Q. It is an important factor that you did not take into account?
A. It would be if the numbers were high. If the numbers are near zero and you say times twelve, it is still going to be an extraordinarily small number.
Q. You say multiplied by twelve?
A. I am not sure which is the right way to say what it is like, to say any one in twelve would remember so, as I said earlier, I would have to think about the formula.
41 Dr Williams was unfamiliar with the formula which is used to convert the probability that any single person may remember to the probability that any person out of twelve randomly selected persons may remember.
42 Dr Williams relied on the results of a number of surveys to reach his opinion. As far as he knew, however, the participants in those surveys were asked only once whether they remembered the thing about which their memory is being tested. He agreed that the surveys made no attempt to replicate a criminal trial and were a poor substitute for a trial.
43 It seems to me that there are at least two fundamental differences between questions asked about a particular subject matter in a survey and the presentation of prompting information at a trial. First, at a trial, which may last several days, there is a continual and repeated process in which information is presented which may stir the memory. For example, jurors will see the accused's name printed in court lists, on notice boards and in the newspapers and probably in documents tendered at the trial. They will hear the accused's name repeated throughout the trial. They will hear other information, such as nicknames and other attributes of the accused which may become relevant. So a name or a face which provokes only a vestigial or uncertain memory at first may, when repeated or presented with other relevant information, revive the memory. On the other hand, the presentation of a question once only in a survey is much more likely to bring about a negative response.
44 Secondly, participants in surveys are questioned individually. Indeed, it appears that special care may be taken to prevent the memory of any participant influencing that of any other. Yet that is the process that is likely to go on during the deliberations of the members of a jury at a trial. So a dim memory of one juror may spark or be sparked by the memory of another juror.
45 For these reasons, I think that the survey results and opinions, upon which Dr Williams based his opinion derived from circumstances so different from those of a jury trial that I ought to be cautious about accepting any opinion based upon them.
46 Professor Vidmar was asked to give his opinion whether the publication was likely to be remembered by or to influence jurors at the trial of Mr Duong on 23 March 1998 and he concluded that as a matter of practical reality the likelihood was very small that the articles complained of had adverse effects on the belief or attitude toward Mr Duong of persons exposed to them.
47 Like Dr Williams, Professor Vidmar relied for his opinion on the results of surveys conducted and papers written by himself and others. As before, the circumstances contemplated by those surveys and papers were far removed from the circumstances of a jury trial. Professor Vidmar also assumed that there would be no persons of Vietnamese origin on Mr Duong's jury. For reasons I have already explained, therefore, his opinion also needs to be treated cautiously.
48 I thought that the evidence of Professor Vidmar suffered because of his unwillingness or inability to answer certain questions by reference to his own experience of life. If he could not find an answer in the literature on which he relied he preferred not to give an opinion.
49 I will give some examples. He was asked whether a person of Vietnamese origin would pay more attention to the articles than a person of another origin, but could offer no opinion because it was not a subject he had examined. He agreed that people tend to remember things that are of particular interest to them, but was quite equivocal when asked whether a person whose brother had recently died of a heroin overdose might pay particular attention to the articles. He could not say whether a person who had a mistress called Kim or who barbecued pork for the restaurant trade might for those reasons be more interested in the articles and remember them better.
50 I thought that this reluctance on the part of Professor Vidmar suggested an approach that leaned away from the practical towards the theoretical. The question that I have to answer is a practical one.
Professor Vidmar's experiment
51 Unlike Dr Williams, Professor Vidmar relied also on the results of a survey he had designed to test the ability of members of the public to remember the details of the publication complained of. The survey was carried out in Sydney according to his instructions in the following manner. A number of readers of the Sydney Morning Herald newspaper were asked to attend at the offices of a Sydney marketing research organisation. They were divided randomly into four groups. The members of group A were given a complete black and white photocopy edition of the Sydney Morning Herald newspaper of 27 October 1997. The members of group B were provided with copies of the editions of 27, 28 and 29 October 1997. The members of group C were given a copy of the edition of 3 November 1997 and those of group D were given copies of the editions of 3, 4 and 5 November 1997.
