DPP v Johnson & Yahoo!7 (No 2) [2017] VSC 45 (17 February 2017)

Last Updated: 17 February 2017

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2016 03949

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CONTEMPT OF COURT – Sub judice contempt – Contested hearing – Publication had a real and definite tendency to prejudice the trial – Penalty – Applicable principles for determination of penalty – Factors relevant to whether to convict.

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HIS HONOUR:

Introduction and orders

1 On 28 November 2016, I gave judgment on liability in respect of an application by the Director of Public Prosecutions for a declaration that the first and second respondents (referred to as Ms Johnson and Yahoo!7 respectively) be adjudged guilty of sub judice contempt of court.[1] Ms Johnson is an online news journalist employed by Yahoo!7. I made a declaration that the conduct of the respondents in publishing an article titled ‘Man paused to take “smoke break” while bashing girlfriend to death’ during the trial of Mataio Jordan Aleluia on one count of murder of Brittany Harvie that commenced on 17 August 2016 was conduct in contempt of court. I was satisfied beyond reasonable doubt that the publication, objectively and as a matter of practical reality, had a real and definite tendency to prejudice the trial of the accused. The circumstances in which the offending material came to be published are set out in my earlier judgment regarding liability.

2 At the penalty hearing on 30 January 2017, the respondents relied upon two further affidavits, sworn by Mr Simon Wheeler, who is the head of editorial for Yahoo!7 in Australia and New Zealand, and by Ms Johnson, both dated 20 January 2017. The applicant relied upon a further affidavit of Kathryn Thornton sworn 24 January 2017.

3 The Director sought convictions and fines as penalty for the contempt against each of the respondents. The respondents submitted that the appropriate penalty would be to fine only Yahoo!7 in a modest sum, with no conviction being recorded against either respondent.

The applicant’s submissions

4 The Director submitted that I should consider the following matters as potentially aggravating factors, in assessing whether to record a conviction for each respondent and what sanction to impose:

(a) The nature and circumstances of the breach render it very serious in nature, as I recorded in my reasons relating to liability.[2] The objective seriousness of the contempt is also evident in the fact that it aborted a murder trial.

(b) The consequences of the breach were very significant, because it caused the discharge of the jury on the fourth day of the trial, and necessitated a second trial some months later at significant cost to the court’s resources.

(c) While it was, comparably speaking, a short trial, the breach occurred after a number of witnesses, including the victim’s mother, had given evidence and necessitated that they repeat the experience, resulting in substantial impact on the victim’s family, witnesses, the accused, the jurors and all involved with the conduct of the trial.

(d) While the offending article was removed from the Yahoo!7 website immediately upon the error having been realised, a copy of the images which formed part of the prejudicial material remained accessible through Google searches until after the hearing regarding liability.

(e) The explanations provided by the defendants as to how the breach occurred were unsatisfactory. Ms Johnson’s explanation – that she worked on the article in a piecemeal manner, was rushing, and failed to register that the matter was proceeding before a jury – appeared disingenuous in light of the content of the article which clearly related to a murder trial before a jury. Mr Wheeler failed to explain the circumstances in which, in breach of Yahoo!7’s policy, the article was uploaded without first being reviewed by a more senior editor other than to note the large ‘volume of articles being written at the time’.

(f) Ms Johnson and Mr Wheeler, on behalf of Yahoo!7, expressed sincere remorse, regret and apologised to Lasry J, but both respondents later contested the charge.

(g) Although it was not contended that the contempt was anything other than accidental, in the sense that the offending publication occurred as a result of inadvertence and carelessness rather than as a deliberate act to sabotage the criminal trial, the principle of specific deterrence remains relevant. While the Ms Johnson deposed that she has taken, and continues to take, steps to improve her journalistic skills so that the Court can have confidence that she will not commit a similar error in future, no detail was provided as to the nature of those activities. While Yahoo!7 now has a system in place whereby external solicitors will review all original court reports before publication if a Yahoo!7 journalist is not present in court during a criminal trial, it is important that Yahoo!7 enforce that rule and ensure that its journalists comply with it.

(h) The concept of general deterrence of other media organisations is highly relevant to the present case. As was said in R v Herald & Weekly Times Pty Ltd, ‘the media need to be reminded that they must not only have appropriate systems in place to avoid contempt, but they must ensure compliance with those systems in all cases, even when pressures caused by publishing deadlines are acute’.[3]

(i) With regard to the imposition of fines, limited information was provided by each of the respondents regarding their respective financial means. Ms Johnson’s affidavit merely states her salary, while Mr Wheeler’s affidavit is silent as to the financial situation of Yahoo!7. Yahoo!7’s holding companies (Yahoo! Australia and NZ (Holdings) Pty Ltd) are in turn owned by a US company, Yahoo!7 Netherlands, and Seven West Media Investments Pty Ltd, the last of which is a large and well-known Australian media organisation. A company search conducted by the applicant reveals that Yahoo!7 has a paid up share capital of $41,021,323.44.

