29. Media

29.1 General

No public comment is to be made by prosecutors without the Director’s approval in relation to matters that are the subject of criminal proceedings or that have been referred to the Office for an opinion in relation to potential criminal proceedings. All media contact should be referred to the Director.

Prosecutors should not give advice to a journalist or media organisation that they can legally publish any material that has been referred to in court.

All prosecutors must ensure they do not make any comments that demonstrate a lack of detachment or impartiality concerning current or potential matters in any forum where it is likely that such comments may become public and which could lead a fair-minded person to have concerns that the prosecutor may not carry out his or her duty to ensure a fair trial. In an extreme case the court may stay the proceedings of any trial until the prosecutor is replaced (see MG v R [2007] NSWCCA 57).

29.2 Contempt of court

It is the duty of the State to ensure, as far as practicable, that an accused person receives a fair trial. It is a contempt of court to publish material which has the tendency to prejudice the prosecution or defence in a pending trial (see R v ABC [1983] Tas R 161 per Neasey J at 168).

In addition there are some statutory contempts such as the publication of the identity of the victim of a sexual assault (s194K of the Evidence Act 2001).

The seriousness of a contempt is to be judged by the prejudice that is likely to flow from the contempt and the culpability of those concerned (see R v Hally [2012] TASSC 86). In determining whether to prosecute a person or an organisation for contempt of court the following considerations will apply:

• How prejudicial the published material is
• What were the circumstances in which the alleged contemptible material was published?
• What was the response of the offending party when the publication of the material was pointed out to them?
• What systems were in place to prevent such publications; and further, what systems does the offending party undertake to put in place to prevent further repetition of the conduct?
• What motivated the publication?
• The position or role a person took in the publication, e.g. was the person a private citizen, a junior reporter, an editor or a media company
• The prior record of the person publishing the material

It should be noted the weight given to any one of the above factors may vary according to the circumstances of the case.