Consolidated Press Ltd v McRae

Consolidated Press Ltd v McRae - [1955] HCA 11 - HCA 1955 case summary — Zoe

[6]

The substantial reason why the Supreme Court took the view that the publication of 9th March 1954 tended to interfere with the course of justice and amounted to a contempt was that the matter it contained bore directly upon the voluntariness of the signed statements and so upon their admissibility in evidence as confessions and upon their probative value. Street C.J. said: - "On the matter published it is clear that one question which would arise at the trial would be the question of the admissibility of these signed statements which had been obtained by the police, and if they had been extorted by the methods alleged, then obviously this evidence would be rejected at the trial. But this would be an issue for the court hearing the case and might have a most material bearing upon the outcome of these proceedings. If the court came to the conclusion that the statements were not the statements of Studley-Ruxton, but were concoctions by the police to which his signature had been attached because he had been subjected to treatment of so violent and brutal a nature that he signed to avoid the infliction of further bodily harm, then no court would allow such statements to be tendered in evidence against the accused. The matters published were, therefore, clearly relevant to an issue which, if the statutory declaration made by Studley-Ruxton was true, must arise at the trial of the charges preferred against him, and it is inescapable that the published article for that reason amounts to a contempt of court" [1] . Owen J. treated the matter in the same way, considering the events at the police station as necessarily raising an issue of trial. His Honour made it clear enough that he regarded the question of the admissibility in evidence of the statements as one that would arise for determination at the trial: - "If Studley-Ruxton is committed for trial, the charges will be tried by a jury, some of whom no doubt will have read the issue of 9th March and thus have been given, in advance of the trial, a one-sided picture of matters which must inevitably be raised and debated at that trial. The publication, where litigation is pending either in the civil or the criminal courts, of statements made by a party to that litigation, giving his version of events which are likely to be - and in the present case must be - relevant at the trial, is most improper" [2] . Clancy J. agreed in relation to the publication of 9th March 1954 [3] .

[8]

It will be seen that the essential foundation of the view adopted by their Honours is that Studley-Ruxton after his arrest made statements of a confessional nature the contents of which would tend to support one or more of the charges entered against him. But unfortunately there is an entire absence of proof of any of the facts or circumstances constituting this foundation. There is nothing but the allegations of Studley-Ruxton contained in the statutory declaration itself from which any such facts could be spelled out and we do not think that the allegations made in the print in the newspaper of the statutory declaration should be treated as evidence of the truth of any of the facts it purports to state. The affidavits upon which the rule nisi was obtained contain no information as to the circumstances upon which the four charges were based or as to the evidence by which they were to be supported. They do not say that Studley-Ruxton made any statements to the police or to anyone else. No statements are exhibited and nothing is said as to the contents of any statements. The statutory declaration does purport to describe the circumstances leading to the charge of bribery and it represents the charge as fabricated and baseless. But no information at all concerning that charge is laid before the Court. Contempt of court is a criminal offence punishable summarily by the Supreme Court. Like every other offence the facts by which it is made out must be proved by admissible evidence to the satisfaction beyond reasonable doubt of the tribunal. Uncertain inferences from inexact proofs will not support such a charge. The very basis of the offence alleged is that there was an interference with the course of justice in the proceedings against Studley-Ruxton. But all that is made to appear about those proceedings is contained in the brief record for the purpose of the magistrates which merely narrates the apprehension, the charges, the remands etc. There is in truth no proof that Studley-Ruxton ever made any statements, there is nothing to show that any statement he may have made contains any matter relevant to any one of the charges. It may readily be conceded that if on the trial of any of the charges the contents of statements he was shown in fact to have made were relevant and if a question to be determined by the judge at a trial of any of the charges would be whether such a statement was voluntary in character so as to be admissible, then the publication in the newspaper in advance of the trial and of the proceedings in the police court of the defendant's detailed allegations that they were extorted by violence would constitute contempt of court. But the difficulty is that there is no foundation laid for the case that any of this is so. What truth there is in the assertions made in the statutory declaration cannot be known. Certainly it would be wrong to infer against the newspaper that part of the declaration is true while rejecting the rest. But nothing the statutory declaration contains is in itself evidence against the newspaper of any of the external facts necessary to support the charge. The newspaper has not published the declaration in such a way as to assert the truth of its contents. Moreover the statutory declaration gives no information about the contents of three of the supposed statements and what it ascribes to the fourth is irrelevant to any of the four offences charged. In our opinion the applicant for the rule nisi simply failed to prove the essential facts upon which the decision of the Supreme Court proceeded.