52 The publications of the Sydney Morning Herald newspaper other than that of 27 October 1997 may be summarised as follows. Immediately after the article about Mr Duong in that publication there appeared under the heading "TOMORROW" the words "The carve-up of Kings Cross". The edition of 28 October 1997 contained a headline on the first page and a leading article about nursing home fees. Unlike the previous day's edition, the front page of the newspaper was laid out according to the normal pattern. A regular feature called "Column 8" had been restored to its usual place. There were two other articles on the front page, unrelated to drugs. Also, under the heading "A HERALD INVESTIGATION" appeared the statements in large type "A new push is on to carve up the drug trade. The Herald's special investigation continues", and "Big guns target the Cross". Underneath appeared a large photograph of Mr Tom Domican. Underneath the photograph was a short article which named a number of well-known criminals. At the end of the article was a reference to page 8, which was fully devoted to the subjects of drugs and drug dealers. There were references to well-known criminals, and they were named, but Mr Duong was not mentioned. The article ended with the words "The kings of cannabis" under the heading "TOMORROW".
53 Page 4 of the edition of the 29th October 1997 contained the third article of the series. It was principally about money laundering. There was no mention of cannabis and the article foreshadowed on the previous day did not appear.
54 The edition of 3 November 1997 contained articles on the front page and on page 6 dealing with a proposal by the Federal Government to spend sums of money to reduce the supply of drugs into Australia, to rehabilitate drug users, to fund medical research and education about drugs.
55 The edition of 4 November carried articles on pages 4 and 5 criticising the attitude of the Prime Minister as set forth on the previous day, explaining how easy drugs were to obtain and dealing with police corruption in relation to drugs.
56 The edition of 5 November does not appear to have carried any material relevant to the present proceedings.
57 The participants were asked to read the newspaper or newspapers as they would ordinarily have read them. After having done so, each participant was asked to complete a written questionnaire. They were paid a sum of money and informed that the researchers might telephone them to ask additional questions after the analysis of data.
58 About fourteen days later, those from the marketing research organisation telephoned each participant and asked a series of questions designed to determine the extent to which each participant recalled the names Duong Van Ia and Uncle Six and any connection made between those names and other names which appeared in the articles they had been asked to read.
59 Not all participants were prepared to respond to the repeated request for information. Of those that did, 79 were in group A, 30 were in group B, 19 were in group C and 18 were in group D.
60 During the telephone interview, participants were asked a number of introductory questions about a number of topics which had been dealt with in the newspapers they had read. Then followed a series of questions the answers to which formed the basis of Professor Vidmar's conclusions and opinions. Participants were asked whether they could recall reading or hearing any news stories during the past two years that involved the illegal drug trade, such as heroin or cocaine in Australia. 97% of participants said that they could, and there were no significant differences between any of the four groups. Participants were then asked whether they could provide the names of persons associated with the stories and explain how they were so associated.
61 18% of participants in group A said that they could do so, compared with 40, 32 and 28% respectively in groups B, C and D. None of the participants mentioned the name Duong Van Ia. Two mentioned the name Uncle Six and one mentioned Duncan Lam, the other alleged drug boss featured on the first page of the edition complained of. Persons whose names were mentioned included the well-known criminals referred to more than once in the articles.
62 Participants were then asked whether they could give the names of any persons identified as "drug bosses". Those who said they could comprised 22, 30, 11 and 6% respectively of the four groups. One participant said "Uncle something", another said "someone Lam" and several referred to "Asian names" that they could not remember. Participants were able to remember the names of well-known Sydney criminals, however,
63 Participants were then asked to listen to a list of twenty names which were read in random sequence. Some of the names were well known. Two, namely Lan Tran Cao and Philip Tran, were invented by Professor Vidmar in order to try to identify prejudice which might exist among the participants towards anyone with a Vietnamese name.
