear evidence on the question of penalty in the case of Fairfax and, if necessary, in the case of Miss Jones. As it turned out the evidence was treated globally as available to be considered at all stages. THE NATURE OF THE CHARGE AGAINST MISS JONES The claimant charged "that the Second Opponent is guilty of contempt of court in that being a journalist writing for the 'Sun Herald' newspaper [she] caused to be published in that newspaper on 8 March 1992 matter" etc. The evidence was that Miss Jones wrote the substance of the article complained of namely, the second, third and fourth parts to which I have referred, but did not take part in the decision to publish it in the "Sun Herald" on 8 March 1992. She made it available either to the editor, Mr Hickie, or to editorial staff who decided to publish it on that date. I shall come back to deal with the evidence in detail. The claimant must prove beyond reasonable doubt an intention by Miss Jones to publish matter which, objectively, had the requisite tendency to interfere in the fair trial of Mr Meissner (Attorney General for New South Wales v Dean (1990) 20 NSWLR 650 at 656) and an act by her here charged as "causing to be published" material having the requisite tendency. I do not think the word "caused" aptly or completely describes the criterion of liability for the relevant contempt if it is used in the sense familiar in tort; compare March v E and MH Stramare Pty Ltd (1991) 171 CLR 506. In Borrie and Lowe's Law of Contempt, 2nd ed at 260, the author says: "Whether or not a person can be said to have 'caused an article to be published' will depend upon that person's responsibility towards the final publication." Historically responsibility has depended on the degree of participation or involvement in one or other of the stages of preparation for publication of written or broadcast material up to the time this occurs in the sense that the material is disseminated to others. Private communication to a single individual would not ordinarily be regarded as publication in this context (Attorney General for New South Wales v TCN Channel 9 Pty Ltd at 378) but in the present case that does not matter. The publication here charged is in the "Sun Herald" on 8 March 1992. It is unnecessary to consider whether, as in Director of Public Prosecutions v Wran (1986) 7 NSWLR 616 at 627, there was also publication at an earlier point of time. The writing and sending of a letter containing contemptuous material to a newspaper for publication has been held to demonstrate the necessary degree of participation or involvement; Daw v Eley (1868) LR Equity 49; E.s parte Hovell (1869) 8 SCR (NSW) L 163. The letter writer who submits contemptuous material in his letter to a newspaper for publication is responsible for the risk of prejudice it may cause to the due administration of justice. It is not necessary that the writer have a role in the ultimate decision whether to publish or not; see Attorney General for New South Wales v Dean at 656. Nor is it an answer to say that the writer relied on the newspaper's employees to remove contemptuous material or to submit it to lawyers for vetting. Similarly persons having the necessary degree of control of a step in the publishing or broadcasting process may be sufficiently involved to be responsible for the publication and liable if it is contemptuous; compare Attorney General (NSW) v Willesee (1980) 2 NSWLR 143 at 155 to 157. It is not helpful as a general rule to measure the degree of participation or involvement by tests for 12 UNREPORTED JUDGMENTS determining causation. Once the intention to have published is found the question is whether the person so intending was involved or participated sufficiently in achieving that object. The position of reporters has been discussed in a number of cases. In R v Griffiths, Ex parte the Attorney General [1957] 2 QB 192 at 202 Lord Goddard CJ said that "It has never yet been held that a reporter who supplied objectionable matter to his editor or employer, which the latter published, is himself guilty of contempt". But in two earlier cases Divisional Courts of which Lord Goddard was a member held reporters to be guilty of contempt. In R v Evening Standard Co Ltd [1954] 1 QB 578, the reporter had intentionally furnished to a newspaper false information about evidence in a current trial for murder. In R v Odhams Press Ltd, Ex parte the Attorney General [1957] | QB 73, both the proprietor of the newspaper and a reporter were found guilty of contempt. Whatever may be the reason for the dictum of Lord Goddard in R v Griffiths in my opinion in accordance with the principle applied in Director of Public Prosecutions v Wran and Attorney General for New South Wales v Dean a reporter who prepares a report for publication containing contemptuous material is responsible for it if it is published. A person who does no more than furnish information to an editor or writer not for the purpose of publication but for the purpose of supplying information is in a different category from one who prepares and submits material in a form for publication. In the second case, in my opinion, the participation and involvement is sufficient to establish the offence. This may be no more than saying that the person who provides material to a newspaper with the intention that it be published in the form in which it is provided or substantially in such form is responsible for