(j) The respondents did not adduce any evidence suggesting that the recording of a conviction would have a detrimental effect upon their economic or social wellbeing or the first respondent’s future employment prospects.

Submissions in mitigation

5 The respondents submitted that I should consider the following matters in mitigation, when assessing whether to proceed to conviction and what sanction to impose:

(a) While acknowledging that the offending conduct was serious in nature, the respondents emphasised the steps taken in response, both immediately upon becoming aware of the issue, to take the article down, and subsequently, to have other material that remained available online removed after it was brought to their attention.

(b) Yahoo!7 has taken substantial steps to ensure that it will not reoffend in future, including:

(i) Training in the law of contempt has since been provided to all Yahoo!7 editorial staff by its external lawyers.

(ii) Yahoo!7 will no longer publish a report of a matter in trial unless the journalist producing that report was present, himself or herself, in the court. Similarly, if a report is obtained from an affiliate source or one with whom Yahoo!7 has a content sharing agreement, it will be required to confirm that the reporter was present in court.

(iii) A new procedure has been adopted, as outlined in detail in the affidavit of Mr Wheeler, by which all original court reports must be reviewed by either internal counsel or external legal advisors prior to publication.

(iv) Yahoo!7 has employed new editorial staff including a new senior sub-editor.

(c) Neither of the respondents have any prior convictions for contempt. Yahoo!7 has been operating its news website for almost ten years without a conviction, which ought be viewed as a good record.

(d) The conduct in breach was accidental and inadvertent rather than flagrant or contumacious, as has been evident in other cases where defendants have deliberately sought to defy or undermine a court’s order or process. In these circumstances, the recording of convictions ought not occur.

(e) The respondents have expressed sincere contrition and remorse for the consequences of their conduct, firstly at a hearing before Lasry J on 30 August 2016 at which an unqualified apology was offered to the Court by their solicitor, and secondly in the two affidavits filed in advance of the penalty hearing.

(f) The fact that the matter was contested ought not detract from the force of the apologies offered. The points taken by the respondents at the liability hearing, regarding the size of the readership of the offending material, and the weight to be given to jury directions in that context, were not farfetched or untenable.

(g) The consequences for Ms Johnson personally have been severe. She has felt embarrassed and ashamed of the mistake she made. She has been subject to criticism of her ability and professionalism as a journalist, and has suffered attacks on social media to such an extent that she suspended her accounts for a period of time.

Relevant legal principles

6 The fundamental aim of punishment for contempt is to uphold and preserve the undisturbed and orderly administration of justice in the courts according to law,[4] in this case the right of all accused persons in criminal trials to be tried before an impartial jury.[5] The principal sentencing considerations are to effect specific and general deterrence, and denunciation.[6] Factors of proportionality and parsimony are relevant and will be taken into account.

7 Where the respondent to a contempt charge is an individual, the court may punish by a fine, committal to prison, or both.[7] Where the respondent is a corporation, the court may punish by a fine, sequestration, or both.[8] The Court may decline to record a conviction.[9]

8 No maximum fine is prescribed for contempt at common law[10] or in accordance with r 75.11 of the Rules of Court.

9 In light of the submissions, the principles for recording a conviction set out in s 8(1) of the Sentencing Act 1991, are relevant here – namely, that in exercising its discretion whether or not to record a conviction, a court must have regard to all of the circumstances of the case, including the nature of the offence, the character and past history of the offender, and the impact of the recording on the offender’s economic or social well-being or on his or her employment prospects.[11]

10 In R v Herald & Weekly Times Pty Ltd,[12] Kyrou J (as he then was) identified the relevant considerations when sentencing for contempt:[13]

(a) the seriousness of the offence;

(b) the intention and “culpability” of the contemnor;

(c) whether any harm was actually caused by the contempt;

(d) any prior convictions for contempt;

(e) the importance of both specific deterrence of the contemnor from committing such offences in future and general deterrence of such offences;

(f) the existence or otherwise of any system in the relevant organisation for the prevention of the contempt;

(g) whether legal advice was sought before publication;

(h) the general nature and purpose of the publication (including factors such as the extent to which the publication aspires towards “seriousness” as opposed to sensationalism and the standard of its journalism); and

(i) whether the respondent has pleaded guilty, apologised and offered to pay costs.