64 15% of participants in group A recognised the name Duong Van Ia. Of the other groups, 10, 5 and 6% respectively recognised the name. Not all participants identified the name by reason of any connection mentioned in the publication complained of. Some thought that he was concerned with murder. Most recognising the name seem to have connected it with the drug trade.
65 37% of respondents in group A recognised the name Uncle Six, compared with 20, 11 and 6% respectively in the other groups. Most identified that person as being involved in the heroin trade.
66 The participants who recognised the name Duncan Lam comprised 24, 10, 11 and 17% respectively of the four groups. Most said that he was a drug boss or involved in the illegal drug trade.
67 19% of the participants in group A, 20% of group B, 21% of group C and 6% of group D said that they recognised the name Lan Tran Cao. Most connected the name with drugs.
68 The other fictitious name, Philip Tran, was asked about and 33% of the members of group A, 20% of group B, 26% of group C and 17% of group D readers said that they were familiar with the name.
69 The rate of identification of names of persons about whom media coverage was intense or prolonged was much higher than for the names I have just dealt with. This demonstrates the correctness of Dr Vidmar's opinion that repeated rehearsal of a fact is likely to produce a longer or more reliable memory of it.
70 The participants were then asked whether during the past two years they had read or heard anything about a Vietnamese immigrant called Lan Tran Cao, a Vietnamese immigrant called Duong Van Ia or someone named Uncle Six. They were asked whether there was any connection between Lan Tran Cao or Duong Van Ia or Uncle Six and any other person. They were asked the real name of the man called Uncle Six.
71 There was no significant increase in the rate of recognition of those three names over the rate that resulted from the earlier question about recognition of those names. One person identified Duong Van Ia as Uncle Six.
72 On these results Professor Vidmar based his opinion that public recall and recognition of the name Duong Van Ia was very low at what he called an absolute level and by comparison with names which had a appeared more extensively in the news media. He said that the survey results were consistent with other research results which he had studied.
73 Professor Vidmar also expressed the opinion, based on the alleged recognition by participants of the names Lan Tran Cao and Philip Tran that there was a strong suggestion of substantial levels of generic beliefs about Asians, particularly Vietnamese persons, being associated with organised crime and the drug trade. He pointed to the fact that in groups A and B recognition of the names Lan Tran Cao and Philip Tran was greater than that of Duong Van Ia. He concluded that two weeks after the publication of the "drug bosses" and "Uncle Six" articles there were "relatively little" recognition and recall memories of Duong Van Ia as a drug boss that could be separated from general assumptions about the involvement in drugs and other crimes of people with Vietnamese names. That did not mean that there was no recognition of the name Duong Van Ia, but that it was just as likely that there was an alternative explanation for the participants' asserted recognition of the name.
74 Professor Vidmar's last opinion calls for close examination, because there is evidence that may throw doubt upon it. First, the context in which the questions about Lan Tran Cao and Philip Tran were asked needs to be understood. By the time the fictitious names Lan Tran Cao and Philip Tran were introduced, participants had already been asked what stories they remembered about the illegal drug trade and whether they remembered the names of persons associated with it, and whether they could name persons identified as "drug bosses" or "heroin distributors". Then there was read to them a list of twenty names, including Lan Tran Cao and Philip Tran. The next question was whether during the past two years they had heard of a Vietnamese immigrant called Lan Tran Cao.
75 It seems to me that the context must have led the minds of the participants to an expectation that they would be asked about a Vietnamese person who had some connection with the illegal drug trade. Furthermore, the question suggested something that would have been true of Mr Duong, namely that Lan Tran Cao was a Vietnamese immigrant. I think, therefore that the false identification of Lan Tran Cao as having been connected with the drug trade must be given little weight. I would not regard it in context as giving rise to a reliable inference that there was a substantial level of generic belief about Asian, particularly Vietnamese, persons as being associated with organised crime and the drug trade.