the publication and in the terms of the charge causes the material to be published. THE EVIDENCE IN THE CHARGE AGAINST MISS JONES Miss Jones left school in 1987 and commenced employment with Fairfax in March 1988 as a copy person for the "Sun Herald". In June of that year she commenced a three year cadetship with the " Sun Herald". In about July 1991 she was employed as a general reporter on the "Sun Herald"; first as a B Grade (now called J1) journalist until about August 1992 and then as a C Grade (J2). She said in her affidavit that at the beginning of her cadetship she attended a six week cadet training camp when she was given basic legal instruction covering such matters as defamation and contempt of court. She annexed a copy of a booklet since provided to her by Fairfax, ""A Legal Guide for Fairfax Journalists". During her training she was provided with an earlier form of this booklet. Fairfax makes available to all reporters in house and external lawyers for consultation. In late January or early February 1992 Miss Jones became aware that Mr Camilleri had recently lost an appeal against a conviction on SP betting charges. She passed this information on to Mr Hickie who asked her to prepare a full profile piece on Mr Camilleri including this information. She spent some time gathering information from various sources. Ultimately having obtained the transcript of the proceedings before Downs DCJ she completed the story, as she thought, some time on Thursday, 5 March 1992. This consisted of the sections about the hearing of the illegal betting charges and the convictions and criminal associations of Mr Camilleri. She said that she had formed the opinion that the article would have to be "legalled", that is to say submitted to in house or outside lawyers to report whether or not it was defamatory or contemptuous. She thought it would have to be "legalled" because it referred to convictions on SP betting charges, to what had occurred in court in relation to those charges and to various UFEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Shelte Janewspaper Article) criminal connections which Mr Camilleri was alleged to have had. However, she did not refer it to any lawyer. She was at the time generally aware of the fact that the trial of Mr Meissner was in progress although she had not been following it in detail. In the course of her cross examination, Miss Jones volunteered that she thought "David and most people in the office were aware that the "Love Boat' trial was still going on". She first became aware of Mr Camilleri's involvement in the trial probably on the afternoon of 5 March 1992 when a senior reporter with the "Sun Herald" informed her of that fact. "Mr Hickie asked me to find out any information that would be relevant for the article from Mr Camilleri's appearance in the Meissner trial." She said that on the following morning, Friday 6 March 1992, she read the newspaper coverage of Mr Camilleri's appearance at the trial with a view to including any relevant information in the story. She decided to ring the Crown Prosecutor in the trial "to see if I could obtain any further information than that which was on the AAP wire and in the press coverage. I also wanted to ask him whether Mr Camilleri had completed giving his evidence, as I had it in mind that legal reasons may prevent the publication of any reference to Mr Camilleri's appearance in court if his evidence was continuing. I obtained the prosecutor's name, I believe, from the AAP wire or the press coverage, and telephoned him." There is a conflict between the account which Miss Jones gives of this conversation and the account given by the Crown Prosecutor, Mr Power, who was called by the claimant. Whether this conversation was in the terms described by Miss Jones or in the terms described by Mr Power is not directly relevant to establishing the offence charged. However it is impossible to accept both accounts as true and to the extent to which either is untrue, certainly if it is deliberately untrue, it reflects upon one participant or the other and in the case of Miss Jones, if she be guilty of contempt, must be taken into account in determining penalty. Miss Jones in her evidence said that she did not realise that the article as published was contemptuous, that she was never warned that it might be and that in any event when she submitted it to the editor or editorial staff she assumed that it would be "legalled" before publication. Mr Power, on the other hand, said that when Miss Jones spoke to him he told her that he thought it would be highly undesirable for anything to be published about Mr Camilleri at that stage because it could have the effect of aborting the trial. Miss Jones denies that this or anything like it was said to her by Mr Power. FINDINGS ABOUT THE CONVERSATION While in the sequence of evidence Mr Power gave his account of the conversation first it is convenient in this judgment to set out Miss Jones' account before Mr Powers'. Miss Jones deposed that she had a conversation with Mr Power to the following effect: "T said: 'This is Cindy Jones from the Sun Herald. I am preparing a profile of Victor Camilleri for publication in The Sun Herald this week. I was wondering if you could give me some information. I understand that Mr Camilleri appeared in court yesterday in the Meissner trial. Are you able to tell me whether he has completed his evidence and whether he gave any information in court about his current address, his current occupation or anything like that?' Mr Power said: 'Mr Camilleri has finished giving his evidence, but am very busy at the moment as I am just about to go to court. I don't have time to discuss the other matters with you. If you want to call me back after court, after 4.30, or next week oer because the trial should be over by then, I may be able to help you'. 