Howie J almost throws the book and misses

Director of Public Prosecutions (Cth) v Elisabeth Sexton [2008] NSWSC 152

Do you remember Jim Selim of Pan Pharmaceuticals?  His factory was shut down owing to dodgy pills and criminal charges were brought against him – ultimately dismissed.   Along the way, he tried to stop the trial going ahead, without success.  The SMH published an article about this.  The journalist was Elizabeth Sexton.  It referred to his unsucessful attempt to “derail” the proceedings.  Concerned that this might prejudice the jury against Mr Selim, the District Court judge aborted the trial.  Sexton and the SMH were charged with contempt of court.

The charge was tried before Roderick Howie, generally (or so barristers practising in crime tell me) considered to be a hanging judge – “they’re all guilty so far as he is concerned” said one to me.

One issue was whether the prosecution had proved beyond reasonable doubt that Sexton was the author of the article and, in particular, whether she was responsible for the word “derailed” which was considered to make the article so mischievious.  This is how his Honour dealt with it.

Authorship of the article
14 The first issue to be answered is whether the journalist was the author of the article, particularly of the last four paragraphs including the word “derail” which was described by the prosecutor before me as containing the “sting” in the article. There is no issue that there is a person named Elisabeth Sexton who is a journalist with the newspaper.
15 On behalf of the journalist Mr Sackar QC submitted that I could not be satisfied beyond reasonable doubt that she had been responsible for the whole of the article and thus guilty of any contempt as an accessory to its publication. There was no evidence before me from the journalist or any other person connected with the newspaper or its publication. However it was submitted that I could not act upon the attribution on the face of the article to the journalist as its author and that the byline did not give rise to any inference that the journalist accepted responsibility for the contents of the article. It was submitted in effect that the Court should accept that there were persons, such as a sub-editor, who were entitled to, and did, alter articles submitted for publication by at least changing particular words or inserting and deleting words, even though the article was under the byline of a particular journalist.
16 I am not prepared to take judicial notice of the role played by employees of the publisher in the preparation of the contents of newspapers. In particular I am not prepared to accept without evidence that there are persons in the employment of the publisher who do “interfere” with the contents of an article to which there is attached a byline. Frankly I know little or nothing of the role of a sub-editor in the preparation of the contents of a newspaper. I can accept that there may be a need for some alteration to the length of an article submitted for publication in order that it can be accommodated within the available space in light of advertising, material submitted by columnists and other articles that may be thought to be more newsworthy. But I know nothing of how that alteration is carried out or any of the mechanics by which the final set out of the paper is achieved.
17 Perusing this edition of the newspaper it can be ascertained that there are articles without any byline, those with a single name at the top of the article, some with two names, some with a name and a title such as “National Security Editor” and “Higher Education Reporter” and others with a name and a location, such as “in London”. It seems to me that, having regard to the nature of this particular newspaper, it is intended by the publisher that the reader should attribute the whole of an article to the journalist whose name appears in the byline, otherwise I do not understand what the byline is suppose to signify. Similarly I should infer that it is significant to a journalist that his or her name appears over a published article by way of indicating that the journalist authored the article and is responsible for its contents
18 I appreciate that the newspaper is not the journalist’s document and therefore I cannot use her name appearing over the article as some form of admission by conduct. But I can infer that as a journalist for the newspaper she understands the way that articles in the newspaper are published and that she knew and intended that the article would be published under her byline. It seems to me that the overwhelming inference to be drawn from the appearance of the byline in the context of the newspaper as a whole is that the person named in the byline is the author of what follows and the person responsible for its contents. This is so whether or not some other person within the paper’s organisation also had responsibility for what was published, at least so far as the internal management of the newspaper is concerned.
19 The prosecutor sought to rely upon a judgment of Gillard J in the Supreme Court of Victoria in The Queen v Nationwide News Pty Ltd (unreported, 22 December 1997). In that case the article in question appeared under a photograph and a byline of the journalist against whom contempt proceedings were brought. Gillard J concluded beyond reasonable doubt that the journalist was the author and responsible for the article. This was a question of fact for his Honour and of course does not bind me. However, Mr Sackar submitted that the case before Gillard J was different from the present because the whole of the article was a contempt whereas here only the last four paragraphs are relied upon by the prosecutor and considerable weight has been given by him to the use of the word “derail”.
20 Mr Sackar relied upon the judgment of Mahoney JA in Registrar of Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, 21 April 1993, unreported) where his Honour considered the liability of reporters for contempts arising from the publication of a newspaper. With respect I can find little of assistance in the passage to which I had been referred. It concerned the basis upon which a reporter might be held liable notwithstanding that the reporter did not actually publish the material that is said to give rise to the contempt. His Honour wrote

