170 The prosecutor was required to establish beyond reasonable doubt that the publication had "as a matter of practical reality, a tendency to interfere with the course of justice in a particular case" (John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 370). In Hinch Mason CJ (at 27-28) thought that a test of "substantial risk of serious interference" would best reconcile the conflicting demands for a free press and for a fair trial, whilst conceding that it was synonymous or virtually synonymous with other authoritative formulations. Wilson J (at 34) spoke of a need to demonstrate a "real and definite tendency to prejudice or embarrass pending proceedings". Deane J (at 47) suggested "clear tendency" as a suitable paraphrase. See also per Toohey J at 70.
43 In my opinion there are only two aspects of the article that could possibly give rise to any prejudice to the fair trial of Mr Selim: the use of the word "derail" and the disclosure of irrelevant material relating to the proceedings in the Court of Criminal Appeal. But, perhaps curiously, the latter mitigates the former.
44 It was submitted by Mr Sackar that the word "derail" was synonymous with the word "stop" or "halt". I am prepared to accept that had the word "halt" been used instead of "derail" there could be little complaint about the reporting of an attempt by Mr Selim to bring his trial to a halt. But I do not accept the submission. I have no doubt at all that the word "derail" is generally pejorative and carries with it a connotation of impropriety. Obviously the word was used figuratively in the article but it inevitably carries with it the picture of a train being forced to leave its tracks usually by an obstacle being placed in its way so that its progress is brought to an abrupt end before it arrives at its intended destination. That is what the word means when used in the active tense. I was referred to no dictionary entry that equates the word with "stop" or "halt", but to the contrary the only meaning ascribed to the word is that which it expresses in ordinary language, that is to make a train go off its tracks.
45 Of course, as Mr Sackar submitted, the word has to be seen in context. But, when used figuratively in relation to court proceedings, the word plainly conveys to the reader the idea that those proceedings having been intentionally caused to depart from their usual or regular course so that they come to an abrupt end without arriving at their intended destination, a determination on the merits. In my opinion the only meaning conveyed by the phrase "he failed in a bid to derail his District Court retrial" is that Mr Selim had failed in an attempt to improperly cause the proceedings in the District Court to come to an end without the charges being determined by a jury.
46 In my opinion that part of the article clearly conveys to the reader that Mr Selim had unjustifiably tried to frustrate the criminal proceedings then being heard in the District Court by some action that he had undertaken but that he had failed in the attempt. A juror of course would have known that the allegation for which Mr Selim was standing trial was in effect that he had attempted to frustrate the civil proceedings against Pan Pharmaceuticals. The potential prejudice is obvious in that the article might convey to a juror that Mr Selim had attempted to do to the criminal proceedings what he was alleged to have done to the civil proceedings and, therefore, it was more likely that he had done what was alleged against him in the charges before the court.
47 Had the article stopped after the fourth last paragraph, so that what he had done in his attempt to derail the proceedings was not disclosed, there would have been in my mind a clear contempt on whatever formulation of words is used to describe the conduct that the prosecutor must prove to establish the charge.
48 However the article does not stop there. It goes on to indicate to the reader the nature of the attempt to "derail" the proceedings that was undertaken by Mr Selim the week before. He had claimed in the Court of Criminal Appeal that there was a "procedural irregularity" in the case being tried but his claim had failed because the Court rejected it. There is no suggestion in the article that the Court thought that Mr Selim had acted improperly. A perspicacious reader might in those circumstances query the use of the word "derail" by the journalist. True it is that this part of the article contains the vice that it discloses to the reader, and potentially a juror, that Mr Selim had taken proceedings in the Court of Criminal Appeal in relation to the proceedings for which he was being tried but that information alone could not in my opinion carry with it such potential prejudice as to in a clear or real and practical way interfere with or embarrass the proceeding before the District Court.
49 I believe that persons in the community who might be jurors in a criminal trial would generally understand that there are many ways of legitimately challenging the propriety or regularity of proceedings before a court so that proceedings might be brought to a halt by the court itself without those proceedings being determined on their merits. I do not accept that simply because a jury inadvertently learns of pre-trial proceedings, it must inevitably follow that the jurors should be discharged. Of course whether such a course is warranted would depend upon the nature of the pre-trial proceedings and the facts disclosed to the jury.
50 In the present case any possible prejudice caused by disclosure of the proceedings in the Court of Criminal Appeal could have been dispelled, in my respectful opinion, by directions to the jury that the accused was merely doing what he was lawfully entitled to do and that there was a statutory provision that permitted him to take the course that he did. Even the use of the word "derail" could in the context of the article been addressed by a strong comment on the inappropriateness of the use of that term by the journalist to describe a completely legitimate and unexceptional procedure that the accused had a right to pursue in order to test the regularity of the proceedings.