[12]

In this case the Crown Solicitor of New South Wales applied to the Supreme Court for the committal of the present appellants for alleged contempt of court. The application was made in respect of two articles which appeared in the issues, dated 9th and 10th March 1954, respectively, of the "Daily Telegraph", of which Consolidated Press Ltd. was the printer and publisher, and Mr. Watson the acting-editor. The Supreme Court found that the first article contained matters which constituted a gross contempt of court, but that the second article did not contain anything which called for the exercise of the court's jurisdiction to punish summarily for contempt of court. The appellants were punished for their respective parts in the publication of the first article by the infliction of fines. They appeal against the finding adverse to them. The Crown Solicitor does not appeal. The matters in the first article, which the court found to be contempt of court, were statements made by one Studley-Ruxton. These statements were in the form of a statutory declaration which the newspaper published as part of the article. The statements were, in substance, that the police assaulted Studley-Ruxton after he was arrested to compel him to sign a false statement, and that he complained to a magistrate before whom he appeared the next day, and that when the proceedings ended, one of the police who had arrested him; threatened to get him heavily sentenced; and other police made a compact with him about the charges preferred against him. The newspaper also published as part of the article a letter which Studley-Ruxton's solicitor is reported, by the article, to have sent with the statutory declaration to the Commissioner of Police. According to the published report of this letter, the solicitor thereby asked the commissioner to investigate the allegations in the statutory declaration and to take criminal proceedings for assault against seven police officers named by Studley-Ruxton; and the solicitor informed the commissioner that copies of the letter and the statutory declaration had been sent to the Premier, the Leader of the Opposition and to the editors of the principal Sydney newspapers "so that they may watch the matter". The article contained an editorial referring to Studley-Ruxton's statutory declaration and his solicitor's letter, published in the newspaper. The editorial was as follows: "The documents speak for themselves, and the Daily Telegraph takes no sides beyond pointing out that the matters raised in the documents call for the most searching investigation". The circumstances which led the Supreme Court to find that it was a contempt of court for the newspapers to publish Studley-Ruxton's statutory declaration were that on 25th February 1954 he was arrested in Sydney by police and appeared on the next day before the Central Court of Petty Sessions, at Sydney, charged with offering a bribe of £100 to a police officer and false pretences relating to a cheque: he was remanded till 1st March 1954, and again appeared before the court on that day charged also with stealing and a second offence of false pretences relating to a cheque: he was remanded till 11th March 1954. On 9th March all these charges were pending in the court. The first of the charges would, in the ordinary course of law, be tried summarily by a magistrate: Police Regulation Act 1899-1947, s. 17 (d). The other three charges are indictable: Crimes Act 1900, ss. 117, 179. Each of them might involve trial by a jury either before the court of quarter sessions or conceivably before the Supreme Court: or the magistrate who conducted the preliminary hearing of each of these three cases might, in lieu of committing for trial, decide the question of guilt or innocence. The Crimes Act 1900, ss. 476-481, gives jurisdiction to a magistrate to try summarily a person charged either with stealing or false pretences, if less than £250 is involved, the accused consents, and the magistrate thinks that the case may be properly disposed of summarily. The jurisdiction of the Supreme Court to commit for contempt of court extends to contempt of the court which might try the pending charges: R. v. Parke [1] . In the case of the first charge, that could only be a court of petty sessions. Each of the other charges might involve trial by jury. In the case of each of these charges it is not necessary that a committal for trial should have taken place before the publication could be treated as a contempt of court: R. v. Parke [1] ; R. v. Davies [2] .

