Herald and Weekly Times Limited & Ors v Attorney-General for the State of Victoria [2001] VSCA 152

Court of Appeal (Vic)|2001-09-07|Before: PHILLIPS, CALLAWAY & BUCHANAN, JJ.A.

Contempt of court - Major review under Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Newspaper headlines "Don't let him out" and "Never let him out" - Whether referring to views of a witness and a former detective or constituting a recommendation or direction by the appellants to the judge conducting the review - Whether giving rise to a serious risk that the Court would appear not to be free of outside influence.

In these appeals I have had the advantage of reading the judgment prepared by Mr. Justice Callaway. As I agree with his Honour in the result I shall attempt to state quite shortly the reasons which have led me to that conclusion.

The articles in question were plainly prompted by the major review of the custodial supervision order relating to Derek Ernest Percy being conducted by Eames, J. under s.35 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The proceedings were heard in July, August and September 1998: the articles appeared in the Sunday Herald Sun on 23 August 1998 and in the Herald Sun News Pictorial on Wednesday 2 September 1998. His Honour gave his decision on 2 October 1998, by which he confirmed the custodial supervision order under which Mr. Percy was confined in prison, being satisfied on the evidence available that the safety of members of the public would be seriously endangered if he were released on a non-custodial supervision order.

At trial, the Attorney-General contended that each article constituted a contempt of court in that it had a tendency or was calculated to interfere with the due administration of justice. Particulars were given in the form of two paragraphs (a) and (b). The judge found that, as particularised in paragraph (b), the charge had no merit, but found the charge proved, as particularised in paragraph (a). These appeals concern only the latter. In that respect, there was no dispute about the correctness of this statement by the judge of the test to be applied:-

"To find the charge proved in respect of either article, I must be satisfied beyond reasonable doubt that that article had a tendency or was objectively likely to undermine public confidence in the administration of justice by giving rise to a serious risk that Mr. Justice Eames would appear not to have been free from any extraneous influence."

The judge acknowledged, in her reasons for judgment, that as this was one of the first major reviews held under this statute, there was a legitimate public interest about its operation. But that was not the concern displayed in these articles, according to the judge. Her conclusion is found in paragraph 73:

"Having considered the matter, I am of the view that, were it not for the headlines, I would not find the charge proved in respect of either article. However, I have found that each headline would be read by most people as a recommendation or direction to the judge, and that finding, to my mind, carries with it an implication of a serious risk that the Court would appear not to have been free from the influence of that recommendation or direction."

Her Honour found here that each headline, as it would be read "by most people", amounted to a recommendation or direction to the judge and, as such, there was a serious risk that the court would appear not to have been free from outside influence.

The question on these appeals is not whether it was open to the judge so to find. Each appeal, which is under s.10 of the Supreme Court Act 1986, is a full appeal. It is not an appeal which is permitted only a question of law, nor is it an appeal against the exercise of discretion. Where on a full appeal questions of fact may be resolved as well by this Court as the trial judge, we are entitled, if not required, to make the finding for ourselves, after giving due weight, of course, to the opinion of the trial judge. The finding in question was not dependent upon the judge's advantage in seeing and hearing witnesses: in my opinion it is a finding on which we are entitled, if not indeed bound, to come to our own conclusion; and in my respectful opinion, the finding made below was not correct. While I agree that, as read by most people, each headline would be seen as a recommendation or direction to the judge, that did not carry with it, I think, a serious risk that the court would appear not to have been free from outside influence. A fortiori when that risk had to be established beyond reasonable doubt.

