Report No. 200
Section 7 to 10 of the Bill is important and deal with the 'substantial risk'.
section 7 deals with 'Contempt because of risk of influence on jurors and potential jurors' and applies to civil as well as criminal proceedings. section 8 deals with 'Contempt because of risk of influence on witnesses and potential witnesses' and applies to civil and criminal proceedings; section 9 deals with 'Contempt because of pressure on parties or prospective parties to civil proceedings'; section 10 deals with 'Contempt because of pressure on parties or prospective parties to criminal proceedings'. The clauses of these sections are all similar with minor differences. Some sections have extra clauses. We shall refer to sections 7, 8 and section 10 which are more relevant for us:
Section 7: 'Contempt because of risk of influence on jurors and potential jurors'(1) A person is guilty of sub-judice contempt proceeding against a person if:
(a) the person publishes matter of causes matter to be published, and
(b) a criminal or civil proceeding is active at the time of the publication of the matter, and
(c) the proceeding is one that will be, may be or is being tried before a jury, and
(d) the publication of that matter creates a substantial risk, according to the circumstances at the time of publication, that a juror in the proceeding or a person who could become a juror in the proceeding (a potential juror) will become aware of the matter, and
(e) there is a substantial risk, according to the circumstances at the time of publication, that the juror or potential juror will recall the matter at the time of acting as a juror in the proceeding, and
(f) because of the risk that the juror or potential juror will recall the matter at that time, there is a substantial risk, according to the circumstances at the time of publication, that the fairness of the proceeding will be prejudiced through influence being executed on juror or potential jurors by the published matter.
(2) A person can be found guilty as referred to in subsection (1) whether or not the person intended to prejudice the fairness of the proceeding.
(3) Part 1 of Schedule 1 applies for determining the times at which a proceeding is active for the purposes of this section.
(4) This section extends to the publication of matter outside New South Wales.
Section 8: Contempt because of risk of influence on witnesses and potential witnesses: (1) A person is guilty in a subjudice contempt proceeding against the person if
(a) the person publishes matter or causes matter to be published, and
(b) a criminal or civil proceeding is active at the time of the publication of the matter, and
(c) the publication of that matter creates a substantial risk, according to the circumstances at the time of publication, that a witness in the proceeding or a person who could be a witness in the proceeding (a potential witness) will become aware of the matter, and
(d) there is a substantial risk, according to the circumstances at the time of publication, that a witness will recall the contents of the matter at any stage of the proceeding or of any official investigation in relation to the proceeding, and
(e) because of the risk that the witness will recall the matter at that time, that the fairness of the proceeding will be prejudiced through influence being executed on witnesses or potential witnesses by the published matter.
(2) A person can be found guilty as referred to in subsection (1) whether or not the person intended to prejudice the fairness of the proceeding.
(3) Part 2 of Schedule 1 applies for determining the times at which a proceeding is to be treated as active within the meaning of this section.
(4) This section extends to the publication of matter outside New South Wales.
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