Friday, 21 April 2017

Why public servants (or anyone) shouldn’t comment on criminal cases

Public servants are sometimes asked to comment on court proceedings or brief Ministers to do so. Not commenting is often the safest approach. But if it is appropriate to comment, be aware that you should only disclose (or publish) information that the jury has heard. This is so regardless of the size of the media outlet you are talking to, as confirmed by a recent Supreme Court judgment. The case concerned a Yahoo!7 journalist who made inappropriate comments about a criminal case. She was then prosecuted for contempt of court.

The judgment offers a warning: train your staff in what they can say about court proceedings. And then check that they are complying with this training. Otherwise, you risk criticism by the courts, criminal conviction and reputational damage.

What is contempt of court?

Contempt of court is where a publication interferes with a court's ability to administer justice according to the rules of evidence.

The background to the prosecution

The case in question concerned journalist Krystal Johnson and her employer, Yahoo!7. In August 2016, Johnson published an article about a murder trial. In the article, she referred to allegations of the accused's propensity for violence towards his victim. This history of violence was not evidence in the trial nor was there any intention for it to be part of the case. Following an application by the accused's barrister, the trial judge dismissed the jury. The trial judge did this even though there was no evidence the jury had actually seen the article. The judge then ordered a retrial. This was devastating news for the victim's family, and expensive and frustrating for the courts, parties and witnesses.

As such, the Director of Public Prosecutions decided to bring contempt charges against Ms Johnson and Yahoo!7. Because the trial judge needed to abort the murder trial, the contempt was very serious in nature.

The arguments

Yahoo!7 and Ms Johnson contested the contempt charges.

Yahoo!7 argued there was reasonable doubt that their publication actually resulted in bias affecting the jury. The Court disagreed. It found the posting of the material met the legal test for establishing contempt. That is, it was enough to satisfy beyond a reasonable doubt that there was a real and definite tendency to prejudice or interfere with the legal proceeding.

The Court noted that Yahoo!7 is not a major player in the news media world. But it said that the nature of social media allows the easy sharing of articles from an array of different sized organisations.

The Court also suggested that the absence of editorial supervision was caused by Yahoo!7's profit and deadline driven approach to publication. It said the error revealed insufficient protective systems and exposed greater failures in media methodology.

The sentence

The Supreme Court accepted the authenticity of Ms Johnson’s remorse. But the Court suggested that Yahoo!7 failed to accept accountability, as they chose to contest the charge on technical legal grounds.

In sentencing Yahoo!7, the Court noted:

'in view of the kind of high volume, timepressured work Yahoo!7 expected of its journalists, Ms Johnson’s mistake was readily foreseeable. The fact that Yahoo!7 has since taken steps to improve the system, while a mitigating factor, does not diminish its culpability for the contempt committed'.

The Court required Ms Johnson to give an undertaking to be of good behaviour which, if maintained, will mean the dismissal of the proceeding against her. The Court convicted and fined Yahoo!7 $300,000 for their part in the matter.


This judgment offers a sound warning to employers whose employees may publish comments on criminal proceedings: have systems in place to monitor compliance with contempt laws and support and train your employees.Regardless of the size of the media outlet, don't forget the golden rule: only comments said in front of the jury should be published.

Links to the judgments are provided here: November 2016 and February 2017.

Next steps

VGSO can help your staff understand contempt of court and what they can and can’t say to the media or publish online. We can:

  • Run training sessions on what you can publish online and say to the media
  • Help you draft a process to ensure there is adequate sign off and review of media
  • comment or online publication
  • Review any media releases or press comments for legal issues
  • Help you respond to comments made by others about court proceedings your Department
  • or authority is involved in.

For more information, please contact Shaun Le Grand, Alice Cooney or Gemma Leigh-Dodds.

Shaun Le Grand
Assistant Victorian Government Solicitor
8684 0410

Alice Cooney
8684 0253

Gemma Leigh-Dodds
8684 0417

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