[14]

The statutory declaration of Studley-Ruxton published in the newspaper contained a statement that on 25th February 1954, he was arrested in Sydney. It gives an account of an altercation between him and the police who arrested him, in which they declined to let him know why he was arrested and he, on his part, refused to comply with their demand that he should make a statement. Then it is related that in consequence of his refusal, the detectives took him to the Darlinghurst Police Station "for interrogation". There follows an account of his introduction to two detectives, as a man of the type who is too "smart", when under arrest, to answer questions by the police. Studley-Ruxton, according to the statutory declaration, was no more amenable to these two detectives than to those who arrested him. He alleges in the statutory declaration that the interrogating detectives proceeded to beat him with great brutality, and while this was taking place, a statement, alleged to have been prepared in the police station, was brought to him for signature. What is further published in the newspaper is that Studley-Ruxton said in his statutory declaration that the statement was false and he would not sign it, and thereupon the interrogating police, with the assistance of the two officers who arrested him and three others, assaulted and ill-treated him, increasing the cruelty of the attack, until he signed the statement; and that, in consequence, he suffered a fractured rib and other painful injuries. The statutory declaration published in the newspaper contains a passage alleging how the charge of offering a bribe came to be preferred. The passage occurs in the course of the description of the alleged brutality in the police station. " "You (Studley-Ruxton) asked for a charge. I (Detective "C") found this in your pocket I am charging you with carrying a concealed weapon and a firearm without a licence". I (Studley-Ruxton) replied: "You can charge me with whatever you like. I must come before a judge some time". Detective "C" said: "I will also charge you with offering a bribe to a policeman". He then turned to Detective "D" and said: "You heard him offer me a bribe of £100, didn't you?" Detective "D" said: "Yes, I did". I did not possess £100, and I had never offered a bribe to Detective "D" or to any of them. I said: "When I come before a judge I will tell him what has happened". Detective "C" said: "If you do, we will get you" ". The statutory declaration refers to Studley-Ruxton's appearance before the magistrate at the Central Court of Petty Sessions on 26th February. It states that Studley-Ruxton complained to the magistrate of the assaults committed by the police. Much of the remainder of the statutory declaration describes incidents presented really as the sequel to this complaint. This part of the statutory declaration deals with the charges which the police laid against Studley-Ruxton after his arrest: the several charges relating to the offer of a bribe and stealing are expressly mentioned. The statutory declaration published in the newspaper states that when the proceedings before the magistrate were over, Studley-Ruxton being still in custody, a detective said to him: "This (the complaint to the magistrate) will cost you five years". I replied: "I warned you I would do it". He said: "We will get you for this". The statutory declaration identifies this detective as one of the officers who arrested Studley-Ruxton, handed him over to the two detectives in the Darlinghurst Police Station for interrogation, and joined in the brutal attacks alleged to have been made on him. Then come allegations as to the compact alleged to have been made by a police inspector with respect to the charges upon which the police were proceeding against Studley-Ruxton. Two passages occurring in the report of the contents of the statutory declaration published in the newspaper are: "Later I was taken from the cell to see an inspector (hereinafter referred to as "the inspector") in a private room. I told him everything that had happened. He offered me whisky from a bottle from the cupboard. He gave me four drinks of whisky. He said: "I have a bargain to put to you. If you will sign these three statements I will get Detective "C" to drop the bribery charge and any additional charges he may have. In return I want a statement from you that you received your injuries in a fight before you were arrested by my men". He also said: "The police force can't afford any newspaper publicity at the moment". After my injuries and drinking the whisky I was feeling very ill and could not resist any longer. I signed the statements. For the purpose of the fourth statement (saying that I received the injuries before my arrest) I told the inspector that I had had a fight before my arrest at a time when I knew that I could afterwards prove it was not true, because at the material time I had been in company at the Carlton Hotel. The statement which I signed was entirely false. I had been in sound health and good physical condition at the time of my arrest. I signed the statement solely in order to be released from custody, in fear of further charges being laid against me if I refused. I was never asked to sign this statement until after I had made my complaint to the magistrate in court. After I had signed the statements the inspector said to me: "Of course you realize, David, that if you take this to Court I shall deny all knowledge of this conversation and the whisky. I shall have to support my men. You do realize that?" ". The second passage is: "Afterwards Detective "C" came to my cell and said: "I have agreed to drop the bribe charge, but I have had to put a charge in, so I am charging you with stealing". But the bribe charge has not been dropped". Another statement in the statutory declaration, published in the newspaper, is that the police inspector said to Studley-Ruxton while in custody: "If you get bail tonight get back to Melbourne and we will forget the warrants". The last statement in the statutory declaration which should be noticed refers to the fact that on 1st March Studley-Ruxton was again taken before the magistrate and "further charges were preferred against him". The evidence shows that these charges were stealing and false pretences.

