ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2UE SYDNEY PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLY, MEAGHER and POWELL JJA 26 November 1997, 11 March 1998 [1998] NSWCA 21 CONTEMPT OF COURT — DISCUSSION OF MATTERS RELEVANT TO DECIDING PENALTIES. Priestly JA Contempt of court by 2UE and Mr J Laws. While a man was on trial for murder in Sydney, a famous radio announcer broadcast to many thousands of listeners, over a leading Sydney radio station, that the man on trial whom he named, was "absolute scum" and was guilty of the murder with which he was charged. The full florid language in which this judgment was pronounced is set out later. The judge at the trial felt bound to discharge the jury. I think she was right. The contempt of court and the risk of prejudice to the fairness of the trial, were both starkly clear. The radio station was 2UE and the announcer Mr J Laws. They were charged with contempt of court. They defended the charges. Their defences did not go to the merits of the case. Neither defendant gave evidence. The court was of opinion there was no substance in their defences. In Australia, and other common law countries, it is accepted law that jurors in criminal trials must consider their verdicts on the evidence and argument put before them in the courtroom. In the United States the way the courts try to achieve this result is often by keeping juries secluded, and taking steps to see comment and opinion published outside the courtroom during the trial do not become known to the jury. The law of contempt is not as effective there as in Australia. Here it is heavily relied on to restrain the media from interfering with the fair hearing of a trial as 2UE and Mr Laws did in the present case. That the law of contempt has this purpose, and that to commit a contempt such as they did is a crime liable to severe punishment was well known to 2UE and Mr Laws. The contempt charges came on for hearing on 3 October 1997. At that stage the only question was whether the Crown could establish that 2UE and Mr Laws were guilty. On 16 October 1997 the court published reasons saying the charges had been made out, and deferred the making of formal orders until the parties had had the opportunity of putting evidence and submissions before the court on the question of penalty. The contempt was objectively very serious. Had it been intentional, very severe penalties would have been required. Until the day before the penalty hearing the court had no inkling of why the contempt had occurred. On the face of things it seemed as if 2UE and Mr Laws simply did not care about what he said over the air. On the day before the penalty hearing affidavits were filed on behalf of 2UE and Mr Laws which were later read before the court They revealed an unexpected story. It had all been a mistake, an accident. Mr Laws had been wrongly 2 UNREPORTED JUDGMENTS informed, just before he broadcast the contemptuous words, that the accused had already pleaded guilty to manslaughter, and the court had accepted the plea. There was evidence supporting this claim, and the Crown did not contest it. Once disclosed, and not contested by the Crown, the account seemed likely enough, and this court must consider the appropriate penalties on that footing. The explanation turned what might have been a very serious intentional contempt into a very serious unintentional one. Consideration of penalty. Outline of facts up to penalty hearing. 2UE and Mr Laws were charged with having broadcast a programme on 22 February 1996 in which Mr Laws made comments having a tendency to interfere with the administration of justice in connection with the trial then going on of Michael Anthony Connolly on a charge of murdering an 18 month old boy. When that trial began on Tuesday, 20 February 1996, Mr Connolly pleaded that he was not guilty of murder but guilty of manslaughter. The Crown did not accept the plea of manslaughter and the trial on the murder charge went on. Three prosecution witnesses were called to give evidence on the Tuesday. A brief report of the proceedings was published in the Daily Telegraph newspaper early in the morning of Wednesday, 21 February. The trial continued on that day. The evidence of one of the witnesses called the previous day was completed, and two other witnesses were called. At the end of the day the further hearing of the trial was adjourned until the following day. On that day, Thursday, 22 February 1996, shortly before 11 am, Mr Laws broadcast his contemptuous remarks about Mr Connolly. One sample is: "... don't ask me how he thinks he didn't murder the little fella. A child found severely bashed: bite marks to his face, his name was Ari Jason Butt beaten so badly he died. How is that not murder? Could somebody tell me how that is not murder?". (The full text is set out at p13 and p14.) As he spoke the trial was continuing. The evidence of a witness which had begun the previous day was completed, and four more witnesses gave evidence during the day. Then again the trial was adjourned to the following day. The next day, Friday, the court's attention was drawn to what Mr Laws had broadcast the previous day and the jury were discharged. The contempt charges which brought 2UE and Mr Laws before this court were filed on 6 May 1996. The penalty hearing. At the penalty stage of the hearing, the Crown put no additional evidence before the court. For 2UE various affidavits were filed and read, and some of the deponents cross-examined. An affidavit by Mr Laws was also filed and read, and he was cross-examined. On the basis of this evidence, it was then submitted for 2UE and Mr Laws that the court should take a number of matters into account in their favour in deciding upon penalties. These were: 1. (a) neither 2UE nor Mr Laws had intended to interfere with the trial of Mr Connolly; (b) the Crown case did not charge intentional contempt, but contempt caused by gross negligence. 2. both 2UE and Mr Laws had tendered sincere apologies to the court for the contempt having occurred; Mr Laws had also apologised promptly to the Crown Solicitor and the Director of Public Prosecutions. UWRAJORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2U8 SYDNEY PTY LTD (Priestly JA) 3. (a) 2UE had had a system in place designed to prevent contemptuous or defamatory publications; (b) 2UE had taken steps since the findings of its guilt published on 3 October 1997 to improve its system. 4. the experience of the contempt proceedings had had a very significant effect upon 2UE and its staff and should be taken into account in assessing what was appropriate by way of punishment and deterrence. 5. the likelihood of repetition of any such offence was said to be remote; 6. in the case of each of 2UE and Mr Laws, they had good records over very lengthy periods in the course of which "thousands of items [had] been published without offence". In order to assess what weight should be given to these submissions, it is necessary to consider in a little detail the evidence in this court. I will do this by reference in particular to the submissions I have labelled 1(a) and 1(b) and 3(a) and 3(b). The "unintentional' submission (1(a) and (1(b) above). The submission was that Mr Laws had believed when he broadcast the contemptuous material that Mr Connolly had already pleaded guilty to manslaughter, that that plea had been accepted, that all that remained in the proceedings was the sentencing of Mr Connolly and that in those circumstances he was doing nothing wrong in making the comments which he made. Part of this submission was that all Mr Laws knew about the murder trial was contained in the script on which he based what he said, that it had been prepared for him by another person, that that person had based the script on a short newspaper article, that she had misunderstood the newspaper article, that Mr Laws had not read the newspaper article himself, that Mr Laws relied, and was entitled to rely, on the script writer's assurance that Mr Connolly had pleaded guilty (from which Mr Laws inferred that only sentencing proceedings remained) and that had he realised Mr Connolly's trial for murder was still going on when he made the broadcast, he would never have made it. The factual background to this submission was as follows. Mr Laws was described by Mr Conde, the Executive Chairman of 2UE as a "presenter" engaged to broadcast over 2UE, pursuant to 2UE's policy of engaging presenters with wide experience. Mr Conde said that Mr Laws, in the conduct of his programme, had demonstrated that 2UE's confidence in him was amply justified. A fact agreed between the Crown, 2UE and Mr Laws was that when the contempt was committed on 22 February 1996, Mr Laws "was a widely known host of a radio talk back show. He was an influential commentator on public affairs and community attitudes". These matters confirm, what in any event would be obvious, that 2UE was aware of the nature of the programme presented by Mr Laws. In Mr Laws's own affidavit, he said that he had been broadcasting his current programme on 2UE since 1988. It is called the "John Laws Show" and is broadcast on weekdays from 9 am to 12 noon. He said the programme included interviews, telephone discussions, advertisements, commentary on a variety of issues and musical interludes. He also said he tried to respond to news stories arising during the programme so as to provide information and entertainment for listeners. 4 UNREPORTED JUDGMENTS At the first stage of the hearing, when the Crown was presenting evidence concerning what was said on Mr Laws's programme constituting the contempt, the court was asked by counsel to listen to a tape recording of the half hour of the programme which ended with the contemptuous passage. In line with Mr Laws's description, what the court heard included telephone discussions, advertisements, music, and some political commentary. One caller who began to say things which might have led to defamatory remarks was expertly cut off. Three people then assisted in the production of the programme. One was (and still is) Ms Brownlow. She prepared the contemptuous script. She made an affidavit in which she described her general routine at February 1996 and also what happened leading up to the broadcast of the contemptuous material. She said: "6. As a producer on The John Laws Show, I provide assistance to Mr Laws for his commentary on social and current affairs issues. The source of the information for this commentary is most commonly provided by newspapers, in particular, The Australian, The Sydney Morning Herald, The Daily Telegraph, The Australian Financial Review, the Courier Mail, The Canberra Times and The Age. Letters and facsimiles received from listeners, press releases and e-mail messages are also a source of information for the show. 7. When I became senior producer on The John Laws Show in January 1996, I became responsible for providing assistance in relation to political commentary in addition to the non-political commentary for which I had previously been responsible. In February 1996, during the lead up to the Federal election, I was required to prepare a greater number of political commentaries than I had prepared before. 