“A species of contempt heretofore unknown to the law”: Registrar of the Supreme Court (NT) v Nationwide News and Craig Dunlop
The lessons for Court administrators? If you are going to bring contempt charges against a journalist and their publisher then you must conduct a proper investigation of the circumstances of publication, in particular who published what, when and on whose authority. While it is unstated in Chief Justice Grant's reasons for judgment—for fairly obvious reasons—the real problems in this case lie with the conduct of the Registrar's case and the apparent lack of any investigation sufficiently thorough enough to gather evidence to meet the standard of proof required by the Court.
Craig Dunlop—this is him in cute-as-a-button Bachelor-candidate mode a few years back—has been the senior court reporter at the NT News since early 2016. Such is life for court reporters in small towns that it’s relatively common for Dunlop to get post-release poison-pen emails from crims who have months before had their exploits written up by him in the local rag.
But in his time he’s also also managed to get up the nose of a few local judges.
Last August Dunlop fronted the NT Supreme Court before Chief Justice Michael Grant not as a journalist but as a respondent to a charge of criminal contempt of the court in the matter of Registrar of the Supreme Court (NT)v Nationwide News and Craig Dunlop.
On Thursday last, six months almost to the day following the hearing, Dunlop was back in court to hear his fate.
The whole saga dates back to a Saturday night in early December 2016, when Shane Liam Hitchcock sucker-punched Rhys White at the corner of Knuckey and Smith Streets in the Darwin CBD.
That single punch was caught on CCTV tape and, as is depressingly usual with such goings-on in the Top End, Hitchcock was nabbed in short order and his matter was subsequently listed for sentence before Justice Judith Kelly in the NT Supreme Court on 9 March 2017.
Hitchcock—a “cleanskin”—received 9 months in goal for what Dunlop described in his NT News piece the next day as a “coward punch”. On the afternoon that Justice Kelly handed down her sentence, Dunlop applied to the court for access to the CCTV footage—access that had already been granted to the local Channel 9 franchise and that was broadcast there that evening.
On his return to the office Dunlop filed his piece and the footage made its way to the NT News website where it was posted behind the paper’s subscriber-only paywall at around midnight on 9 March 2017.
So far so good. Except that when Dunlop was given access to the CCTV footage it was subject to a number of conditions that included, among other things, that the footage “not be published on the internet.” Late on the afternoon of 10 March 2017 the Registrar of the NT Supreme Court—having peeked around the paywall at the footage—wrote to Dunlop requesting that the CCTV footage be removed immediately and seeking reasons why she shouldn’t commence proceedings for contempt.
The video was removed from the NT News website shortly after. Four days later lawyers for News Corp Australia wrote to the Registrar in response to her email providing reasons why the footage was published—including strong public interest justifications—and noting that the NT News had published a number of articles about similar incidents over the previous months. The News Corp lawyers submitted that the Registrar’s complaint ” … should not be referred for consideration of a contempt prosecution.”
Notwithstanding those submissions, the Registrar made an application by originating motion to the NT Supreme Court on 16 June 2017 alleging contempt of court by the NT News and Dunlop.
Contempt of court cases are relatively rare and The Northern Myth is only aware of two prosecutions in the NT in recent years. One is the 2003 case of O’Brien v Northern Territory. As Suzie O’Toole of the Faculty of Law at Bond University noted in this paper in 2010, in O’Brien’s case:
… the Northern Territory Court of Appeal made a declaration that a magistrate who ordered a lawyer to the cells for contempt had no power to do so. Peter O’Brien was, at the time, a young lawyer who was representing a juvenile client in the Darwin Magistrate’s Court. The presiding magistrate asked O’Brien to enter a plea for his client, who was charged with a property offence. O’Brien tried to explain to the magistrate that he should not have to enter a plea because the police had previously advised that they were prepared to offer a diversionary arrangement for his client, which would relieve him of the need to go to court at all.
The police prosecutor had no knowledge of this arrangement, but it did, in fact, exist. So the magistrate was pressing O’Brien for a plea in circumstances where it was quite unfair that one should be entered. O’Brien criticised the police for failing to ensure that the requisite information was before the court and the magistrate, who believed that O’Brien was defying his instruction to enter a plea, ordered a court officer to take O’Brien to the cells while he sorted out what was going on.
