In this special additional chapter of The News Manual Online, we look at contempt and legal reporting in the Australian context. Much of the text is similar to that in Chapter 68: Contempt, though this is more specific about the application of contempt and other laws relating to legal reporting in Australia.
What is contempt?
Contempt in everyday English means to hold something in very low esteem, to be full of scorn for it. This is one meaning when we speak of contempt in a legal sense - that it is an attack on the status and dignity of the courts.
But contempt also has another, special legal meaning. Legal contempt can also mean to interfere with the proper course of justice. Most courts take this kind of contempt very seriously, and have great power to deal with offenders. Courts can only operate effectively if they are free from outside interference and are able to enforce their judgments.
Courts also guard their dignity. This is not because judges consider themselves to be special people, but because they see themselves as representatives of the law itself. It is the law which must be respected by all citizens, and in order to ensure that respect, the courts insist on maintaining dignity.
Both these things - freedom from interference and maintenance of dignity - are protected by the laws of contempt. The following things are prohibited:
Any publication which prejudices the course of justice - A report of a court case which gives details of the defendant's previous criminal convictions, before the end of the trial, would be contempt. This is because it may prejudice the judge, magistrate or jury against the defendant, if there are many previous convictions. This would reduce the chances of a fair trial. Previous convictions (often called antecedents) may not be revealed until after the verdict has been reached. They are then considered by the court to help it to decide on an appropriate punishment.
Interference with witnesses or officers of the court - Officers of the court are the judge or magistrate, the clerk, lawyers, translators, jurors (if any) and anyone else involved in hearing the case. Interference generally means threats or bribes intended to influence the way in which the person does their job - either offering money in return for the desired verdict, or threatening violence if the unwanted verdict is returned.
Outrages on judges in court - It is criminal contempt to assault or manhandle a judge, or to throw eggs or fruit at them.
Insolence to the court - It is contempt to persist in being noisy in court, or to keep interrupting the proceedings, or to refuse to answer questions which have been properly put.
Any publication which offends the dignity of the court - It would be criminal contempt you suggested that judges were habitually drunk in court, or that they took bribes.
Willful disobedience of court orders - Courts may make many kinds of orders. They may issue an order that a person must do something (an order of mandamus), such as return a child who has been declared a ward of court. They may issue an order that a person must not do something (an injunction), such as enter someone's property. Once an order has been made, people must obey it. If they wilfully disobey it, they will be in contempt of court.
Failure to comply with court judgments - At the end of a divorce hearing, the judge may award custody of the children to one of the parents. If a child is staying with its father, but the judge grants custody to the mother, then the father must hand the child over to the mother. If he does not do so, he will be in contempt of court.
Disobeying a subpoena - If the court wants a particular person to attend court to give evidence, but knows that the person does not want to do so, it can subpoena that person. A subpoena is an order to attend court and give evidence, and it must be obeyed. If the person fails to attend court as ordered, even though the court has met any necessary expenses, the person will be in contempt of court.
Anyone committing contempt may be fined or jailed for a fixed period of time. In some cases, that person may be jailed for as long as the judge wishes, generally until they have "purged their contempt". This usually means, in practice, until they have complied with the court order or apologised sincerely to the court and have agreed in future to abide by the court's orders.
If the contempt results from your refusal as a journalist to obey a court order to identify a confidential source of information, that contempt can be purged either by obeying the order or by coming to a circumstance where the judge feels the order is no longer necessary. For more on this, see Chapter 60: Sources and confidentiality and the Cojuangco Case in Chapter 68: Contempt.
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Five main dangers
The five main areas where journalists are likely to run the risk of committing contempt are:
1. Publishing matter likely to prejudice a fair trial
From the time somebody is arrested, charged or a warrant is issued, up to the moment when the court finishes dealing with it, the case is said to be sub judice. This is a Latin phrase meaning "under judgment". While a case is sub judice, you are strictly limited as to what you can report.
You may only give details of what is happening officially within the legal process. In practice this means only information which is part of a charge or details which are part of actual court proceedings. You may also mention some details which are not likely to be contested in court.
Several kinds of reports while a case is sub judice may prejudice a fair trial. One has already been mentioned - publishing details of the defendant's previous convictions.
Another is broadcasting details of the background of the case. Whenever there is a big trial, reporters gather together details of the defendant's past life and other background information, ready to publish them at the end of the trial. Once the trial is over, and is no longer sub judice, then all this material can be reported. However, if any of it is published during the trial it may be held to prejudice a fair trial.
If there is no jury, then what is published or broadcast is not so likely to prejudice a fair trial, since the judge will be more able to ignore it. Nevertheless, even in trials without juries there are limits to what will be tolerated and care should be taken not to interfere with the proper course of justice.
