Recently there has been a lot of inquiries in relation what can be published about upcoming court matters. 

On occasion, it is permissible to publish material about upcoming court cases, but commonly, publishing such material may result in the publisher committing the common law offence of sub-judice contempt. For details about this common law offence and how to avoid it, read on.

 

What is sub judice contempt?

Sub judice contempt is the common law offence of publishing material which has a tendency to interfere with the administration of justice while proceedings are sub judice; that is, ‘under a judge’. 
 
The rationale for the offence is to avoid the possibility of  a ‘trial by media’ by prohibiting the publication of material which might either prejudice issues at stake in criminal proceedings, or which might influence or place pressure on persons involved in the proceedings, including jurors, witnesses or potential witnesses.
 
In order to prove a charge of sub judice contempt, it must be proven to the criminal standard that:
a) material was published;
b) the publication of that material happened while the proceedings were sub judice; and
c) the publication has the tendency to interfere with the administration of justice in the proceedings that are before the judge.
 

Who can commit the offence?

Anyone involved in publishing information that is sub judice can be held liable for the offence of sub judice contempt. Most commonly, courts have held that people who have actual control over the content, production, distribution and broadcasting of sub judice material can be persons involved in publishing that material. 
 
Importantly, it is not necessary to prove that a person intended to interfere with the administration of justice by publishing the material[1].   Consequently, a person may commit the offence unintentionally.
 

What constitutes 'publishing' material?

Material is generally held to be published if it is 'made available to the general public or a section of the public which is likely to compose those who have a connection to the case'[2].  This type of publication is generally conducted by media organisations, however government material such as press releases, pamphlets or even public speeches could also be 'publication' for the purposes of this definition if they are disseminated to a wide class of people and/or a class of people likely to be involved with the proceedings[3].  Publication online also constitutes publication for the purposes of the definition[4]
 
In addition, information which is provided to a journalist, reporter or media agency by a public servant is regarded as having been published if it is expected that the media representative will publish that information[5].   For the purposes of the definition, publication occurs when the information is provided to the media representative[6]
 

When are proceedings sub judice?

The general principle is that proceedings are sub judice when the proceedings have commenced but have not yet been completed[7]
 
In criminal proceedings, the sub judice period begins at the time of arrest or charge, whichever occurs first[8].  However it is also possible that on occasion, the period may begin earlier, for instance when a summons or arrest for warrant has been issued[9] or when extradition proceedings have commenced.  The sub judice period ends in criminal proceedings when either the charges are withdrawn, or the accused has been acquitted or sentenced, and the time for lodging an appeal has passed, or all possible appeals have been heard and determined[10].
 
In civil proceedings, the sub judice period begins when the initiating process for the proceeding is issued (for instance a writ or statement of claim), and ends at the conclusion of those proceedings.  If an appeal is then initiated, then the sub judice period restarts until such time as the appeal is heard and determined. 
 

What can't be published?

Unfortunately there is no easy answer to this question and the final determination of whether or not published material has a tendency to interfere with the administration of justice on an ordinary reasonable member of the community is one that can only be made by a court.  However, the following factors may be considered by the court in making such a determination:
  • the mode of the trial (with jury trials being more susceptible to media influence);
  • the time between the publication and the proceedings;
  • the maker of any statement contained in the publication (comments by prominent officials such as Ministers, senior public officials or police officers are seen to have more impact)[11]; 
  • the audience of the publication (i.e., the distribution area or coverage);
  • the existence or otherwise of any other prejudicial publications;
  • whether the published material was in a form which was likely to make a deep impression on a person who read, saw or heard it. In particular, photographs and video of accused persons can be sub judice if the identity of the accused may come into question in the proceedings.
While it can be difficult to predict which material a court will hold to be contemptuous in each circumstance, it is generally considered that the following material, if published in a sub judice period, may amount to contempt:
  • In criminal proceedings:
    • any material which prejudges the guilt or innocence of an accused;
    • material which either criticises or creates sympathy for an accused or a victim;
    • any prior convictions, criminal history, or photographs or film of an accused; and
    • any interviews with witnesses or potential witnesses.
  • In civil proceedings:
    • any material which may influence a juror or witness;
    • any material which places improper pressure on a party to discontinue or compromise their action or defence; and
    • any material which prejudges any issues at stake in the proceedings.
Finally, we note the 'bare facts' of a case, or a fair and accurate account of court proceedings has been held to be not prejudicial and can be published during a sub judice period[12].
 

But wait, what about that whole 'public interest' thing?

It is a defence to a charge of sub-judice contempt, both in civil and criminal proceedings[13], if a matter is published in the public interest. In order to determine if this public interest defence applies, a court must balance the competing public interests of the integrity of the administration of justice against the need for the matter which is the subject of the publication to be discussed publically[14]
 
However it should be noted that when a court is conducting this comparison of competing public interests, it is accepted that the public interest in the administration of justice is very significant, and particularly so in criminal cases[15].  Where a publication concerns the guilt or innocence of an accused, the public interest in freedom of expression would need to be very substantial in order for the defence to be successful[16].  
 
It is also unclear as to whether or not the defence can be raised in circumstances where the interference with the proceedings is intentional[17]
Given the high bar which a defendant would need to get over in order to successfully mount a public interest defence to a charge of sub judice contempt, it would be wise for any person who is considering publishing contemptuous material in the public interest to first seek legal advice.
 
For further information please contact:
 
Louise Jarrett
Managing Principal Solicitor
ua.vog.civ.osgva3de03cb426b5e36f5c7167b21395323@a3de03cb426b5e36f5c7167b21395323tterraj.esiuol
(03) 9247 6798

Michael Stagg
Senior Solicitor
ua.vog.civ.osgv6195f47dcff14b8f242aa333cdb2703e@6195f47dcff14b8f242aa333cdb2703eggats.leahcim
(03) 9247 6496

 


[1] Amongst many cases, John Fairfax and Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371.
[2]The Law of Contempt3rd Edition, London, 1996, p 85.
[3]Registrar, Court of Appeal v Collins[1982] 1 NSWLR 682, Prothonotary v Collins(1985) 2 NSWLR 549.
[4] Material is considered to be published each time the material is viewed or downloaded and so can be regarded as being continually published as long as it continues to be accessible for viewing or downloading. See Her Majesty's Advocate v William Beggs, Opinion No 2 of Lord Osborne [2002] SLT 139 at [22], Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125, [43] and confirmed in R v Hinch [2013] VSC 520 at 54.
[5] Attorney-General (NSW) v TCN Channel Nine Pty Lty (1990) 20 NSWLR 368 at 378-379.
[6] Director of Public Prosecutions v Wran (1987) 86 FLR 92.
[7] James v Robinson (1963) 109 CLR 593 at 615.
[8] Stirling v Associated Newspapers [1960] Sc LT 5.
[9] See in particular  NSW Law Reform Commission, Contempt by Publication, Discussion Paper 43 (2000) [7.9]-[7.22] and the cases referred to in those passages.
[10] Butler and Rodrick, Australian Media Law, 3rd Edition, Sydney, 2007, 236-237.
[11] See in particular Director of Public Prosecutions v Wran (1987) 86 FLR 92, in which the former Premier of NSW made a public statement in respect of a retrial of a criminal matter.
[12] Ex parte Terrill; Re Consolidated Press Ltd [1937] 37 SR (NSW) 255 at 257, 259.
[13] Hinch v Attorney-General (Victoria) (1987) 164 CLR 15.
[14] Hinch v Attorney-General (Victoria) (1987) 164 CLR 15, Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242).
[15] Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at [18]:
[16] Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 at 16.
[17] Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 at 9.