O’Brien was brought back up from the cells without his belt or shoelaces, as it is standard practice to remove these items from people who are taken to the cells in case they are used to affect a suicide. O’Brien was standing at the bar table holding his pants up with his hand when the magistrate asked him whether he was ready to proceed with the matter. O’Brien sought an adjournment, and later applied for a declaration that the magistrate had no power to do what he did. The NT Court of Appeal accepted his appeal. The magistrate had behaved unlawfully by sending O’Brien to the cells without a hearing.
The more recent—and certainly more colourful—case is that of Trevor “the Rubbish Warrior” Jenkins that Ellie Turner examined at the NT Newshere at first instance before Justice Peter Barr and Jenkins’ subsequent conviction before Justice Judith Kelly in May 2016 when Jenkins received a custodial sentence.
As fate would have it, Dunlop was in court when Jenkins stripped naked in the dock during his sentencing proceedings, declared that “Trevor Jenkins will never be crushed”, before he was taken down to the cells and sent off for a spell at Holtze Prison.
As entertaining as those matters are, the prosecution against the NT News and Dunlop was pretty much certainly doomed to fail, not least because of the almost complete lack of evidence provided by the Registrar in support of the charge and because, as submitted by the defence, ” … what the Crown contends constitutes contempt in these proceedings is a species of contempt heretofore unknown to the law.”
In his 43-page reasons for judgment Chief Justice Grant notes that the court had no “direct evidence” of how the CCTV footage was posted on the NT News website or of the state of knowledge of the respondents as to the conditions imposed by the court. He also noted that early on in proceedings counsel for the NT News and Dunlop indicated that they did not intend to provide any evidence in relation to those matters.
Chief Justice Grant found that:
There can be no doubt that the publication [of the CCTV footage] in breach of the condition imposed—whether deliberate or not—was improper in the circumstances, and in breach of the compact which necessarily exists between the court and the media in the implementation of the principle of open justice.
Whether that “breach of the condition” amounted to contempt—and whether it was at the civil or criminal standard—was the key issue for determination by the court. In either case, the relevant standard of proof was the criminal standard, i.e. the charge must be proven beyond a reasonable doubt. Chief Justice Grant noted that liability in this case carried a mental element, with the first part of that assessment requiring the identification of the actus reus—that the accused published the CCTV footage on the internet in contravention of the condition. That much was proved on the meagre facts before the court.
The second element—the mens rea—was evidentially more difficult and required proof of the accused’s awareness, beyond a reasonable doubt—that they were aware of the obligations imposed by the conditions and published the CCTV footage knowingly in breach of the conditions.
Chief Justice Grant found that there was “no direct evidence and no inference available” that Dunlop was involved in the publication of the CCTV footage and that “on the state of the evidence” it was impossible to make a finding of contempt against him.
In relation to the NT News, Chief Justice Grant found that “the state of the evidence” was such that it couldn’t be said which of the NT News staff was responsible for the publication of the CCTV footage on the website or whether they were aware of the conditions imposed and whether any NT News management staff were involved in or aware of the publication or of the existence of the conditions imposed by the Court.
After consideration of the obligations of an accused person to give evidence in criminal proceedings—they aren’t and well established principles provide that no adverse inferences can be drawn from a failure to give evidence—Chief Justice Grant found, at :
In this case there is no evidence concerning the means by which or by whom the CCTV footage was published on the website … there is no evidentiary basis on which to attribute criminal liability for that conduct to the first respondent [the NT News] … Although certain inferences may be drawn, they are not of sufficient strength to establish those matters beyond reasonable doubt.
He went on, noting that the circumstances in which the CCTV footage was published on the NT News website was, at :
… inscrutable on the evidence adduced. It is not possible to conclude to the requisite standard that the person who did so had knowledge of the conditions. It is not possible to conclude that the first respondent directed or authorised the publication with knowledge of the conditions. It is not possible to conclude to the requisite standard that the act may be attributed to the first respondent. This result might be seen to derive from the first respondent’s decision not to explicate by evidence the circumstances which led to the CCTV footage being posted on the NT News website. That was the first respondent’s right in the context of proceedings brought against it for the criminal punishment of contempt.