76 Secondly, and more importantly, the names chosen as a control both contained the name Tran, a very common Vietnamese family name. A number of persons were dealt with by that name for serious offences in New South Wales within the period of time about which the participants were asked. Not all of those prosecutions may have been given wide publicity, of course, but one of them was. During 1998 an extended Coroner's inquest was held into the death of a member of the New South Wales Parliament, Mr John Newman, and the names of the defendants were widely publicised. One of them was Mr Tuan Van Tran.
77 When Mr Tran was committed to this Court for trial he applied for bail. One of his applications was heard on 12 January 1999. In the edition of the Sydney Morning Herald newspaper of 13 January 1999 the defendant published a substantial account of the application. It summarised the arguments put on behalf of the applicant and the Crown and quoted some of the remarks of the judge who determined the application.
78 The telephone survey was carried out between 29 January and 3 February 1999. One of the topics raised before the subject of illegal drugs was the murder of Mr Newman. Participants were asked whether they knew the names of any persons associated with the murder.
79 Although those claiming to recognise the name Lan Tran Cao did so primarily because they connected the name with drug dealing, other reasons were advanced as well, for example -
"For drugs and murder;" "I've heard of it but again I'm not sure where, perhaps with the drug trade I think;" "Connected to Cabramatta;" "He was one of the people charged with the murder of the politician;" "Maybe Cabramatta but I don't know;" "Vietnamese, he'd done something wrong."
80 In a similar way, those claiming to identify the name Philip Tran did so because he was a drug dealer or was involved with the murder of Mr Newman.
81 In the circumstances I do not accept that the survey results demonstrate the existence in the community of any general assumption that Vietnamese persons are involved in drug or other crimes. I therefore reject the conclusion of Professor Vidmar that the survey results show that the "drug bosses" and "Uncle Six" articles resulted in relatively little recognition and recall memories of Mr Duong as a drug boss that could be separated from general assumptions about persons with Vietnamese names being involved in drugs and other crimes.
82 Professor Vidmar began his evidence with a concession that the figure of one person out of 79 who recognised the name Duong was "unreliable" and probably an underestimate of what would happen at a trial. He then pointed to some features of the survey which, he said, made for more conservative and therefore more reliable results. First, he said, and I understood it not to be challenged, that only about one-third of the relevant population reads the Sydney Morning Herald newspaper. The likely rate of recognition or memory retention in the jury population generally, therefore, should be taken to be only about one-third of the rate demonstrated in the survey. I think that the point is well taken.
83 Secondly, the telephone survey was carried out only two weeks after the participants read the newspapers they were given, whereas the trial of Mr Duong was not due to take place until five months after the publication complained of. During the intervening time, Professor Vidmar said, interpolated memory and other activities would occur, causing the memory of individuals to fade more and more.
84 There may be substance in this argument also, though it is difficult to know how great it is in view of the evidence of both experts that memory of the detail of an event rapidly diminishes unless there exist any of the features which may combine to produce long term memory. There was no attempt by the experts to quantify and compare the likely loss of memory after two weeks with the loss after five months or by any other means to compare the degree of memory loss likely to have been experienced after each of those two periods of time. The impression that I received from the evidence generally is that unless an event is of such interest or importance or of such a striking nature as to produce long term memory, little if any of it will remain in the memory after two weeks. On the other hand, if an individual creates long term memory of an event, whilst it seems reasonable to suppose that that memory will fade over a long time, it is difficult to say whether there will be any significant loss of memory between a time two weeks after the event and a time five months after the event.
85 Professor Vidmar also said that since participants in the survey must have anticipated that there would be questions about what they had read, they would be more likely than other readers to remember what they read, so the survey results would tend towards the conservative. He thought also that, since during the interview it must have become apparent that participants were being asked about drugs and drug bosses, they were likely to guess at answers providing responses consistent with what they anticipated might be the purpose of the study. That also would tend to increase the number of positive responses.
