Hinch & Macquarie Broadcasting Holdings Ltd v Attorney-General

Hinch & Macquarie Broadcasting Holdings Ltd v Attorney-General - [1987] HCA 56 - HCA 1987 case summary — Zoe

[69]

7. There is no doubt as to the basic circumstance upon which the jurisdiction of a superior court to punish for contempt of court is founded. It is a jurisdiction to be exercised with caution and only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice. The impugned material must exhibit a real and definite tendency to prejudice or embarrass pending proceedings. See John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, at pp 370, 372; Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 ("the BLF Case"), at pp.56, 99, 166. It is obvious that the weight and importance of the various factors that will be material to a consideration of that question will vary from case to case. Broadly speaking, however, the more important factors will include the following: the content of the publication; the nature of the proceedings liable to be affected, whether they are civil or criminal proceedings and whether at the time of publication they are pending at the committal, trial or appellate stage; the persons to whom the publication is addressed; and finally, the likely durability of the influence of the publication on its audience. The last-mentioned factor will assume greater or lesser relevance depending on when the pending proceedings are likely to be heard. If a hearing is imminent, then it is unlikely that the prejudicial publication will have passed from the memory of those who may have been affected by it. On the other hand, the prejudicial tendency of a radio broadcast may be found to be diminished by reason of the fact that the relevant proceedings are not to be heard for many months. This is a question of fact. Cf. Attorney-General v. News Group Newspapers Ltd. (1987) 1 QB 1. An impugned broadcast may be so sensational in its content as to remain in the memory for a very long time and in such a case the likely time of trial will not prove to be a significant factor.

[82]

10. In my opinion the first question should be answered in the affirmative, as it was by the Court of Appeal of the Supreme Court of New South Wales in Registrar of the Court of Appeal v. Willesee (1985) 3 NSWLR 650. There is no material distinction between civil and criminal proceedings which would exclude from consideration in a prosecution for contempt of court in relation to criminal proceedings a defence that the prejudicial material was published in the course of a bona fide discussion of a matter of public interest and was no more than an incidental but not intended by-product of that discussion. (I use the word "defence" for convenience, without implying that any ultimate onus of proof rests upon the person charged.) Criminal proceedings can give rise to the same problem of competing public interests as that to which Jordan C.J. refers, and it is the business of the law to reconcile so far as possible those competing interests. Of course, the public interest in the due administration of criminal justice is of a different kind to that involved in civil proceedings. Not only has the community a more direct stake in the former class of proceedings but juries are less likely to be involved in the latter. It follows that the public interest in ensuring that criminal proceedings are conducted free of prejudice will ordinarily attract great weight and make it less likely that the public interest in the freedom of discussion of matters of public importance will outweigh it. It will be recognized, too, that the nature of the prejudice which an offending publication may present to pending proceedings may vary enormously with the content of the publication. The greater the prejudice the less likely is it that its publication will be excused by its presence in the context of a discussion of a matter of public interest, however important. For example, in relation to the pending trial of a public officer charged with bribery, there may be a world of difference between the effect thereon of, on the one hand, a series of articles devoted to a general discussion of suspected improprieties in an area of public administration (but which articles do not name any particular officer), and, on the other hand, a publication which in the course of the same discussion names the officer and details his criminal history: cf. John Fairfax & Sons Pty. Ltd. v. McRae. There can be few disclosures more damaging to a person awaiting trial on a criminal charge than to have his prior convictions made known to the constituency from which the witnesses and jurors involved in his trial may come. It is one of the most "deeply rooted and jealously guarded principles" of the criminal law that evidence of prior convictions shall not be admissible on the trial of a person's guilt or innocence of a criminal charge: Maxwell v. The Director of Public Prosecutions (1935) AC 309, at p 317.

