"Shane Dowling, I sentence you for contempt to a fixed term of imprisonment of four months" - NSW Supreme Court today
My sympathies are with the victims in this case - the Jane Does.
I know at least one of them and she's a wholly decent and honourable person who didn't deserve to be the victim of malicious gossip published as if it was true.
I hope people will take the time to read the judgements in the 5 Supreme Court of NSW cases involving Dowling just this year.
It would be a great shame if the jailing of Mr Dowling led to blithe judgements about "martyrdom" over free speech and fearless reporting.
Justice Harrison was left with no alternative today - even while reading his sentencing remarks it was clear Dowling's contempt continued.
"If you are currently publishing matters on your phone ... I'd ask you to stop."
"OK then," Dowling replied.
From His Honour's judgement:
(Dowling's) 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.
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.
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.
“A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”
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.
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.
Doe v Dowling  NSWSC 1037 (10 August 2017)
Last Updated: 10 August 2017
New South Wales
Doe v Dowling
Medium Neutral Citation:
21 July 2017
Date of Orders:
10 August 2017
10 August 2017
Sentenced to a fixed term of imprisonment of four months commencing on 10 August 2017 and expiring on 9 December 2017.
CRIMINAL LAW – sentence – contempt of court – where contemnor did not appear at sentencing proceedings – where contemnor deliberately and enthusiastically disobeyed court orders – whether the contemnor’s culpability is reduced because the orders are liable to be set aside – where contemnor has sought to receive a benefit from the contempt – where contemnor has not expressed any contrition or remorse – where contemnor has provided no evidence regarding personal circumstances or mitigating factors – whether there is a substantial need to deter the contemnor and others of like mind
AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98; HCA 46
ASIC v Matthews  NSWSC 285
Commissioner for Fair Trading v Partridge  NSWSC 478
Commonwealth Bank of Australia v Kenney [No 2]  WASC 415
Doe v Dowling  NSWSC 202
Hinch v A-G  VicRp 62;  VR 721
Munsie v Dowling  NSWSC 962.
Munsie v Dowling (No 2)  NSWSC 1042
Principal Registrar of the Supreme Court of NSW v Jando(2001) 53 NSWLR 527;  NSWSC 969
Prothonotary of Supreme Court of New South Wales v Ceren  NSWSC 1187
Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309
Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506;  NSWCA 125
Thunder Studios Inc (California) v Kazal (No 2)  FCA 202
Witham v Holloway (1995) 183 CLR 525;  HCA 3
Jane Doe 1 (First plaintiff)
Jane Doe 2 (Second plaintiff)
Shane Dowling (Defendant)
K P Smark SC (Plaintiff)
REMARKS ON SENTENCE
- HIS HONOUR: On 15 March 2017, I found Shane Dowling guilty of contempt: Doe v Dowling  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.
- 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.
- 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:
“Another key issue is that the media have named the women involved in the AFL scandal immediately with their pictures and backgrounds everywhere. So why didn’t the media name the four women [Jane Doe 1], [Jane Doe 2], [Jane Doe 3] and [Jane Doe 4] who allegedly had sexual relationships with Seven CEO Tim Worner before the dodgy suppression order was taken out?”
- 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
- In AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98;  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:
“Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced. As the authors of Borrie and Lowe’s Law of Contempt, 2nd ed (1983) say, at 3:
If a court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.”
- Their Honours continued at 115:
“These are considerable powers, resort to which imposes a heavy responsibility upon a court confronted with a determined challenge to its authority. The propriety of their exercise cannot be measured solely by reference to the established procedures attending the prosecution of ordinary breaches of the law. Contempt of court is a distinctive offence attracting remedies which are sui generis (Morris v Crown Office  2 QB 114 at 129). It is required of the chosen remedy that it be effective, no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result.”
- In Witham v Holloway (1995) 183 CLR 525;  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.”
- The issue was put shortly by Le Miere J in Commonwealth Bank of Australia v Kenney [No 2]  WASC 415, at :
“Civil contempt has a dual nature. It is a means for coercing the contemnor to obey an order of the court and thereby enforce the rights of the plaintiff. But its purpose is also to protect the due administration of the courts by upholding the authority of the court.”
- In Thunder Studios Inc (California) v Kazal (No 2)  FCA 202, Rares J said:
“ Our society is structured on the basis that the Courts of law must be accessible to all persons, rich or poor, weak or strong, popular or unpopular, and whose cases may or may not be considered by others or the public to be good or bad. It is essential that everyone knows that the Courts are independent, not only of government but also of other influences, and that the Courts are also seen to be entirely free from outside influences, including public pressure. It is also fundamental that persons must obey, and cannot be allowed to ignore, orders that the Courts make. The due administration of justice requires that everyone be able to access the Courts to hear and determine disputes, that all persons in our society accept that the orders made by the Courts reflect the application of the law by which all are governed and that those orders must be obeyed while they are in force.
