Doe v Dowling

1. [1]

   HIS HONOUR: On 15 March 2017, I found Shane Dowling guilty of contempt: Doe v Dowling [2017] NSWSC 202. I am now required to consider the question of the proper penalty to impose upon him as punishment for that contempt. I do not propose to repeat all of what I said in my original judgment, but will assume a familiarity with it for present purposes.

2. [2]

   These proceedings were listed before me on 21 July 2017 for the purpose of hearing submissions on penalty. Mr Dowling informed my Associate in advance that he did not propose to appear at the hearing and he did not do so. Mr Dowling did not seek an adjournment of the sentencing proceedings, and in fact provided me with written submissions. Those submissions are referred to later in these remarks.

Background

1. [3]

   On 21 December 2016, Campbell J made orders, including that Mr Dowling remove the names of Jane Doe 1 and Jane Doe 2 from his 21 December 2016 article and that he not further publish certain imputations about them. Mr Dowling has been aware of these orders since 21 December 2016. In breach of the orders, Mr Dowling left the 21 December 2016 article online without removing the names of Jane Doe 1 and Jane Doe 2. He also published further articles in breach of the orders.

2. [4]

   Since 15 March 2017, the offending publications have all remained online, and the names of Jane Doe 1 and Jane Doe 2 have not been removed from any of them. Moreover, Mr Dowling has made further relevant publications. For present purposes, it is sufficient to refer to a publication made by him as recently as 15 July 2017 on his website, which included the following material:

3. [5]

   The italicised words contained a hyperlink to an earlier article, which also named (and continues to name) Jane Doe 1 and Jane Doe 2. Even the preliminary publication of my 15 March 2017 judgment to the parties for checking led Mr Dowling further to defy the authority of this Court, first by publishing the unredacted reasons on his website, even though they were still subject to restriction, and secondly by maintaining online links to that version even after publication of the final, more restricted version.

Contempt – purpose of penalty

1. [6]

   In AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1998] HCA 46, the majority said “the underlying rationale of every exercise of the contempt power” is to “uphold and protect the effective administration of justice”. Then, at 107:

2. [7]

   Their Honours continued at 115:

3. [8]

   In Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at 533 it was said that the “public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.”

4. [9]

   The issue was put shortly by Le Miere J in Commonwealth Bank of Australia v Kenney [No 2] [2016] WASC 415, at [19]:

5. [10]

   In Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202, Rares J said:

Applicable legislation and range of possible orders

1. [11]

   Part 55 of the Supreme Court Rules is the primary reference point for the selection of an appropriate remedy. UCPR 55.13(1) provides that in the case of an individual, the Court may punish contempt by committal to a correctional centre or fine or both. The provisions of Part 55 are only declaratory of the Court’s power to punish for contempt and do not exhaust it.

2. [12]

   The Court therefore retains the flexibility to impose other forms of punishment and is not constrained by the express terms of UCPR 55.13. This may include, for example, a community service order or the range of penalties contemplated by Part 2 of the Crimes (Sentencing Procedure) Act 1999.

3. [13]

   That Act applies to the sentencing of persons convicted of contempt: Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527; [2001] NSWSC 969 at [42]-[45]; Prothonotary of Supreme Court of New South Wales v Ceren [2016] NSWSC 1187 at [13].

4. [14]

   It follows that I am required to take into account any relevant aggravating or mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act.

Matters relevant to penalty

1. [15]

   In Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, the Court of Appeal said at 314:

2. [16]

   Several cases have identified matters relevant to penalties for contempt. For example, in ASIC v Matthews [2009] NSWSC 285 at [27], Barrett J held that the following factors are relevant:

   1. (1)

      The seriousness of the contempt proved;

   2. (2)

      The contemnor’s culpability;

   3. (3)

      The reason or motive for the contempt;

   4. (4)

      Whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;

   5. (5)

      Whether there has been any expression of genuine contrition by the contemnor;

   6. (6)

      The character and antecedents of the contemnor;

   7. (7)

      The contemnor’s personal circumstances;

   8. (8)

      The need for deterrence of the contemnor and others of like-mind from similar disobedience;

   9. (9)

      The need for denunciation of contemptuous conduct.

3. [17]

   See, to like effect, Commissioner for Fair Trading v Partridge [2006] NSWSC 478, at [22]; Prothonotary of Supreme Court of New South Wales v Ceren at [14].

4. [18]

   It is instructive to consider how these factors apply to the present matter.