For more on sub judice, go to Chapter 64: The rules of court reporting, and to Chapter 66: Court reporting, a case in practice, where you will also find a cartoon by Papua New Guinean artist Bob Browne which illustrates in a humorous way how sub judice, defamation, privilege and contempt work in relation to each other. You can also click here to see a simple colour chart illustrating how they interact in two common legal processes.
Arguments in the absence of the jury
At any stage during a trial, the judge may send the jury out of the courtroom so that certain legal arguments can be heard. Often these arguments involve the admissibility of evidence, so the jury is excluded until the judge decides.
It is a serious contempt to broadcast anything about proceedings which happen in the jury's absence. In some cases trials have had to be aborted and the offending reporter punished.
In certain circumstances, the court may decide to hear evidence in camera. This is a Latin phrase which means literally "in the room", and in practice means "in private". No reporters or other members of the public are allowed into the courtroom or the judge's chambers while that evidence is heard. Even if you somehow manage to find out what was said, you are not allowed to publish it.
A court will normally only hear evidence in camera if it involves national security, or in certain cases involving children.
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2. Interfering with the course of justice
We saw above that threatening or bribing witnesses or officers of the court is contempt. You are unlikely to interfere with the course of justice in this way, but there is another way which is a real danger to be avoided.
When a big crime has been committed, journalists want to interview anyone who saw it happen in order to be able to report the story. That is perfectly all right. The problem arises later, because those people may also be the witnesses in the court case.
As soon as a person has been arrested or charged in connection with the crime, no potential witness should be approached for an interview. The reason for this is that witnesses may later change their evidence in court to fit in with what they have told reporters.
3. Scandalising the court
The courts rightly protect themselves against anything which will undermine their dignity or interfere with their independence. However, this does not mean that courts cannot be criticised.
If a court makes decisions which outrage public opinion - such as a rapist being jailed for six months while a bicycle thief is jailed for three years - then it is the duty of the media to provide an outlet for that outrage. Bad decisions should be criticised in the media.
However, great care must always be taken in the way in which the courts' decisions are criticised. Anything reported which is likely to lower the authority of the court or bring it into public derision and contempt may be held to scandalise the court.
For example, you may criticise a judgment on the grounds that it is inconsistent with other judgments; or that it is out of touch with the public mood regarding the crime in question. That kind of criticism, strongly but fairly argued, should not be held to scandalise the court. However, the suggestion that a judge deliberately made an unjust decision, or that he was biased, or drunk, or incapable of carrying out his job, would be held to scandalise the court. You may discuss the issue, but you may not attack the person.
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4. Refusing to name a source of information
As we have already seen, anyone who refuses to answer questions properly put by a court of law will be in contempt of court. The same rules usually apply in commissions of inquiry established by governments. The rules apply to journalists as much as to any other members of society. This can lead journalists into an ethical dilemma.
Journalists can only do their job if people tell them things. Sometimes, people will tell you things in confidence. This may be because they know of bad things which are happening, which ought to be made public, but they are afraid of losing their job or suffering in some other way if they openly make the facts public.
However, people will only tell you such secrets if they feel sure that you will never reveal who gave you the information. It is therefore vital that journalists never reveal their sources of information.
On the other hand, a court or commission of inquiry may sometimes wish to know who gave certain information to the press. It may subpoena a reporter to appear and it may then ask for the source of the information. As far as the law is concerned, the reporter has no choice but to answer. As far as journalists are concerned, their professional ethics must take priority over the demands of the law, and journalists regularly refuse to reveal their sources of information, even if this means that they are sent to jail.
The law recognises that certain people - such as priests, lawyers and doctors - have professional ethics which prevent them revealing information they have gained in confidence, but the law does not recognise the journalist as having a similar professional demand.
The situation is quite clear. If a you refuse to name your source of information, when asked to do so by a court or a commission of inquiry, you will be in contempt of court and must expect to be sent to jail.
The time to decide whether or not you are prepared to go to jail to protect a source is when you give your promise of confidentiality. If you feel you cannot go to jail to protect a source, do not give them your promise.
The Australian Press Council gave the following summary of major cases where newspaper journalists have suffered for protecting their sources:
Tony Barrass was imprisoned and ultimately fined in a Western Australian case in 1989-1990 (DPP v. Luders, unreported, District Court of WA No. 177 of 1990).
In March 1992, Joe Budd was jailed for failure to disclose his sources for a story which had resulted in a defamation suit against the Brisbane Courier-Mail.
There were four cases in 1993: In South Australia, Advertiser journalist David Hellaby was fined and the ABC's Chris Nicholls jailed for separate breaches. In NSW, Deborah Cornwall, then with The Sydney Morning Herald, was ordered to perform community service after being found guilty of contempt of the ICAC and The Sun-Herald's John Synott was threatened with prosecution for contempt of the Parliament when he refused to reveal the name of a source.