14 UNREPORTED JUDGMENTS Mr Power gave his account of this conversation on four occasions. In assessing his evidence it is important to examine and compare each of these versions. I do not think that in substance what he said varies greatly from Miss Jones' account so far as that account goes. His evidence is that he said more and made it plain that it was undesirable that material be published about Mr Camilleri at that stage. On Monday 9 March 1992, the day after the publication of the article, Mr Power gave his first account of the conversation to Ducker DCJ when counsel for Mr Meissner moved that the jury be discharged. The transcript is as follows: "HIS HONOUR: What do you want to say Mr Crown? CROWN PROSECUTOR: I fully acknowledge it is a very unfortunate thing. There was a phone call I had on Friday at about 20 to 10 in the morning from somebody who I don't remember, I don't remember having the name Cindy Jones, somebody I didn't know, a female, somebody as being from the Sun Herald and indicating to me that they intended to publish something and could I give them any information and at that time I suggested strongly that they not publish anything for a few weeks because the trial was still proceeding, and I put them on notice that is the advice I would give to the court. As for any information, I was too busy, 'Could you ring me back this afternoon'. Arrangements were made that they should ring me back and I heard nothing further and at that stage I assumed they had taken the advice and nothing would be published for a week hence, which I thought would be quite adequate, because the trial was in full progress. That is the first thing I want to put on record. Ihave asked my instructing solicitor who was actually with the secretary who forwarded the call through does she recall the name. The name was familiar to me but I don't recall it as being HIS HONOUR: It is a very good rule never to speak to the press. I simply will not speak to the press under any circumstances. CROWN PROSECUTOR: I thought that advice was fairly strong under the circumstances, and that I would be informing the court, that that is the advice I would be telling the court." Thereafter Mr Power dictated a file memorandum which is dated 11 March 1992. He gave evidence that despite the date appearing at the bottom of this memorandum it was originally dictated on the afternoon of 9 March after he had come out of court. Some cross examination was directed to him to suggest, consistent, apparently, with a letter that he subsequently wrote to the Crown Solicitor, that he did not dictate it until Tuesday 10 March 1992. I do not think anything turns on this but having carefully considered the reasons that he now gives for saying that it was dictated on the 9th I accept his evidence that it was. The file memorandum was in the following terms: "FILE MEMORANDUM RE APPEARANCE OF ARTICLE ENTITLED "VICTOR CAMILLERI AN INTERESTING CAREER' IN THE SUN HERALD ON 8/3/92 On Friday, 6th March, 1992 at about 9.40 am. I was in my chambers preparing to begin my address to the jury after the five week trial of Regina v Meissner. A call was transferred to me by Donna Boyce, who was acting secretary on the 8th floor, and she informed me that a reporter from the Sun Herald was on the line, the name of whom I do not specifically recall. The call was transferred to me and the reporter in question informed me that it was proposed that there would be a feature article detailing Mr Camilleri's background in the forthcoming Sunday edition of the Sun Herald and sought to ascertain whether he had revealed any personal details when he gave evidence in Mr Meissner's trial. It might be noted UFEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Shelte& Janewspaper Article) that Mr Camilleri had been an important defence witness in Mr Meissner's case and he had just given evidence the previous day. His credit was under attack by the Crown. I immediately informed the reporter in question that the trial of Meissner had not yet been completed and I advised her strongly that it would be 'highly undesirable' to publish any article relating to Camilleri until the trial was completed as it could have the effect of aborting the trial. I suggested that no article should be published until the following weekend as I anticipated the trial would be over in one week. I also informed her that I wasn't intending to try and threaten her, but she should know that I would be bound to inform the court that this was the advice I gave her should the article be published. I also informed her that as regards her enquiry about any personal details revealed by Mr Camilleri during the course of the 'love boat' trial I would be only to [sic] happy to talk to her about this matter later that afternoon when I had more time. I asked her to phone back at 4.20 pm. That afternoon I received no phone call from any reporter and in the circumstances I assumed that it had been decided to postpone publishing the article until Sunday, 