Generally speaking judges, especially when sitting alone, are not likely to be distracted by newspaper articles, and this was scarcely an example of journalistic clamour of the worst kind. It amounted to a recommendation, but it was one that perhaps might legitimately be heard, as Eames, J. recognised. In giving judgment on 2 October, his Honour made reference expressly to these newspaper articles, and indeed to others of a similar kind. He said:

"Prior to, and during the course of, my hearings several articles appeared in the newspapers which speculated that Mr Percy may have committed more killings than that of Elizabeth Tuohy. There is no evidence before me to support that assertion. Amongst the materials placed before me was a statement by Detective Senior Constable K.S. Robertson of the Victoria Police, dated 5 May 1970. In that report Robertson referred to an interview conducted with Mr Percy about the deaths and disappearances of other children, both in New South Wales and Canberra. I did not hear evidence from Mr Robertson. At its highest the statement of Mr Robertson records Mr Percy's agreement that on other occasions prior to the death of Elizabeth Tuohy, whilst on beaches in New South Wales, he had sordid thoughts towards children, and his agreement that he might have committed other offences had not the children been in the company of their parents. The note records that police had no evidence to connect Mr Percy to any other killings. Only one item of `evidence' was advanced. When questioned about one killing in Sydney he is recorded as having said `I could have done it but I can't remember'. The statement of Mr Robertson merely reports that that alleged comment had been conveyed to him by an unidentified police officer. The circumstances in which the comment was made (if it was) are unknown. There is no other evidence, at all, to link Mr Percy to any other killings. I have considered this material, as I am entitled to do because in conducting a major review I am not bound by the rules of evidence (s.38), but, having considered that material, it is apparent that I could give little weight to it. It is not surprising that there was such speculation at the time of Mr Percy's arrest and trial, but it is important that speculation based on so little evidence should not distract the court from the task of evaluating the credible evidence which is available for scrutiny."

As Eames, J. himself observed, under this statute he was not bound by the rules of evidence and, in the end, his Honour chose to give little weight to the articles. Plainly the reference to the possibility that Mr. Percy had committed other killings of like kind was altogether unpersuasive, and it is scarcely surprising that the judge gave these articles little weight. But to my mind, that simply confirms the opinion I have otherwise reached: that the publication of these articles did not carry with it a serious risk that the court would appear not to have been free from extraneous influence. I say that in the special context of the task being undertaken by Mr. Justice Eames in this case: this was not a trial in the usual way, nor was the litigation adversarial.

In reaching that conclusion I do not think it necessary to consider whether the headlines amounted to no more than a statement of the opinion expressed, in the one case, by the investigating policeman and, in the other case, by the victim who escaped physical harm but who was traumatised by the experience. Against so construing the headlines is the inclusion of the reference to the possibility that Mr. Percy was involved in other killings of like kind: in favour of such a construction, especially in the case of the policeman, is the opening paragraph of the article. But it seems to me not to matter, with respect; for, even if the headline be properly characterised as a recommendation or direction of the investigating policeman or of the victim only, as the case may be (and therefore not as a recommendation or direction of the defendants or any of them), it is the publication of the recommendation or direction which constitutes the contempt, not its adoption. For example, in Attorney-General (N.S.W.) v. Willesee[1], several parties, including the interviewer and the television station licensee, were found guilty of contempt for publishing an interview (on the television) which contained a statement - albeit a truthful statement - by the interviewee that an inmate, charged with the killing of another, "had previously assaulted two other officers with weapons". In Director of Public Prosecutions v. Wran[2], a newspaper published in the form of an article under the bold headline "MURPHY INNOCENT - WRAN" certain statements made by the then Premier as to Mr. Justice Murphy's innocence. The view was plainly attributed to the Premier, not the newspaper, but the publisher was none the less guilty of contempt.

Of course it does not follow from those two cases that there should be a conviction for contempt here. For one thing, there may be a great difference between publishing the opinion of one who is generally very influential in the community and publishing that of a private individual whose significance, if any, is only adventitious. That is not to say that publication of the latter kind may not in certain circumstances constitute contempt: it may, but whether that was so in a given case would obviously depend upon, inter alia, the weight that might fairly be attached in

the public mind to that opinion and its publication. Suffice it to say that in this case I am far from satisfied that, as a matter of fact, the publication of these two articles carried with it a real risk that, in adjudicating upon the review of Mr. Petty's position, a judge of this Court would appear to the public mind not to have been free from outside influence. By a very late amendment, the appellants sought to raise directly for decision the question whether there was, in truth, any such ground of contempt as the Crown relied upon in this instance, but in view of the foregoing I need express no opinion on that.