 It is a very serious matter where a person disobeys a Court order knowing the Court has made it. If that conduct went unpunished by the Courts, a fundamental aspect of our society would suffer. Other people would come to think that they also could disobey or flout orders that a Court had made. The rule of law would be seriously undermined were such a situation left unpunished. Justice could not be done satisfactorily if the ordinary respect that members of our society have for the authority of the Courts to resolve disputes, as a part of our system of government, came to be undermined by persons openly disobeying Court orders or bringing public pressure on a litigant in proceedings that sought to influence the litigant or condemn him, her or it in the public eye for pursuing or defending the litigation.”
Applicable legislation and range of possible orders
- 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.
- 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.
- 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;  NSWSC 969 at - ; Prothonotary of Supreme Court of New South Wales v Ceren  NSWSC 1187 at .
- 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
- In Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, the Court of Appeal said at 314:
“A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into
account the considerations normally applicable to the punishment of crime
and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and
orderly administration of justice in the courts according to law. Thus, in
determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741.”
- Several cases have identified matters relevant to penalties for contempt. For example, in ASIC v Matthews  NSWSC 285 at , Barrett J held that the following factors are relevant:
<li "="">(2) The contemnor’s culpability;<li "="">(3) The reason or motive for the contempt;<li "="">(4) Whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;<li "="">(5) Whether there has been any expression of genuine contrition by the contemnor;<li "="">(6) The character and antecedents of the contemnor;<li "="">(7) The contemnor’s personal circumstances;<li "="">(8) The need for deterrence of the contemnor and others of like-mind from similar disobedience;<li "="">(9) The need for denunciation of contemptuous conduct.
- <li "="">(1) The seriousness of the contempt proved;
- See, to like effect, Commissioner for Fair Trading v Partridge  NSWSC 478, at ; Prothonotary of Supreme Court of New South Wales v Ceren at .
- It is instructive to consider how these factors apply to the present matter.
- The seriousness of the contempt proved
- 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  of my earlier judgment:
“I am satisfied beyond reasonable doubt that the defendant’s contempt is contumacious. I am unable to reach any conclusion other than that the defendant deliberately set out to disobey and to flaunt what he knew and understood to be the solemn orders of the Court.”
- 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.
- 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.
- 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.
Mr Dowling’s culpability
- 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.
- 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.
The reasons or motives for the contempt
- 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.
- 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.
- 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.
Whether Mr Dowling has received, or sought to receive, a benefit or gain from the contempt
- 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.
- 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.
Whether Mr Dowling has expressed genuine contrition
- 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.
Mr Dowling’s character and antecedents
“[The defendant’s] previous convictions for contempt of court evince that he has a disposition to place himself above the law when he considers his interests as a broadcaster might conflict with the law. It follows that, in my opinion, the penalty to be imposed on the appellant Hinch in relation to the first two broadcasts ought to reflect in a meaningful manner the need for personal deterrence of him.”
- 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  NSWSC 962. They include a finding that Mr Dowling’s conduct was wilful and contemptuous. In Munsie v Dowling (No 2)  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.
- 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.
Mr Dowling’s subjective circumstances
- 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.
- 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.
- The plaintiffs submitted that there is a substantial need to deter both Mr Dowling and others of like mind.
- 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.
The need for denunciation of contemptuous conduct
- For similar reasons, Mr Dowling’s conduct ought to be denounced in strong terms, and a penalty consistent with that need should be imposed.
Aggravating and mitigating factors
- 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.
- 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
- Mr Dowling’s submissions commenced with the Preamble:
I write these submissions under duress as I never agreed to the hearing times as we are still awaiting a judgment of Justice Lucy McCallum which could impact on any penalty which Justice Harrison admitted in his judgement when he found me guilty of contempt. Justice Harrison’s urgency for sentencing hearing seems to be when I was charged by the police for an email that I sent last September and by what the police told me could result in Justice Harrison becoming a complainant against me.
The applicants have also caused further duress in that they corruptly tried to subpoena my computer which was in the possession of the police which caused a further delay of about 2 weeks in getting it back. The subpoena forced the police to give it to the court last Friday and I had to spend most of Monday in court before Justice McCallum arguing to get the computer back.
For the obvious reasons above I ask that Justice Ian Harrison stand down from hearing the matter as outlined below. Failing that I ask for additional time to respond to Kieran Smark’s submissions, any further submissions that Mr Smark might make in court and any questions that the court may raise as I have had limited time to prepare or read Mr Smark submissions in full. This is due to the applicant’s scandalous attempt to subpoena my computer.