[16]

The particular charge to which the statement extorted by force in the police station referred is not mentioned in the statutory declaration. The arrest and forcible interrogation are presented by the statutory declaration as steps leading to the charges upon which the police brought up Studley-Ruxton before the magistrate on 25th February and 1st March. The statutory declaration clearly asserts that the detectives who made the arrest were implicated in the alleged assaults committed in the police station and, indeed, that these brutalities were committed at the instance of those officers: and, further, that one of them threatened Studley-Ruxton with measures that would result in his receiving a heavy sentence because he complained to the magistrate about the assaults. The statutory declaration is calculated to produce the impression that the purpose of the assaults was connected with proceeding against Studley-Ruxton on some charge. If it was not one of the pending charges, or, indeed, if no statement was in fact signed, the publication of Studley-Ruxton's allegations was calculated to prejudice and influence the mind of a magistrate or a juryman called upon to try any of the pending charges. All these charges followed upon the arrest and interrogation of Studley-Ruxton described in his statutory declaration, and the allegations make very grave charges in respect of the arrest, and the prosecutions which followed. The allegations as to the making of a compact by the police inspector about the charges that the police had against Studley-Ruxton are damaging to the police case upon every charge. The allegations as to how the bribery charge and the stealing charge came to be preferred are calculated to produce the impression that these were spurious. Certainly, the allegations adversely reflected upon the merits of all the pending charges. The statutory declaration does not mention the subject matter of two of the charges - false pretences - but it clearly conveys that offering a bribe and stealing were not the only charges preferred by the police against Studley-Ruxton, pursuant to his arrest on 25th February; and that when the police inspector and Detective "C" came to see him after the proceedings, which took place on 26th February before the magistrate, they were concerned about making an arrangement with him touching all the charges upon which the police were proceeding against him. But it is not necessary that the subject matter of any of the pending charges should be mentioned in the statutory declaration, for its publication to amount to a contempt of court. In Higgins v. Richards [1] which was a motion to attach an editor for contempt of court, Bray J. said: "The answer made by the respondent was that there was no reference in the articles to the subject matter of the action. That did not seem to him to be a sufficient answer. If it was clear that the trial would be prejudiced the respondent had proved enough, though no doubt the circumstance relied on by the respondent must be taken into account, but only as one element" [2] .

[28]