[105]

18. In my opinion, the decision whether to punish conduct alleged to constitute a contempt of court must depend, in the last resort, on the intention of the person charged and the nature and extent of the interference with the fair conduct of the legal proceeding. If the interference is intended and would otherwise justify condemnation by the court, there can be no question of any defence based on a submission that the publication in question was made in the course of a discussion of a matter of public importance. If the interference was unintended, and occurred in the course of discussion of a matter of public importance, then a balancing exercise will be appropriate. If the pending proceedings are central to the discussion then it is unlikely that the interference can be excused as incidental or that any matter of public interest may excuse it. Even if not central, the seriousness of the interference may outweigh any public interest in the freedom to discuss the matter. For example, if the media prejudges issues to be litigated in a proceeding (e.g., as in Director of Public Prosecutions v. Australian Broadcasting Corporation) or canvasses the evidence so as to engage in a trial by media, this would be likely to so embarrass the fair trial of the proceeding as to bring the scales down heavily in favour of a finding of punishable contempt. Similarly with exposure of the criminal record of a person awaiting trial of a criminal offence. Of course, there are some respects in which the law has already decreed a freedom to the media to publish prejudicial material; for example, in the freedom to publish fair reports of preliminary court proceedings, including bail applications and committal proceedings. But this freedom is strictly circumscribed, reflecting the strength of the law's concern to protect the due administration of justice from unjustifiable interference. Generally speaking, it is for a court, in determining whether impugned conduct should be condemned and punished as a contempt of court, to engage in a balancing exercise between competing public interests. Nevertheless, the law provides guidance of the kind I have indicated in determining the relative weight to be accorded to the factors which in a particular case may require consideration.

[107]

20. It remains to consider in a little more detail the effect of a significant delay between the impugned publication and the likely date of trial of the proceeding. It was submitted for the appellants that delay was a significant factor in this case and that the Court should proceed on the basis that at the time of each broadcast it could be expected that at least ten months were likely to elapse before the trial of Mr Glennon would take place. It was argued that, given the transient hold on the mind of the listener that could be expected of information conveyed in a radio broadcast, the effect of such a lapse of time was to lessen the prejudice that might otherwise flow from the broadcast. As I have said, the lapse of time between publication and trial is a factor which is relevant primarily to the question whether the publication has the requisite tendency to prejudice a fair trial and might therefore be thought to be excluded from consideration by the terms of the grant of special leave. However, it was submitted by Counsel that the likely lapse of time is also relevant to the balancing exercise which is required to be undertaken in the present case. I am prepared to accept the submission. If it is appropriate to undertake a balancing exercise then all the circumstances should be considered, including the circumstances which tell for or against the seriousness of the likely interference which the publication offers to the administration of justice. The anticipated lapse of time before trial may be a factor which so diminishes, while not itself erasing, the likely prejudice of a publication as to enable the defence of discussion of a matter of public interest to succeed in raising a reasonable doubt in circumstances where if the trial was imminent it would not have done so. In the BLF Case several members of the Court mentioned the likely lapse of time between the proceedings of the royal commissions and the hearing of the application for de-registration in the Federal Court as a relevant factor in their consideration of the matter. Nevertheless, in the present case I do not consider that the likely lapse of ten months between the broadcasts and the trial of Mr Glennon is of sufficient weight to assist the appellants. In the first place, it overlooks the fact that the committal proceeding was set to take place in April 1986 and the material broadcast was such that it might affect the witnesses who were to give evidence in that proceeding. Secondly, I accept the views expressed by the learned trial judge as to the durability of the prejudice likely to be occasioned by the broadcast. The nature of the programme, the sensational character of the information disclosed and the fact that it was published on three occasions over a period of four months provide support for his Honour's conclusion.