In Queensland in 1994, Madonna King of The Australian and Paul Whittaker of The Courier-Mail were threatened with contempt charges after printing material arising from CJC investigations.
In 2006-2007, Herald Sun journalists McManus and Harvey were convicted and fined for refusing to name their sources at the preliminary stage of the trial of alleged whistleblower Desmmond Kelly.
There is the potential for similar instances of a journalist being placed in the position of following the Code of Ethics rather than a direction of the court, e.g. John Fairfax & Sons Limited v. Cojuangco (1987) 8 NSWLR 145, etc. In the Cojuangco case, the defendant had to withdraw its reliance on the defence of qualified privilege, rather than have its reporter required to reveal a confidential source, even in the early stages of the litigation.
Go to Chapter 68: Contempt for more details on the Cojuangco Case,
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5. Taking photos or making electronic recordings within the court precincts
Journalists may not take photos or make sound recordings in the precincts of the court without special permission, nor may such recordings be published or broadcast.
The precincts of the court are not just the inside of the court room, but may include the whole of the court building and even the road outside. The reason which is usually given for this is that such practices will be likely to encourage witnesses and defendants to perform for the media rather than to concentrate on the real business in hand.
Some countries permit pictures and sound recordings in court, but traditionally most countries which have adopted or inherited the English legal system do not. However, drawings are usually allowed.
In recent years, Australian courts have softened their rules against electronic recording in court, especially where the recording is only of the judge delivering a judgment. Some courts now allow some recording of judgments though still ban recording of the trials themselves. New Zealand permits more broadcasting of actual court cases, though judges make their own decisions on whether to allow media to record and broadcast cases before them. In New Zealand, the media must apply to the individual judge in advance for permission and the judge can allow all or only parts of the proceedings to be recorded and broadcast.
Newspaper or television stations can be in contempt if they publish a photograph of a man wanted by the police in connection with a crime, and if identification is likely to be an issue at the trial.
The reason for this is clear. If a witness is asked at the trial to identify the person who committed the crime, the witness may point at the defendant and say: "That's him!" The defence lawyer may then argue that the witness recognises the man not from the crime itself, but from the photographs which were published in the newspapers and shown on the television screens.
Courts Information Officer at the Victorian Supreme Court offered the following useful list of things journalists should avoid in covering court proceedings:
- Revealing prior convictions
- Reports which imply guilt or innocence of the accused
- Reports including interviews which could affect witnesses
- Comments, as distinct from reports of the court case
- Reporting alleged confessions
- Pictures of the accused where identity is an issue
- Reporting evidence etc in the absence of the jury
- Any contact with jurors.
Her full article on 'Covering the courts' can be found here on the Victorian Supreme Court website.
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Strictly speaking, all proceedings are sub judice until the end of appeal hearings, if any, or at least until the time allowed for an appeal has lapsed. For a long time, it was considered that no comment should be made on any case until this time was over.
In practice, this is extraordinarily difficult. The length of time which is allowed for an appeal to be lodged means that the case has faded from the public mind long before any comment can be made. In practice, too, convicted people have found that they can avoid comment by lodging an appeal and then quietly withdrawing it weeks later, hoping that the press will not notice. It has often worked.
For these reasons, it has come to be normal for cases to be subjected to comment even if an appeal is still to be heard. Appeals are usually heard only by senior judges who are not likely to be influenced by what they read, see or hear in the media. Responsible comment is therefore usually considered acceptable as soon as the trial has ended, whether or not there is going to be an appeal.
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Coroners carry out inquiries on behalf of the State into the cause of sudden deaths, the cause of fires, missing people, accidents involving ships and other matters. They are usually magistrates and may carry out the duties of coroner along with their normal work. An inquiry into the cause of a sudden death is known as an inquest.
The powers which a coroner has are the same as those which a magistrate has at committal proceedings. If the coroner finds at the end of an inquest that the person has been unlawfully killed, and that the evidence suggests it was done by a particular person, the coroner can commit that person to a higher court for trial.
As far as the media are concerned, coroner's courts should be treated just like any court where a magistrate presides, where there are no reporting restrictions.
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Children in court
A child (sometimes called a young person or juvenile) is anyone below the age of 18 in all Australian states and territories except Queensland, where it is anyone under the age of 17. Children may appear in a children's courts or an adult court, but whichever court a child appears before, the same golden rule always applies: Unless you have special permission of the judge, your report may not identify a child who is accused in a court.
The reason is simple. Children are punished in order to make them behave better in future, not for revenge. It will not help them to become good citizens if they become known publicly as criminals.
In some states you may identify children who appear as plaintiff's in civil courts (though not in Family Court), but take care when identifying children who appear as witnesses or victims that you do not expose them to harm. In some states you are not allowed to identify a child who appears in court in any capacity, such as a witness or a victim.