For these reasons, which are but shortly expressed, I would, with respect, disagree with the findings made below. In my opinion the appeals should be allowed, the orders set aside and judgment given in favour of the present appellants.

On 20th July 1969 a young man called Derek Percy killed a 12 year old girl whom he had abducted. The little girl was in the company of a boy of similar age called Shane Spiller. Percy tried to abduct the boy as well, but he escaped and was later a key witness at Percy's trial for murder in the Supreme Court. He was found not guilty on the ground of insanity and confined in safe custody during the Governor's pleasure.[3] He remained in such custody and, since the coming into force of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, has been deemed to be subject to a custodial supervision order under that Act.[4] Section 35 of the Act provides that, at least three months before the end of the nominal term of a supervision order, the court that made the order must undertake a major review. The nominal term of a supervision order in the case of murder is 25 years.[5]

A major review of Percy's case was conducted by Eames, J. in August and

September 1998[6]. Its purpose was to determine whether Percy could be released[7], the critical issue being whether his safety or that of members of the public would be seriously endangered if he were released on a non-custodial supervision order.[8] On 2nd October 1998 Eames, J. decided that issue adversely to Percy, who accordingly remains in custody.

The case before us concerns two newspaper articles, the first published in the Sunday Herald Sun on 23rd August 1998 and the second published in the Herald Sun on Wednesday 2nd September 1998. The headline of the first article was "Don't let him out". The headline of the second article was "Never let him out". A separate application that the appellants be punished for contempt of court was brought by the respondent in respect of each article. The applications were, by agreement, heard together.

On 12th November 1999 Balmford, J. decided that each article, by reason of its headline, constituted a contempt of court on the part of the appellants, being the proprietor, the publisher and the editor respectively[9]. On 22nd February 2000 her Honour imposed a fine of $10,000 on the first appellant and a fine of $2,000 on the third appellant in each proceeding. No penalty was imposed on the second appellant, who was only nominally the publisher, played no actual part in the publication of the articles and had no knowledge of them until after they were published[10]. The appellants were ordered to pay the respondent's costs of the proceedings and the orders made on 22nd February 2000 were stayed pending the hearing and determination of the present appeals, which are concerned only with the finding that contempt had been proved and not with the penalties imposed.

The respondent charged that the publication of each article constituted a contempt of the Supreme Court in that it had a tendency or was calculated to interfere with the due administration of justice. There were further and better particulars reading:

"The relevant article had a tendency or was calculated to interfere with the due administration of justice in that: (a) the article had a tendency or was calculated (in the sense of objectively likely) to undermine public confidence in the administration of justice by giving rise to a serious risk that the Supreme Court of Victoria (constituted by the Honourable Mr Justice Eames) would appear not to have been free from any extraneous influence; (b) the article had a tendency or was calculated (in the sense of objectively likely) to influence the Honourable Mr Justice Eames in his decision-making process."

Her Honour rejected particular (b) but upheld particular (a). The judgment of the Court in each proceeding on 12th November 1999 was that "[t]he charge is proved as against the First, Second and Thirdnamed Respondents insofar as it depends on the first particular of the charge, and only in respect of that portion of each article which is constituted by the headline". There was some debate before us as to the appropriateness of that form of words, there being no formal adjudication of contempt, particularly in the case of the appellants who were subsequently fined.[11] The conclusion I have reached makes it unnecessary for me to take that matter any further. It should be observed, however, that the judgment expressly recorded that the charge was proved only in respect of "that portion of each article which is constituted by the headline". There was also some debate as to whether it was nevertheless the publication of the article including the headline that was found to constitute the contempt in each case. I need not decide that question, because, even if it is only the headline in respect of which the charge was found proved, the rest of the article must be taken into account in order to understand that finding and decide whether it was open.