8. I adapt information from the newspapers, press releases, letters and facsimiles into radio scripts by simplifying the story and adding commentary which I consider likely to be suitable for broadcast by Mr Laws. The scripts written by me are intended for use by Mr Laws if and when required. I write approximately 12 scripts per day. 9. [normally commence reading source materials at 5S am and conclude at 6.30 am. The balance of the morning prior to the show being broadcast at 9 am is used for writing scripts and editorials, discussing the show's content with Mr Laws, arranging interviews, writing questions, liaising with the newsroom and delegating tasks to other staff. 10. On Wednesday 21 February 1996 I was involved in hectic activity as a result of the Federal Election campaign which had two weeks remaining. This activity involved writing political editorials, for which I had not previously been responsible. On that morning, Mr Tim Fischer, the leader of the National Party, came into the studio at Radio 2UE to conduct an interview with Mr Laws. I spent the majority of the time between 5 am and 9 am researching material for the interview with Mr Fischer and organising and assisting the large media contingent travelling with Mr Fischer. The preparation time for other stories for the program was greatly reduced. 11. Tread the article in The Daily Telegraph, a copy of which is annexed to this my affidavit and marked 'A'. The article in The Daily Telegraph of Wednesday, 21 February 1996 was in a box which included a photograph above text. The photograph showed two women, one of whom looked pregnant. Underneath the photograph was the caption " Lavinia Butt outside Darlinghurst Court yesterday". Beneath that was a heading "Baby boy bashed to death in cot". Then came the text, as follows: UWRAJORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2UB SYDNEY PTY LTD (Priestly JA) "The last time Lavinia Butt saw her youngest son alive her boyfriend was taking him home from a barbecue. Yesterday, she saw her boyfriend Michael Anthony Connolly sitting in a dock charged with her 18-month-old son Ari's murder. Connolly pleaded guilty to the child's manslaughter but not guilty to murder in Darlinghurst's Supreme Court. Ari Jason Butt was found dead in his cot about 4 am on June 12, 1994. Detective Sergeant David Hurst, who saw the dead boy two hours later, said his entire head was bruised, his top lip cut and his cheek marked by a bite. Connolly, Ari Butt and her children Ari and Christopher, 11, had shared a unit at Hebersham for four months before Ari died. On June 11 they all went to a barbecue at a neighbouring unit and Crown Prosecutor Bill Dawe, QC said during the night Ms Butt had told Connolly that a child she was expecting might have been fathered by his brother Patrick. Later in the night, after Connolly had allegedly drunk between one and two bottles of Southern Comfort, he took both children home. Ms Butt later found Ari dead in his cot. Mr Dawe told the jury that Connolly admitted bashing the child and causing his death The trial continues." Neither the article nor the caption under the photograph gave any clue as to which of the two women in the photograph was Lavinia Butt. Parall of Ms Brownlow's affidavit continued: "My recollection is that I read the article in haste. Having done so, the only impression I gained was that Mr Connolly had pleaded guilty to a charge of manslaughter for the killing of the child referred to and was in Court to be sentenced and only for that matter. I thereupon wrote the script, a copy of which is annexed hereto and marked with the letter 'B'. I wrote the script quickly. I thought that the facts of the case were so unusual to be worth including with the other non-political matter which I was making available for reference by Mr Laws on his program should he require non-political matter at some time." The script was not used by Mr Laws on Wednesday, 21 February 1996. After that day's programme it was put in the unused editorial tray. Some time after 10.30 am on Thursday, 22 February 1996, in the course of Mr Laws's programme, he called for a non political editorial. Ms Brownlow took the script to him. It was as follows: *HIDEOUS SCUM BITES AND BASHES BABY 21.2.96 I don 't know how I 'm going to tell you this. It 's so hideous...so disgusting...I find it difficult to utter the words. But you must know. There's a case in court at the moment involving the death of a little baby boy - eighteen months old. A piece of human scum called MICHAEL ANTHONY CONNOLLY had admitted killing him. He's pleaded GUILTY to manslaughter...but not guilty to murder. Don't ask me how he thinks he didn't murder the little fellow. The child was found severely bashed...with CUTS AND BITE MARKS to his face. ARI JASON BUTT was beaten so badly he died. Tell me...how is that not 'murder'? The story emerging in court will make your blood run cold. MICHAEL ANTHONY CONNOLLY was the boyfriend of the mother of the child. Her name is LAVINIA BUTT. You have to wonder about her. The story is this: In 1994 she went to a barbeque with Connolly and her two children - an eleven year old boy...and eighteen month old ARI. She was pregnant at the time. 6 UNREPORTED JUDGMENTS The court heard...at the barbeque...she told Connolly he might not be the father of the child. His BROTHER was. He drank two bottles of Southern Comfort...and then took the kids home. SHE LET HIM. Ari was later found dead in his cot. There's a picture of Lavinia Butt in the paper. tedey- She's pregnant again. Quite far gone by the look of it. I wonder who the father is this time? It seems that with Lavinia..it's just a lucky dip. And what about MICHAEL ANTHONY CONNOLLY? He's pleaded guilty so all that remains is for him to be sentenced. Don't worry... let you know the outcome. In the meantime...we'll put him in the Scum Bag" (The word "today" was struck out because of the delay in using the script.) In her oral evidence Ms Brownlow said it was her job to prepare scripts for Mr Laws which would fit in with his style on air. In her affidavit Ms Brownlow said that when she took the script to Mr Laws, he appeared to read the first part of it and then said to her "This is a bit hot. Isn't it?" and she replied "He's pleaded guilty". The recollection of Mr Laws, as set out in his affidavit was much the same. It was that he said to Ms Brownlow "Christ, that's hot. Is that okay?" and she said "Yes. He's pleaded guilty". Mr Laws also said he did not recall which features of the script made him think it was "hot". In his oral evidence he said that by "hot" he had meant "strong". The whole of what Ms Brownlow knew about the death of the eighteen-month old boy and the trial of Michael Connolly came from what was said in the Daily Telegraph article. All Mr Laws knew about those matters came from Ms Brownlow's script and what she told him as recounted in the previous paragraph. He did not read the newspaper article himself. Mr Laws said in his affidavit that it was his practice to vary scripts prepared by Ms Brownlow while reading them on air and that he varied this script on this occasion by adding to it. The principal additions are underlined in the following transcript of the whole of what he said over the air about Mr Connolly and his trial: "This fella's got to go in the bag I don 't want to talk too much about this fella. 'You may have heard about him, his name is Michael Anthony - Anthony Connolly and he's scum, absolute scum, pig, Michael Anthony Connolly. He admitted - ah - he admitted killing a little baby boy 18 months old, admitted that. He pleaded guilty but he pleaded guilty to manslaughter, not guilty to murder so what are they doing here ah? A bit of plea bargaining. Violent crime and they let this fella plea bargain. Anyway don't ask me how he thinks he didn't murder the little fella The child found severely bashed: bite marks to his face, his name was Ari Jason Butt beaten so badly he died. How is that not murder? Could somebody tell me how that is not murder? The story emerging in court, (will make your blood run cold. Michael Anthony Connolly he was the boyfriend, yes the itinerant strayer of the mother of the child. Her name is Lavinia Butt. Now you gotta wor-worry about her a little bit. The story is this, in 1994 she went to a barbecue Connolly and a couple of the kids - 11 year old boy and 18 months old Ari and she happened to be pregnant at the time. The court heard at the barbecue that she told Connolly she might not, ah - that he might not be the father of the child that she was carrying. His brother was probably the father. He drank two bottles of Southern Comfort. Two bottles! What is it 86, 84 proof, 76 proof and he drank two bottles of the stuff: I don't drink it I can't stand it it's too sweet for UWRAJORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2UE SYDNEY PTY LTD (Priestly JA) me and then he took the kids home, she let him, she let him, after two bottles of the - she let him take the kids home, and the little boy Ari was later found dead in his cot. There's a picture of Lavinia Butt in the - in the paper, she's pregnant again, ah and fairly well pregnant by the look of it. I wonder who's the father of this one? Seems that with Lavinia its like a lucky dip. And what about Michael Anthony Connolly? He's pleaded guilty so all that remains is for him to be sentenced. But I'll certainly let you know the outcome of this but I would like to know why Michael Anthony Connolly was able to plead guilty of manslaughter and not of murder. Well I do know plea bargaining, you see, the State saves money. That's what it's