BLAW10002 Lecture Notes - Lecture 6: Sub Judice, Mens Rea, Morning Sickness
Reporting the Courts
Contempt of Court (p.128 - 129)
•Contempt is words or actions which interfere with the proper administration of justice or
constitute disregard for the authority of the court
•Does not just apply to journalists
•Balancing exercise between:
-Freedom of expression
-Public’s right to be informed about legal/political processes
-Journalist’s interests in protecting confidentiality
-Effective administration of justice
Historical Contempt
•Original purpose was to establish and maintain the authority of the court by punishing those
whose actions were disrespectful
-Party failing to appear before the court (12th century)
-Direct physical or verbal threats to the authority of the court (Middle Ages)
-Assaulting clerks, jurors, witnesses or opposing parties
-Writing letters deriding judges
•Historical developments and changing social developments have introduced new
considerations
-e.g. rise of media publications
Types of Contempt
•Sub judice contempt (see below)
•Scandalising the court (see below)
•Revealing the deliberations of juries
•Contempt in the face of court - improper behaviour during a hearing
•Disobedience contempt - failure to comply with a court order to undertaking given to a court
Distinguishing features of Contempt
•A special summary mode of trial
-When contempt occurs, judge has power to decide punishment
-Judge’s role can be complex as they are acting as a:
-Judge
-Victim if the contempt is directed ar then
-Prosecutor by bringing about charges for contempt
-Witness in attesting the contempt
-Jury in deciding penalty
•Unlimited sentencing power
-No limit of penalty in Supreme Court or above
-Designed to coerce a person to give information in court
-Controversial issue as a journalist may be jailed for their actions sometimes because of an
attempt to protect someone else or expose wrongdoing
•Requirements of mens rea
-Mens rea = criminal acted with a guilty intention
-Only intent required for contempt is intend to publish or broadcast
-No need for intent to interfere with the administration of justice
-No excuse that publication was by mistake or reasonable steps were taken to ensure
material was not prejudicial
Sub judice contempt of court (p.130-131)
•Criminal offence to publish material which ‘has a tendency to interfere with the
administration of justice’ in proceedings ‘under a judge’
-Only under a judge when proceedings in court begin
•Applies to both criminal and civil proceedings
•Balance the competing rights and interests of those involved in court cases and those
reporting
-Necessary to avoid ‘trial by media’ where free speech interfere with the usual safeguards
of the legal system
•Ensures no ‘poison of the fountain of justice before it begins to flow' (Parke 1903)
-Jury’s judgement or witnesses’ testimonies not tainted by media
-Media should not become a second-rate criminal investigative body
When will proceedings be ‘under a judge’ (sub judice)?
•Criminal cases:
-Begins: arrest or summons to appear; fact that arrests is ‘imminent’ is not sufficient
-Ends: until accused is convicted or acquitted and the time for lodging an appeal has
lapsed
•Civil cases:
-Begins: when a writ, statement of claim or other initiating process has been issued
-Ends: when judgement has been delivered by the court, even if the time for lodging an
appeal has not yet lapsed
Issues with sub judice contempt
•Ill-defined - journalists are unsure of what can be published in particular circumstances
•Enforcement is infrequent and unpredictable - tempts journalists to publish as prosecution
may be unlikely
•Courts and journalists often have very different ideas about what is in the public interest
-Journalism should be approach without any pre-case judgement
Attorney General v Times Newspapers Ltd [1974] AC 273
•Drug made for morning sickness resulted in babies with birth defects, Times wrote a series of
articles
•No official action or complaints initially, until Times warned of the imminent publishing of a
particularly hard-hitting article
•Drug company obtained an injunction on the grounds it was sub judice. Appealed by
Times. Injunction remained because:
-The media should not be allowed to prejudge a case
-Public interest - not sufficient enough to allow publication
-Justice better served by postponing journalistic discussion
•International Court later disagreed with judgement, but decision not binding
ABC v O’Neill (2006) 227 CLR 57
•Injunction lodged against ABC against documentary that implied O’Neill killed children
•“It is not for the public benefit that the media should publicly allege a person has committed a
crimes of which he or she has been convicted”
•“The responsibility owed to the public with regard ti the investigation of crime is entrusted by
our society to the police”
•“If there is evidence available that might assist the authorities to investigate, it should be made
available to them”
Publication
•Contemptuous material must be ‘published’
•Publish = making ‘it available to the general public or at any rate a section of the public
which is likely to comprise those having a connection with the case’
-E.g. publication in NSW about VIC case - not considered ‘published’ as jurors not selected
from NSW
-Problem: interent communication
•Media is published each and every day that is available for download is the relevant
jurisdiction
•Different publication laws to defamation as for defamation, information is only harmful when
received
•Responsibility for publication = any person involved in publication
-Journalist
-Editor of newspaper
-Owner of newspaper
-Anyone that assists in distribution
-But, ISPs are protected
•Innocent dissemination
-Some disseminators will be protected if a defence available
When will a publication have the relevant tendency?
•Must be a ‘real or clear tendency, as a matter of practical reality to interfere with the
administration of justice” in the particular case
•Courts only enforce contempt of court in serious cases to ensure freedom of the press
-A remote or theoretical possibility is not sufficient
•Judged objectively by reference to the ordinary reasonable recipient
-Inherent nature of the publication: words used, sensational or serious form, who is saying
it, credibility of who published
-Circumstances of the publication: to whom it is published, manner of publication
-Timing of the publication: early in proceedings - fade factor - time to trial from arrest is
often long - may not have the relevant tendency
•Interference of publication considered at the time of publication, rather than at a later date
-For example, even if publication stated the accused was guilty and this was the result, it
can still be held in contempt.
•Factors taken into account:
-Prominence of the item printed or broadcasted
-Images accompanying the publication
-Time lapse between publication and the trial
-Social prominence of the person making contemptuous statements
-The extent of existing pretrial publicity
-Extent or area of publication
Sub judice contempt in the US
•First Amendment protecting free speech makes US more lenient
•Sub juice contempt can only be punished if it constitutes a “clear and present danger” to the
functioning of the court!
Document Summary
Contempt of court (p. 128 - 129: contempt is words or actions which interfere with the proper administration of justice or constitute disregard for the authority of the court, does not just apply to journalists, balancing exercise between: Public"s right to be informed about legal/political processes. Historical contempt: original purpose was to establish and maintain the authority of the court by punishing those whose actions were disrespectful. Party failing to appear before the court (12th century) Direct physical or verbal threats to the authority of the court (middle ages) Assaulting clerks, jurors, witnesses or opposing parties. Writing letters deriding judges: historical developments and changing social developments have introduced new considerations. Distinguishing features of contempt: a special summary mode of trial. When contempt occurs, judge has power to decide punishment. Judge"s role can be complex as they are acting as a: Victim if the contempt is directed ar then. Prosecutor by bringing about charges for contempt.