The learned judge summarised her conclusions as follows:

"73. Having considered the matter, I am of the view that, were it not for the headlines, I would not find the charge proved in respect of either article. However, I have found that each headline would be read by most people as a recommendation or direction to the judge, and that finding, to my mind, carried with it an implication of a serious risk that the Court would appear not to have been free from the influence of that recommendation or direction."

After referring to what Kirby, J. had said in Chakravarti v. Advertiser Newspapers Ltd[12] about the significance of headlines, bylines, graphics and other techniques by which the mass media often seek to communicate a message, she continued:

"75. I would, with respect, adopt that passage, which appears to me to be equally relevant to the matter before me as to the context in which it appears. In my view it cannot be assumed that the ordinary fair-minded newspaper reader will carefully read the whole of the articles. In any case, while the recommendation or direction to the judge, which I have found to be contained in the headlines, does not appear from the text of the articles themselves, that text does not (as did the text in Charleston[13]) detract from the force of the headline, but rather underpins it. 76. For the reasons given, I am satisfied beyond reasonable doubt that each of the articles, incorporating, as they do, the respective headlines, has a tendency or is objectively likely to undermine public confidence in the administration of justice by giving rise to a serious risk that this Court, constituted by Mr Justice Eames, in the major review relating to Mr Percy, would appear not to have been free from any extraneous influence."

It will be apparent from those passages that, as the Solicitor-General submitted, the first relevant step in her Honour's reasoning in respect of each article was her finding that the headline would be read by most people as a recommendation or direction to Eames, J. Mr Houghton contended that that finding was not open.

There are two anterior questions that it is convenient to consider before turning to that contention. The first concerns the standard of proof. It was common ground that, because her Honour adopted a chain of sequential reasoning in which the impugned finding was the first link, the standard of proof for that finding was proof beyond reasonable doubt.[14] Mr Houghton submitted that her Honour had not applied that standard but had been content with a mere perception as to the way in which each article would be understood. That submission was founded on one of the ways in which the finding had been expressed earlier in the judgment. I do not accept the submission but, in any event, on the view I take of the case the real issue is whether the impugned finding was open on the criminal standard.

The second anterior question is whether the finding in each case was that the headline would be read by most people as a recommendation or direction to Eames, J. by the appellants, including a recommendation or direction by someone else but endorsed (in the sense of adopted) by them, in contrast with a recommendation or direction by someone else that was reported in the newspaper without such endorsement. In my view, her Honour meant a recommendation or direction by the appellants. The judgment, which included an illuminating review of the authorities, was concerned with influence, or perceived influence, on judicial decision-making by the media. Moreover, the only other persons her Honour could have meant were Shane Spiller and a detective who investigated the case. (That will become apparent in a moment when I turn to the articles themselves.) They are unlikely to have purported to give a direction, as opposed to making a recommendation, to Eames, J. It is an organ of the media, overstepping the mark, that might be found to have done so.[15] The Solicitor-General conceded that it was the more natural understanding of her Honour's finding that it referred to a recommendation or direction by the appellants and that that was more consonant with particular (a). It is also consistent with her finding that the recommendation or direction did not appear from the text of the articles themselves.[16]

In the case of the second article, in my respectful opinion, her Honour's finding that the headline "Never let him out" would be read by most people as a recommendation or direction to Eames, J. by the appellants was not open. As that was the substratum of the finding that contempt had been proved in respect of the second article, the appeal relating to it must be allowed. There is no need to consider Mr Houghton's other submissions. I shall explain my reasons for that conclusion before returning to the first article.

The second article consisted of the headline to which I have referred, a photograph of Percy in 1969, a photograph of Mr Bernie Delaney, a former detective, and four columns of text. The article occupied the top half of the page. The headline was in larger print than any other words on the page. It was eye-catching and prominent. The caption under the photograph of Percy is of no consequence. The caption under the photograph of Mr Delaney read "No way: former Victorian detective Bernie Delaney believes it is too risky to release Percy." (Bold print in the original).