51 As I have made clear, I am not to be taken as suggesting that it was not open to the trial judge to determine in the exercise of his discretion to discharge the jury. I am simply considering whether I am satisfied beyond reasonable doubt that the article read as a whole and in the context of the circumstances at the time of its publication had a real or clear tendency to interfere with the administration of justice in this particular trial. In determining whether the article amounted to a contempt I am not deciding whether the article should have been published when it was or whether the journalist and publisher were reckless as to the effect on the trial of the publication of the article. But I am conscious of the high threshold that has to be overcome by the prosecution in any criminal proceedings.
52 I am not satisfied beyond reasonable doubt that the publishing of the article did have a sufficient risk of serious interference with the proceedings before the District Court to amount to a contempt.
53 In reaching that view I take into account that in more recent times the courts generally have been less prepared to treat jurors as some kind of exotic or fragile beings who must be protected from the ravages of the outside world while performing their civic duty. The whole criminal justice system operates on the basis that jurors can put out of their minds extraneous material that has no real bearing upon the issue that they are to decide even if that material might possibly have some prejudicial aspect.
54 A number of statements to this effect were recently gathered in Kanaan v R [2006] NSWCCA 109 and Mr Sackar sought to rely upon that decision in which the Court of Criminal Appeal held that a miscarriage of justice had not occurred notwithstanding pre-trial publicity in the media. However that decision cannot be taken too far in considering whether a contempt has occurred. In that case the Court was considering retrospectively a completed trial and deciding whether, in light of all that had happened in the trial and the issues to be determined by the jury, the published material had ultimately caused a miscarriage of justice. In contempt proceedings the court is not concerned with the final outcome of the proceedings and is not deciding whether the publication did cause the trial to miscarry. Yet it is not irrelevant in contempt proceedings for the court to have regard to what has been said in relation to criminal trials generally about the ability of jurors to follow directions and put out of their minds prejudicial but irrelevant material especially when published in the media.
Further observations
55 Although I am not persuaded that the article in its entirety amounted to a contempt, I should not be taken to exonerate the publisher and journalist of any wrongdoing whatsoever in relation to the publication of this article. I believe that on the material before me, and I note that neither the journalist nor the publisher sought to put on any evidence to explain the publication or the circumstances surrounding it, the publication of that part of the article concerned with criminal proceedings either taken or to be taken against Mr Selim was unjustified, irresponsible and was with at least reckless disregard for the criminal justice system and the rights of an accused person standing trial. The fact that a trial judge can be trusted to give directions to overcome any possible prejudice from such a publication and rely upon the good sense and fairness of a jury to disregard it is not a reasonable basis for the publication to proceed.
56 Whatever justification in the public interest there was for reporting on the civil proceedings, there was none at all that I can see in that part of the article concerned with the criminal proceedings, at least none to warrant the publication at a time when a trial was proceeding with a jury. The fact that Mr Selim had sought to move the Court of Criminal Appeal to intervene in his retrial had nothing at all to do with the theme of the article, that there had been delays in the proceedings involving Pan Pharmaceuticals and Mr Selim. There could be no suggestion that the challenge had delayed the retrial that was, as the article acknowledges, proceeding at the time the article was published.
57 Any journalist who wishes to report on current criminal proceedings involving a jury must surely understand that there is a very substantial risk of interfering with those proceedings if a report is published of any part of the proceedings that occurs in the absence of the jury. That must be so whether the proceedings are in the trial court or some other court. The jury are absent because the matter is of no relevance to them. A moment's investigation by the journalist would have revealed that the Court's judgment had not been published on the Internet. A moment's reflection would have made it clear to the journalist that she was revealing something of which the jury would have been unaware and could not have discovered. A moment's thought should have alerted the journalist to the real risk posed to the trial proceedings then taking place by taking such a course.
58 It is obvious that I have serious concern about the use of the word "derail". I simply do not understand why that word was chosen if not to disparage Mr Selim's conduct. I cannot believe that any person who uses the English language as part of her profession as a writer could fail to appreciate the significance of the word and its connotations. The use of the word was gratuitous and at least unfair because it was obvious that Mr Selim simply did what he was entitled to do and what the law assisted him to do; to challenge a ruling made by the trial judge on a question of procedure. The article avoided being a contempt of court by the narrowest of margins.