86 I agree that these factors would tend to make the survey results conservative.
87 There were other features of the survey which in my opinion tend to detract from the reliability of the results. I have already touched upon the question whether the number of participants was high enough to enable confident predictions to be made about the memory of members of the community from whom the jury was to be drawn.
88 The principal difficulty I have in giving effect to the survey results, however, lies in the difference between the conditions of the survey and the conditions that would prevail at a trial in New South Wales. There are several features of this difference.
89 First, the survey was carried out without any warning, other than an indication two weeks earlier that participants might be asked questions later on. So there was no possibility that the memories of participants might be stimulated by the repetition of relevant information between the two stages of the survey.
90 On the other hand, members of a jury know the name of the accused in advance. They are told at the beginning of the trial what the charges are and the facts the Crown proposes to prove. During the trial that follows they repeatedly hear, see and read things which may stimulate the memory.
91 Secondly, the questions in the survey formed the only possible means of memory stimulation for participants. At a trial the means of memory stimulation are many.
92 Next, the telephone survey was short and each question was asked only once. It was known at the time of publication that Mr Duong faced a substantial trial on two heroin charges that might reasonably be supposed to last for a number of days. (It is now known that Mr Duong's trial lasted nine days but I do not take that precise period into account because that fact was not then known.) At a trial which lasted for a number of days jurors would repeatedly see, hear and read material which might stimulate their memory of the articles.
93 Next, the photographs of Mr Duong were a striking and important feature of the publication. Not only were only reduced black and white versions of them seen by the participants. During the survey that followed they were shown no photographs at all. The jurors would see the accused, and perhaps even photographs of him, throughout the trial. I have not overlooked the observation of Dr Williams that identification or recognition of a live person from a photograph may be less reliable than from a face, but I am of the view that jurors having some memory of the article and the photographs would have a significantly greater chance of memory stimulation by seeing Mr Duong and remembering the photographs than would participants in the survey.
94 Next, the name of Duong Van Ia and the subject of drugs were never connected during the telephone survey. In the tenth question, participants were asked whether in the past two years they had read or heard anything about a Vietnamese immigrant named Duong Van Ia and about the context in which they had heard or read the name. It is true that in preceding questions participants had been asked about the illegal drug trade, about drug bosses and heroin distributors and had had read to them a list of twenty names, including Mr Duong's name. However, the two topics were never brought together in the way they would be at a trial.
95 This is not a criticism of the framer or the conductors of the survey. It is not difficult to understand why those designing surveys prefer to test unprompted memory. However, the distinction, which I think important, illustrates at once the impossibility of replicating trial conditions in a survey and the consequent difficulty about accepting survey results as a reliable indicator of what might happen at a trial.
96 Next, there is no way of assessing the degree of commitment of survey participants and whether they were prepared to make a genuine effort to answer fully and honestly. Those asking the questions had no control over such matters because they were out of the presence of those they interrogated. Since the participants were telephoned without warning, it must be supposed that they had other things on their minds and allowance must be made for the distraction caused by those and other things. Of 188 persons followed up, 42 could not be contacted or declined to take any further part, and this demonstrates that not every participant was wholeheartedly committed to the success of the survey.
97 There are well established methods of ensuring that the attention of jurors at a trial is not distracted.
98 Next, although it was conceded by Professor Vidmar that jurors might possibly recognise Mr Duong from biographical information written about him in the articles, there was no testing of recognition by such means. The articles mentioned Mr Duong's being a heavy gambler, being in the business of barbecuing pork for the restaurant trade and having a mistress called Kim. It is more than mere speculation to say that evidence of any of these matters might have become admissible at the trial, giving jurors a further means of recognising the accused as the man written about.
99 Next, the article was not current news and therefore lacked the interest which current news may have by the time it was read by participants in the survey. For that reason it was less likely to be memorable to them.