[115]

2. The publication of material in circumstances where the clear tendency of the publication is to preclude or prejudice the fair and effective administration of justice in particular pending legal proceedings constitutes contempt of court unless, as a matter of weighing competing public interests, the detriment of the possibility of prejudice to the administration of justice is outweighed by other identified factors such as the public interest served by freedom of discussion of matters of public importance and by the exposure of public dangers and abuses (Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation ("the B.L.F. Case") [1982] HCA 31; (1982) 152 CLR 25; Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242, at pp 249-250). While the act of publication must be intentional, an intention or purpose of prejudicing the due administration of justice is not an essential ingredient of this type of contempt of court (John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, at p 371). The "critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important" (per Gibbs C.J., Mason, Murphy, Wilson and Brennan JJ., Lane v. Registrar of Supreme Court of N.S.W. [1981] HCA 35; (1981) 148 CLR 245, at p 258 and see, generally, Registrar of the Court of Appeal v. Willesee (1985) 3 NSWLR 650, at pp 658 (Kirby P.) and 673-676 (Hope J.A.)). Thus, a finding that the publication in fact has a clear tendency to prejudice the due administration of justice may well, particularly in the context of the criminal onus of proof (see below), be more readily made in a case where the conduct was engaged in for that very purpose than in a case where any such interference would be but an unintended and incidental side effect. In referring to a publication having a "clear tendency" to interfere adversely with the due administration of justice, I have intended to convey no more than that the publication must reveal such a tendency "as a matter of practical reality" (see John Fairfax & Sons Pty. Ltd. v. McRae, at p 370). What is required is that the nature and circumstances of the publication are such that it can be plainly discerned that there is a "real and definite possibility" that it may "prejudice the administration of justice" (see Attorney-General for New South Wales v. John Fairfax & Sons Ltd. & Bacon (1985) 6 NSWLR 695, at pp 697-698 (Samuels J.A.)).

[116]

3. The formulation of principle in the first sentence of the preceding paragraph essentially reflects the approach accepted by three of the four justices who constituted the majority of the Court in the B.L.F. Case (Mason J. (at pp.95-100), Wilson J. (at pp.133-137) and Aickin J. who indicated (at p.119) his agreement with Wilson J. on this aspect of the case), namely, that the second limb (i.e. not outweighed by competing public interests) is an integral part of a description of this category of contempt (see, also, Attorney-General v. Times Newspapers Ltd. (1974) AC 273, at p 302 (per Lord Morris of Borth-y-Gest) and, as to the absence of any continuing rationale for distinguishing between "punishable" and "non-punishable" contempt, Attorney-General for New South Wales v. John Fairfax & Sons Ltd. & Bacon, at pp 707-708 (McHugh J.A.)). An alternative approach, which was favoured by some members of the House of Lords in the Times Newspapers Case (see, in particular, the speeches of Lord Reid (at pp.298-299, 301) and Lord Diplock (at pp.311-312)) and by Gibbs C.J. (at p.60) and Brennan J. (at pp.175-177) in the B.L.F. Case, is that the second limb of the description is concerned not with the identification of what technically constitutes this category of contempt but with a subsequent balancing exercise involved in determining whether conduct which constitutes (or would, if engaged in, constitute) contempt of court should be punished (or enjoined). The B.L.F. Case cannot properly be seen as finally determining which of those approaches is to be preferred since neither Stephen J. nor Murphy J. expressed any clear view in that regard (see, also, the comments of Hope J.A. in Registrar of the Court of Appeal v. Willesee, at p 676 suggesting that Aickin J's expression of agreement with the judgment of Wilson J. had a more limited scope than that which I have attributed to it). No doubt because of the restrictions upon the grant of special leave to appeal, the implications of the distinction between the two approaches were not fully investigated in argument. As will appear, the effect of the conclusions which I have reached is that the present appeals against conviction must be dismissed regardless of which approach is adopted. In these circumstances, I have accepted the more demanding two-limbed description of contempt of court (i.e. that favoured by Mason, Aickin and Wilson JJ. in the B.L.F. Case) for the purposes of this judgment without forming a concluded view about the comparative merits of the alternative approach.

