HERALD & WEEKLY TIMES SEEK DISCLOSURE OF DOCUMENTS INVOLVING PELL TRIAL COVERED BY SUPRRESSION ORDERS
The Queen v The Herald & Weekly Times Pty Ltd & Ors [2020] VSC 616 (23 September 2020)
This case involves a contempt charge against the Herald & Weekly times for publishing details of a trial covered by a suppression order where they seek discovery of documents involving the trials.
Facts:
- Cardinal George Pell (‘Pell’) was committed to stand trial on child sexual abuse charges. Those charges were to be heard sequentially in two separate jury trials: the ‘cathedral trial’ (the first trial in time) and the ‘swimmers trial’ (the second trial in time) respectively.
- Chief Judge Kidd made a proceeding suppression order in respect of both trials (‘proceeding suppression order’). It included orders that publication was prohibited of any report of the whole or any part of the trials and any information derived from the trials and/or any court documents associated with those trials, save that publication was permitted when the accused was facing prosecution for historical child sexual offences in the County Court.
- Soon after this verdict, several publications and broadcasts (collectively referred to in this ruling as ‘publications’) are alleged to have been made by Australian media organizations, and individual editors and journalists, in breach of the proceeding suppression order that remained extant, as the ‘swimmers trial’ was to commence.
- The Director of Public Prosecutions (‘applicant’) brought contempt proceedings by originating motion against thirty-six respondents in respect of the publications. Since then, the parties have exchanged pleadings and, for the purpose of identifying the precise case.
- The Herald & Weekly times sought the following discoveries from the applicant:
- documents relating to the abandonment of the swimmer's trial.
- documents relating to international and social media reporting the verdict in the cathedral trial.
- The respondents submitted that the applicant owed a duty of disclosure because of an underlying ethical obligation to disclose all relevant material, both exculpatory and inculpatory, and is subject to the common law requirements obliging disclosure of information that might reasonably relate to issues at trial.
- The respondents contended that the categories of documents sought are relevant both to the sub judice contempt charges and to questions of potential penalty.
Issue: Should the respondents be entitled to the documents?
Held:
The court cannot accept this submission. It would turn on subjective views expressed in private correspondence, assuming such documents exist. It suggested that if a publication prior in time to an impugned publication had the relevant tendency, private correspondence about that other publication could rationally affect the objective assessment of the tendency of an impugned publication. Further, if valid, it must follow that the same argument would be available to each of the respondents in respect of each other publication alleged in the proceeding for which they were not responsible. The tendency to prejudice the due administration of justice is not assessed in this fashion. If that were so, each of the separately publishing respondents would be separately represented.
The documents might be relevant to the question of penalty. The court need not presently form a view about that, as the court propose to deal firstly with the question of whether there has been contempt, and then deal with penalty in a separate hearing. It will then be possible to make a more informed assessment, at a later point in time, about the relevance of such correspondence in that context.
Conclusion:
The respondents’ application for discovery in accordance with the categories that it has submitted is refused.