"The detective who first questioned Victoria's longest serving prisoner believes the killer should never be let out of jail. Derek Ernest Percy was jailed at the Governor's pleasure in 1970, when he pleaded insanity over the mutilation murder in July 1969 of 12-year-old Yvonne Tuohy. A Supreme Court judge is considering whether to release Percy, now 51, following a review of the case under the Crimes (Mental Impairment and Unfitness to be Tried) Act. Mr Bernie Delaney was a senior detective with the homicide squad when he questioned Percy hours after the killing of the girl. He also prepared a brief for the coroner which involved compiling evidence, interviewing witnesses and gathering exhibits. Mr Delaney and another homicide detective who has since died, Sgt Dick Knight, arrested Percy at Cerberus Naval Base and carried out the first of many interviews there and at Frankston police station. Earlier in the day Percy attempted to abduct Yvonne Tuohy and a friend from the beach at Warneet on Westernport Bay. The friend, Shane Spiller, who was 11 at the time, escaped and raised the alarm. Percy's car was later identified by uniformed police at Cerberus, and detectives Delaney and Knight were called in to make the arrest."

There followed an account, much of it in direct speech, of Mr Delaney's opinion and his impression of Percy. The article continued:

"Mr Delaney said Percy would still be a danger to the community. `If I am wrong and he still has to stay in jail for years, well I can live with that. The risk is too high.' Mr Delaney said. Mr Delaney has not been called to give evidence at the review. Percy has been questioned over the years by detectives investigating other infamous child killings in the 60s which happened when he was known to be in the same area. He has been a suspect in the disappearance of the three Beaumont children in Adelaide in 1966, the Wanda Beach killings of two schoolgirls south of Sydney in 1965, the killing of a schoolboy, 6, in Canberra in 1966 and the mutilation murder of a three-year-old boy in the Sydney suburb of Glebe in 1968. The review of Percy's case is being carried out by Supreme Court Justice Geoff Eames. Based on the evidence presented to the open review, Justice Eames can decide to keep Percy in Ararat jail, release him under supervision into the community or further detain him at the secure psychiatric unit under construction at Fairfield. Justice Eames' associate said this week that a decision was still several weeks away with many more submissions to be heard and considered." (Emphasis added.)

To my mind it is clear that that headline refers to Mr Delaney's view. In the first place, it is a paraphrase of the first paragraph of the article. The headline is "Never let him out". The first paragraph of the article reports Mr Delaney's belief that Percy "should never be let out of jail". Secondly, there is the caption under the photograph of Mr Delaney. Thirdly, with one exception, the article is entirely concerned with reporting Mr Delaney's views and the contextual information that Eames, J. is engaged in a major review. The exception is constituted by the two paragraphs that I have italicised, but I do not think they are sufficient to transform the headline into a recommendation or direction endorsed by the appellants.

The headline cannot be understood, or its effect gauged, in isolation from the article. On its own, it conveys no message at all, for one does not know to whom or to what it refers. At the very least, it would be necessary to notice the photograph of Percy; in reality it would be necessary to read at least some of the article. Even a reader who stopped at the first paragraph, which was in slightly larger print than the rest of the article, would have appreciated that the headline referred to Mr Delaney's opinion. The two paragraphs that I have italicised assist, or purport to assist, a reader to evaluate Mr Delaney's opinion that Percy should never be released. Bearing in mind the burden and standard of proof, I do not think it can be said that they amount to an endorsement by the appellants and that most people would understand them as such.

The first article presents a more difficult problem. Mr Houghton submitted that, just as the second article represented Mr Delaney's view, so the first article represented that of Shane Spiller. It was accompanied by the same photograph of Percy and smaller photographs of the murdered girl and Mr Spiller in 1969. Again the headline was prominent and in large print. The article itself consisted of two parts. The first occupied five columns and the second a wider column in larger print to the right.