all about, but this fella deserves to be in the scumbag - open it up - in you go Michael Anthony Connolly you're scum." (Different transcriptions of the broadcast have been put before the court They vary in minor and immaterial details. The one reproduced above was annexed to Mr Laws's affidavit.) Ms Brownlow was cross-examined about how it was that she came to misunderstand the article in The Daily Telegraph so badly. She agreed that she must have read the line in the article "Ms Butt later found Ari dead in his cot" because of the similarity in her script of the sentence "Ari was later found dead in his cot". It was pointed out that that sentence in the article was followed by a sentence showing that the Crown Prosecutor had been addressing the jury and then by the words "The trial continues". She was unable to account for these last two sentences not having conveyed to her that a trial was proceeding and that the case had not yet reached the sentencing stage. Nevertheless, the Crown did not challenge the truthfulness of her claim that she had mistakenly understood the article as meaning that Mr Connolly's plea of guilty to manslaughter had been accepted and that all that remained was sentencing. The Crown used her inability to account for making such a mistake to support its submission that the contempt that was committed was the result of gross negligence. The "system" submission: (3(a) and (3(b) above. The central feature of this submission, which concerned the system that 2UE had in place to avoid both defamatory broadcasts and those which might be in contempt of court, seemed to be the availability of legal advice from Mr Burke, a principal in the firm of solicitors regularly acting for 2UE. Staff had been directed to refer any matter of legal concern to 2UE's solicitors. There was also evidence that 2UE's Executive Chairman, Mr J C Conde had directed the programming staff at executive meetings to ensure that experienced broadcasters were employed and that constant access to legal advice was available. Mr Conde's information was that 2UE's staff used the service provided by Mr Burke regularly, and on several occasions in any one week. When Mr Conde made enquires into the contemptuous broadcast of 22 February 1996 he was informed that Ms Brownlow followed the system by speaking to Mr Burke regularly. Mr J P Brennan 2UE's programme director, said that upon engagement of employees, and from tine to time, he reminded them of the availability of Mr Burke and encouraged them to seek advice from Mr Burke or his firm when something appeared to be a problem. He also said that new employees were provided with copies of three documents, one called "'Some Do's and Dont's for Broadcasting Personnel", another called General Guidelines in relation to contempt of Court" and a third called *ABC All-Media Law Handbook. He said it had been his practice to provide new employees with these documents since 8 UNREPORTED JUDGMENTS 1991. (Since Mr Laws's engagement dated from 1988 and Ms Brownlow started work with 2UE in 1990, these documents would not have reached them by reason of 2UE's system, at any rate.) Mr Brennan also referred to a fourth document called "Policy and Operations Guide". The latest version of this was dated March 1996, immediately after the contemptuous broadcast. He had made enquiries as to the existence of the previous version. No copy, to his knowledge was still in existence. He also said that this document would not have been distributed in the normal course to Ms Brownlow. Mr Conde had said that the "Policy and Operations Guide" was compiled predominantly for the news room and news staff. This Guide referred to 2UE's "duty editor' who Mr Conde, when cross-examined, said was responsible for determining the editorial content of the news bulletins prior to broadcast. The cross-examination continued: "Q. In so far as current affairs commentary occurs during talk-back programmes, there is no such person as a duty editor? A. Correct. Q. There is a journalist who may draft scripts? A. Not always a journalist. Q. Somebody drafts a script, as Miss Brownlow did in this case? A. Yes. Q. And there is the on-air presenter, in this case Mr Laws? A. Correct, and the material presented. Q. In the news room there is a duty editor who performs a checking function between the journalist and the on-air presenter? A. And the news reader. Q. The news reader, yes - sorry. A. For the benefit of their Honours, the news is presented by someone other than what in most of the material is referred to as 'an on-air broadcaster'. Q. In the case of talk-back radio, there is no person performing that checking function? A. The person on air performs the checking function. The person presenting the material may often have more qualifications and experience than a journalist preparing a news story, so the checks and balances seem to be appropriate bearing in mind the source of the material in the case of a programme such as the John Laws programme and the vast experience of someone like John Laws." It thus appears that in the case of Mr Laws, 2UE's system was to rely on his experience and on that of his assistants. In the present case that meant reliance on his experience and that of Ms Brownlow. Mr Laws gave no evidence of having received any of the first three documents mentioned by Mr Brennan and listed above. In the "Some Do's and Dont's for Broadcasting Personnel" document the following sensible advice appears: "1. Don't impute motives - you can report that somebody did something but it is very dangerous to suggest your own reason as to why it was done. Even though you may be correct, it is impossible to prove what motivated some other person unless an admission has been made and many people have plenty of excuses available to justify their actions. 3. Be wary of second hand stories such as Court reports etc Some people will pass on their version freely but due to lack of experience, personal bias or otherwise the story may be wrong. UWRAJORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2UB SYDNEY PTY LTD (Priestly JA) 4. Be wary of using legal terms you do not understand. For example, murder, manslaughter and all the new expressions for rape of varying degrees have different meanings'. Murder is different to killing when used in relation to legal reporting... 7. Be wary of gratuitous comments - 'quotable quotes'. When editing material there is a tendency to leave in the occasional outrageous comment. Any statement or comment must be able to be defended or justified on its own merit and what seemed funny at the time could look rather silly infront of a Court five years later. 8. When commenting upon material of any nature remember the golden rule: The facts must be truly stated. So long as you clearly state the facts (which would normally be matters of public interest), you are entitled to express your own opinion as long as it is clearly understood as opinion. Do not intertwine the facts and your opinions to such an extent that the listener cannot discern readily which is which. You may express your opinion provided you honestly hold it, even though that opinion may not be popular or rational. If you have stated the facts clearly so that any listener can make up his or her own mind in the matter then the law considers there is no danger in any person expressing his or her honest opinion. Expertise in the field is not necessary but always the facts must be correctly stated. " To the extent that the above warnings formed part of 2UE's system, there is nothing in the evidence to show that Mr Laws was aware of them. (There was a suggestion that Ms Brownlow may have encountered some of them.) That part of the programme which this court has heard, that is the half hour leading up to the contemptuous material immediately before 11 am on 22 February 1996, shows Mr Laws doing the opposite of what para7 and para8 of the document recommend. The contempt itself came about because neither Ms Brownlow nor Mr Laws had any notion of the sound idea expressed in the first sentence of para3. Mr Laws's own evidence corresponded with that of Mr Conde in regard to the relation between 2UE's system and the "John Laws Show". Asked about the functions of the three people he had mentioned in his affidavit as assisting in the production of the programme Mr Laws said: "A. They provide material for the program, as Ms Brownlow does one, and the other one - if while we 're on the air - I know it's difficult to explain, but the program happens all very quickly. There isn't much time to discuss things. If I need something pursued or researched on the air then a researcher does that. We might want figures from the immigration Department or a comment from the Prime Minister, or a comment from the Labor Council, and the researcher does that. Q. Was it anyone's duty to check on the accuracy of what you said? A. Yes. Q. Whose duty was that? A. It would have been a combination of Ms Brownlow's and myself." 