5. [19]

   Mr Dowling has repeatedly published the names of the first and second plaintiffs on his website, his Facebook account and his Twitter account both by making fresh posts and by failing to remove existing posts, and has done so knowing it was in contravention of Campbell J’s orders to do so. Including the fact of the making of the orders in his publications, and of his knowledge of them, makes Mr Dowling’s defiance of the Court greater. As I have previously observed, Mr Dowling has never contended that Campbell J’s orders were ambiguous or unclear or that he did not understand them. His conduct was, as I have found, intentional, wilful and deliberate. As I indicated at [59] of my earlier judgment:

6. [20]

   Mr Dowling’s conduct occurred in circumstances where he was on plain notice that if he disobeyed the orders he would potentially be liable to imprisonment.

7. [21]

   It must have been apparent to Mr Dowling, following Campbell J’s decision, that the purpose of the suppression orders was to prevent the frustration of the defamation proceedings. Those proceedings were brought with the intention of obtaining interim injunctive relief, followed by final injunctive relief, with a view to avoiding the disclosure of the plaintiffs’ identity. Whether interim relief would be granted was a matter for the Court, but once it had been granted, Mr Dowling’s conduct in naming the plaintiffs was conduct which had the tendency to frustrate the Court’s power to grant effective relief, or potentially to intimidate the plaintiffs from seeking such relief.

8. [22]

   It is a fair reading of Mr Dowling’s publications in my view that he breached Campbell J’s orders not merely willingly and advertently but also enthusiastically. That enthusiasm is apparent upon the face of the publications.

9. [23]

   Mr Dowling was wholly responsible for the conduct in question. There is no feature or aspect of his role in publication which serves to diminish his culpability.

10. [24]

    Mr Dowling continues to maintain that his culpability is reduced because Campbell J’s orders are, according to him, liable to be set aside. The plaintiffs maintain that this contention does not, in accordance with authority, serve to reduce Mr Dowling’s culpability for the breaches of the orders which were unarguably current and enforceable when the offending articles were published.

11. [25]

    Apart from his submissions, which for more abundant caution I marked as an exhibit in these proceedings, Mr Dowling has not put on any evidence as to any reasons or motives he might have had for repeatedly breaching the relevant orders. By the same token I am prepared to accept that, in a general sense, Mr Dowling sees himself as a fierce proponent of free speech and correspondingly perceives the restrictions imposed upon him by the orders as an unfair and illegitimate interference with that right.

12. [26]

    It would also appear that Mr Dowling’s motivation includes generating interest in his website as a platform for his opinions in general, and the expression of the not inconsiderable antipathy he seems to bear towards a large range of individuals and professions, including Mr Kerry Stokes, in particular.

13. [27]

    Mr Dowling’s motivation, at least according to his lights, might also be described as “journalistic”, in the sense that he wishes, as a self-described journalist, to identify the plaintiffs in the public interest. However, in expressing that tentative opinion I note that the particular identity of the plaintiffs, as opposed to the balance of the subject-matter of the offending publications, could not fairly be seen to be matters of public interest in the strict sense, and could not reasonably be considered to be such.

14. [28]

    A feature of Mr Dowling’s publications is that they include prominent and regular appeals for financial contributions from the public. That is apparent from several references to ways in which readers can support his site by clicking on a button to donate via PayPal or by going to the donation page “for other options”. In Mr Dowling’s third article he reflects upon the amount of media attention he receives, including in the context of breaching Campbell J’s orders, and appeals for support by way of donations.

15. [29]

    It is an available inference that Mr Dowling seeks to benefit from the publication of the plaintiffs’ names by attracting public interest to his website and by soliciting financial support. It is a further available conclusion that he seeks to draw attention to his defiance of the Court orders, as a way to gain sympathy and notoriety or simply public attention, which he apparently perceives as being a benefit to him, perhaps because he considers it will increase his public profile.

16. [30]

    Mr Dowling has not expressed contrition or remorse of any sort or in any form. Having regard to the fact that he has neither demonstrated by his submissions nor by his conduct that he understands the significance of this issue for sentencing purposes, and to the possibly related fact that Mr Dowling is not legally represented, I remain concerned that he does not appreciate or understand the seriousness of his present position. To my observation, Mr Dowling remains ferociously committed to the righteousness of his conduct, and quite obviously considers an apology of any type to be inconsistent with it. I had in fact anticipated that Mr Dowling’s written submissions would deal with this matter, but they contain nothing vaguely amounting to an apology or to an expression of regret. To the extent that Mr Dowling’s submissions actually focus upon these proceedings, as opposed to a series of unrelated matters of interest to him, they are singularly directed to his concern that Campbell J’s orders should be set aside.

