Report No. 200
Section 9: Contempt because of pressure on parties or prospective parties to civil proceedings: (1) A person is guilty of subjudice contempt proceeding against the person if:
(a) the person publishes matter or causes matter to be published and
(b) the matter contains unfair comment or material misrepresentation of fact that incites hatred towards severe contempt for, or severe ridicule of a person in his, her or its character as a party or prospective party to a civil proceeding and
(c) because of the publication of the matter, there is substantial risk, according to the circumstances at the time of publication, that a person of reasonable fortitude in the position of a party or a prospective party to the proceeding would make a different decision in relation to the instituting, maintaining, defending, continuing to defend or seeking to settle the proceeding then he, she or it would otherwise make.
(2) A person can be found guilty as referred to subsection (1) whether or not the person intended to give rise to a risk such as described in subsection (1)(c).
(3) This section does not apply to or in respect of a publication of matter concerning a party or prospective party to a civil proceeding after the conclusion of any appeal in the civil proceeding and the expiry of any period permitted for appeal or further appeal (whichever is later).
(4) This section extends to the publication of matter outside New South Wales.
(5) In this section, prospective party, in relation to a proceeding, means
(a) any person who, there are reasonable grounds for believing, could be or become a party in the proceeding, and
(b) any person who is or may be in a position to institute the proceeding, whether or not actually minded to do so.
Section10:Contempt because of pressure on parties or prospective parties to criminal proceeding:(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.
(b) The matter contains unfair comment or material misrepresentation of fact that incites hatred towards, serious contempt for, or severe ridicule of a person in his, her or its character as a party or prospective party to a criminal proceeding, and
(c) because of the publication of that matter, there is a substantial risk, according to the circumstances at the time of publication, that a person of reasonable fortitude in the position of a party or prospective party to the proceeding will make a different decision in relation to instituting, maintaining, defending, pleading guilty in or accepting a plea of guilty in the proceedings than he, she or it would otherwise make.
(2) A person can be found guilty as referred to in subsection (1) whether or not the person intended to give rise to a risk of the kind described in subsection 1(c).
(3) This section does not apply to or in respect of matter concerning a party or prospective party to a criminal proceeding after the conclusion of any appeal proceeding instituted in the criminal proceeding and the expiry of any period permitted for appeal or further appeal (whichever is the later).
(4) This section extends to the publication of matter outside New South Wales.
(5) In this section, ....................................."
Part III of the Bill refers to factors in making a finding of criminal subjudice contempt and section 11 states pre-existing publicity does not prevent finding of contempt. section 12 states that 'Evidence relating to discharge of jury following publication is admissible in contempt proceedings'.
Part IV of the Bill refers to 'Defences in subjudice contempt proceedings: section 13 bears the title "Defence if conduct is innocent or if no relevant knowledge or control", section 14 bears the title 'Defence if no editorial control over the content of publication'.
Part V refers to exclusion of liability in subjudice proceeding. section 15 refers to 'exclusion of liability when publication relating to a matter of public interest' but the exclusion is not available if the benefit does not outweigh the harm caused to the administration of justice by risk of the influence on jurors, potential jurors, witnesses, potential witnesses or parties or potential parties. section 16 refers to exclusion of liability when publication is necessary to protect public safety.
Part VI refers to 'suppression orders' if there is actual or threatened criminal contempt.
"section 17: Restraint of actual or threatened contempt of Court: (1) Any person having a sufficient interest may bring a proceeding in the Supreme Court for an order to restrain a contempt of Court by publication of matter (whether within or outside the State) that has a tendency to prejudice the fairness of another proceeding in a court of the State.
(2) An application must not be made under this section unless the Attorney General and the parties to the other proceeding (if any) have been notified of the application.
(3) The Director of Public Prosecution does not have to comply with subsection (2).
(4) A proceeding under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its Committee or other controlling or governing body), having like or common interests in that proceeding."
Part VII refers to 'costs of trial discontinued because of contemptuous publication'. section 18 deals with this aspect.
section 19 states that the Attorney General may apply for an order under section 18 for the benefit of the accused, or the State or any person or persons of a class.
section 20 deals with calculation of costs. section 21 with nature of costs.
section 22 with certification of costs;
section 23 with nature of order;
section24 with enforcement of order;
section 25 with recovery;
section 26 'procedure'.
Part 8 refers to criminal contempt generally:
section 27 states that any person may commence proceeding for criminal contempt; section 28 states that mere prejudging issues in proceeding is not enough to constitution contempt.
Schedule 1: Part 1 (section 7, 8) states when a criminal proceeding is active. It says:
"1(1) A criminal proceeding is active for purposes of section 7:
(a) from the earliest of the following:
(i) the arrest of a person in New South Wales or in any other State or Territory,
(ii) the laying of a charge,
(iii) the issue of a Court attendance notice and filing in the registry of the relevant Court,
(iv) the filing of an ex officio indictment,
(v) the making of an order in a country other than Australian that a person be extradited to New South Wales for the trial of an offence.
(b) until
(i) the verdict of a jury in the proceedings, or
(ii) the making of any order, or any other event, having the effect that the offence or offences charged will not be tried before a jury, or at all.
(2) If a retrial before a jury is ordered, a criminal proceeding is active from the time the order for retrial is made.
Part 2 of Schedule 1 deals with meaning of the word 'active' for purposes of risk of influence on witnesses and potential witnesses.
section 4 states:
(1) A criminal proceeding is active for the purposes of section 8
(a) from the earliest of the following:
(i) the arrest of a person in New south Wales or in any other State or Territory,
(ii) the laying of a charge,
(iii) the issue of a Court attendance notice and its filing in the registry of the relevant Court,
(iv) the filing of an ex officio indictment,
(v) the making of an order in a country other than Australian that a person be extradited to New South Wales for the trial of an offence.
(b) until the later of the following:
(i) the conclusion of any appeal proceedings;
(ii) the expiry of any period permitted for appeal or further appeal.
(2) If a retrial is ordered in a criminal proceeding, the criminal proceeding is active again from the time the order for a retrial is made, until
(a) the conclusion of any appeal proceedings, or
(b) the expiry of any period permitted for appeal or further appeal whichever is late.
Appendix by the Report refers to a Bill on suppression order and prevention of examination of records. We have referred to the various provisions of the UK Act, 1981 and the Bill attached to the N.S.W. Law Reforms Report (2003) which deal with suppression orders and the 'substantial risk of prejudice'.
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