Similar principles have been variously restated in several cases.[14]

11 A significantly serious contempt is committed where the publication interferes with the course of, and has a tendency to prejudice, a murder trial[15] and, in particular, where the trial must be adjourned as a direct result of the contempt.[16]

12 It may be unnecessary to accord significant weight to the element of specific deterrence if the contemnors have reduced the impact of the contempt, for example by removing the offending publication, have dealt with those responsible and have taken steps to decrease the possibility of further breaches.[17] The presence of these factors may influence the assessment of the contemnors’ level of contrition.[18] Changes made to the organisational structures in place that led to the contempt being committed may support some confidence that breaches will not occur in the future but the systems must effective and adhered to in order to guard against future acts of contempt.[19] Otherwise the element of specific deterrence will remain a strong consideration.[20]

13 In exercising the discretion whether or not to record a conviction, a significant factor is whether the court considers the respondent’s conduct to have been contumacious.[21] A mere inadvertent failure to scrutinise an article prior to publication, as opposed to publication occurring with the knowledge that the article has not been properly checked to ensure it is not in contempt of court, is treated as a less serious form of contempt.[22]

14 In determining the appropriate penalty, the court may look for guidance to current sentencing practices in comparable cases.[23] While the circumstances and impact of different occasions of contempt upon the court process are infinitely variable, it is clear that the penalty for serious examples of contempt may be substantial.[24] I have reviewed a number of earlier decisions that were drawn to my attention.[25]

Conclusion

15 I have taken careful account of each of the factors in aggravation and mitigation put forward by the parties and, more broadly, the proper sentencing considerations for cases of contempt that I have identified.

16 The contempt is properly characterised as very serious in nature. It caused a murder trial, already underway, to be aborted and postponed. This wasted considerable time, incurred substantial additional costs and a burden on the court’s resources, and caused great inconvenience and stress to the participants, including the victim’s family, the accused, and the jury that had been empanelled.

17 I accept that neither respondent intended to interfere with the course of the trial, and that Ms Johnson was shocked and ashamed at having done so and by the consequences that followed. The Director submitted that aspects of her explanation of her offending appeared disingenuous, but the analysis was textual, not based on cross-examination, and not deserving of significant weight. I accept that the likelihood of any repetition of such contempt on her part is remote because of the severe impact of the public criticism and reprobation directed at her personally. I accept that she has learned, in a harsh and unforgiving way, a lesson that she will not forget. These circumstances mitigate the need for specific deterrence. The media’s response to her contempt is available, by internet search, for all to see. The manner and degree of public condemnation that may be anticipated by any other journalist who fails to take sufficient care to observe the golden rule ought to provide some measure of general deterrence as well.

18 Both respondents offered apologies for their conduct, commencing with apologies to Lasry J when his Honour called for an explanation. Somewhat curiously, after fulsome expressions of contrition, the respondents contested their liability for contempt. They submitted that their conduct could not constitute contempt. It was submitted that the respondents were entitled to contest a technical aspect of their liability and that doing so did not diminish the sincerity of the apologies offered.

19 I cannot accept this submission. The original apologies were made to Lasry J when the question under consideration was referral to the Director to decide whether proceedings for contempt should be brought. Those apologies were not qualified by the pre-condition ‘if it turns out that as a matter of technicality my conduct was in contempt’. When the Director brought proceedings, the respondents maintained that they ought not be found guilty of contempt until I found otherwise. Only on a finding of guilt did they seek to revive and renew their apologies. The instructions to contend that there could not be a contempt in the circumstances, whether originating with the respondents or with their legal advisers, necessarily diminishes the mitigatory impact of the apparent expressions of contrition. The later expressions of remorse, following on the finding of guilt made by the court, are relevant to issues of specific deterrence but cannot carry the same impact on the proper synthesis of sentencing considerations as a genuine and unconditional expression of remorse made at the first available opportunity.

20 In these circumstances, I have carefully evaluated the proper weight to be given to the circumstances of expression of contrition.

21 Dealing first with Ms Johnson, she offered to personally express her apology to the family of the victim and to the court, although that ultimately did not occur. She stated that she would have been prepared to do so before Lasry J. In her case I infer that she had been provided with support and legal representation by Yahoo!7 and that the decision to contest liability, one she must accept, was primarily made and effected by Yahoo!7. Carefully considering all of the circumstances, I am satisfied that Ms Johnson has felt and expressed genuine remorse for the consequences of her thoughtlessness from the time of first learning of the discharge of the jury, notwithstanding that she contested the charge.