2UE's submissions 2, 4, 5 and 6. There was some material supporting each of submissions 2, 4, 5 and 6 (set out at p5 above). I will say something about these submissions subsequently. At this point, I only mention that in making these submissions 2UE drew attention to the previous occasion when it had been found guilty of contempt and sought to rely on the fact that at the time that earlier contempt was committed, 2UE was under different management. This earlier 10 UNREPORTED JUDGMENTS case was Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd, Jones & Anor (the Jones case) (CA, unreported, Priestley, Clarke and Handley JJA, 19 March 1993). The prosecution's submissions on penalty.The prosecution cited what seems to me to be a good summary of the objects of the contempt law, from DPP (Commonwealth v United Telecasters Sydney Ltd (1992) 7 BR 364 at 376: "Tn the Mason cases the court stressed the importance of general deterrence as the primary objective of the penalty to be imposed in cases such as the present. It laid emphasis on the need to conduct criminal trials in an atmosphere which has not been poisoned by prior trial in the media It also emphasised the public's interest in preserving public confidence in the fairness of criminal trials." The prosecution then submitted that the court in determining penalty should take into account the objective seriousness of the contempt, the culpability of the respective opponents and other subjective factors. The submissions continued by pointing to the strength of the language used by Mr Laws, the discharge of the jury, the need for a further trial and the long delay in the hearing of that trial. On the question of culpability, it was submitted that 2UE must bear the primary responsibility. For the prosecution it was further submitted, that although Mr Laws had sent the letters of apology I have earlier referred to (it had been brought out in the evidence that 2UE did not) nevertheless in assessing the extent of the contrition of 2UE and Mr Laws, for the purposes of penalty, the court should also note that neither of them had pleaded guilty. The prosecution did not submit that 2UE or Mr Laws intended to interfere with the trial. Rather it was submitted that 2UE's system was quite inadequate so far as Mr Laws was concerned and that Mr Laws and his assistant Ms Brownlow were negligent in their failure to ascertain that the trial of Mr Connolly was going on before a jury at the time of the broadcast. Consideration of the competing submissions on penalty. In weighing up the submissions on penalty, I will first mention the Jones case in which this court found 2UE and Mr A Jones guilty of contempt. It is useful because it contains passages both guiding the court's general approach to such cases, and also directly helping the court in weighing 2UE's contentions about its system. The contempts in the Jones case, as in the present one, concerned a criminal trial in progress before a jury. In one passage of the reasons the court mentioned that fact and then went on: "At the time of the committing of the contempts, 2UE had no systematic procedures in operation designed to minimise the risk of contempts being committed by either their own employees in the course of broadcasts or persons being interviewed during such broadcasts. Mr Sneddon, the producer of the broadcasts, was aware of the need to avoid references to the Killen trial. On the approach to the facts we are taking for present purposes, this was an awareness of a general kind, rather than awareness of the trial actually being in progress at the time of the broadcasts. Nevertheless, that general knowledge was present in a responsible level of 2UE's organisation. 2UE was obviously employing Mr Jones in the hope that his programme would attract large audiences, and must be taken to have been fully aware of the kind of programme he conducted, which involved him in stating his opinion on matters of current affairs, including the administration of justice, and in a way which from time to time involved him in making spur of the moment UWRAJORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2UE SYDNEY PTY LTD (Priestly JA) observations dealing with particular factual situations which were or might become the subject of court proceedings. These seem to us to be the primary matter by reference to which the court must consider penalties in the light of the position it has consistently made clear in cases of this kind, namely, that it is important that the court make very clear its intention to punish publications which come before it which have a distinct and significant tendency to interfere with the proper administration of criminal justice and that it is also important that the court take firm steps towards deterrence of such publications. The court's position has been frequently explained in recent times, many of the cases being collected in the group of decisions comprised by Attorney General v United Telecasters Sydney Ltd; Attorney General v TCN Channel Nine Pty Ltd; Attorney General v Australian Broadcasting Corporation; Attorney General v Nationwide News Pty Ltd; Attorney General v Dean; Attorney General v Amalgamated Television Services Pty Ltd; all unreported decisions of this court delivered on 11 October 1990." [Known for short as the Mason cases.] "Tn the cases just mentioned there was some reference to the pressures upon the media both for speedy news reporting and for other purposes. No doubt, similar commercial pressures contributed to the happening of the contempts in the present cases. By commercial pressure in the present cases we mean the necessity felt by a radio station, in its competition with other radio stations and other media to obtain as wide an audience as possible by the use, inter alia, of well known people commenting on current affairs. What the court said on this subject in Attorney General v TCN Channel Nine Pty Ltd, is equally applicable here: '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.' (at p3)" (at p5-p6) The parallels to the present case are clear, and of no assistance to 2UE. The attempts 2UE has made to improve its system since the earlier contempt have not reached Mr Laws or his programme. What the court said in the third paragraph in the passage just set out concerning the reason for 2UE's employment of Mr Jones applies with greater strength to its continuing engagement of Mr Laws. Both his evidence and the incidents in the present case demonstrate that the style and method of his show necessarily involve him in making spur of the moment observations, of a judgmental kind, (and in the present case strongly and harshly expressed), on the basis of quite inadequate knowledge of what he is talking about. In regard to the comment about the mother of the dead boy, Ms Brownlow said that although 'perhaps some people could interpret it as outrageous, "for members of our audience it might be quite acceptable". I do not think any other conclusion can be drawn in regard to 2UE than that its continuing engagement of Mr Laws had the purpose of attracting listeners by the kind of programme 2UE knew he conducted. Partly for the reasons given in the two preceding paragraphs, I agree with the prosecution submission that 2UE bears the primary responsibility for the contempt. An allied reason is that the system (which really is altogether too favourable a word) which 2UE relied on in regard to Mr Laws and his programme amounted to nothing more than reliance on Mr Laws's own 12 UNREPORTED JUDGMENTS experience and judgment. In view of the kind of programme Mr Laws conducted, to 2UE's knowledge, the kind of mistake made in the present case was always on the cards. Tasked Mr Laws some questions about the harshly judgmental nature of some of his remarks about the mother. (The questions were all asked on the footing, with which Mr Laws agreed, that what was said about the mother, like what was said about Mr Connolly, came entirely from the very brief account in the Daily Telegraph. Mr Laws had earlier also agreed that having read Mr Justice Hunt's 1997 decision in Mr Connolly's murder trial when he was found guilty of manslaughter, he had noticed there was a great deal more material involved in the trial than was even hinted at in the newspaper article.) Mr Hughes QC, counsel for Mr Laws, objected to my questions, saying they were "irrelevant to the charge of contempt. This court is not a censor of good taste". I agree with his remark about taste. This court is no more concerned with the taste of the broadcast than were 2UE or Mr Laws. The questions were however, in my opinion, directly related to the contempt charges. The immediate point to which they were directed was that here was a second example in the same half hour section of the programme of its general style and approach to news commentary. The sneering jibes at the mother written by Ms Brownlow for Mr Laws and repeated by him almost word for word, had little basis in the scanty material then known to him and showed a style of making strongly expressed judgments on matters thought to be of immediate interest to the programme's listeners, with little or no consideration of their validity. Evidence about a style of programme, known to 2UE, including evidence of specific instances of that style, must, in my opinion, be relevant to the culpability of both 2UE and Mr Laws, but in particular of 2UE, when that style is directly connected with the committing of contempt of court. The use by Mr Laws of the style and technique I have described in commentary on court cases in my opinion always carries the danger of blunders. This is compounded by the speed with which decisions are made to use material for broadcasting. Mr Laws's evidence showed that on the occasion of the contempt he urgently needed some material to fill a couple of minutes on his show. In his own words "the program happens all very quickly. There isn't much time to discuss things". He accepted what Ms Brownlow told him. Her evidence shows that she too had been under time pressure when she prepared the script. Her mistake is eloquent of her haste. These two people were 2UE's checking system for a programme of the kind 2UE knew the John Laws Show to be. For 2UE to have so obviously inadequate a checking system for a show of that slap dash, off the cuff; instant opinion kind increases its culpability for the contempt it committed. A matter relied on by the prosecution was the strength of the language constituting the contempt. This seems to me to be a relevant maker. A common statement concerning contempt is that for a contempt to be committed, the words spoken must have a real and practical tendency to interfere with the administration of justice - in the present case to affect the judgment of jurors to some of whom it was highly probable Mr Laws's statements would be repeated. It seems to me that the stronger the language the more likely the mind of the juror would be to be impressed and affected. Thus the stronger the language the more likely the contempt would be a serious one, and here the language was very strong. UWRAJORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2U8 SYDNEY PTY LTD (Priestly JA) Against the foregoing considerations I take into account the submissions for 2UE and Mr Laws that I have already discussed and also submissions 2, 4, 5 and 6 (see p5 above). I do not think they have much mitigating force. As to submission 2 (the apologies), accepting them as sincere, there is nevertheless point in the prosecution submission that 2UE and Mr Laws contested the charges (and on grounds which in my opinion were flimsy). The submissions 4, 5 and 6 are all related. Apart from Mr Laws giving up his Scum Bag pronouncements, there was not much sign in the evidence of any change in the "system" concerning his programme. I am not at all persuaded that