[118]

5. The classification of contempts of court as criminal or civil has, in the past, involved the anomaly that some contempts have been classed as civil notwithstanding that they have been or may be visited with the consequences of imprisonment or fine (see, e.g., Scott v. Scott (1913) AC 417, at pp 455-457 (Lord Atkinson); Attorney-General v. Times Newspapers Ltd. at pp 307-308 (Lord Diplock); Comet Products v. Hawkex Plastics (1971) 2 QB 67, at p 73 (Lord Denning M.R.) and p 77 (Cross L.J.) and note the suggestion, in Australian Consolidated Press Ltd. v. Morgan [1965] HCA 21; (1965) 112 CLR 483, at pp 493, 497-502, 516, that the consequences of contempt, where an order for costs is inadequate, are either fine or imprisonment in the case of criminal contempt but imprisonment alone in the case of civil contempt). Such anomaly may have been susceptible of rationalization in past times (see, e.g., per Lindley L.J., Seaward v. Paterson (1897) 1 Ch 545, at pp 555-556 and, generally, Arlidge and Eady, The Law of Contempt, (1982), pp 49ff). It should no longer be accepted in this country where, regardless of whether it be imposed in proceedings brought by the Attorney-General or some other official acting in the public interest or by a private individual for the indirect or coercive enforcement of a civil order, imprisonment or fine as a consequence of a finding of contempt of court cannot be justified otherwise than as a punishment for past or continuing breach of law. Proceedings seeking the imposition of such punishment upon an alleged contemnor (or an order for sequestration in the case of a company) must realistically be seen as essentially criminal in nature (see, generally, the comments of Mathew J. in In re Maria Annie Davies (1888) 21 QBD 236, at p 238). In any event, it is plain that the offences of which the present appellants were found guilty and for which they have been sentenced were, even on traditional classification, criminal contempts and that the proceedings giving rise to the present appeals were, as the learned trial judge held, criminal in nature.

[120]

7. The ingredients of the offence of contempt of court by publication prejudicing the administration of justice are constant. If the requirement that detriment be not outweighed by countervailing public interest be seen as an essential ingredient of this category of contempt however, the difference between the criminal and civil onus of proof will, once that balancing stage is reached, necessarily result in the decisive question in criminal proceedings for punishment being different from that appropriate to civil proceedings for injunctive or other civil relief. In civil proceedings to restrain threatened conduct which would have a clear tendency to prejudice the due administration of justice in relation to pending proceedings, the decisive question is whether it appears to the satisfaction of the relevant court that, on the balance of probabilities, the public interest detriment constituted by that tendency is outweighed by other identified countervailing public interests. If it does not appear that that detriment is so outweighed, those other public interest considerations will neither preclude a finding that the conduct would constitute contempt nor justify a refusal of injunctive relief. On the other hand, in criminal proceedings for punishment of an alleged past contempt, it will not suffice to found a verdict of guilty that the court, on balance, thinks that detriment was not outweighed by other public interest considerations. The question whether detriment was so outweighed is one of fact and the criminal onus of proof requires effectively that there be no room for reasonable doubt about the matter: if "a court is in doubt whether conduct complained of amounts to 'contempt' the complaint will fail" (per Lord Morris of Borth-y-Gest, Attorney-General v. Times Newspapers Ltd., at p 303). In practical terms, that means that, in a case such as the present where the public interest factors upon which the accused rely have been identified, the issue ultimately resolves itself into a question whether the view that detriment was outweighed by countervailing public interest considerations was reasonably open. If it was, it could not properly be said that it was clear beyond reasonable doubt that detriment had not in fact been outweighed by countervailing benefit. I have framed that ultimate question in the past tense for the reason that it must be answered as at the time of the alleged offence.