His Honour then went on to observe that if the NT News had not taken the footage down following the request by the NT Supreme Court Registrar that it would have been liable in contempt for publication.
What lessons can be taken from this complex and somewhat puzzling case?
For the publisher in possible error? Take down any offending material as soon as notice is given of any possible breach or offence taken by the Court.
For Court administrators? If you are going to bring contempt charges against a journalist and their publisher then you must conduct a proper investigation of the circumstances of publication, in particular to establish who published what, when and on whose authority. While it is unstated in Chief Justice Grant’s reasons for judgment—for fairly obvious reasons—the real problems in this case lie with the conduct of the Registrar’s case and the apparent lack of any investigation sufficiently thorough enough to gather evidence to meet the standard of proof required by the Court.
Lessons learnt all round here.
Dunlop has never been the most conventional of courtroom scribes. In November 2016 he penned a front page scoop about police being called to a dispute over a $700 bar tab between staff at a Darwin wine bar and an apparently intoxicated Justice Stephen Southwood. And this most recent contempt case isn’t the first time Justice Kelly has taken a swing at Dunlop … and missed.
DUMPED Corrections Commissioner Ken Middlebrook and Don Dale Detention Centre assistant general manager James “Jimmy” Sizeland each thought the other was in charge on the night six boys were tear-gassed.
An email from a court staffer to Dunlop said:
Justice Kelly has asked the NT News to correct what Her Honour considers to be an inaccurate article and particularly misleading headline in today’s edition …
In a series of tensely-worded emails, court staff, apparently at the direction of Justice Kelly, said the story was “inaccurate” insofar as “Her Honour understood the evidence”, and whose associate sent a lengthy email plucking selectively from the transcript.
Dunlop, who had a full trial transcript to hand, fired back, noting that under cross examination Jimmy Sizeland said that either Middlebrook or the Superintendent were in charge.
Barrister Kathleen Foley: “And who was in charge of the response team?” Sizeland: “I’d say the superintendent”
… Foley: “You weren’t in charge of them?” Sizeland: “No”
Later on, also under cross examination, Middlebrook said Jimmy Sizeland was in charge:
Foley: Now, you were in charge of the whole thing? Middlebrook: No, Mr Sizeland was in charge. I was there, but the prison officers were there on my authority, but Mr Sizeland was the Operational Commander, to use that term …
Justice Kelly’s associate stated in an email that, since it was ” … capable, on one view, of providing some justification for the statement in the article, the Court will not take the request for clarification further”.
The Registrar involved in R v Nationwide News and Craig Dunlop is no longer responsible for managing public and press access to court files, a role which has been taken up by a former ABC copy editor, Xavier La Canna. And it isn’t the only time the Registrar involved had apparently threatened Dunlop with contempt. According to a former court staffer, the Registrar found herself on the receiving end of a miffed Supreme Court Justice Jenny Blokland for taking it upon herself to do so without reason. After intervention from on high, Dunlop was told in an email:
To be clear, [the threat of contempt] was NOT in Her Honour’s original proposal to facilitate access to the exhibits. This was added in the Registry and Her Honour has not previously seen such a term or condition. Her Honour is not and has never intended to threaten anyone with contempt, that is a matter of judgment.
Dunlop was also threatened with contempt by NT Local Court Chief Judge Dr John Lowndes while sniffing around a series of stories detailing Alice Springs Judge Greg Borchers’s decade-long history of poor judicial conduct. That series began with a now-notorious front page headline “Judge Dread“. Nothing has ever come of Dr Lowndes’s contempt threats, but Dunlop’s pieces apparently prompted Chief Justice Michael Grant to announce he would begin lobbying parliament for changes to the Local Court Act, a move which could effectively strip Chief Judge Dr John Lowndes of his powers to deal with disciplinary complaints against junior judges and that would bring the process of dealing with disciplinary matters involving NT judges in line with other Australian jurisdictions.