Contempt by publication

Source: Judicial Commission of New South Wales

Contempt by publication refers to two main areas of misconduct: sub judice contempt and scandalizing the court.

Sub judice contempt is typically committed where there is a publication or comment through media organisations relating to proceedings currently before the court that has the potential to interfere with the proper running of the proceedings.

Prosecutions of this type of contempt are often brought by the Attorney General, after a referral by the trial judge, under powers arising from provisions in Sch 3 and s 316 Criminal Procedure Act 1986. Although the Attorney General may bring proceedings, this power does not prohibit the court from bringing an action under its own inherent power.

For examples of contempt by publication see:

  • Attorney General for NSW v Radio 2UE Sydney Pty Ltd (unrep, 11/03/98, NSWCA) — On the third day of a murder trial, John Laws made comment on air about the trial, discussing the evidence, insisting that the accused was guilty of murder and criticising the way in which the prosecution had run the case. The jury was discharged and John Laws and Radio 2UE were each charged with contempt. They were ordered to pay costs and substantial fines.

  • Hinch v Attorney General (Vic) (1987) 164 CLR 15 — The appellant detailed the prior convictions of an accused person. The appellant and Macquarie Broadcasting Holdings Ltd were convicted of contempt. The appellant was sentenced to a term of imprisonment. Mason CJ held that the courts have always taken a serious view of any published disclosure of the prior conviction of a person accused of a criminal offence when proceedings for that offence are pending.

  • R v The Age Co Ltd [2006] VSC 479 — The Age published an article detailing the accused’s driving antecedents during committal proceedings for alleged dangerous driving offences. The respondent was convicted of contempt: see also R v The Age Company Ltd [2008] VSC 305.

  • Hearne v Street (2008) 235 CLR 125 — Civil proceedings were brought by local residents against Luna Park Sydney Pty Ltd, Multiplex Ltd and associated companies, alleging nuisance involving the Luna Park site. During the proceedings a managing director and chief executive officer of Luna Park Pty Ltd and development manager of Multiplex Developments Aust Pty Ltd provided the Daily Telegraph and the relevant Minister with copies of pleadings and affidavits filed in support of the plaintiff’s case. The High Court held that it was a contempt of court to breach an implied undertaking by parties in civil proceedings not to use documents produced during the discovery process for a purpose not connected with the proceedings.

Scandalizing the court

Scandalizing the court refers to conduct which denigrates judges or the court so as to undermine public confidence in the administration of justice (also known as “scandalising the court”). For examples: see R v Dunabin; Ex p Williams (1935) 53 CLR 434; Attorney-General Ex p; Re Goodwin [1969] 2 NSWR 360; Gallagher v Durack (1983) 152 CLR 238.

Under modern conditions, the jurisdiction of the court to deal with contempt which consists of scandalising the court will be exercised only in exceptional cases because ordinarily the good sense of the community is a sufficient safeguard in curbing undue and improper criticisms of judges. An exceptional case might be where a letter is published alleging against a judge that his judgment in a case contained a malicious attack upon the character of one of the parties and that there was an ulterior motive behind such attack: Attorney-General Ex p; Re Goodwin [1969] 2 NSWR 360.

Disobedience of court orders

Contempt may also arise where there is disobedience of court orders: see AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98; Witham v Holloway (1995) 183 CLR 525 and O’Shane v Channel Seven Sydney Pty Ltd [2005] NSWSC 1358.