15th March, 1992 and that I would be contacted again sometime during the course of this week. It was not until Monday morning at about 9.35 that I was advised by a fellow Crown Prosecutor that there was an article about Victor Camilleri detailing his criminal connections in the Sun Herald. When I arrived at court on Monday the defence made an application that the trial be aborted on the basis of the prejudicial publicity relating to Mr Camilleri. I informed the court of the conversation that had taken place between myself and the reporter. I also asked my instructing solicitor to speak to Miss Boyce to see if she recalled the name of the person she had spoken to. I was informed by Ms Janis Watson Wood that initially when Miss Boyce was asked if she knew the name of the reporter she could not recall it, but when the name Cindy was mentioned to her by Ms. Watson Wood she immediately recognised the name Cindy. At this stage I still have no specific recollection of the name of the person to whom I spoke, although I am sure it was a female to whom I spoke. PJP Power Deputy Senior Crown Prosecutor 11/3/92" The third occasion in which Mr Power recounted the conversation was in his affidavit of 17 August 1992. His account in that affidavit was as follows: "5. I then had a telephone conversation with a female caller to the following effect: I said: "Hello, Patrick Power here. I gather you want to talk to me. She said: 'Yes. I am a reporter with the Sun Herald and I am preparing an article about Victor Camilleri which is to be published in this Sunday's edition. I gather he gave evidence in Mr Meissner's trial this week and I was wondering if you have any personal details which I might be able to put into the story.' I said: "Well, I'm only too happy to help you but you must understand, Mr Meissner's trial is yet to be completed. I expect it will be over by next week. I think it would be highly undesirable for anything to be published about him at this stage because it could have the effect of aborting the trial. Mr Meissner has relied upon Mr Camilleri, and he is an important defence witness. Whilst I'm sure that it wouldn't be your intention to abort the trial by publishing something about him at this stage, before the trial is over, it could have that effect. I really think, although it is not for me to direct you, but I really think it would be highly ' 16 UNREPORTED JUDGMENTS undesirable to publish anything about this man until the trial is completed and I think it will be over by the end of the following week. Please don't get me wrong, I'm not trying to threaten you in any way but I think you should know this and I would be equally bound to tell any court that I gave you this advice if any article was published at this stage. I'm very busy at this particular time, I'm just about to go into court. I don't think I really have time at this stage to discuss with you what Mr Camilleri said in court, but as said I am only too happy to discuss the matter with you if you want to give me a call back after court today, perhaps about 4.20 or so and I could help you then. But I really don't think you should publish anything in this Sunday's edition of The Sun Herald'." Finally Mr Power was cross examined about the conversation. Mr Power impressed me as a witness who did his best to recount accurately what had occurred. There are what I regard as peripheral discrepancies between the account of Miss Jones and the account of Mr Power. By both accounts Miss Jones stated that the article was for publication on the following Sunday. Mr Power said Miss Jones asked for "personal details". In Miss Jones' account she said she wanted any information given in court about his current address, his current occupation "or anything like that". I do not accept, as Miss Jones said in her oral evidence, that the inquiry was limited to whether Mr Camilleri had completed his evidence and his current address and his current occupation. I see no reason why it should have been so limited. According to her affidavit she had been told to find out any information that would be relevant for the article from Mr Camilleri's appearance in the trial. She said that she decided to ring the Crown Prosecutor to see if she could obtain any further information than that which was on the AAP wire and in the press coverage. This seems consistent with the accounts of the conversation given by Mr Power. It may be that she asked whether Mr Camilleri had completed his evidence and was told, as was the fact, that he had. In cross examination Mr Power conceded that this question may have been put. Miss Jones said that Mr Power invited her to call back after court, after 4.30, or next week "because the trial should be over by then, I may be able to help you. " In cross examination Mr Power said 4.20 was the time that stuck in his mind. "I may have said 'next week' on the assumption that she could have done that because it wouldn't really matter if the article wasn't published the next week, I may have talked to her." Having put those matters aside I turn to that part of Mr Power's account in which he said that the trial was yet to be completed, that he expected it to be over by next week and that he thought it would be highly undesirable for anything to be published about him at this stage because it could have the effect of aborting the trial. In his first account of the conversation to Ducker DCJ, when the matter