"For almost 30 years, Shane Spiller has been tormented by memories of the man who abducted and murdered his childhood friend. In every nightmare, he relives the chilling day he narrowly escaped the clutches of Victoria's most vicious child killer. His deepest dread is the fiend will be set free. The ferocious mutilation murderer was Derek Ernest Percy - and this week Mr Spiller's worst fear might be realised. A Supreme Court judge is expected to decide on Wednesday whether Percy, 51, Victoria's longest-serving prisoner, will be released from custody. Mr Spiller can not believe the man who killed his friend, 12-year-old Yvonne Tuohy, has earned his liberty. Shane's father, Frank, said yesterday it was a case of a nightmare coming true. `The events of that day have destroyed my son's life.' Mr Spiller said. `It ruined many people's lives. `At the time, if you had asked me whether it was going to affect Shane, I would have scoffed and said that in a couple of years he would get over it and move on. `But the enormity of what he went through and the loss of his friend, the nightmares and a fear of Percy being released have taken their toll.' The murder of Yvonne Tuohy at Warneet in July 1969 horrified Victorians. She had been disembowelled while still alive. Police found a manuscript written by Percy which contained instructions for abducting children. Claiming insanity, Percy, then 21, was imprisoned at the Governor's pleasure. But many questions lingered after Percy went to jail and police in three states began to reopen the files on child disappearances and murders. Police set out to link Percy to the murders of teenagers Christine Sharrock and Marianne Schmidt on Sydney's Wanda Beach in1965, the disappearance of the three Beaumont children in Adelaide in 1966, the murder of Alan Redston in Canberra in 1966, the murder of Simon Brook in Sydney in 1968, and the abduction of Linda Stillwell in St Kilda in 1968. Percy was questioned about all but claimed no memory of them. Caught only hours after killing Yvonne Tuohy, he also claimed no memory of her."

There followed a description, almost all in direct speech, of the circumstances of the murder as recalled by Mr Spiller's father. That part of the article concluded:

"Mr Spiller said that in the years that followed and even now his son lived in fear that Percy would be released and would go after him. As he has matured I think he has become concerned that he did not do enough. He has terrific feelings of guilt. `I think he still hears and sees his little friend calling out to him to help, please help.' The Supreme Court must review all cases where prisoners have been held at the Governor's pleasure for more than 25 years. The Department of Human Services has made an application on Percy's behalf. Prison sources said Percy, who has served 28 years, had been a model prisoner." (Emphasis added.)

But for the passage that I have italicised, the first part of the article contains no more than an account of Mr Spiller's fears that Percy may be released, the reasons for them and contextual information about the major review. Although the headline "Don't let him out" was not as clearly based on this article as the headline "Never let him out" was based on the second article, it nevertheless reflected the third, fourth and seventh paragraphs. But for the italicised passage, the words "Don't let him out" would be Mr Spiller's plea. It is only the italicised passage that could give life to the contention that that plea was being endorsed by the appellants.

The second part of the article, under the caption "HE WAS THERE", read:

"Percy was convicted of one child murder in Victoria, but police in three states suspect there were eight other victims. He lived in Adelaide when the Beaumont children disappeared in 1966. He also matches the identity of a man seen at Wanda Beach, south of Sydney, when schoolgirls Christine Sharrock and Marianne Schmidt were murdered in 1965. Percy often mentioned giving children beer to drink as a prelude to attacking them. One of the Wanda victims had an alcohol reading of 0.015 - the equivalent of a pot of beer. Percy was questioned about several murders and disappearances after his conviction for the mutilation slaying of Yvonne Tuohy in Victoria in 1969. The most famous was that of the Beaumont children, Jane, 9, Anna, 78, and Grant, 4, who disappeared on their way to Glenelg Beach, 6km from their home, on January 28, 1966. Percy also lived in Canberra when, in September 1966, the body of Alan Redston, 6, was found wrapped in a plastic sheet in a muddy Canberra creek. His hands and feet were tied in a loop extending around his neck. He had been strangled. In May 1968, the mutilated body of Simon Brook, 3, was discovered in a bush cubbyhole near the boy's home in Sydney's Glebe. Percy lived 6 km away. Linda Jane Stillwell, 7, of Beaconsfield Parade, Middle Park, disappeared from Little Luna Park, St Kilda, on August 10, 1968. She has never been found. Percy was at Cerberus naval base at the time."