In the present case the statutory declaration published in the newspaper grossly transcended all possible limits of the liberty allowed by these principles. It was a statement made by an accused person attempting to vindicate himself and containing matters extremely damaging to his prosecution on all the charges. The affidavits filed on behalf of the appellants show that on 8th March 1954 the managing director of Consolidated Press Ltd. and Mr. Watson were aware that there were proceedings in which Studley-Ruxton was the accused pending and that the allegations in his statutory declaration might affect those proceedings. But after a conference with the company's solicitor, they decided to publish the article containing the statutory declaration, relying upon a proposition which was put in argument to escape any liability for the publication. The proposition is, in effect, that even if the publication of the statutory declaration was a contempt of court the matters contained in it were so important that the duty to publish them transcended the duty not to publish anything that would be a contempt of court. It was said that support for this proposition is to be found in R. v. Blumenfeld; Ex parte Tupper [1] . In that case Phillimore J. said: "The Court had to reconcile two things - namely, the right of free speech and the public advantage that a knave should be exposed, and the right of an individual suitor to have his case fairly tried. The only way in which the Court could save both was to refuse an unlimited extension of either right. It became, then, a question of degree" [2] . The principle which is decided in the case is stated in the headnote which is as follows: "Where the defendant in a libel action swears that he is going to justify the words of the alleged libel the Court will not issue a writ of attachment against him in respect of comments made by him after the issue of the writ unless it is satisfied that the plea of justification is not genuine or unless the comments are made near the time of trial or made at a place near where the trial is to take place and are calculated to deter witnesses from coming forward and speaking their minds freely or are calculated to warp the minds of jurymen" [3] . In the same case Lush J. said: "Where the plaintiff sought to stop the defendant's mouth while continuing to comment on the case himself, the Court ought not to interfere" [4] . A case of contempt of court of the same kind was R. v. Editor of the Daily Mail; Ex parte Factor [5] . The headnote of that case is: "A publication made with the clear intention of prejudicing the fair trial of an issue pending before a court is obviously a contempt of court and will be punished as such. But where the court is satisfied that there was no such intention and yet the publication might prejudice a pending trial, the court will, in considering whether a writ of attachment should issue, take into account the circumstances of the case, and no attachment will be granted unless (inter alia) the court is satisfied that the pending proceeding is a genuine proceeding, brought and intended to be prosecuted to effect its avowed purpose" [5] .

[35]

In the case of the "Herald", although I felt some doubt in relation to the publication of a certain letter from a firm of solicitors to the Premier, it appeared to me that no such connection could be found. What was published had, as it seemed to me, no real or substantial bearing on the guilt or innocence of Rigby on any of the three charges which had been preferred by the police against him. In the present case the statutory declaration of Studley-Ruxton said, or clearly implied, that the purpose of the assaults alleged had been to compel him to sign some statement or statements, which, according to the declaration, he for some time refused to sign but did eventually sign. He says: "I could not see what I was signing, and I could hardly hold the pen, but I signed my name four times." One of the sub-headings in the newspaper, printed in inverted commas, reads: - "Refused to sign unread statement". In fact four charges had, at the time of the publication in the "Telegraph", been laid against Studley-Ruxton. There were two charges of false pretences, one of larceny, and one of attempted bribery of a member of the police force. It was on the footing that the statement or statements referred to in the statutory declaration contained confessions or matter otherwise relevant to these charges, and that they could be expected to be tendered in evidence on the hearing of those charges, that the learned judges of the Supreme Court held that the publication amounted to a serious contempt of court. Street C.J. said: - "The assaults were described as being of a most serious nature and the object and general effect of the matter published by the paper was to suggest that some statements subsequently signed by him had been extorted from him as a result of the violence used by the police, and used deliberately for the purpose of inducing Studley-Ruxton to sign statements which had been prepared by the police without any information from him. In other words, the obvious suggestion was that the police were manufacturing evidence and using brutal violence to compel Studley-Ruxton to put his name to documents concocted by the police" [1] . A little later his Honour said: - "On the matter published it is clear that one question which would arise at the trial would be the question of the admissibility of these signed statements which had been obtained by the police, and if they had been extorted by the methods alleged, then obviously this evidence would be rejected at the trial. But this would be an issue for the court hearing the case and might have a most material bearing upon the outcome of these proceedings" [2] . Owen J. said: - "What was in fact published was a long and circumstantial account of a person charged with the commission of a number of offences of the events which he claimed had led to his signing, under duress, a false confession of guilt, and I am of opinion that the publication of such matter constituted a serious contempt which calls for the exercise by the Court of its summary jurisdiction" [3] .

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)

Parties