22 I also take account of her age, lack of journalistic experience, and vulnerability through being assigned a high level of responsibility by Yahoo!7 in the circumstances.

23 Provided Ms Johnson is prepared to undertake to be of good behaviour for a period of two years and to return before me for sentencing if called upon by the Director to do so, I will further adjourn this hearing in respect of her to a date to be fixed. Should she observe the terms of her undertaking and not offend against the law, when the proceeding returns before the court, it will be dismissed.

24 Yahoo!7 has offered to pay the Director’s costs on an indemnity basis, and has, by its solicitor before Lasry J, and later by its Head of Editorial for Australia and New Zealand in affidavits filed in this proceeding expressed remorse. The expressions of contrition, appearing to admit the substance of the contemptuous conduct and awareness of the consequences it had caused for the murder trial, were compromised by the decision to contest the question of liability. I am satisfied that this decision was made by Yahoo!7 and it must bear the consequences, which are to significantly limit the influence, in my assessment of mitigatory factors, of the fact of apology.

25 At the relevant time, Yahoo!7 had a system in place to prevent the publication of material that would constitute contempt of court. The contemptuous publication exposed serious flaws in that system. It appears that while the article should have been checked by a more senior editor before being loaded to the Yahoo!7 website, this did not occur for want of resources and pressure of deadlines. Legal advice was not sought prior to publication. Whatever the detail in the operation of that oversight system, it appears to have, in practice, amounted to little more than reliance on the experience and judgment of individual journalists at the writer and editor stages of the process. The breach in editorial supervision that allowed this failure in the methodology of the system to occur was never properly explained, a matter that cautions against ready acceptance of the changes implemented since. To the extent that Yahoo!7’s business model was exposed by the proceeding, it was unsurprising that protective systems failed, but I would add that I have very little information about that business model as it operated either before or after the contemptuous publication.

26 Yahoo!7 asserted that it had taken apparently significant steps to improve its systems. Yahoo!7 has now determined that additional editorial staff are required to manage the workload and this additional expense has been incurred. Lawyers may become involved in assessing prospective publications. The pre-existing systems once thought to be sufficient are necessarily accepted as deficient. The standards against which that assessment was originally made were not revealed. I infer that the contemptuous publication likely occurred, at least in part, as a consequence of inadequate resourcing, driven by profit or commercial motivations. Conduct by media organisations that contributes to the risk of sub judice contempt in pursuit of a profit motive must be strongly discouraged.

27 Although Yahoo!7 has apparently implemented the change in procedures that I have described, the court has only the word of Mr Wheeler, who as the head of editorial for the second respondent in Australia and New Zealand is likely no more than a representative of middle management. In the absence of a commitment from the board and, probably, from the board or senior management of Yahoo!7’s holding companies, the court is being asked to trust that Yahoo!7’s response to the finding of guilt will be effective and enduring. When considering sentencing objectives, such an ipse dixit does not permit substantial weight to be given to the apparent changes in practices. I can find no feeling of comfort that, should the profit motive rear its head in the future, Yahoo!7 (and other media organisations) will continue to incur expense to maintain systems and procedures that protect the integrity of court processes.

28 I have concluded that Yahoo!7 bore primary responsibility for the contempt. The rationale for imposing a greater penalty and a conviction on Yahoo!7 is that it failed to ensure its systems for supervision and control of the dissemination of information about court proceedings were sufficient to prevent prejudicial material from being aired. Commercial pressures, such as meeting deadlines and ensuring there is immediacy regarding the reporting of current affairs, and incentives, in the form of larger audiences and substantial profits, were at the forefront of Yahoo!7’s considerations. It is a large organisation affiliated with one of Australia’s biggest media companies. Professionalism in its management and staff are expected of it. In view of the kind of high-volume, time-pressured work Yahoo!7 expected of its journalists, Ms Johnson’s mistake was readily foreseeable. The fact that Yahoo!7 has since taken steps to improve the system, while a mitigating factor, does not diminish its culpability for the contempt committed.

29 Time pressures inherent to the media’s work must be balanced against the responsibility to ensure that the appropriate checks are in place. As Kyrou J stated in R v Herald & Weekly Times Pty Ltd:[26]

Decisions about what to publish and when to publish are made by the media based on commercial and other considerations (including public interest considerations) of their own choosing. If circumstances arise where there is insufficient time to thoroughly check an article to ensure it does not constitute a contempt, breach a suppression order or breach any other law, it lies in the hands of the media to defer publication until such checks are carried out... Obviously enough, where there is a conflict between compliance with a self-imposed deadline and compliance with the law, the former must give way to the latter.