“The reporter does not ordinarily do those physical acts which are the publication of the article to the public. Her role will be to prepare the material which is to be published. Her liability will therefore ordinarily be secondary, that of an accessory or person knowingly concerned in that which constitutes the offence, the publication of the article. There may be circumstances in which the reporter’s liability goes beyond this. The reporter may be actually concerned in the publication of the article or, whilst not concerned in the physical acts constituting publication, may in the relevant sense cause the publication to take place. In such cases, the reporter may, to adapt language more appropriate to other offences, be liable in the first degree rather than as a party in the second degree.
If the liability of the reporter is not for publication as such or causing publication but arises only from the assistance given to the publication, it will be necessary to determine whether what the reporter did had such a connection to the ultimate publication as constituted an offence. This will require consideration of the kinds of questions arising in other cases in which liability of a secondary kind has been considered. This may be illustrated by reference to the facts of the present case. The vice of the action of Fairfax lay not in the publication of the article alone; it lay in the publication of it at a time and in circumstances such that the publication was apt to prejudice the fairness of the trial. If the reporter wrote an article for publication but did so upon the basis that it would not be published at a time or in circumstances when the publication would prejudice the relevant trial, then ordinarily the reporter would not be accessory to the criminal publication of it. On the other hand, if the reporter knew the article was for publication and was to be published during the trial when prejudice would be apt to result, then her actions would ordinarily be sufficiently accessory to the ultimate publication as to involve criminal liability.”

21 The passage stresses that the liability of the reporter will generally, as here, be based upon the principles of accessorial liability and, therefore, it does not necessarily follow that because the publication is a contempt that the reporter is guilty of the offence. But it says nothing about whether I can draw an inference, beyond reasonable doubt, that the journalist was the author of the article and hence the prosecution can establish that she was an accessory to the publisher.
22 I note in passing that there was no issue raised before me as to whether, even if she were the author, the journalist had a sufficient mental state about the publication to make her liable as an accessory. Contempt is a strict liability offence in that, while the publication of the article must be intentional, it does not have to be published with the intention of interfering with judicial proceedings, see Registrar of the Court of Appeal v Willesee(1985) 3 NSWLR 650; Hinch v Attorney General (Vic) (1987) 164 CLR 15; Attorney General (NSW) v Dean(1990) 20 NSWLR 650. For a person to be guilty as an accessory before the fact to a strict liability offence, the person accused must be shown to have known all the facts that would make the principal guilty of the offence: see Giorgianni v The Queen (1985) 156 CLR 473. If, as appears to be the case, the author’s liability for the publication is based upon being an accessory, then it would seem that the prosecution has to prove more than the fact that journalist was the author of the article. The prosecutor should have to prove that the journalist knew that the article would, when it was published, have the necessary tendency. In the present case, because of the contents of the article, the prosecution may have been able to prove that knowledge, but the issue was not ventilated before me.

23 I am satisfied beyond reasonable doubt that the journalist was the author of the article including the last four paragraphs and the use of the word “derail”. As such she was liable as an accessory before the fact to the publication. It is clear from the contents of the article that she intended that it would be published at a time when Mr Selim was being retried on charges of “tampering with evidence” after a previous jury had been discharged.

This seems precisely back to front to me.  The key question is whether Sexton was responsible for the word “derail” but he seems to have held that she was because she knew that if her byline appeared at the end of the article, people would assume that she was responsible for it.  This still seems to beg the question.  Have I missed something here?

Fortunately, his Honour went on to say that the mischief was one which could have been overcome by suitable directions and that therefore the article was not one which constituted a contempt of court – though it came as close as possible to being so without being so.

The DPP are clearly on the defensive in this matter: Selim was acquitted by direction (ie, the judge told the jury when the matter eventually came to trial in the Supreme Court that they must acquit Selim).  One wonders if they are looking to deflect blame by means of this prosecution.  Print journalists are rarely prosecuted precisely because it is difficult to establish beyond reasonable doubt (without a sufficiently enthusiastic judge) that the author is responsible for the precise words used – though these days it would be possible to execute search warrants and uncover some kind of electronic audit trail which might do the job.

It may be that Justice Howie is also on the defensive.  The Herald has also reported at length (three times – they have their own agenda here) that he had to make some apologetic noises about handing down what he then claimed to be a draft of the judgment, which said even nastier things about Ms Sexton. (“Reporter wrongly insulted“, “Judge regrets journalist’s distress” and “Judge regrets distress.”)