Sydney-based reporter Krystal Johnson published the article on the first week of the Supreme Court murder trial, which contained information that had not been presented to the jury.
The reporter and head of Yahoo editorial for Australia and New Zealand, Simon Wheeler, appeared before the court on Tuesday to explain how the report came to be published.
The reporter told the court that she forgot while writing the article that a jury was involved in the case.
Ms Johnson had added a Facebook post and other potentially prejudicial information to the article “unaware by memory failure and by an oversight that there was a trial going on”.
Noticing that her sub-editor was particularly busy, she published the article online herself without waiting for it to be reviewed.
Supreme Court Justice Lex Lasry said on Tuesday that the explanation “strains credibility” and referred the matter to the Director of Public Prosecutions John Champion, SC, to consider charging the journalist with contempt of court.
Justice Lasry said the article risked causing an unfair trial, and discharged the jury in the case.
Ms Johnson’s lawyer Justin Quill apologised to the court on her behalf, to the parties in the case, their lawyers and to the family and friends of the victim. He also told the court that the article was a result of “human error” and that his client was terribly embarrassed and felt ashamed about her mistake.
Ms Johnson had been called away to cover breaking news stories as she prepared her report on the case, based on materials including Australian Associated Press reports, Mr Quill said.
AAP has reported that it covered the filing hearing last year but not the trial opening, and did not provide material on the trial to Yahoo 7, which is a subscriber of the wire news service.
When she returned to finish writing the article, Mr Quill said she failed “to recall the earlier part of the report that had been prepared that showed that this was a trial running with a jury”.
Mr Quill said the reporter had tried to provide as much information in the article as she could: “This is no case of a journalist being lazy but … in fact … being over-zealous,” he said.
Justice Lasry accepted this was an error, and not malicious, but said that the explanation that she overlooked that she was writing about a murder trial “strained credibility”. He said that he would refer the material to the Director of Public Prosecutions, but stressed “I make that referral without any indication as to what I think should occur”.
Mr Quill said that Ms Johnson had already been criticised and in some cases vilified for her mistake in a wide range of reporting on the matter in mainstream and social media, and said that “there’s nothing to be gained from referring this matter for a formal contempt of court proceeding”.
He said that Yahoo 7 had organised for a law firm to train its journalists, and prepared a manual on legal issues surrounding court reporting to be given to all journalists.
Justice Lasry offered Mr Quill a copy of the Supreme Court’s media policy, saying “it contained in one sentence the obvious rule which is if it didn’t happen in front of a jury, you can’t report it”.
Prosecutor in the murder trial, Andrew Tinney, SC, said that the matter had already begun to be considered by Mr Champion and other senior people at the Office of Public Prosecutions, who were concerned about it and the integrity of future trials.
Mr Tinney said he had seen the anguish caused to the jury, and said there would have been trauma to the accused, his family and the witnesses who would have to be re-called in when the trial came to court again before a new jury.
While this was an “honest mistake by a person who was trying to do her job”, there had also been a failing of management, he said.
The media workforce was also contracting he said and a lot of people “who knew the rules” were no longer working at major media organisations.
The judge said that the murder accused in the aborted trial would be remanded until a new trial on December 7.