does Channel Nine run the risk of being in contempt of court?

Last night, Channel Nine’s 60 Minutes program revisited the harrowing tale of the abduction of four-year-old Cleo Smith from a campsite near the Western Australian town of Carnarvon last October.

As the program unfolded, Cleo’s parents, Ellie Smith and Jake Giddon, revealed the horrific details of their 18-day ordeal. They will reportedly receive $2 million in return for the interview.

A Carnarvon man, Terence Kelly, has pleaded guilty to the abduction. He remains in custody until his next court appearance in March. He faces a maximum prison term of 20 years when he’s sentenced in the coming months. The case still has a long way to run.

The decision by Nine to broadcast such an interview so far ahead of the completion of the judicial process was a risky one. There was no pressing need to run this story now.

In fact, the WA police involved in solving the case said they would not take part in the broadcast, with the West Australian quoting unnamed police sources as saying it is

highly inappropriate for any episode to be airing prior to completion of the judicial process.

It is not inconceivable the WA District Court might consider 60 Minutes in contempt. Let’s examine this possibility.

What is contempt of court and sub judice contempt?

Contempt of court (a common law criminal offence) can arise if any words or actions are deemed to interfere with the administration of justice or constitute a disregard for the authority of the court.

There are a number of ways in which contempt of court can occur, such as by breaching a suppression order, revealing jury deliberations or making comments that damage public confidence in the capacity of the judiciary or the courts to dispense justice (referred to as “scandalising” contempt). A conviction for contempt typically attracts a fine or imprisonment.

But the potential contempt in this case is what is often referred to as sub judice contempt.

Sub judice (“under a judge”) contempt relates to any public discussion of a court process while it is still running that may prejudice the decision-making ability of a jury or, in the Cleo Smith case, a judge’s consideration of sentence.

There need only be evidence the content – whether it be a media article or broadcast, a social media post or some other public discussion – had a tendency to affect the outcome. Actual proof is not required.

Read more: In Australia, criticising a judge can land you in jail. This is a danger for democracy

Have the media been fined before?

There have been some high-profile examples of sub judice contempt in Australia in recent years.

In 1987, former NSW Premier Neville Wran declared his belief in the innocence of the then High Court judge Lionel Murphy, who had been convicted of perverting the course of justice.

The trial judge had warned against anyone discussing the case publicly pending an appeal. Wran was fined $25,000, while the Daily Telegraph was fined $200,000 for publishing his comments.

Read more: The Lionel Murphy papers shed more light on a controversial life

More recently, in 2016, Krystal Johnson, a journalist for Yahoo7, wrote an article four days into a murder trial which said the accused had previously displayed a violent propensity towards the victim. The trial had to be aborted. Yahoo7 was fined $300,000 for sub judice contempt and Johnson was given a two-year good behaviour bond.

There is an interesting paradox here. Judges pride themselves on their ability to consider only the evidence before them (in relation to matters of guilt and innocence) and only the submissions made to them (on sentencing decisions), and not to be swayed by external voices such as opinions aired in the media.

Yet, the law of contempt is implicitly saying judges, too, can be influenced by peripheral information and need to be protected from it.

It should also be noted the First Amendment of the US Constitution allows fully open reporting of a trial even while it is in progress, including interviews with counsel, the families of the accused and the victims.

Even though public airing of US juror revelations is somewhat constrained by an accused’s Sixth Amendment right to an impartial jury, the contrast with the Australian legal “contempt” landscape could not be more stark.

Did the 60 Minutes interview cross the line?

I should say from the outset even speculating on this question in an article could be deemed to have a tendency to influence the outcome of judicial processes in the Cleo Smith case.

So, speaking generally, it could be argued the mere revisiting of the details of the case in the 60 Minutes interview had the effect of unduly maligning the character of the perpetrator.

Although the bulk of the program was focused on the way Cleo and her parents had been affected by the ordeal and how they planned to move forward from it, her parents did speak of their “anger” and “disgust” of Kelly’s actions.

Read more: When missing children return: how can we avoid adding to Cleo Smith's trauma?

Even if the interview is deemed not to have the potential to sway the judge’s sentencing order, it could be seen as whipping up public reproach for the accused. And if the public then views the judge’s sentence as too lenient, their comments could be deemed to be bringing the administration of justice into disrepute and “scandalising” the court.

Social media posts related to the interview that cast aspersions on Kelly could also be seen as sub judice contempt. The law requires Nine to delete any adverse comments posted on its Facebook or Twitter pages to avoid a contempt charge.

However, trying to control the words of thousands of social media commentators on other platforms with a blunt sub judice tool would be an almost impossible task.

Parliaments around Australia are currently facing growing calls to overhaul their contempt of court laws, with many advocates arguing the status quo does not meet public expectations when it comes to reporting the courts.

Given we are living in a social media age where public scorn is not uncommon, these cases are likely to be repeated. It is high time reform of our contempt laws appears on every legislative notice paper.