17. [31]

    In Hinch v A-G [1987] VR 721, Kaye J said at 749:

18. [32]

    Mr Dowling has previously been convicted of contempt, and fairly recently. This is referred to in the affidavit of Richard Keegan of 27 February 2017 at paragraphs 5 and 6, read by the plaintiffs in the earlier hearing. Nicholas J imposed a fine on Mr Dowling. That did not deter Mr Dowling from further contempt. His Honour’s reasons on liability are found at Munsie v Dowling [2014] NSWSC 962. They include a finding that Mr Dowling’s conduct was wilful and contemptuous. In Munsie v Dowling (No 2) [2014] NSWSC 1042, his Honour found that Mr Dowling had a high disregard for the operation of the courts and the conduct of the judges before whom he has appeared. In assessing penalty, his Honour took into account in Mr Dowling’s favour the fact that he had no previous criminal history. Mr Dowling seems clearly to have been undeterred by his previous penalty.

19. [33]

    When making submissions on the previous occasion, upon the question of whether or not he should be found to have committed a contempt, Mr Dowling asserted that he had never in fact paid the fine in question because, so he asserted, it had been waived in some fashion, by those responsible for recovering it. Even if that were true (of which there is no evidence), it says nothing about the nature of the penalty previously imposed. A decision by a government agency not to pursue a fine might have any number of explanations, none of which informs the reason for the imposition of the fine itself. In the absence of any evidence or appropriate submissions illuminating this alleged circumstance, it seems to me to be completely irrelevant for present purposes.

20. [34]

    There is no evidence before me in relation to Mr Dowling’s personal circumstances. Once again this may be the regrettable consequence of the fact that Mr Dowling is not legally represented and that he chose not to appear at the sentencing hearing. His written submissions tell me nothing about him.

21. [35]

    There is no evidence to suggest that Mr Dowling was under any form of duress or other personal pressure that might in any way explain or excuse the conduct in question: compare, for example, Prothonotary of Supreme Court of New South Wales v Ceren.

22. [36]

    The plaintiffs submitted that there is a substantial need to deter both Mr Dowling and others of like mind.

23. [37]

    The plaintiffs submitted that Mr Dowling’s conduct has the potential, if not properly or appropriately sanctioned, to undermine both respect for the Court’s orders and their effectiveness, each of which is against the public interest. The plaintiffs contended that what they describe as the defiant nature of Mr Dowling’s publications in breach of the orders calls for the imposition of a penalty that will operate to deter similar conduct. Without an appropriate public sanction, those who might read Mr Dowling’s publications may be led to conclude that court orders may be breached with impunity.

24. [38]

    For similar reasons, Mr Dowling’s conduct ought to be denounced in strong terms, and a penalty consistent with that need should be imposed.

25. [39]

    Mr Dowling has not provided me with any matters that could properly or reasonably be taken into account in his favour on sentence. For example, I have no knowledge of his personal history or circumstances. I do not know his family background or current living arrangements. I have no information about his educational or working history. I do not know if he suffers, or has at any time suffered, from a serious or disabling physical or mental medical condition. I do not know whether there are people in his family, his employment environment or his social circles who might be able to provide references or testimonials to his good character and standing in the community. Once again this total void may be the direct result of Mr Dowling’s legally unrepresented status. Whatever may be the reason, I have no material with the benefit of which I could even begin to understand who Mr Dowling is or why he should be given the benefit of factors that are favourable to him.

26. [40]

    I am otherwise satisfied that, with the exception of matters to which I have already referred, there are no aggravating factors that might be taken into account by me in arriving at a proper sentence.

Mr Dowling’s submissions

1. [41]

   Mr Dowling’s submissions commenced with the Preamble:

2. [42]

   Having regard to the matters referred to by Mr Dowling, I arranged for the transcript of the sentencing proceedings to be forwarded to him. I also provided him with an opportunity to furnish further written submissions by no later than 4 August 2017 if he wished to do so.

3. [43]

   Mr Dowling thereafter described the proceedings commenced by Jane Doe 1 and Jane Doe 2 as “a national scandal”. He continued in these terms:

4. [44]

   Mr Dowling’s submissions then proceeded to explain why he refused to comply with the orders made by Campbell J:

5. [45]

   Mr Dowling then turned his attention to what might be considered his opinion of the utility of the proceedings:

6. [46]

   Mr Dowling then dealt with the following discrete topic:

7. [47]

   Mr Dowling’s submissions thereafter continued by quoting large sections of cases on defamation in the High Court and elsewhere, interspersed with commentary and photographs of Mr Dowling, Mr Worner and Jane Doe 1 and Jane Doe 2. The submissions conclude with the following:

Mr Dowling’s further submissions

1. [48]

   Mr Dowling provided supplementary submissions in accordance with the opportunity to which I have earlier referred. With the exception of a reproduction of an article about his sentencing hearing from the Sydney Morning Herald and a picture of Mr Worner and Ms Harrison, the submissions were as follows:

2. [49]

   These supplementary submissions once again fail to address the important matters that could have assisted me in forming a view about a proper sentence. Mr Dowling has failed to come to terms with the very nature of these proceedings, which are by definition predicated upon my finding that he is guilty of contempt and that he stands to be dealt with in some way as punishment for that contempt. Mr Dowling has neither referred to the range of sentencing options that are available nor has he urged upon me some particular approach to sentencing in his particular case. That is in my view a particularly unfortunate and regrettable state of affairs.