30 Subject to my earlier observations, I have taken account of the measures, deposed to by Mr Wheeler, that Yahoo!7 has since taken to remedy its systems. I am satisfied that the system described is an improved one. The arrangements about legal advice before articles are uploaded to the internet appear clumsy, unrealistic in some respects, and may prove more difficult to enforce in practice, given time constraints and their importance in the business model being employed by Yahoo!7.

31 Balancing all of the relevant considerations I must take into account in this case, the proper purposes for sentencing Yahoo!7 for its contempt is to convict Yahoo!7 and fine it $300,000. The fine is intended to be a real and substantial financial imposition for the company to make it clear to it and to other media organisations that sub judice contempt of the type demonstrated in this case is intolerable. Yahoo!7’s conviction reflects the fact that the breach occurred because of a serious lack of proper oversight, an inadequate system, and a failure for the organisation to accord court reporting the priority required given the inherent risks, and the equivocal nature of its contrition.

Conclusion

32 For these reasons I will order that:

(a) Subject to Ms Johnson giving the court the undertaking required, the further hearing of this proceeding in respect of her be adjourned to a date to be fixed.

(b) Yahoo!7 will be convicted and fined $300,000 and I will order that it pay the applicant’s costs of and incidental to the application on an indemnity basis.

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^[1] DPP v Johnson & Yahoo!7 [2016] VSC 699.

^[2] At [25]-[27].

^[3] [2008] VSC 251, [41].

^[4] R v Derryn Hinch [2013] VSC 554, [12].

^[5] DPP v Wran (1987) 7 NSWLR 616, 639.

^[6] R v Derryn Hinch [2013] VSC 554, [12].

^[7] Supreme Court (General Civil Procedure) Rules 2015, r.75.11(1).

^[8] Ibid, r.75.11(2).

^[9] Sentencing Act 1991 (Vic), s 7(1)(f). See, e.g. Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors (No 2) [2014] VSC 134, [77]; and Deputy Commissioner of Taxation v Gashi & Anor (No 3) [2011] VSC 448, [4].

^[10] Smith v The Queen (1991) 25 NSWLR 1, 14.

^[11] Whilst there is a conflict of authority on whether the Sentencing Act 1991 (Vic) directly applies in the punishment for contempt of court, the court should have regard to the Sentencing Act: see Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors (No 2) [2014] VSC 134, [75]-[78] and the authorities cited therein.

^[12] [2008] VSC 251.

^[13] Ibid, [16] (citations omitted).

^[14] See R v Derryn Hinch [2013] VSC 554, [12]; Deputy Commissioner of Taxation v Gashi & Anor (No 3) [2011] VSC 448, [5]; R v The Herald & Weekly Times Pty Ltd [2009] VSC 85, [10]; DPP v Johnson [2002] VSC 583, [59]; and R v David Syme & Co Ltd [1982] VicRp 16; [1982] VR 173, 178-181.

^[15] R v Herald Weekly Times (2008) VSC 251, [18].

^[16] R v Nationwide News Pty Ltd [2006] VSC 420, [5]-[6].

^[17] R v Holman [2012] TASSC 75, [23].

^[18] Ibid, [21].

^[19] See R v The Age Company Ltd [2008] VSC 305, [30]; R v Herald Weekly Times Pty Ltd [2008] VSC 251, [25]; and R v General Television Corporation [2009] VSC 84, [42].

^[20] R v General Television Corporation Pty Ltd [2009] VSC 84, [71].

^[21] CC Containers Pty Ltd v Lee (No 9) [2015] VSC 595, [24].

^[22] R v The Age Company Ltd [2008] VSC 305, [27].

^[23] Vaysman v Deckers Outdoor Corporation [2011] FCAFC 17; (2011) 276 ALR 596.

^[24] DPP v Johnson & Ors [2002] VSC 583, [57].

^[25] Attorney-General for the State of New South Wales v Radio 2UE Sydney Pty Ltd and John Laws [1998] NSWSC 28, The Queen v Hinch [2013] VSC 554, R v Nationwide News Pty Ltd [2006] VSC 420, R v Herald and Weekly Times Pty Ltd, [2008] VSC 251, R v Herald and Weekly Times Pty Ltd [2009] VSC 85.

^[26] [2008] VSC 251, [21].