It cannot be said, in relation to this article, that the speculation about other crimes was included to assist in an evaluation of Mr Spiller's fears. Those fears speak for themselves and are based on his own experience. The doubt is rather whether the italicised passage in the first part of the article, together with the second part, would be understood as background information rather than as an endorsement by the appellants of the plea by Mr Spiller encapsulated in the headline. [17] That is a question which has troubled me: but we are not dealing with a discretionary judgment: we are reviewing a finding of fact on the criminal standard. It is the second part of the article that has particularly given me reason to hesitate. I think its prominence, under such a headline, was ill-judged, but in the end it is only an elaboration or explanation of the passage that I have italicised in the main part of the article. If the appellants are to be given the benefit of a reasonable doubt, I cannot conclude that most people would understand them as endorsing (in the sense of adopting as their own) Mr Spiller's plea. It follows that the appeal in relation to the first article must also be allowed.

Before parting with this case, I should like to emphasise that it turns on its own facts and procedural history. The references to "most people", for example,

reflect the impugned finding and the argument, not an unstated proposition of law. We are asked only to decide whether that finding, considered as the first step in her Honour's reasoning, was open. We are not asked to consider her other findings or whether the charge of contempt might have been supported on a different basis and I have not done so. In particular, it has been unnecessary to consider the circumstances in which media reporting of another person's views, for example those of the victim of a crime before the offender is sentenced, might constitute a contempt of court even in the absence of endorsement.

I have had the advantage of reading in draft the reasons prepared by Phillips and Callaway, JJ.A. I agree with Callaway, J.A. that the trial judge construed the headlines as a recommendation of the newspaper or a recommendation endorsed by the newspaper. I also agree that that was not how the public was likely to perceive the headlines and on that basis conclude that the judge reviewing Mr Percy's case might be influenced by the newspaper.

The respondent also contended, although only as a subsidiary contention, and without elaboration, that reporting the recommendations of Mr Spiller and the policeman constituted contempt. I agree with Phillips, J.A. that viewed in this light the articles did not create a real risk that the judge reviewing Mr Percy's case would appear to the public not to have been free from outside influence. In addition to the matters referred to by Phillips, J.A., I consider it is significant that the views of Mr Spiller and the policeman were reported as being formed by their experience or knowledge of events in 1969 when Mr Percy killed the girl and pursued Mr Spiller. The judge conducting the review was concerned with the danger to the community posed by the man Mr Percy had become nearly three decades later.

Accordingly, I agree that the appeal should be allowed.

[3] Crimes Act 1958, s.420, repealed by s.82(2)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

[4] Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss.3, 26, 89, schedule 3, cll. 1, 2.

[9] R. v. Herald & Weekly Times Ltd [1999] VSC 432.

[10] R. v. Herald & Weekly Times Ltd (No. 2) [2000] VSC 35.

[11] See, generally, Re Perkins [1998] 4 V.R. 505 at 511-514.

[13] Charleston v. News Group Newspapers Ltd [1995] UKHL 6; [1995] 2 A.C. 65.

[14] Compare Shepherd v. R. [1990] HCA 56; (1990) 170 C.L.R. 573 and R. v. Kotzmann [1999] VSCA 27; [1999] 2 V.R. 123.

[15] Compare Attorney-General v. Tonks [1939] N.Z.L.R. 533.

[17] Eames, J., who referred the first article to the Attorney-General, thought that the headline was addressed to him. As Mr Spiller's plea, it was so addressed. The question for us it whether it would be understood as a recommendation or direction by the appellants.

At a glance

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Judgment (64 paragraphs)

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