You should never identify a child who is victim of a sexual offence unless given explicit permission by the judge. You cannot identify children who appear in Children's Court without explicit permission of the judge.
It is important, therefore, that no information is given which would identify an accused child, sexual assault victim or a child in Children's Court. That means that you have to be more careful than simply not using the child's name: you must not give any information at all which would identify him or her.
For example, to describe a child as "the nine-year-old daughter of a local school headmaster" identifies her just as precisely as if you had used her name. As a general rule, you can only use the child's age, sex and the general area he or she comes from. For example: "A ten-year-old Coffs Harbour girl ..."
Sometimes two members of the same family appear in court together, charged in connection with the same offence. One of them may be an adult and the other a child - father and son, for instance, or two brothers. In such a case, you are allowed to name the adult, of course; but if you also say that the two are related, you will identify the child. There are two ways to report a case of this kind.
The first is not to report the relationship, but to call them "Bruce Maupiti, 28, of Waverley, and a nine-year-old boy from the same suburb." In this way the boy is not identified.
Sometimes, though, it is impossible to report the case without mentioning the relationship. In such a case, it is best not to name either the man or the boy, but to call them "a 28-year-old man from Waverley and his nine-year-old son."
One additional word of warning: In NSW, you cannot identify anyone related to criminal proceedings who was a child when the offence occurred. This includes dead children. Therefore you can identify children who have gone missing - to help in the search - but once legal proceedings have started against someone, you can no longer report anything which would identify the child, even if they are dead. For more information on the NSW legislation, see the Australian Legal Information Institute's copy of the Children (Criminal Proceedings) Act 1987 - Sect 11 here.
For legal definitions of age of criminal responsibility and treatment as a child or juvenile by state and territory, visit the Australian Institute of Criminology's summary table here.
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The federal Family Law Act prevents the media from identifying any of the parties to an action, their families or witnesses. All that is permissible is a short summary of the Family Court proceedings. Because you are not able to identify anyone apart from court officers, even this is usually not worth doing.
Members of the armed forces can be tried by a military courts, sometimes called a court martial. Journalists can report military courts, though there will be occasions when they are closed to you and the general public, for example when the case involves secret or sensitive military or national security matters.
It is important to note that convictions and sentences in a court martial are not usually valid until they have been confirmed - usually by the commanding officer. Any press report of court martial proceedings which have ended in a conviction should therefore carry the sentence: "The court's findings and sentences are subject to confirmation."
The proceedings remain sub judice until the decision of the confirming authority has been announced. After that, comment on the verdict and sentence are permitted, even though there may still be an appeal.
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Defence against contempt
Generally speaking, there is not much that you can say in your defence when you are summoned before the judge for contempt, unless you can prove that it was not you who said or wrote the words which were contemptuous.
However, there is one important exception to this - one vital defence against one type of contempt: that you did not know, and had no reason to suspect, that proceedings were pending or imminent.
We have already seen that it could be contempt to publish details of the background of a case once it is sub judice. Journalists need to be very careful, therefore, when reporting a crime, since a report which is safe while nobody has been charged may be contemptuous as soon as charges have been laid.
It is your responsibility to ask the police whether anybody has been charged. It is then the responsibility of the police to tell you the answer. If you report details of a crime after someone has been charged, you will be in contempt unless you can prove that you did not know, and had no reason to suspect, that proceedings were pending or imminent. For example, if you have made every effort to find out from the police whether anybody has been arrested or charged with a murder, and the police cannot give the information, you should go ahead and publish the full story of the crime.
If it later turns out that a man had already been charged with the murder, and that the report is likely to prejudice his fair trial, it will be a defence against contempt that you did not know and had no reason to suspect that proceedings were pending, in that you had tried to find out and had not been given the information which you sought. Note, though, that you must prove that you did not know. It is vital that you keep an accurate note of who you contacted, and at what time, together with an accurate note of what was said; you can then produce your notebook in court as evidence.
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Contempt of parliament
Parliament is also protected by laws of contempt for much the same reasons as for courts. Criticism which tends to undermine the authority of parliament, or to ridicule the institution of parliament or to discredit it, or anything which would interfere with the functioning of parliament, is contempt.
Normally, criticism of individual MPs should be safe from contempt, as long as it does not bring the institution of parliament into disrepute.
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Journalists run five main risks of committing a criminal contempt:
- Publishing matter likely to prejudice a fair trial
- Interfering with the course of justice
- Scandalising the court
- Refusing to name a source of information
- Photography or electronic recording within the court precincts
It is a defence against publishing prejudicial matter while a case is sub judice that you did not know, and had no reason to suspect, that proceedings were pending or imminent.
The law often refers to the moment when an arrest, charge or warrant is "pending". In this sense, pending means "happening".
Do not identify children before courts. Under exceptional circumstances, a judge may allow the publication of a child's name, but this is rare and it is your duty to check you have understood the order.
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