[121]

8. There is, of course, nothing unusual in there being a difference in the ultimate question according to whether proceedings relating to the same conduct are criminal or civil. Nor is there any reason in principle or policy why that should not be so in the case of proceedings relating to actual or threatened contempt of court of the category here under consideration. As a matter of principle, the difference between the criminal and the civil onus of proof inevitably means that even though the elements of the proscribed conduct do not vary, the ultimate question which results from a synthesis of those elements and the requirements of the applicable onus will be more demanding in criminal proceedings than that which will suffice for the purposes of civil proceedings relating to that class of conduct. As a matter of policy, such variation in the ultimate question can be readily justified. Thus, in civil proceedings, a court may, for example, be called upon to consider the claim of a litigant that the administration of justice in relation to proceedings to which he is a party will be unjustifiably prejudiced by threatened conduct. If, as a matter of practical reality, the possibility of prejudice is established and it appears, in the circumstances, that the detriment constituted by that possibility is not outweighed by other public interest considerations, there is no acceptable reason why the possible prejudice should not be prevented by the grant of injunctive relief. On the other hand, if no civil proceedings for injunctive relief have been instituted, there are obvious reasons why a person genuinely wishing to discuss a subject of public interest should not be faced with a situation in which he may or may not be guilty of, and punishable for, criminal contempt according to whether or not the particular judge who hears his case considers that the detriment constituted by the clear tendency to prejudice the due administration of justice in relation to a pending trial was outweighed by other public interest considerations. Criminal guilt or innocence should not turn upon an essentially discretionary judgment of the comparative claims of competing public interests. The minimum element of objectivity in the administration of the criminal law is ensured by the requirement of the criminal onus of proof which will not be satisfied if the view that what was done was justified by countervailing considerations of public interest was reasonably open in the circumstances with the consequence that it cannot properly be said that it is established beyond reasonable doubt that detriment was not outweighed by those other considerations.

[122]

9. The grant of special leave to appeal in the present case was "restricted to the effect of the observations of Chief Justice Jordan in (the Bread Manufacturers' Case) and the views expressed by the members of this Court (in the B.L.F. Case)". Consideration of those observations and views requires that mention be made of two further matters of law before I turn to the issues of fact involved in the present appeal. The first relates to the boundaries of the area in which the detriment of possible prejudice to the due administration of justice can be outweighed by countervailing public interest considerations. In a case where the publication is in the mass media and is directed solely to the merits of the very issue to be determined in the pending proceedings (e.g. the guilt or innocence of an accused), there would be no countervailing public interest consideration which might effectively outweigh the detriment of a clear tendency to prejudice the due administration of justice. The reason for that is that it will be apparent in such a case that any abstract public benefit involved in freedom of public prejudgment of the merits of the very issues committed for resolution in pending court proceedings will be outweighed by the detriment to the due administration of justice (see the B.L.F. Case, at pp.98-99 (Mason J.)). The critical passages in the judgment of Jordan C.J. in the Bread Manufacturers' Case (at pp.249-250) would seem, however, to go well beyond that limitation by confining the cases in which detriment to the due administration of justice may be outweighed by countervailing public interest considerations to cases where such detriment is "an incidental but not intended by-product" (ibid., at p.249) of publication directed to other public interest considerations. That reading of Jordan C.J's judgment is supported by his Honour's reference to pp.430-432 of the report of the dissenting joint judgment of Isaacs and Rich JJ. in Bell v. Stewart [1920] HCA 68; (1920) 28 CLR 419. On that approach, an "intended", albeit "incidental", interference with the due administration of justice which would otherwise constitute contempt of court could never be excused by other public interest considerations which the publication was primarily made to advance; nor could a direct mass media canvassing of the merits of particular litigation or, to take an extreme case, of the guilt or innocence of an accused person. While I can see force in that approach and, particularly if "intended" is interpreted as introducing an element of seeking or desiring (as distinct from being aware of) the by-product of a deliberate act, have some difficulty in formulating other than unlikely examples of circumstances where a mass media publication which adversely and intentionally interfered with the due administration of justice or which directly canvassed the question of the guilt or innocence of an accused person could arguably be seen as justified by public interest considerations, I am not persuaded that, as a matter of principle, the area of a possible justification must be so confined. The second matter is related to the first and concerns the identification of possible countervailing public interest considerations. It should be apparent from what I have written above that I consider that it is neither practicable nor desirable to attempt to define in advance the precise limits of possible countervailing public interests which may be taken into account as being furthered by a particular publication in the circumstances of a particular case. Apart from impracticability, the main reason why it is not desirable is that, once it is accepted that a person may be guilty of contempt of court by publication notwithstanding the absence of an actual purpose or intention of prejudicing the due administration of justice, the general applicability of the requirement that detriment be not outweighed by countervailing public interest considerations and the broad possible content of those other public interest considerations combine, in the context of the criminal onus of proof, to provide some safeguard against the law of contempt being turned upon itself and converted into a source of exposure of the courts and of the law to the absurdity and distrust which are unavoidable when the administration of justice is diverted to the pursuit of the trivial and the criminalization of the essentially harmless and inevitable (see the discussion in the judgment of Kirby P. in Registrar of the Court of Appeal v. Willesee, at pp 655-659).