I will also not be showing up the hearing and once again for the obvious reason above that Justice Harrison could or maybe already is an applicant in criminal charges against me as outlined in further detail below.”
- 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.
- Mr Dowling thereafter described the proceedings commenced by Jane Doe 1 and Jane Doe 2 as “a national scandal”. He continued in these terms:
“By naming [the plaintiffs] in articles I have done nothing more than any journalist does everyday around the country as their names were in legal documents tendered at the Australian Human Rights Commission by Amber Harrison. I have subsequently named them as they are suing me and I am entitled to open justice.”
- Mr Dowling’s submissions then proceeded to explain why he refused to comply with the orders made by Campbell J:
“Taking a stand against judicial corruption and dodgy suppression orders
The reason I have never taken their names down is because I have taken a stand against the abuse of suppression orders and non publications orders the NSW Supreme Court has been illegally and corruptly issuing. And in particular issuing for the benefit of Kerry Stokes, Ryan Stokes and Seven West Media.
The corrupt abuse of suppression orders by judges is so bad in Victoria they are currently under review with calls for a suppression order ombudsman and their need to be a review in NSW if not all of Australia and by people like me taking a stand it should help facilitate that.
In April 2014 Justice Ian Harrison issued a corrupt super-injunction for Kerry Stokes which I breached to make a stand and was charged for contempt and fined $2000. It was so dodgy the NSW Justice Department did not enforce the fine.
Since then until now I have lost count of the number of suppression orders and non-publication orders that Kerry Stokes and his associated companies have taken out against me and others for their various SLAPP lawsuits.
In October 2016 Capilano Honey took out a super-injunction against me for another SLAPP lawsuit which I am still in beach of a sit [sic, as it] is in the public interest to do so. I have made an application to have the matter dismissed for want of prosecution. Capilano Honey are also suing Simon Mulvany, although there is no suppression order, and he is currently in the process of having the matter against him declared a SLAPP lawsuit.
The point is that the applicants have a long history of dodgy lawsuits that have no basis. So, you find someone guilty and then penalise them based on the dodgy lawsuit is a national disgrace.”
- Mr Dowling then turned his attention to what might be considered his opinion of the utility of the proceedings:
“No damage done
[Jane Doe 1 and Jane Doe 2] have not been defamed and if it went to final hearing they would get little damages if any even if they won and they have failed to file any evidence in this matter showing any damages or that they have been defamed.”
- Mr Dowling then dealt with the following discrete topic:
“Seven West Media want me jailed
Seven West media want me jailed. On that basis, all journalists who named the 2 women in the AFL scandal, without their permission, should be jailed as well.
If I was jailed I would be jailed when there has not even been a judgment by Justice Lucy McCallum determining if the suppression orders were valid in the first place as the judgment is still reserved.
How could anyone seriously consider jailing me when the applicants have not filed any affidavits themselves supporting any part of their case.
For a media company like Seven asking for a journalist to be jailed shows they are not really a media company at all. Seven are just a criminal organisation.
I should not be penalised at all as the participants have not even tried to make out their case at all. Why should someone be penalised for standing up to a SLAPP lawsuit which corrupt judges are aiding and abetting on a scandalous scale?
This matter is a huge free speech, political communication and public interest matter. If Australian courts are going to jail or penalise journalists for doing nothing more than reporting the news then Australia is no better than China or Russia etc.
The contempt matter against me is a clear-cut conspiracy to have someone falsely charged...”
- 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:
In the beginning there was Amber versus Seven. Now it seems it is truth versus falsehood. Fake news and counter accusations. We want to paint a true picture of the real Amber Harrison, not rely on the forgeries peddled by the billionaire media barons in Sydney and Melbourne. This website [sic] contains a series of factual blogs and articles about Amber Harrison and her battle with Seven. Scorned lover or mistreated employee? Time to set the record straight!”
Mr Dowling’s further submissions
- 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:
“These submissions are follow-up submissions to my first submissions.
Over the last 3½ years during Kerry Stokes attempt to silence me from reporting on him and his court cases against me I have been before about 15 judges of the NSW Supreme Court judges and not one of them has failed to disappoint. I publish a judicial corruption website and one would think that obviously makes me a target for the judges. But the reality is that the judges are that corrupt that anyone they can screw over for their own benefit and the benefit their lawyer mates is a target.
One routine that judges regularly use is the dummy routine where they pretend they do not know the law or the facts of the case. That is what both Justice Ian Harrison and barrister Kieran Smark are doing in this matter.
