Contempt is an issue that is not usually considered by creators who want to write articles or produce documentaries based upon recent or controversial events in the public sphere.
Before you think about writing an article or a treatment for a documentary you should consider whether the situation you want to explore is under police investigation, is currently being dealt with in the courts or whether court proceedings are pending. This may be a particularly important consideration if the trial or police investigation is a lengthy one.
It is important to remember that contempt law not only covers the grisly criminal law areas like murder, but also the area of civil litigation. Moreover, there are different principles to be considered if the situation involves tribunals, royal commissions or other bodies that are not courts, such as the Administrative Appeals Tribunal.
What is contempt?
Contempt can occur when work, in its published form, would prejudice or bias a jury. For example, mentioning the criminal record or confession of an accused person, and publicly declaring their guilt may be what is known as sub-judice contempt. This means that you must consider specific rules regarding the publication of material that may prejudice the defendant's right to a fair trial, and may interfere with the proceedings, particularly when proceedings are pending and the material in question may influence a witness or a judge or jury in reaching a decision.
It may also be contempt if your work intimidates one of the parties or a witness by public denigration or the threat of bad publicity, or if your work is made with the intention of prejudicing the outcome of the case.
Basically, you must consider whether your article or documentary will raise a real risk of interfering with the administration of justice, or a real and definite possibility of prejudice to pending court proceedings.
Contempt law also covers other subjects which may be even less of a concern to creators. These include disobedience of court orders, disrupting court proceedings, interference with the course of justice, such as, bribing jurors, publicly denigrating judges, and Parliamentary contempt. There also exists an offence of scandalising, which includes abusing judges, suggesting corruption or inferring that a judge is incapable of performing the requirements their position entails.
There are also statutory prohibitions that prohibit the naming of sexual assault victims or parties in family law cases.
What to Avoid
Before you publish consider whether the work contains any of the following, which should be avoided:
- prejudgment of guilt or innocence before conviction;
- reference to a defendant's previous convictions;
- adverse comment or observation on an accused person;
- making an statements that could be defamatory;
- discussion of any confessional material before it is reported in court;
- publication of any evidence before it is given in court;
- interviews with jurors, witnesses or potential witnesses;
- details of jury deliberations;
- opinions about whether you believe the defendant was careless or negligent in a negligence action;
- declarations on whether you believe a witness to a trial is lying;
- what happens when the jury is out of the court;
- denigration of the judge, the jury, the proceedings, or the court, tribunal or commission;
- holding someone up to ridicule for exercising their rights to use the courts and bring a matter to trial;
- intimidating witnesses, plaintiffs, defendants, accused persons, prosecutors, respondents, or any other parties involved;
- naming children (victims, accused & witnesses);
- naming sexual assault victims
- in Queensland, Victoria and the Northern Territory you must also avoid naming those who have been charged with sexual assault; and
- family law cases.
Use of photographs, sketches, video or film footage, or other material that may identify the defendant (particularly when the identity of the defendant is crucial to the case) may also breach contempt law. However, it is safe to assume that in most criminal cases the identity of the defendant will be an important issue.
If you are making a documentary you must also consider the style in which you present your material, if material is presented in a striking style that has a more memorable affect on those viewing it, or may influence their opinions, this may be 'prejudicial contempt'.
You must also be careful not to deliberately depict the defendant as potentially dangerous. This means that whilst footage of the defendant being led into court with handcuffs, heavy guard and a wire mesh fence around them may be emotive, it could also be highly prejudicial to the defendant receiving a fair trial.
Legitimate curiosity: what can I publish?
The start of litigation does not mean the end of public discussion, or creative exploration of issues in a non-fiction or documentary form. You may publish:
- the 'bare facts', for example, the arrest of a person, the discovery of a body, where it was found and by whom;
- that charges have been made;
- a statement made by a person outside the court that they are not guilty;
What about freedom of speech?
Unlike the USA, Australia does not have a constitutionally guaranteed freedom of speech or freedom of expression. There is however an implied freedom of political discussion which has been upheld by the High Court of Australia (Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Theophanous v Herald Weekly Times Ltd (1994) 124 ALR 1).
The law of contempt does not recognise the public interest in freedom of speech or freedom of expression. Freedom and political communication must be balance with the public interests of freedom of publication, the right to a fair trial and the administration of justice. There is no right under the constitution, or at common law, to publish information and entertainment at the expense of the administration of justice – upheld in the unreported case of Civil Aviation Authority v ABC (NSW Court of Appeal, 22 June 1995).
It is important to be aware of these limitations and to seek legal advice before publishing work that may be sensitive.