similar mistakes will not happen again. As to the good records of 2UE and Mr Laws, I accept the facts on that subject, and also that neither 2UE nor Mr Laws wants to risk further contempt charges, but while the programme is conducted similarly to the way it was in February 1996, and snap statements are made about court cases, the risk of contempt remains. What I say here is not intended in any way to prevent or restrict comment on what happens in courts; but I am saying that such comment needs to be based on accurate facts if the possibility of contempt is to be minimised. It is for the broadcaster to take reasonable steps to secure accuracy; if it does not take those steps, and contempt results, its blameworthiness is serious. Conclusion: proposed declarations and orders. In my opinion the contempt in the present case was serious and the direct result of 2UE's unsatisfactory (indeed almost non-existent) system in regard to the John Laws Show. I am aware of the penalties that have been imposed by this court in contempt cases over the past fifteen years. The cases differed widely in their facts and in the culpability of those guilty of contempt. No case was quite like this. The penalties in those cases do not provide any close guide in the present cases. My assessment is that 2UE should be fined $200,000, Mr Laws $50,000. Meagher JA feels very strongly that the fine on Mr Laws should be much higher. I continue in my opinion that $50,000 is appropriate. At the risk of repetition, I will try to make clearer why I think there should be such a marked difference between the fines on 2UE and Mr Laws. 2UE permitted Mr Laws, for its own profit, to broadcast from its station. It knew the kind of programme he ran. It was the kind of programme where the speed with which opinion was required to be formed and broadcast was bound to cause mistakes from time to time. Opinions broadcast about current court cases could interfere with those cases unless facts were first checked and care taken with what was said. 2UE acknowledges it should have had a system for such checking. It did not, because, in my opinion, it suited its own purposes to let Mr Laws' programme go ahead as it was. As a result it was 2UE which was primarily responsible for taking the risk of letting Mr Laws go ahead without a proper system for checking basic facts. He did what he was paid to do by 2UE. Each was guilty of contempt, but in fixing penalty the court is required to have regard to which was the more blameworthy. For the reasons outlined I have accepted the submission made by the Crown that it was 2UE which was primarily responsible for interfering in a quite unacceptable way with the trial then in progress. In short, the difference in the fines is because I think 2UE is far more culpable than Mr Laws, although I think he also is seriously culpable. 2UE and Mr Laws have agreed with the prosecution that they must jointly bear the Attorney-General's costs of the proceedings, assessed at $60,000. 14 UNREPORTED JUDGMENTS I therefore propose the following declaration and orders: 1. A declaration that Radio 2UE Sydney Pty Ltd and John Laws and each of them are guilty of contempt of court for broadcasting on 22 February 1996 the words set out in the Schedule to the amended summons in these proceedings. 2. An order that Radio 2UE Sydney Pty Ltd be fined $200,000, to be paid within twenty-eight days, to the Registrar of the Court of Appeal. 3. An order that John Laws be fined $50,000 to be paid within twenty-eight days, to the Registrar of the Court of Appeal. 4. An order that Radio 2UE Sydney Pty Ltd and John Laws jointly pay the costs of the Attorney-General of these proceedings, assessed at $60,000, within twenty-eight days. Meagher JA In this matter I have had the benefit of reading in draft the judgment of Priestly JA and a draft judgement of Powell JA. I am quite unable to agree with either. I shall not repeat once more all the facts. Suffice it to say that the words used by Mr Laws constituted a blatant and gross contempt. They in fact aborted the trial of Mr Connolly. No sensible excuse has been offered. Mr Hughes QC, learned senior counsel for Mr Laws, the second opponent, agreed that his client was guilty of negligence. The circumstances indicate that the negligence was so great that it was trembling on the brink of recklessness. Neither opponent pleaded impecuniosity. Merely having regard to these objective facts it seems obvious to me that Mr Laws should be sent to gaol for some months and pay an additional fine of at least $250,000. As far as Radio 2UE is concerned it should also pay a fine of at least $250,000. In the reasons of Powell JA much emphasis is placed on the quantum of the fines imposed in other cases. In my view this is wholly mistaken. The Court's duty is to impose fines which are appropriate, not fines which happen to be consistent with those imposed in other cases dealing with different facts. If things were otherwise the Court would find itself locked into a system of perpetual inadequacy. The five matters which were urged in mitigation by the opponents are set out in Priestley JA's judgement. With regard to two of these I would wish to add some comments of my own. Insofar as it is submitted that there was no intention in Mr Law's mind to commit a contempt, that is true. The Crown made it plain that no intentional contempt was charged. However, to my mind, this fact is of little significance. It may suffice to enable Mr Laws to escape the custodial sentence which would otherwise be his lot. It is of no significance beyond that because (a) the element of intention is not an ingredient of this type of contempt, and (b) whilst it must involve the proposition that Mr Laws never said to himself "I will now utter a contempt", it does not mean that Mr Laws had no intention of uttering the words which he did in fact utter. The words did not pop out of his mouth accidentally. He made a considered decision to use them, and he should not have. As far as the alleged contrition is concerned, I cannot take it seriously. Neither opponent pleaded guilty. Both pursued a ridiculous defence. And, as far as Radio 2UE Sydney Pty Ltd was concerned, it refused to apologise when invited to do so. The conclusion, therefore, is that alleged matters in mitigation cannot have any effect on the amount of the monetary fine which should be ordered. UWRAJORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2UB SYDNEY PTY LTD (Powell JA) As far as the first opponent (Radio 2UE Sydney Pty Ltd) is concerned, in my view the amount of the fine should be no less than $250,000. The claimant should also be ordered to bring these proceedings to the notice of the Australian Broadcasting Authority with a view to opposing the renewal of the station's licence when the time comes. I might say in coming to this conclusion I have paid no regard to the tasteless comments made by the second opponent on the conduct of Mr Connolly's lover: I agree with Mr Hughes QC that that is an entirely irrelevant matter. As far as the second opponent (Mr Laws) is concerned, the fine should likewise be $250,000. To fine him $20,000 (or even $50,000) is ludicrous. It is the equivalent of a slap on the wrist. It would operate as a deterrent neither to him nor to any one else. It would not hurt him. It is about the amount he would spend on a small cocktail party: it is a cost he would not feel. It would not pay for a fraction of the costs of the aborting of one trial and recommencing another. I regret to have to say so in plain language, but in my view it would be a reproach to the Court and an insult to the public. It would be a reproach to the Court, because it is the Court's duty to make appropriate, and not risible, orders. It would be an insult to the public, because the public would think that if you are rich enough and powerful enough you can get away with anything. Powell JA As the facts which give rise to this Judgment have been set out in the Judgments delivered by the Court on 16 October 1997 - when the Court recorded its view that each of the Opponents was guilty of the contempt of court with which they were charged - and in the Judgment which Priestley JA has prepared, which Judgment I have had the opportunity to read in draft, I do not consider that any useful purpose would be served if I were, in my turn, to set out the facts in any detail. Contempt of court the type of which the Opponents have been found in guilty in the present case constituting a misdemeanour at common law (see, for example, Registrar of the Court of Appeal v Maniam (No 2)! Witham v Holloway?; Harkianakis v Skalkos3) the determination of what, if any, penalty ought to be imposed upon the Opponents or either of them, invites a consideration, and application, of the principles to which regard must be had when a court is called upon to determine what penalty it is appropriate to be imposed upon a person found guilty of crime. Those matters include the purposes to be served in imposing a penalty upon the person found guilty of that crime, and the matters to which it is appropriate to have regard when determining what is the appropriate penalty to be imposed. The purposes to be served in imposing a penalty for a contempt of court of the type now under consideration are generally thought to be three - deterring the particular contemnor, deterring others, in the future, from committing like contempts, and denouncing the conduct concerned in an appropriately emphatic way (Director of Public Prosecutions v John Fairfax & Sons Ltd4; Registrar of the Court of Appeal v Maniam (No 2)5; Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd®). 