Consideration

1. [50]

   I have already referred to the fact that Mr Dowling maintains that the suppression orders and the injunctions which he breached ought never to have been made. He first applied to disturb Campbell J’s orders by oral application before McCallum J on 10 March 2017. His application was heard by her Honour on 13 March 2017. The plaintiffs also applied at that time for an extension of injunctions in favour of the third and fourth plaintiffs. Those respective applications stand reserved.

2. [51]

   The legal position appears clearly to be that Mr Dowling is bound to observe Campbell J’s orders, even if those orders are, as with all orders, potentially liable to be varied or set aside. I have previously referred to these principles at [28]-[33] and [52]-[54] of my earlier judgment and it is unnecessary to repeat them. See generally Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506; [2015] NSWCA 125 at [59]-[63].

3. [52]

   Mr Dowling was bound to obey the orders of the Court. He was not entitled to choose not to do so, whether because he asserted a belief that the orders ought not to have been made, or for any other reason. Not only was the principle that orders of superior courts must be followed until set aside or varied plainly canvassed before me on 1 March 2017, when considering the issue of Mr Dowling’s liability for contempt, but it was also raised on 3 March 2017 before N Adams J, in these proceedings, where both that principle and the corresponding risk of imprisonment facing Mr Dowling were discussed with him in plain terms. Part of that transcript is as follows:

4. [53]

   Doing the best I can, the most that could be said for Mr Dowling, having regard to his continuing conduct in breach of Campbell J’s orders up to the present, is that he has been wilfully blind to the principle that the orders are binding and enforceable. The plaintiffs have contended that far from any innocent explanation for his conduct, Mr Dowling should be found at all times to have knowingly understood and appreciated the principle and the corresponding risk of punishment. Whatever be the true position, I am not prepared, favourably to Mr Dowling, to conclude that his intransigent flouting of orders of this Court is the result of his legally unrepresented status or any confusion or misunderstanding by him of the seriousness of his conduct or the consequences that it may occasion.

5. [54]

   I remain of that view even though Mr Dowling’s written submissions appear to perpetuate a complete misunderstanding of why he is facing the imposition of a penalty for his contempt. He seeks to portray the issue as one of free speech. He seeks to paint himself as a victim of a powerful media organisation that is determined to gag him. The fact of the matter is that Mr Dowling has done more than journalists do on a daily basis. His contempt arises not from the fact that he published the names of Jane Doe 1 and Jane Doe 2 in the first place, perhaps on his assessment as any journalist might have done, but from the fact that he disobeyed an order to take their names down from his online articles and even continued to republish the names in breach of the order that he not do so. It is therefore not the case that Mr Dowling faces the prospect of imprisonment for doing nothing more than reporting the news. Moreover, the fact that the individual plaintiffs have not personally sworn affidavits is entirely irrelevant to the question of Mr Dowling’s contempt or a suitable punishment.

6. [55]

   However, as disturbing as Mr Dowling’s apparent misunderstanding appears to be, I am not prepared to conclude that he is ignorant of the real issues in this part of the case, or that he has not flagrantly and intentionally disobeyed a solemn order of this Court. Even if on one view Mr Dowling’s enthusiasm for the cause as he perceives it borders on obsession, Mr Dowling is nonetheless to my observation a man of some intelligence who doubtless appreciates the proper legal foundation for his contempt. It is regrettable that his written protestations elide self-righteous indignation with innocence. Mr Dowling may not, with appropriate legal advice, have chosen to admit in those submissions that the reason he has never taken the names of the plaintiffs down “is because [he has] taken a stand against the abuse of suppression orders and non publications orders the NSW Supreme Court has been illegally and corruptly issuing”. However, Mr Dowling has not sought to withdraw that submission and it eloquently portrays his continuing attitude to the authority of this Court.

7. [56]

   I am satisfied that Mr Dowling has long been aware that the continuation of his offending conduct placed him at risk of imprisonment. Despite that, the offending publications remain online.

8. [57]

   Section 5(1) of the Crimes (Sentencing Procedure) Act provides that:

9. [58]

   Mr Dowling’s previous punishment for contempt has clearly not served to deter his disregard for Campbell J’s orders. He has neither apologised for breaching them nor has he in any other way expressed contrition, remorse or regret for his actions. His contempt continues to this very day. In these circumstances I consider that no sentence other than the imposition of a term of full time custody is appropriate.

10. [59]

    Shane Dowling, I sentence you for contempt to a fixed term of imprisonment of four months commencing on 10 August 2017 and expiring on 9 December 2017.