100 Next, because by January and February 1999 the subject of the article was no longer current, the possibility can be excluded of survey participants reading or hearing anything about the subject matter between the time they read the newspapers they were given and the time they were asked questions over the telephone. The position with jurors would be quite different. Jurors who read the article may well have owned the copy of the newspaper which contained it. It was more than a mere sensational piece of news reporting. It was a special report of an investigation, being the first in a promised series. It contained indications about the content of forthcoming publications. For that reason alone it might have been kept by some of those who read it. It might have been re-read between the date of publication and the date of trial, especially within the first few days after publication.
101 Furthermore, there were in the news media further references to the article which might have reinforced memory of it. The article was critically mentioned in the ABC television program "Media Watch" on 3 November 1997 and was reprinted in the Vietnamese language in the Vietnamese newspaper Dan Viet, the Vietnamese Tribune, on 30 October 1997.
102 Professor Vidmar conceded in cross-examination that the more distinctions there were between the survey and the real life situation the more the validity of the conclusions drawn from the survey were decreased. I have come to the view that the limitations on the survey were so great and the differences between the conditions of the survey and those which would apply at a trial were so marked that the survey results cannot form the basis for any reasonable conclusion that there was a small likelihood as a matter of practical reality that the material complained of had significant adverse effects at the trial of Mr Duong on the beliefs and attitudes of persons exposed to them. Insofar as Professor Vidmar relies on his survey results to justify that opinion, I reject his opinion. I am not satisfied that he has demonstrated any basis independent of his survey results as reasonably supporting that opinion.
103 Moreover, certain of the survey results show the opposite of the position contended for by the defendant. 11 members of group A recognised the name Duong Van Ia, seven of them in connection with drugs. 25 recognised the nickname Uncle Six, 22 of them in connection with drugs. I accept the analysis and submissions of counsel for the plaintiff that it follows from these results that 27 of the 79 members of group A identified either Duong Van Ia or Uncle Six as a person connected with drugs. That, it seems to me, is a high rate of recognition.
Whether the publication had the tendency asserted by the plaintiff
104 My rejection of the opinions of Dr Williams and Professor Vidmar does not determine the matter, however. I must be satisfied beyond reasonable doubt that the material complained of did have the tendency contended for.
105 There could scarcely be more prejudicial statements than those contained in the articles about a man facing charges concerning the supply of heroin. He is described as a drug boss and a top heroin distributor, a "Mr Big". And is said to be targeted by police as the country's largest heroin distributor. He is said to have a network which has become the major outlet for heroin in western Sydney. All those statements appear on the front page of the newspaper.
106 On page 6 he is called a "drug czar".
107 On page 7 he is called one of "the Mr Bigs", is said to have become a major drug distributor at Cabramatta since the late 1980s, to be the top heroin distributor, to control the largest slice of Australia's drug market, to have headed a list of suspected criminals the Police Commissioner wants banned from the Sydney Harbour Casino, to have begun trading directly with heroin importers and to have begun partly financing his own importation of heroin with the help of an important Chinese Australian criminal. He is said to have a practice of buying heroin in amounts of ten to twenty kilograms at $200,000 per kilogram and selling it to upper level street dealers.
108 The statements I have summarised are highly prejudicial. If any juror at Mr Duong's trial remembered any of them he would not in my opinion receive a fair trial.
109 Dr Williams and Professor Vidmar drew attention to the preparedness of jurors faithfully to follow the directions of the trial judge, including directions to put out of their minds any material other than that presented to them in the court room. There might be cases where the prejudice of a possibly contemptuous article might be cured in such a manner, but this is not one of them. In my opinion no direction to a jury could cure the prejudice flowing from these articles.
110 Counsel for the defendant put forward another of Professor Vidmar's survey results as demonstrating the shortness of the public memory for names. During 1998 the condition of water supplies to the Sydney metropolitan area became the subject of public comment. Citizens were advised alternately that water was fit to drink and not fit to drink. Those responsible for the water undertaking came under intense criticism. Mr David Hill, the Chairman, was well known as being active in political circles. He was a former managing director of the Australian Broadcasting Corporation and had for a time been chief executive of the State Rail Authority. He continued for other reasons to be prominent in news reporting after the end of the water crisis. The managing director of the water undertaking, Mr Chris Pollett, was not well known. One result of the affair was that he resigned from his position and thereafter fell from the public gaze.