was relatively fresh in his memory, Mr Power said "I suggested strongly that they not publish anything for a few weeks because the trial was still proceeding and I put them on notice that is the advice I would give to the court. " Shortly afterwards he said to his Honour that he thought the advice was fairly strong under the circumstances and "that I would be informing the court that that is the advice I would be telling the court". In the file note dictated that afternoon he amplified this. "I immediately informed the reporter in question that the trial of Meissner had not yet been completed and I advised her strongly that it would be 'highly undesirable' to publish any article relating to Camilleri until the trial was completed as it could have the effect of aborting the trial. I suggested that no article should be published until the following weekend as I anticipated the trial UFEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Shelle# Janewspaper Article) would be over in one week. I also informed her that I wasn't intending to try and threaten her, but she would know that I would be bound to inform the court that this was the advice I gave her should the article be published. " To my mind this account rings true. A telling pointer to its truth is Miss Jones' recollection that Mr Power invited her to call him back after 4.30 or "next week". He had been told by her that the article was to be published on that Sunday. The invitation would accordingly have been pointless unless it was said in the context that he had advised Miss Jones to postpone publication. Mr Power adheres to his evidence that he strongly advised against publication and that he referred to the possibility of the trial being aborted. I accept his evidence on this. The fact that Miss Jones did not act upon this advice and that she made no mention of it to her superiors has made me pause. However I think this is explained in a manner to which I will return. In the witness box Mr Power said that the account given in his affidavit was based not only on the contents of his file memorandum but also on his memory. To some extent there is reconstruction. He recounts that he told Miss Jones: "Mr Meissner has relied upon Mr Camilleri, and he is an important defence witness. " This reflects a statement in the file memorandum: "It might be noted that Mr Camilleri had been an important defence witness in Mr Meissner's case and he had just given evidence the previous day. His credit was under attack by the Crown. " The file memorandum does not suggest that the words have quoted were said to Miss Jones. I am satisfied that Mr Power relied upon his file memorandum and genuinely believes that indeed these words were spoken but I am not satisfied that they were. I think that Mr Power's recollection is based upon what he thought he would have said having regard to the note in the file memorandum, where these words were not recorded as part of the conversation. While I accept in substance the account of Mr Power I do not think that Miss Jones was deliberately seeking to mislead the Court on this aspect of the matter. She had no contemporaneous record of the conversation and was not asked to recall it until some time after the proceedings were commenced in August 1992. No doubt shortly afterwards she was faced with Mr Power's account and with the obvious question of why, if she received the warning he said he gave her, she told no one about it. This may have led her to adopt the belief in her own mind that she never received the warning in any shape or form. Had the warning impacted upon her as it should, she would have expected herself to have taken heed of it. However I think the correct inference is that under pressure of completing the article for Sunday publication and in the belief that the decision as to publication had been or would be taken by others with, if it was thought necessary, appropriate legal advice, she did not appreciate the significance of what she had been told. After all she had rung Mr Power to obtain information not legal advice. EVENTS FOLLOWING THE CONVERSATION Miss Jones did not attempt to speak with Mr Power again. After her conversation with him, at about 11 am on the morning of 6 March 1992, she finished the article. At that stage it consisted of three parts, those dealing with the hearings and the previous convictions and associations of Mr Camilleri, and the final part which Miss Jones had written after speaking with Mr Power. According to her affidavit, Miss, Jones had already formed the view that the article had to be"legalled" before she added the material relating to Mr Camilleri's appearance at the Meissner trial. On completion of the article she felt that the inclusion of the additional information might give rise to "extra legal problems" and provided a further reason why the article would have to be "legalled" prior to publication. 