The media and contempt of court
Not since Derryn “The Human Headline” Hinch was sent down for 50 days in 2014 for contempt of court has there been such heightened anticipation in the Australian media, as it waits to learn the fate of 36 journalists and media organisations who are to face multiple charges brought by the Victorian Director of Public Prosecutions, Kerri Judd, QC.
This is the fallout from those mysterious headlines and other strangled media noises in December 2018, following the conviction of Cardinal George Pell for historical child sex offences.
In essence, we now have a full-scale turf war between two crucial components of the democratic state – an independent judiciary and a free press, both seeking to defend their respective territory.
The County Court’s suppression order in the Pell case, dated June 25, 2018, was designed to stop reporting of the choirboy charges in order to protect against prejudicing a proposed subsequent trial, dealing with allegations that the cardinal indecently assaulted two boys in a Ballarat swimming pool in the late 1970s. That trial was scheduled to start on March 11, 2019.
The swimmers case did not proceed after the trial judge decided in February 2019 that certain “tendency” evidence could not be admitted. The upshot was the suppression order locked down reporting of both of Pell’s choirboy trials – the original, which ended in a mistrial, and the retrial – in order not to contaminate jurors for a trial that never took place.
That may well turn out to be an important point because in 2016 Justice Jack Forrest from the Victorian Supreme Court outlined the elements to be considered in sentencing for contempt, one of which was the effect of the contempt on the administration of justice.
Chief Judge Peter Kidd’s order was emphatic. Publication was “prohibited of any report of the whole or any part of these proceedings”.
All that could be mentioned by publications was that Pell was facing prosecution for “historical child sexual offences”. It is fair to say that anyone in the media world who was not living with their grandmother in a cave was aware that the word “Pell” was verboten. Ashen-faced media lawyers issued strict ukases that everyone should sit on their hands until there was a verdict in the swimmers trial.
Yet here we are, with 36 respondents being brought into the Victorian Supreme Court by the Queen with a first directions date listed for April 15 before Justice John Dixon, the judge who awarded Rebel Wilson damages of more than $4.5 million – the highest amount ever for a defamation case – only to have most of it cruelly snatched away by the Court of Appeal.
The “Pell 36” are a concatenation of editors, reporters, producers of online content, morning-radio shockers and TV talking heads. Some are household names, others just names in their own households.
The publishers include most of the bigwigs of Australian media: The Herald and Weekly Times, Queensland Newspapers, Nationwide News, Advertiser Newspapers, Fairfax Media, The Age Company, Macquarie Media, Nine Entertainment and, of course, Mamamia.
Noticeably absent are the ABC, Guardian Australia and Schwartz Media.
The articles, electronic bulletins and broadcasts that are the subject of this sweeping prosecution invariably were of the “we have something big to tell you but we can’t let you in on the story” variety.
It was a frustrated media outburst that at the same time teased and tantalised a dwindling minority who had no idea what was being talked about.
The Daily Telegraph, after describing the conviction of the unnamed person as “the nation’s biggest story”, went on to say that the media ban was an “archaic curb on freedom of the press in the current digitally connected world”.
The Courier-Mail’s front page read, “Court Censorship ... Secret Scandal ... It’s Australia’s biggest story. A high-profile person found guilty of a terrible crime. The world is reading about it but we can’t tell you a word.”
The Australian Financial Review reported that Cardinal Pell was removed from the cabinet of Pope Francis “after being implicated in historical child sexual offences”. Others, such as online publications by the Herald Sun and The Canberra Times, also reported that Pell had been removed from Pope Francis’s inner circle of advisers.
The Age editorialised that the “rampant use” of suppression orders by Victorian courts had become “almost absurd ... insidious and against the public interest”.
Ray Hadley of 2GB said: “I can guarantee you, despite the orders that are in place about this particular matter, that by the time we get to Friday, Saturday, Sunday – so tomorrow or the weekend – 90 per cent of the population will know ... it’s via the world wide web. And everyone will know about it, despite the orders that are in place. And it seems rather stupid we can’t talk about it, given that everyone on the planet knows what it is.”