1. (1992) 26 NSWLR 309, 314 2. (1995) 183 CLR 525, 530, 538 3. (1997) 42 NSWLR 22, 60 4. (1987) 8 NSWLR 732, 741-742 5. supra at 314 6. (1992) 7 BR 364, 376 16 UNREPORTED JUDGMENTS In determining what, if any, is the penalty appropriate to be imposed on a person found guilty of a contempt of court, it is proper for the Court to have regard to such matters as the objective seriousness of the contempt found established, the culpability - as, for example, whether the relevant statement was made, or the relevant act was done, deliberately, within intent to interfere with the administration of justice, or recklessly, or as the result of gross negligence, or, although intended, without any appreciation of the potential consequences of the act or statement - of the person found to have been guilty of the contempt, and any other subjective factors (see, for example, Director of Public Prosecution v Australian Broadcasting Corporation'; Director of Public Prosecutions K Wran8; Director of Public Prosecutions v John Fairfax & Sons Ltd®; Attorney General for New South Wales v Dean!9; Registrar of the Court of Appeal v Maniam (No 2)!1). As well, so it seems to me, the Court, when determining what, if any, penalty should be imposed in a particular case, should, to the extent to which it is possible, attempt to ensure consistency in the approach taken to like cases in the past, so that the assessment of penalties is seen to be part of a principled process rather than as but the product of the idiosyncratic views of particular judges (see, for example, Director of Public Prosecutions v John Fairfax & Sons Ltd!2). It is with those matters in mind that I turn to consider the question of penalty. The facts which have been recorded in the Judgment delivered by the Court on 16 October 1997, and in the Judgment which Priestley JA has prepared, in my view make it clear that the contempt of which the Opponents have been found guilty was a serious one, indeed. The comments which were made by the Second Opponent - who, it is accepted, was a widely known "host" of a radio "talk back" programme, and was an influential commentator on public affairs and community attitudes - were broadcast in a morning programme which it is accepted had a substantial listening audience throughout the greater metropolitan, and lower Blue Mountains, area, the broadcast taking place on the third day of a trial which had been estimated as likely to occupy six hearing days. The Second Opponent's comments, which appeared to convey the Second Opponent's clear view that the accused was guilty of murder, and which, as Meagher JA put it in his Judgment of 16 October 1997 "was couched in language as aggressive as it was uncouth" was highly prejudicial to the accused, and, if they had come to the attention of any of the jurors sworn to try the accused could well have caused the trial to miscarry. It is an interesting commentary upon the standards apparently accepted by the Second Opponent that, while he accepted (T. 16) that the language in which his comments were couched was "very strong" neither Ms Brownlow (T.11-12) whose script provided the basis for the Second Opponent's comments, nor the Second Opponent himself (T. 14-15), appears to have thought the comments were untoward but, rather, seemed to think that the language in which the comments were couched would be regarded by members of the listening audience as quite acceptable. (1987) 7 NSWLR 588 (1986) 7 NSWLR 616 9. supra 10. (1990) 20 NSWLR 650 11. supra 12. supra at 742 ox UWRAJORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2UEz SYDNEY PTY LTD (Powell JA) In the event, on the fourth day of the trial of the accused, Simpson J, on the application of counsel for the accused, discharged the jury without verdict. Thereafter, following a lengthy adjournment, during which the accused was kept in protective custody, the accused stood trial before Hunt CJ at CL without a jury, at the conclusion of which trial his Honour found the accused guilty of manslaughter only and sentenced him to penal servitude for a term of 7 years commencing on 12 June 1994, the date on which he had been taken into custody, that term to consist of a minimum term of 4 years and an additional term of 3 years. I turn, then, to consider the question of the culpability of each of the two opponents in respect of the contempt of which they have been found guilty. The case which the Claimant advanced in respect of the First Opponent is that it failed to take sufficient steps to ensure that an adequate system of advice and supervision was established so that material prejudicial to legal proceedings was not broadcast. The obligation to ensure that such a system was established, so the Claimant submitted, was one for which the First Opponent, as the licensee of radio station 2UE, bore the primary responsibility, and, thus, was not one which the First Opponent could avoid by assigning editorial responsibility to the Second Opponent (Attorney General (NSW) v Willesee!3). Even if it had not earlier appreciated that that was its obligation, the First Named Opponent could not have failed to do so after 19 March 1993 when this Court delivered Judgment in proceedings which had been brought by the Attorney-General against the First Opponent and another "host" of a radio "talk back" programme employed by it, Mr Alan Jones. In the course of its Judgment (Her Majesty's Attorney General for New South Wales v Radio 2UE Sydney Pty Ltd & Others!4) the Court said (inter alia): "At the time of the committing of the contempts, 2UE had no systematic procedures in operation designed to minimise the risk of contempts being committed by either their own employees in the course of broadcasts or persons being interviewed during such broadcasts 2UE was obviously employing Mr Jones in the hope that his programme would attract large audiences, and must be taken to have been fully aware of the kind of programme he conducted, which involved him in stating his opinion on matters of current affairs, including the administration of justice, and in a way which from time to time involved him in making spur of the moment observations dealing with particular factual situations which were or might become the subject of court proceedings." Then, after referring to the Court's decisions in Attorney-General v United Telecasters Sydney Ltd, Attorney-General vy TCN Channel 9 Pty Ltd; Attorney-General v Australia Broadcasting Corporation; Attorney-General v Nationwide News Pty Ltd; Attorney-General vy Dean; Attorney-General v Amalgamated Television Services Pty Ltd; all of which had been delivered on 11 October 1990, the Court continued (inter alia): "Tn the cases just mentioned there was some reference to the pressures upon the media both for speedy news reporting and for other purposes. No doubt similar commercial pressures contributed to the happening of the contempts in the present cases. By commercial pressure in the present cases we mean the necessity felt by a radio station, in its competition with other radio stations and other media to obtain as wide an audience as possible by the use, inter alia, of 13. [1980] 2 NSWLR 143, 160 per Hope JA 14. 19 March 1993 (unreported) 18 UNREPORTED JUDGMENTS well known people commenting on current affairs. What the court said on this subject in Attorney-General v TCN Channel 9 Pty Ltd is equally applicable here: '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 practical importance of taking appropriate deterrent measures. Reliance on good intentions is not sufficient.' (at p3) For 2UE four chief matters were argued in mitigation. The third matter relied on is the bringing into operation of the system intended to minimise possible contempts which had already been described. The document tendered as the 'Media Law Handbook' consists of the title sheet of an ABC book called 'ABC All-Media Law Handbook', a production of the ABC Legal Department, and p19 to p29 of that production. Those pages contain chapter 2 of the work 'Reporting the Courts', and p19 to p29 contain an outline, and in our opinion quite a good outline, of the law of contempt. It is, however, an outline only. It describes what are called the sub judice rules and also gives a list of things which must not be published. One example of its rather general and outline nature is that we cannot find anywhere in p19 to p29 a direct statement that it is contempt, pending or during trial, to publish material likely to influence jurors in their assessment of the credibility of a material witness at the trial. Assuming in 2UE's favour that the evidence of steps taken after 10 July 1990 to try and prevent a repetition of the contempts committed on 9 and 10 July is relevant to the question of penalty, we acknowledge that some steps have been taken. However, we are not persuaded that much more has been done to date than the making of a beginning towards instituting procedures which will cope satisfactorily with the difficulties the radio station will from time to time encounter in its efforts to ensure that it commits no contempts of court. We have indicated the totality of the evidence given concerning the system and also the glimpse of it in practice given by Mr Jones in his evidence. We do not think that the steps taken should be given a great deal of weight in considering the penalty." The material which Priestley JA has set out in his Judgment as to the "system" upon which the First Opponent has sought to rely on the present case appears to me to indicate that little, if anything, more has been done by the First Opponent since March 1993 towards setting up an efficient system designed to ensure that the first Opponent does not commit further contempts of court. Indeed, it is difficult to avoid the conclusion that, at least in relation to the programmes conducted by its "talk show hosts" such as the Second Opponent and Mr Jones, the First Opponent has no system at all. The First Opponent has, however, sought to suggest that the earlier proceedings brought against it ought not to be had regard to when the question of its culpability is being considered, the basis of that submission being that, after 1990, when the offending broadcasts then under consideration took place, there had been a complete change in the shareholding in the company conducting the business of 2UE. That submission invites two comments: 1. a not dissimilar argument was advanced on behalf of the First Opponent in the earlier proceedings, that argument inviting the following observations on the part of the Court: "The second matter" (argued in mitigation) "was that after the committing of the contempts and before the bringing of the charges of contempt, there had been a complete change in the shareholding in the company conducted the business of UWRAJORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2UB SYDNEY PTY LTD (Powell JA) 2UE. It was argued that any fine imposed on it would have no effect on the people beneficially interested in the company at the time the contempts were committed and would be detrimental to the interests of the persons who had nothing to do with the contempts. This submission appeals to the Court to be 'realistic' in a way which we think fallacious. The fallacy lies in the request, implicit in the submission, to treat the existence of the company as a fiction. The fact is that all interested parties treat the company as a legal entity which, for legal purposes, is as real as a natural person. In some circumstances it may be sensible to take into account, when a penalty is being imposed upon a company, the consequences to persons and entities other than the company itself We see no acceptable basis for such an approach in the facts of the present case. The court knows nothing more about the company which conducts the business of 2UE than that it was at the relevant time and is still, a commercial entity, apparently solvent and conducting a well known radio station for profit. What the court is considering are the appropriate penalties to be imposed upon the legal entity 2UE for two contemptuous broadcasts for which it bears the legal, commercial and factual responsibility. We do not think that this submission assists 2UE's argument in mitigation." 