[123]

10. None of the publications involved in the present case expressly adverted to the question of Glennon's guilt or innocence of the charges involved in the pending proceedings. In each of the first and third broadcasts however, Mr. Hinch asserted (with slight variation in wording) that he knew that "the question police are asking is how many other children may have been involved; how many other children may have been too scared over the years to come forward" (emphasis added). The inference in that assertion, when it is read fairly in the context in which it was made and repeated, was that Glennon was guilty of the charges of sexual offences against children which were involved in the pending proceedings against him. The ground work for such an inference of guilt was laid in the introductory section of the first broadcast which consisted of a series of examples of people abusing a "position of trust and authority for their own sexual gratification". That was followed by a description of the pending charges against Glennon and the statement that "police have said five youths have made statements, alleging the offences that took place at the Youth Foundation ... during the period from 1975 to 1982" (emphasis again added). A list of previous criminal charges against Glennon was then recited: a charge of indecent assault of a 16 year old girl of which he had been convicted in 1978; a charge of rape on which "police did not proceed"; "two counts of rape of a 12 year old boy" of which he had been acquitted. The accumulation of the pending charges, the one conviction, the one charge not proceeded with and the two acquittals provided the basis of the rhetoric "how many other children ... involved" and "how many other children ... too scared ... to come forward". The language and imagery of the broadcasts in which a public imputation of guilt was effectively made against a man awaiting the hearing of committal proceedings were unrestrained and evocative: "despicable"; "sickening"; the doctor abusing "fear of a mastectomy to fondle his patient"; the "father figure" who "exploits that trust and molests a scout or a cub or a school pupil"; the use of position "for personal sexual gain"; "a Catholic priest who allegedly used his clerical robes as a bait for his flock"; "poachers in the sanctuary"; "prey on the vulnerable".

[127]

12. It was submitted on behalf of the appellants that any prejudice to a fair trial was avoided or effectively rendered insubstantial by reason of the interval of time which could be expected to elapse before any trial by jury. Notwithstanding the limits of the grant of special leave to appeal, that submission is open since assessment of the detriment constituted by a tendency to interfere adversely with the due administration of justice is necessary in relation to the question whether any such detriment was outweighed by countervailing public interest considerations. It seems to me to be plain that, in the circumstances of the present case, the likely lapse of time before any ultimate trial would not avoid the very real possibility that the publications would adversely interfere with the due administration of justice. The prejudgment of guilt, in the context of the extreme disaffection which the learned trial judge rightly found the public statements were likely to arouse, was an affront to the administration of justice in relation to the pending committal proceedings as well as to any subsequent trial. Potential witnesses, as well as prospective jurors, were obviously likely to be affected by the public denouncement of Glennon as a priest who had "a sexual criminal record involving juveniles" and by the public insinuation of guilt, not only of the offences of "child molestation" of which he stood charged, but of other still hidden sexual offences "over the years" involving "how many other children ... too scared to come forward". It could not be suggested that the possibility of prejudice of that kind to the administration of justice in relation to the pending committal proceedings would be avoided by any anticipated lapse of time. Moreover, the learned trial judge obviously was of the view that the strong prejudice against Glennon which the broadcasts would arouse in a responsive listener would, in the context of the unusual circumstances of the case and the vehemence of the publications, persist until any ultimate trial at least in the subconscious. As his Honour commented, the