18 UNREPORTED JUDGMENTS She stated that it was her usual practice on completing a story to refer it to the editors (electronically through the computer system with a message asking them to look at it), wait for their comments and make any changes they requested. If she was asked to arrange to have the story "legalled" she would print out a copy and take it or send it down to Fairfax's in house legal manager, Adrian Deamer. On other occasions she had taken it upon herself to refer a story to Mr Deamer at the same time as she referred it to the editors. "Although I cannot be certain exactly what happened in the case of the Camilleri article, my recollection is that I sent it to Mr Hickie shortly after completing the story on the morning of Friday 6th March, 1992. My expectation was that it would be submitted to the relevant lawyer, either Mr Deamer or the company's then external lawyers, Mallesons Stephen Jaques, either by Mr Hickie, John Digby, Jim Bruce or possibly a sub editor. I have no recollection of discussing the article directly with Adrian Deamer or any other lawyer." During cross examination Miss Jones said: "I thought it was a minefield of legal problems with it because we had spoken of the SP case. From that we needed a legal opinion for that reason, spoken of his past convictions and his actions and that would need a legal opinion and on the Thursday and Friday I found out about the Meissner case. There was another legal reason. I was not sure at the time whether it posed a defamation or a contempt problem. That was for the lawyers to decide if it posed a problem and what the problem was." She was asked: "Q. You were concerned that there could be a risk of contempt in writing up a story that included a reference to Mr Camilleri as a current witness is that correct? A. Yes. " Later in cross examination Miss Jones gave the following evidence: "SOLICITOR GENERAL: Q. Does the fact that this allegation has been made against you cause you embarrassment as a reporter. A. No it does not. Q. Does the fact that this article, apparently, was not legalled cause you any embarrassment personally? A. No personal embarrassment, no. Q. Is that because you do not see it in any way as your responsibility to see it is legalled or to suggest it is legalled? A. No, because I am not the final, not the final check. There are people above me who, if it escapes me getting it legalled, there are people above me whom it should not escape. Q. Would you not agree one function a reporter may have is to warn those above her that this is an article that should be legalled? A. No, because people above me have more knowledge of what articles need to be legalled than I do. Q. I take it there is no practice in force indicating to reporters about such matters when the article is put into the basket? A. What do you mean, views about whether it should be legalled? Q. Yes. There is no practice for you to say - I suggest this article be legalled? A. No. Q. In paral9 you said it was your expectation that it would be submitted to the relevant lawyer. Why did you have that expectation, according to your present recollection? A. Because I had put the story into the editor's basket. Once it had gone into there the next step was that it be legalled. Q. Did every story get legalled? A. No. This story I think everyone in the office knew had to be legalled. UFEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Shelte Janewspaper Article) Q. There had been some discussion about that fact before you put it into the basket? A. Yes, David Hickie and I had discussed that this was a story that needed to be legalled. Q. Do you remember when that discussion took place? A. No I don't, sorry. " Miss Jones said that after she had sent the article to Mr Hickie or referred it to the editors she had no further involvement with it on that day. The following day, Saturday 7 March 1992, she was rostered to start work at the "Sun Herald" at 6 pm. However because she expected that changes would have been made to her copy as a result of legal advice, she decided to go into work briefly during the morning to read the story. She saw various versions of the article in page proof form. She read what appeared to be the latest version. She said this reinforced her assumption that the article had been "legalled" at this time. "In my experience, articles are not put into page proof form until they have been through the 'legalling' and editing process and are ready for publication." She recalled discussing the story with Mr Hickie on that occasion. She did not discuss anything about the "legalling" process. She assumed it had been "legalled". As Miss Jones saw it on the Saturday morning the article included the heading, the introduction and the photographs and their captions. She said that she did not play any part in the decision to publish the article. However I am satisfied beyond reasonable doubt that by Saturday morning she knew that the article would be published on the Sunday, that is to say 8 March 1992. She had told Mr Power on the Friday that it would be published "that week". In the article itself she described Mr Camilleri's evidence at the Meissner trial as having been given "last week". No doubt the editors could have decided not to publish the article as late as that Friday but certainly by Saturday morning that was not Miss Jones' expectation. I am also satisfied beyond reasonable doubt that she wrote it and submitted it to Mr Hickie or to the editors intending it to be published. In answer to a question from the presiding judge, Miss Jones said: "At the time I was not aware that it could be contempt to publish this story while the trial was still going on." I do not accept this evidence. It is inconsistent with her evidence that she was well aware that there might be a risk of contempt and indeed regarded the article as a minefield of legal problems. I accept Mr Power's evidence that he told her that it would be highly undesirable