Nowhere in the DPP’s originating motion does it say any media directly named Cardinal Pell as the person who had been convicted of this awful crime. This is all about implications, suggestions and moving shadows that might lead readers, viewers and listeners to join the dots for themselves.
Whether any of this gets close to violating an order that prohibits “any report” of the relevant Pell trial is something that will exercise great minds, for quite some time, at enormous expense.
The newspaper stories and their web offshoots would have been closely legalled before anyone pressed “send”. People experienced in the law of contempt and other narrow byways of getting things published believed there was no trespass on Chief Judge Kidd’s order in publishing them.
Lawyer Justin Quill, of the media defendants’ firm Macpherson Kelley, has gathered the “Pell 36” to his bosom and got the president of the Victorian Bar Council, Dr Matt Collins, QC, to take the brief. Collins also appeared before Justice Dixon in the Rebel Wilson v Bauer Media trial.
In February the DPP notified the media that she was pressing ahead with charges of contempt, sub judice contempt, scandalising the court and aiding and abetting contempt by overseas media.
Quill wrote her a scathing rebuttal on February 22, at which point he was acting for 53 media clients. He said that her letters to his clients were “vague and do not specify with any precision the particulars said to justify making serious allegations of contempt and related offences”.
He complained that the DPP had not provided proper particulars of the alleged offending conduct and that there had been no attempt to identify specific portions of the publications that were in breach of the chief judge’s order.
Further, little care had been taken by the prosecutor to identify the actual job functions of those she intended to summons.
“Some were on extended personal leave at the time of publication, including maternity leave. Some are employed in roles such as answering phone calls which could not possibly justify contempt charges. At least two individuals were no longer employed by the relevant publishers at the time of publication.”
Quill did not hold back: “These matters raise serious questions about the propriety of the conduct of your office in relation to the sending of these letters.”
It was believed that close to 100 organisations and individuals were originally in the DPP’s frame. That shrank to 53 and now to 36. The Queen is seeking orders for imprisonment, fines, admonishment, the stocks and/or any other punishment.
The prosecutor’s originating motion also identifies 32 foreign publications, accessible online in Australia, which published the forbidden fruit. This category, which includes The Washington Post and The MiceTimes of Asia, was allegedly aided and abetted by the Australian media.
On December 13 last year, when Chief Judge Kidd believed his media blackout had been breached, he had a special mention in his court, composed of himself, Kerri Judd and Pell’s barrister Robert Richter.
What should he do? Judd responded: “Your honour, my preference would be for you to leave this to me.”
She told Kidd, “... you have got a suppression order breach”, as well as other varieties of contempt.
Judd continued, “It is something that is perhaps dealt with by me instituting whatever proceedings that need to be instituted.”
Kidd pointed to the fact that “quite dishonestly” the media did not reveal there had been no appeal against his original suppression order of June 2018.
In 2018 the Victorian DPP brought contempt charges against The Australian over an article by reactionary commentator Nick Cater mentioning the prior convictions of John Setka, the Victorian secretary of the Construction, Forestry, Maritime and Energy Union, before his proposed trial for blackmail.
The publisher was fined $155,000, with Justice Lesley Taylor saying it was difficult to imagine a more blatant example of sub judice contempt. It followed a prosecution of Yahoo7 the year before where a fine of $300,000 was ordered for a contempt that led to a murder trial being aborted and later postponed.
All of this seems rather quaint alongside the system adopted by our first amendment-loving cousins in the United States, where prosecution and defence lawyers can be interviewed during an ongoing trial and where the media pack has been seen to yell questions outside the courtroom about an accused’s prospects: “Will he fry, judge?”
There’s also a US cable TV operation where viewers can vote as the “13th juror” on the evidence in real-time cases.
One might say the US is a place where the law of contempt is held in contempt.
This article was first published in the print edition of The Saturday Paper on Apr 6, 2019 as "Age of contempt". Subscribe here.