The media reported on the sentencing hearing on the July the 21st and they didn’t have any problem understanding my actions. I have clearly taken a political stand against scandalous and corrupt suppression orders that are being issued by the NSW Supreme Court at an extremely concerning high rate. That is made very clear in my original submissions which the media quoted from as per below and left the reader in no doubt why I had taken a stand. Below is an article from the Fairfax Media owned SMH website: [Article omitted]
The question that needs to be asked is why can a journalist get their head around the key elements of my defence, in a few hours or less, yet the judge who has been hearing the case apparently has no clue what my defence is?
1. The reason the applicants are in a rush to have me sentenced before Justice McCullam [sic, McCallum] hands down her judgment on the review of the suppression orders is because they are fully aware that have no legal right to the suppression orders. The applicant’s corrupt barrister Keiran [sic] Smark is meant to be an expert on defamation law and he knows that suppression orders can only be issued in exception circumstances which Mr Smark knows do not exist as far as his client’s case are concerned.
2. For Justice Harrison to sentence me before Justice Lucy McCallum hands down her judgment would mean Justice Harrison would have to breach his own judgment when he found me guilty of contempt and he said that Justice McCallum’s judgment could have a bearing on sentencing.
3. If I was jailed I have no doubt I would be correctly classified by social media users as a political prisoner. As I previously wrote this is a clear case of a conspiracy to have me falsely charged which carries a jail sentence of ten years under federal laws.
4. The Australian Public are awake to the dodgy suppression orders and they would be well aware that [Jane Doe 1] and [Jane Doe 2] are not entitled to have their names suppressed as they were named in legal documents that went before the Australian Human Rights Commission.
5. It is illegal for companies to sue for defamation and based on the evidence of Sevens lawyer Richard Keegan Seven West Media are paying for the case and its Chairman Kerry Stokes and commercial director Bruce McWilliam are running the case and the 2 women are nothing more than a front. The whole matter should be thrown out on that basis alone.
6. Keiran [sic] Smark has failed to produce a precedent where it says it is ok for a company to illegally run a defamation case as part of the SLAPP lawsuit and to conspire to have someone jailed for taking a political stand against their dodgy suppression orders.”
- 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.
- 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.
- 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 - and - of my earlier judgment and it is unnecessary to repeat them. See generally Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506;  NSWCA 125 at - .
- 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:
“HER HONOUR: You fully understand the order that Justice Walton made on 22 February?
HER HONOUR: And you have a copy of it and you’ve just read that?
HER HONOUR: Significantly, do you understand the consequences of not complying with that order?
DEFENDANT: Yes, your Honour.
HER HONOUR: What are those consequences?
DEFENDANT: You can get fined.
HER HONOUR: What else?
DEFENDANT: Go to gaol.
HER HONOUR: Yes. So you do understand that, to breach an order of this Court, is a contempt. The penalty for that is at large and does include full-time imprisonment.
DEFENDANT: Yeah, it’s my argument that it’s null and void, but and—
HER HONOUR: But you also understand, and Mr Smark has indicated he made this submission to Justice Harrison, there is authority – meaning, there are other cases that have held that, even if an order is subsequently held to be void, breaching it is still a contempt. Because if the Court—
DEFENDANT: The problem you got, I’m prepared to run the gauntlet. Their names are all over the internet. I never defamed them. They claim Amber Harrison defamed them in a document she had with Australian Human Rights Commission. That document is all over the internet and they’re going after me and they won’t sue the lady, Amber Harrison, who they claimed defamed their clients.
HER HONOUR: Mr Dowling, can I tell you; I’m not having to resolve the final defamation hearing.
DEFENDANT: Yep, I know.
HER HONOUR: And, for all I know, because I know nothing about the matter, you may have some success in that matter.
What I’m focusing on is, by consent, you’re agreeing to an order today and it’s incumbent upon me to make sure that you understand what happens if you breach that order. And all I’m just trying to explain to you is—
DEFENDANT: I had contempt—
HER HONOUR: Even if you ultimately win in the proceedings, that doesn’t mean that you won’t be in contempt if you breach these orders now. Do you understand that?
DEFENDANT: I’ll be arguing different – yep. That’s fine, I understand exactly what you say, so I’m going to be arguing different next week --
HER HONOUR: Do you understand how they’re separate issues? One is whether you succeed in getting the injunction lifted and –
DEFENDANT: Look, they’ve been down that path before, I’ve been charged with contempt twice. The first time in 2014, it was so dodgy the New South Wales Justice Department – I was fined $2,000 – they refused to enforce it, I never paid the two grand because it was that dodgy. But I don’t want to drag you into it because you’re obviously got limited knowledge of it. But I fully understand, yes, your Honour, I’m fully happy with the way you explained it.”
- 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.
- 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.
- 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.
- 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.
- Section 5(1) of the Crimes (Sentencing Procedure) Act provides that:
“A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”
- 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.
- 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.