to publish any article relating to Mr Camilleri until the trial was completed. I think the truth is that knowing that the article "could be" contemptuous she was content to take no responsibility for the consequence and risk leaving it to others. I accept that she assumed that others would in the ordinary course consider whether the matter should be "legalled". But if, as she said, "everyone in the office knew it had to be 'legalled', " she did not regard it as part of her responsibility to ensure that it was. Her evidence was that no form of sanction or discipline had been imposed upon her by Fairfax in relation to her involvement with the article. Presumably Fairfax accepts that the system was such that Miss Jones would have felt no responsibility for the contemptuous nature of the article she had written. If she did not realise that the publication of the article while the trial of Mr Meissner was continuing was contemptuous this shows a grave defect in the training provided by Fairfax to journalists employed by it. Yet so far as the evidence goes no attempt has been made to remedy this defect or to counsel Miss Jones or to draw the problem to the attention of other journalists employed by Fairfax. 20 UNREPORTED JUDGMENTS I do not regard it as sufficient answer for Miss Jones to say that she expected that the article would be "legalled" or assumed it had been. The risk to the due administration of justice by the publication of contemptuous material is such that, in my opinion, the ultimate responsibility must remain with those, including the author of material, who participate or are involved in the publication. As it was held in Attorney General for New South Wales v Dean at 656 it is not enough to say that the author "did not have the intention that his words would go beyond the representatives of the media, relying (he said) on the editing by them to remove any slips of the tongue or chance utterances which might amount to contempt. " See also Director of Public Prosecutions v Wran at 629 to 631. In my opinion Miss Jones was guilty of contempt of court as charged and the claimant is entitled to the second declaration claimed. PENALTY In determining the penalty to be imposed upon Fairfax the following matters need to be taken into account. 1. Fairfax pleaded guilty to the charge. 2. The editor stated that he appreciated that the publication of the article on 8 March 1992 had the tendency to interfere with the fair trial of Mr Meissner, he sincerely regretted its publication and apologised on behalf of Fairfax for it. No challenge was made to the genuineness of this statement and I accept it in full. Although in the introductory part of the article reference was made to "the headline hogging 'Love Boat' trial" Mr Hickie said that the article was not deliberately published on 8 March 1992 because that trial made it topical. 3. Any journalist familiar with the law of contempt who read the article should have recognised that its publication during the trial of Mr Meissner amounted to contempt. 4. Attempts have been made by Fairfax to ensure that there will be no repetition of the sequence of events which led to the publication on 8 March 1992. A system has been adopted to document "the legalling trail", noting the date upon which an article has been approved for publication and requiring the signature of the lawyer who has "legalled" it. This document is kept on the desk of the news editor, Mr Bruce, who is generally responsible for all news stories which appear in the Sun Herald. He keeps the document as a record of those articles that have been sent to a lawyer for "legalling" and a note of the date of confirmation. The system is under review to ensure that it cannot be assumed that an article has been "legalled" unless there is a record that this has occurred. This system has been adopted on the basis that the defect in the system thrown up in the present case was the assumption made by the editor, Mr Hickie, and by Miss Jones that the article had been "legalled" and approved for publication. 5. So far as the evidence goes Fairfax has not changed the system to make a particular person or persons responsible to ensure that contemptuous material is not published. Mr Bruce, the news editor, said in his affidavit: "I also have a role in the 'legalling' process of news articles prior to publication, in that I often refer stories to the lawyers and obtain legal advice from them in relation to the stories which I have or someone else has so referred." The chief of staff, Mr Digby, said in his affidavit: "If the News Editor is concerned about the article he will print it out and he and I will discuss it and make a decision as to whether legal advice is required in relation to the story. Alternatively he may send it to the lawyer without discussion with me." Mr Hickie, in his evidence, said that he appreciated that the story was one which required "legalling" and that it was the practice, without exception, to have any story dealing with matters of this kind "legalled". UFEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Shelf Janewspaper Article) In the course of cross examination Mr Hickie was asked what made him appreciate this was a story which required "legalling". He answered because it was a story about court appearances. "Every story is automatically 'legalled' from the time I have been editor of the Sun Herald". Later he was asked whose responsibility