111 The survey results showed that Mr Hill was remembered by a high proportion of participants but that Mr Pollett's recognition level was low.
112 Whilst these results demonstrate that the names of well known persons are likely to be remembered better and longer than those of other persons, I do not think that they assist the defendant. One of the principal purposes of the publication complained of was to call attention to the change in control of the illicit drug industry. The names and descriptions of the actors were central to that purpose. During the water crisis, on the other hand, public reporting and comment were concerned more with the appropriateness of the activities of the undertaking and whether the undertaking was accurately reporting the facts to the public. The names of persons occupying executive positions in the undertaking may not have been unimportant, but they were of only incidental interest.
113 The striking and unusual way in which the articles were presented made them more memorable than ordinary leading newspaper articles. Mr Duong's photograph on the front page was unusually large, in colour and of good quality. It was repeated on page 7 and on the same page appeared a different good quality colour photograph of Mr Duong, taken from a different angle. Both photographs were of the face only. They were likely to assist in recognition.
114 The articles contain other information about Mr Duong which, seen from the date of the publication, might have been introduced into evidence at the trial. They were that he was a Vietnamese refugee, that he came from Cabramatta, that he was a businessman barbecuing pork for the restaurant trade, that he lived at Bonnyrigg Heights, that he was known as "Uncle Six" and that he had a mistress called Miss Kim.
115 The articles were intended to be noticed and remembered. They were intended to be read as a series, of which this was the first. So they contained indications of what was to follow. One of the indications, appearing at the end of the article on page 7, was that Mr Duong was going to be tried on the heroin charges.
116 Professor Vidmar pointed out that many newspaper readers tend only to scan articles and to pay more attention to the earlier than the later parts of articles. I accept that that may be so, but these articles were different in that they formed part of a series. At the end of the front page article about Mr Lam there was a reference to page 6. There was a reference to something the Australian Federal Police Commissioner was going to say on page 6. Under the photograph and statements about Mr Duong there was a reference to page 7. At the end of the article on page 7 about Mr Duong, immediately under the trial reference, was the heading "TOMORROW", followed by the words "The carve-up of Kings Cross". So readers' eyes were drawn to the end of the article as part of the scheme of the series.
117 As I have already observed, Dr Williams and Professor Vidmar appear to have approached the matter as though the question were whether any one juror would be prejudiced after reading the articles, though there is some doubt whether Dr Williams was even prepared to go so far. I am satisfied, however, that the proper question is whether any one out of twelve people randomly selected from the population would be prejudiced. There seems now to be agreement that the probability of any one person out of twelve randomly selected being prejudiced is eleven times greater than that any one person randomly selected would be so prejudiced.
118 The articles were permanent in that they were printed and could be kept, read and re-read. They were in a form designed to attract a re-reading because they formed part of a series.
119 They were referred to again in the "Media Watch" television program and in the Vietnamese newspaper. Such further references were likely to increase the probability of memory.
120 As I have observed, a high proportion of survey participants identified either Duong Van Ia or Uncle Six as a person connected with drugs.
121 In view of these matters I am satisfied beyond reasonable doubt that as a matter of practical reality the articles had the tendency to interfere with the due course of justice at Mr Duong's trial, not withstanding that it was not due to take place for a further five months.
The public interest defence
122 The defendant by its counsel submits that it did no more than it was entitled to do in discussing a matter of great public concern. This was "the discussion of public affairs and the denunciation of public abuses, actual or supposed" referred to by Jordan CJ in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Limited (1937) 37 SR (NSW) 242 at 249.
123 Freedom of speech, public discussion and information should not be qualified except in the face of public interest of equal or greater importance. Victoria v Australian Building Construction Employees and Builders Labourer Federation (1982) 152 CLR 25 per Mason J at 98.