2. in any event, Mr J C Conde, who had held managerial positions with the First Opponent between 1977 and 1986, during the latter part of which period he held the position of General Manager, and who appears, since 1991, when Broadcast Investments Pty Ltd - which appears to be the holding company of the First Opponent - re-acquired the shares in the First Opponent, to have been the Executive Chairman of the First Opponent, in his Affidavit sworn 24 November 1997 deposed (inter alia): "6. At the time that Broadcast Investments was considering the reacquisition of Radio 2UE in 1991, I was concerned that the station had been charged with a contempt on two occasions during the 1986 to 1991 period, and I was dissatisfied with the controls then in place to avoid the publication of defamatory or contemptuous statements. 7. Prior to hand over of the station, I insisted that all on-air news and programming support staff be advised of the expectations of Radio 2UE's new owners and required to attend the seminar conducted by Mr Burke of Bush Burke & Co. Bush Burke & Co had provided legal advice to Radio 2UE up until the time of its sale in 1986. There had never been any contempt proceedings brought against Radio 2UE in the sixty years of operation of the station prior to its sale in 1986. I wanted a return to the values which had existed in the station prior to 1986 and which were expressed, at least in part, by the availability to Radio 2UE staff of Mr Burke. 14 As a matter of policy the station to concerned to engage presenters with wide experience in publishing and broadcasting to host its programmes. An important factor in deciding whether to engage a presenter such as Mr Laws is the presenter's experience and capacity to recognise material which, if published, might be either defamatory or contemptuous so as to ensure that it is not published. It has always been of the greatest importance that the presenters be persons upon whose skill and judgment the station may confidently rely. This is especially so whether the programme content has significant components of news and current affairs. Mr Laws, in the conduct of his programme, has demonstrated that the confidence placed in him is amply justified. 20 UNREPORTED JUDGMENTS as to all of which I say no more than that, although it demonstrates fully that the First Opponent is conscious of its primary responsibility for what is broadcast, and is conscious also of the fact that, unless an adequate system is in place, it is at least likely, if not probable, that it will, on occasion, be guilty of contempt of court, at least in relation to those of its employees such as the Second Opponent, it has failed to establish any such system and has attempted to avoid its obligation to establish such a system by assigning editorial responsibility to those such as the Second Opponent. I turn then, to the question of culpability of the Second Opponent. Since it bears heavily on the approach which I think appropriate ultimately to take to the question of the penalty to be imposed upon the Second Opponent, I think it appropriate to record that, in the Written Submissions for the Claimant, the following appears: "Tt is not submitted that the Second Opponent intended to interfere with the trial. Rather, it is submitted that he was negligent in his failure to ascertain that the trial of the accused for murder was then proceeding before a jury." and that, during the course of his submissions in reply (T. 41), Mr J J Spigelman QC, who appeared for the Claimant, said: "My last point goes to the question of recklessness and negligence. My cross-examination of Miss Brownlow was directed to a degree of negligence. The final answer was she could not point to anything in the article which gave her a basis for her assumption. Her conduct is something for which the First Opponent would be responsible. I did not use the word 'reckless'. It has a technical legal meaning which renders it equivalent to intention. I do not think Justice Powell was intending to use it in that sense. It may be it would be better to confine our language to degrees of negligence, and the word 'recklessness' can overlap gross negligence, but it also has a different meaning, which makes it equivalent to intention. Mr Hughes directed attention specifically to paral5 where we identify the act of negligence on which we rely." The case which the Second Opponent sought to advance in relation to the question of culpability is encapsulated in the following paragraphs of the Affidavit sworn by him on 25 November 1997: "2. Tam aware of the law of contempt which proscribes conduct that interferes with the due administration of justice. In particular, I am aware, and I was aware in February 1996, of the importance of not doing anything which would interfere with a fair trial. When I made the broadcast which is the subject of these proceedings ('the Segment'), I was unaware that the trial of Michael Connolly was proceeding. I believed that he had pleaded guilty to a charge of manslaughter and that a jury had no further part to play in determining whether or not he was guilty of that crime. I did not believe that he was on trial for murder. Had I known that he was on trial for murder and this plea of guilty to manslaughter had not been accepted, I would not have published the Segment. I would never intentionally broadcast any material likely to affect the fairness of a trial. I would never intentionally broadcast any opinion concerning a trial unless I believed that the trial had concluded. 8. There are three people who assist in the production of my program, including Ms Brownlow. Ms Brownlow has been working with me since the beginning of 1994. She prepares a considerable volume of material for me each day including scripts, as well as co-ordinating interviews and other activities, and UWRAJORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2\@& SYDNEY PTY LTD (Powell JA) I regard her highly as a loyal employee who is extremely diligent and thorough. T have, and in February 1996 had, great confidence in Ms Brownlow's ability as a producer. 9. I rely, and have always relied, upon Ms Brownlow both in relation to the accuracy of the scripts which she provides me and to identify any potential problem concerning the fitness for publication of those scripts. 11. Shortly before the 11 am news on 22 February 1996, my program was running behind schedule and I asked Ms Brownlow for some brief non-political comment. Ms Brownlow brought me the script concerning Connolly. A copy is annexed hereto and marked 'D'. The script was drafted and formatted by Ms Brownlow including capital letters and other marks for emphasis. Although the script referred to a newspaper article I did not actually have that newspaper article in front of me at the time. I did not read the newspaper article to which the script referred. 12. I recall quickly glancing at the script and had the following very brief conversation with Ms Brownlow: I said: "Christ, that's hot. Is that okay?' She said: 'Yes. He's pleaded guilty.' I do not recall precisely which features of the script made me think that the script was 'Hot'. 13. In extenuation of the strength of the comments made in the Segment, I say that I was emotionally affected by the description of the conduct attributed by Ms Brownlow to Connolly in the script which she handed to me. I have 7 grandchildren of my own, whose ages range from | year to 11 years. " (As I have earlier noted, the Second Opponent, although accepting the language of the script which had been given to him was "very strong" did not - nor did Ms Brownlow - regard it as extreme but rather he - and Ms Brownlow - thought it acceptable to members of the listening audience.) It should be added, however, that the Second Opponent was not content to restrict himself to the script which had been provided to him by Ms Brownlow but, without further inquiry than that recorded in the paragraphs in his Affidavit which I have set out above, decided to enliven the scripts with a little more colour of his own, that colour including "... so what are they doing here ah? A bit of plea bargaining. Violent crime and they let this fella plea bargain." and, later, "... I would like to know why Michael Anthony Connolly was able to plead guilty of manslaughter and not of murder. Well I do know plea bargaining, you see, the State saves money. That's what its all about...". I am quite unable to accept the submission advanced on behalf of the Second Opponent that, at least so far as he is concerned, the present case is to be regarded as one in which the contempt found to have been committed was, although not to be regarded as the result of mere inadvertence, nonetheless, was to be regarded as unintentional - implicit in which submission seems to be the suggestion that the degree of culpability involved is very low indeed - it following that any penalty imposed should be no more than a moderate fine. It is, I believe, clear that, as between himself and Ms Brownlow, the ultimate responsibility for what is broadcast on the Second Opponent's programme lies with the Second Opponent himself, and that, as between Ms Brownlow and himself, the ultimate obligation to check the accuracy of material which is placed before him to be broadcast, and to satisfy himself of the accuracy of what he himself