it was, according to the system to see that the "legalling" occurred. He answered: "What happens is that the assistant editor, John Digby, and the news editor, Jim Bruce, who generally control the list, arrange for stories to be printed out and sent down to the in house counsel, Adrian Deamer. " Mr Hickie also said: "Relying on the usual practice and expecting that the article would find its way to Mr Digby or Mr Bruce as it would in the normal course, I assumed that it would have been taken to Adrian Deamer or referred to Fairfax's then external lawyers, Mallesons Stephen Jaques, for legal advice." Miss Jones said it was obvious to her that the story needed to be "legalled". She assumed it would be extremely obvious to anyone above her it would need to be "legalled". I am satisfied that in fact this article was not submitted to any lawyer for legal advice. Taken as a whole the evidence shows that there was no clear assignment of responsibility. As a result no one considered that he or she had a responsibility to make certain that it was submitted to a lawyer or more importantly that it was not published, if to do so amounted to contempt. This, in my opinion, is a substantial and apparently continuing defect in the system. 6. Miss Jones was apparently of the view that she, personally, had no responsibility for writing and submitting to the editorial staff contemptuous material or, if she felt she did have any responsibility for it, that she need take no steps to ensure that the article, if it required to be, was submitted to lawyers. 7. There is no evidence that as a result of this incident any steps have been taken to counsel Miss Jones or to circulate amongst other journalists employed by Fairfax material explaining the law of contempt in the context of the publication during a criminal trial of articles such as the one here in question. 8. The explanation for how this article came to be published is incomplete and unsatisfactory. Miss Jones and Mr Hickie left it to others. The evidence of Mr Bruce and Mr Digby is that they did not read or see the article prior to publication. There was no evidence as to who was responsible for writing the headline and introduction and for setting the article up for publication. In a case of this sort it is unsatisfactory that the proprietor does not provide evidence from the persons concerned explaining in some detail how the article came to be published. However, I accept that the interval of nearly six months between publication and the commencement of proceedings during which time those concerned were unaware that there had been a contempt committed explains in large measure the absence of this evidence. 9. Reference was made to three previous cases in which Fairfax or an associated company had been found guilty of contempt. The first conviction was in respect of material in "The Sun" newspaper on 8 May 1980 ((1980) 1 NSWLR 362) when a penalty of $10,000 was imposed, the second in the "Sun Herald" on 29 May 1987 ((1987) 8 NSWLR 372) when a penalty of $5,000 was imposed and the third in "The Sun" newspaper on 24 April 1988 (unreported) when a penalty of $20,000 was imposed. 22 UNREPORTED JUDGMENTS The publication of the article on 8 March 1992 was a very serious contempt. It resulted from a poor system of control. Something has been done to remedy this but it still, in my opinion, remains defective. A penalty must be imposed sufficient to act as a deterrent and be such as to cause publishers to examine their systems of control carefully to ensure that contemptuous material is not published. The dangers to the due and impartial administration of justice that flow from the publication during a trial of material such as that here in question are obvious. It is a matter of grave concern if the people involved and particularly Miss Jones are unaware that such material is contemptuous. It seems that a good deal more needs to be done by way of training. In my opinion it is appropriate in the circumstances of this case that a penalty of $75,000 be imposed upon Fairfax and that Fairfax be ordered to pay the costs of the proceedings. I think the claimant was entirely justified in this case to take the somewhat unusual course of charging the reporter. Miss Jones is in her early twenties and the early stages of her career in journalism. There is no evidence that she had previously been involved in any way in the publication of contemptuous material. In my opinion she took and persists in a cavalier approach to her responsibilities in regard to the publication of such material particularly in light of what was said to her by Mr Power. We were informed that Fairfax is paying her costs of the proceedings. In my opinion, the appropriate penalty in her case is a fine of $1,000. Accordingly there is no need to make any order as to costs beyond the order that Fairfax should pay the whole of the claimant's costs of the proceedings. ORDERS I would propose the following orders: 1. Declarations 1 and 2 as asked. 2. Order that the first opponent be fined $75,000 for such contempt of court. 3. Order that the second opponent be fined $1,000 for such contempt of court. 4. The first opponent to pay the claimant's costs of the proceedings. Counsel for the Claimant: K Mason QC and P Lakatos Instructed by: HK Roberts, State Crown Solicitor Counsel for the Opponents: WH Nicholas QC and PA Bergin Instructed by: Freehill, Hollingdale and Page