124 The right of freedom of speech is not absolute, however, and the law curbs freedom of speech where it is necessary to do so to prevent a real and substantial prejudice to the administration of justice. Hinch v Attorney General (Vic) per Wilson J at 41.
125 The public interest in ensuring that criminal proceedings are conducted free of prejudice will attract great weight and make it less likely that public interest in the freedom of discussion of matters will outweigh it. Hinch v Attorney General (Vic) per Wilson J at 37.
126 That does not mean, however, that the defence cannot succeed if criminal proceedings are affected. The whole of the circumstances of the publication and its relationship if any to the relevant trial must be considered. The ultimate practical question is whether it is reasonably open to say that the detriment to the trial is outweighed by the public interest in freedom of communication. The plaintiff must prove that it is not. Hinch v Attorney General (Vic) per Deane J at 51.
127 The content of the articles may be summarised as follows. The persons controlling crime, particularly drug crime, were changing. The old controllers had passed on for various reasons. The new ones included Mr Duong and Duncan Lam. A cultural and financial revolution had taken place, resulting in that change. The Federal Police Commissioner estimated that between two and three thousand kilograms of heroin were imported annually, worth up to $3 billion, and that only 220 kilograms had been ceased in the last year. The Federal Police could investigate only one in six or seven major heroin trafficking syndicates, the result of the size and worldwide nature of the drug trafficking industry and the inadequacy of law enforcement resources in Australia. The Government had pegged or reduced the amount of money available for law enforcement. Chinatown was the seat of major heroin dealing and Cabramatta was the place where it was distributed by Vietnamese persons. Mr Duong rose to prominence after the gaoling of Salvatore Lapa in 1993.
128 It seems to me that the articles and the editorial dealt with matters of substantial public interest. Although the article about Mr Duong discussed his current activities and details of his personal life, there was no discussion of the facts or circumstances of the charges pending against him. His guilt or innocence of those charges was not mentioned.
129 Nevertheless, it was submitted on behalf of the plaintiff that the statements about Mr Duong's being a major heroin distributor and having been involved in large scale drug operations implied that he was guilty of the charges.
130 If the articles had been about the commission by Mr Duong or others of particular, named offences, there might have been substance in that submission. But I think that the articles were really about personalities and control. Although a statement, in the context of the trial of an accused for a particular offence, that that accused has committed similar offences may prejudice the accused at his trial, that is a less serious thing to say than that the accused is guilty of the very offences for which he is to be tried. No such thing is implied in the material complained of.
131 I do not accept the plaintiff's submission that the public interest in the discussion of such matters as these was of little relevance and weight or that there was no public interest in the naming of a man who was not well known. The discussion was about the emergence of new leaders of the illicit drug industry. In my opinion, the naming of the successors was an integral part of the discussion and as pertinent as the naming of those succeeded.
132 It was not submitted that the defendant had any intent to interfere with Mr Duong's trial. I am satisfied that there was no such intent.
133 The mention of the charges, however, is a matter of concern, because one of the effects was to potentiate interference with the administration of justice at the trial insofar as it was likely to provide a link within the memories of persons forming the jury between the subject in the article and the identity of Mr Duong at the trial. It played no part in the discussion of matters which were in the public domain. It was extremely careless and ought not to have happened. However, that does not change my view that the prejudicial effect of the articles was incidental and unintended.
134 The articles were part of a substantial series of articles dealing with subject matter of substantial broad public interest. The trial was likely to raise narrower issues which were only incidental to those canvassed in the articles. In view of these matters and the other matters I have dealt with I think that it is reasonably open to say that the detriment to the trial was outweighed by the public interest in the freedom of communication.
135 I am not satisfied that the plaintiff has negated the defence of public interest.
136 The summons is dismissed. The plaintiff must pay the defendants' costs. I grant liberty to the parties to apply for an assessment of costs.