broadcasts, lies with the Second Opponent. Despite this, and apparently 22 UNREPORTED JUDGMENTS for no better reason than to fill in a very short gap which appears to have "opened up" in the programme, the Second Opponent, having made what even the most charitably minded could not describe as other than the most perfunctory inquiry, and while, by his own admission, in a highly emotional state, proceeded to broadcast the script which, by his own admission, he recognised was in very strong language, embellishing it along the way with his own highly coloured and inflammatory comments. Such conduct was in my view at least negligent in the extreme and was, in addition, as I was moved to observe on 3 October 1997 (T. 27), when this matter first came before us, irresponsible. In light of the serious nature of the contempt of which each of the Opponents has been found guilty and of my views as to the degree of culpability of each of the Opponents, it is, in my view, inevitable that a penalty be imposed upon each of the Opponents, that penalty being of such a nature as to mark the Court's strong disapproval of the conduct of each of the Opponents and to provide a salutary deterrent against the recurrence of such conduct in the future. I turn, first, to consider the question of the penalty appropriate to be imposed upon the First Opponent. As [have earlier (see p 3 (above)) recorded, it is my view that the Court, when determining what, if any, penalty should be imposed in a particular case, should, to the extent to which it is possible, attempt to ensure consistency in the approach taken to like cases in the past, so that the assessment of penalty is seen to be part of a principled process. With that in mind I have endeavoured to find cases which are sufficiently comparable as to provide some guide to the approach to be taken in the present case. Although, as one might have expected, I have not been able to discover any cases the facts of which might be regarded as identical with the facts in the present case, there are two cases which I believe provide a reasonable guide to the approach to be taken in the present case, they being Director of Public Prosecutions v Wran!5 and Attorney General (NSW) v Time Inc Magazine Co Pty Ltd!¢. In the former case, the Court, having concluded that the decision made by the editor of the "Daily Telegraph" to publish the offending matter was calculated and deliberate and done in pursuit of economic gain, imposed upon Nationwide News Pty Ltd the proprietor of the "Daily Telegraph", a fine of $200,000.00, a very significant sum in the light of the value of money in those days. In the latter case, despite the fact that the editor of "Who Weekly" magazine, the publication in question, had sought legal advice - which legal advice, so it was suggested, was to the effect that the publication of the offending matter was low risk - despite the fact that neither the publisher of the magazine nor its editor had previously been found guilty of contempt, and despite the fact that each of the publisher and the editor offered a comprehensive apology and an undertaking not to repeat the offence, the Court imposed on the publisher, a fine of $100,000.00 and upon the editor a fine of $10,000.00. In the present case, the First Opponent, as I have earlier recorded, has been found guilty of contempt on two previous occasions, in respect of which contempts there were then imposed on it fines of $35,000.00 and $40,000.00. Further, despite the imposition upon the First Opponent of those fines, and despite the inadequate nature of the First Opponent's then system, to which the Court in its Judgment of 13 March 1993 then drew attention, the First Opponent 15. supra 16. Court of Appeal 21 October 1994 (unreported) UWRAJORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2128 SYDNEY PTY LTD (Powell JA) appears still not to have set up an efficient system designed to ensure that the First Opponent does not commit further contempts of court. Further still, the First Opponent chose both to seek to have the proceedings permanently stayed upon the basis of a submission which was described by Priestley JA when delivering the Judgment of the Court on 3 October 1990 as one which "(took) optimism either to or close to the level of frivolity", and further, to defend the proceedings upon the ground 'that a radio station basically could not commit a contempt if it broadcast matter whilst the jury was in court', which defence, if it had been established, (would have constituted) a significant precedent for radio broadcasting" (T.6). It was, of course, the right of the First Opponent so to do, but, having exercised that right, it can expect no discount from what would otherwise be an appropriate penalty, nor, in my view, can it expect any great regard to be had by the Court to what Mr Conde (T.6) described as "an unrestrained apology", which apology was offered only after the First Opponent had been found guilty of the contempt with which it was charged. In all the circumstances, it seems to me, that the penalty appropriate to be imposed upon the First Opponent is a fine of $200,000.00. I turn, then, to the question of the penalty appropriate to be imposed upon the Second Opponent. By way of preface to my consideration of that question, I record that my conclusions have been conditioned by two factors: 1. the fact that, as I have earlier recorded, the case which the Claimant has sought to make in respect of the Second Opponent is one of negligence rather than of an intent to interfere with the course of justice, or recklessness in the relevant sense; and 2. that the First Opponent, as the licensee of Radio 2UE, is to be regarded as primarily responsible for what is broadcast by its station. So far as the first of these matters is concerned, I would wish to make clear my view that, if the case for the Claimant had been that the Second Opponent had intended to interfere with the course of justice, or, that he had been guilty of recklessness in the relevant sense, and if I had been satisfied, to the requisite standard, that that case had been made out I would have thought that the appropriate penalty was a custodial sentence. That this should be so is readily illustrated by the decisions of the Full Court of the Supreme Court of Victoria!7 and of the High Court!8 in Hinch v The Attorney General (Vic). In that case, despite the fact that at the time of the offending broadcasts, no committal proceedings had taken place and the trial of the accused was unlikely to occur for many months, both the Full Court of the Supreme Court of Victoria - although reducing the term of imprisonment and the amount of the fine - and the High Court dismissed appeals by Mr Hinch in respect of a sentence of imprisonment and a fine which had been imposed upon him in respect of the contempt of which he had been found guilty. That contempt lay in Mr Hinch's making highly prejudicial statements of Fr Glennon immediately after he had been charged, which statements were said to have been made by Mr Hinch "recklessly not caring that harmful consequences might accrue to Glennon by the prejudicial matters which he intended to and did publish". 17. [1987] VR 721 18. (1987) 164 CLR 15 24 UNREPORTED JUDGMENTS While, in the light of the approach taken by the Claimant, the imposition upon the Second Opponent of a custodial sentence would not seem to be appropriate, nonetheless it seems to me in the light of the matters to which I have earlier referred, that a substantial fine is called for. As was the case in relation to the First Opponent, I have sought for guidance in the authorities as to what might be an appropriate fine to impose upon the Second Opponent. Having done so, I have concluded that the decisions of the Court in Director of Public Prosecutions v Wran!9 and Attorney General (NSW) v Time Inc Magazine Co Pty Ltd20 do provide some guidance. In the former case, the Court having found "that Mr Wran intended to make a public statement designed to influence those who heard it in favour of Mr Justice Murphy's innocence, and did so with indifference to the effect of which such statement might have upon the due administration of justice" imposed upon him a fine of $25,000.00, while in the latter case - which, as the Court recorded "was not a case in which there (was) evidence of actual harm of the kind that occurs where, for example, a criminal trial has been aborted" - the Court, as I have earlier recorded, imposed upon the editor of "Who Weekly" magazine a fine of $10,000.00. After giving what I believe to be appropriate weight to the differing factual situations involved in this case and in Director of Public Prosecutions v Wran and Attorney General (NSW) v Time Inc Magazine Co Pty Ltd I have concluded that the penalty appropriate to be imposed upon the Second Opponent is a fine of $20,000.00. However, in the light of the differing views expressed by the members of the Court, and with a view to there being an order of the Court in relation to the Second Opponent, I am prepared to join with Priestley JA in his proposal that the Second Opponent be fined $50,000.00. In each case the fines imposed upon the First and Second Opponents should be paid to the Registrar of the Court of Appeal within twenty-eight (28) days of this day. The Declarations and Order for costs proposed by Priestley JA should also be made by the Court. Held: (by majority) Declarations and orders should be made as follows: 1. Declare that Radio 2UE Sydney Pty Ltd and John Laws and each of them are guilty of contempt of court for broadcasting on 22 February 1996 the words set out in the Schedule to the amended summons in these proceedings. 2. Order that Radio 2UE Sydney Pty Ltd be fined $200,000, to be paid within twenty-eight days, to the Registrar of the Court of Appeal. 3. Order that John Laws be fined $50,000 to be paid within twenty-eight days, to the Registrar of the Court of Appeal. 4. Order that Radio 2UE Sydney Pty Ltd and John Laws jointly pay the costs of the Attorney-General of these proceedings, assessed at $60,000, within twenty-eight days. Counsel for the appellant: Spigelman QC / P Lakatos Solicitors for the appellant: State Crown Solicitor 19. supra 20. supra UWRAJORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2126 SYDNEY PTY LTD (Powell JA) Counsel for the respondent: H Nicholas QC / J Glesson Solicitors for the respondent: Bush Burke & Co