Now that Dawson has been convicted of murdering his first wife 40 years ago, much of the credit has been attributed to Hedley Thomas, the journalist who breathed life into this cold case.

Yet it was not that long ago that judges of the NSW Supreme Court were saying dreadful things about Thomas and his immensely popular podcast on the Dawson case, The Teacher’s Pet.

That podcast, by the way, meant some witnesses for the prosecution only emerged as a result of their involvement in Thomas’s project.

This was noted by the Supreme Court’s Robert Beech-Jones in May, when he granted Dawson a judge-alone trial in order to eliminate the risk that potential jurors might have been influenced by the podcast.

Yet in the same judgment, Beech-Jones described the podcast as “pernicious” in terms of its prejudice against Dawson.

A similar sentiment was expressed by Justice Elizabeth Fullerton in September 2020, when she rejected Dawson’s application for a permanent stay of proceedings but described Thomas as “imbued with hubris”.

In 2021, former NSW chief justice Tom Bathurst went so far as to state his belief that the object of the podcast was to “incite prejudice”.

These judges seemed unhappy that Thomas had effectively accused Dawson of murder. And he had done so in podcasts that had been downloaded by millions of people.

So while these judges were clearly annoyed, it is revealing that none of them took steps to have Thomas prosecuted for sub judice contempt – or interfering with criminal justice.

Keep in mind that the podcasts were produced before Dawson was charged with any offence. That meant the law of sub judice contempt was irrelevant.

Thomas’s work did not interfere with criminal proceedings because there were no criminal proceedings.

The limits on sub judice contempt are set down clearly in the criminal trials bench book that is maintained by the NSW Judicial Commission and provides guidance for that state’s judicial officers.

It says sub judice contempt is typically committed “where there is a publication or comment through media organisations relating to proceedings currently before the court that has a potential to interfere with the proper running of the proceedings”.

This means the courts are restricted to imposing penalties on the media for conduct that takes place once criminal proceedings are pending. They cannot reach back in time and retrospectively penalise journalists for publishing information that covers the same ground as a later criminal prosecution.

This limitation on the reach of sub judice contempt seems to be in line with the view of the late John Lockhart, who was a judge of the Federal Court.

In 1987, he wrote in the University of NSW Law Journal that sub judice contempt consisted of conduct, usually by publication, that is calculated to impair or prejudice the fair trial “of a case that is pending or on appeal”.

By releasing the podcasts when no proceedings were pending, Thomas avoided the fate of broadcasters John Laws and Derryn Hinch, whose timing was less astute.

In 1998, Laws had referred to an accused man as “absolute scum” on the third day of the man’s jury trial for murder. Laws discussed the evidence, criticised the way in which the prosecution was running the case and insisted that the accused man was a murderer.

The jury was discharged and Laws and his employer, radio station 2UE, were ordered to pay legal costs and substantial fines.

In 1986, Hinch made the first of three broadcasts about the criminal record of Michael Glennon, a former Catholic priest. The first broadcast took place the day after Glennon had been charged with nine counts of indecent assault, one count of buggery and two counts of assault with intent to commit buggery. Hinch made his final broadcast about Glennon, again outlining his criminal record, the month after contempt proceedings had been initiated by the Attorney-General of Victoria. Hinch went to prison.

Unlike Thomas, these broadcasters made statements about men who were involved in prosecutions that were under way or pending.

In light of these cases, what are we to make of the statement by Justice Fullerton in her 2020 judgment that Thomas’s podcasts were “the most egregious example of media interference with a criminal trial process which this court has had to consider in deciding whether to take the extraordinary step of permanently staying a criminal prosecution”?

Some judges might not like it, but Thomas’s assessment of Dawson was lawful and has been vindicated after a judge-alone trial that eliminated the risk of jury bias.

The lesson here is that the law of sub judice contempt protects criminal proceedings that are current or pending. It does not apply retrospectively to penalise journalists whose work breathes life into matters that subsequently result in criminal proceedings.

Criticising Thomas for work that was lawful at the time of publication is not an appropriate method of protecting the integrity of the justice system.

This case shows that the law of NSW was sufficiently robust to provide a fair trial for Dawson while ensuring Thomas was free to expose wrongdoing that had been overlooked by authorities.