[132]

14. Freedom of public discussion of matters of legitimate public concern is, in itself, an ideal of our society. The fact that judicial proceedings have been instituted does not remove such matters from the area of legitimate public comment, public discussion and public inquiry. Matters of importance or concern or interest to the nation, to a particular section of the community or to particular individuals are commonly involved in judicial proceedings and it would be oppressive and futile to adopt the approach that the mere fact that they are so involved should automatically remove them from the public domain. The restrictions imposed by the law of contempt of court upon freedom of speech can only be justified if their operation is confined to circumstances where there can be discerned a clear tendency to interfere adversely with the due administration of justice and where the detriment of that tendency is not outweighed by the combination of the abstract public interest in freedom of discussion and any specific public benefits of such discussion in the circumstances of the particular case. In that weighing process in a case involving prejudice to the due administration of justice in relation to particular pending proceedings, the weight to be given to the detriment of possible prejudice to the due administration of justice will, as has been said, vary according to the nature of the proceedings. The area in which restriction upon the freedom of discussion is most readily justifiable in the interests of the due administration of justice is in the area of the administration of the criminal law. It is in that area that one finds the category of publication which is most difficult, if not impossible, to justify by reference to countervailing public interest considerations. That category of publication is that involving a public imputation through the mass media of guilt of a criminal offence made against a person who is awaiting his or her trial on a charge of that very offence (see per Street C.J., Hope, Glass, Samuels and Priestley JJ.A., Director of Public Prosecutions v. Wran (1986) 7 NSWLR 616).

[133]

15. The end question to which each of the broadcasts in the present case was expressly directed was how it could be that Glennon continued to exercise control of a Youth Foundation concerned with the care of children. That question was, in the circumstances of Glennon's past conviction and in the context of the pending charges against him, one of public importance. Even if there had been no past conviction, it would be a matter of legitimate public concern that a person awaiting trial on charges involving alleged sexual assault of children should continue, pending trial, to act in a position of confidence and authority involving the care and control of the young. So to say carries no implication of prejudgment of guilt. It is simply to recognize that there are positions in public life and in public service in relation to which serious suspicion or allegation of particular types of wrongdoing must, while it remains unresolved or unanswered, be seen as a disqualifying factor. It appears to me that the public interest considerations favouring freedom of discussion to suggest or demand that Glennon step aside or be removed from active involvement in the affairs of the youth foundation pending the resolution of the charges of sexual offences against children which were pending against him were reasonably capable of being seen, in all the circumstances, as outweighing the detriment of the possible prejudice to the due administration of justice in relation to the trial of those charges. A more difficult question is whether the view was reasonably open that, notwithstanding the possibility of grave prejudice to the due administration of justice in relation to the pending proceedings against Glennon, public reference to the past conviction might also have been justified if that disclosure had been divorced from any prejudgment of present guilt. As the judgments of the learned trial judge and of the Chief Justice and Kaye J. in the Full Court of the Supreme Court demonstrate, there is much to be said for the view that the reference to Glennon's past conviction, in the context of the detailed reference to the pending charges, of itself sufficed to place the broadcasts beyond effective justification. However, I find it unnecessary to pursue that question since it seems to me to be plain that, on no approach could countervailing public interest considerations reasonably be seen as justifying the worst feature of the publications, namely, the poisoning of the stream of criminal justice by the clear inference, in the first and third broadcasts, that Glennon was guilty of the very charges involved in the pending committal proceedings. In the context of the unrestrained language, the evocative imagery and the disclosure of the past conviction and the earlier criminal proceedings, that clear inference of present guilt gave the overall broadcasts the effect of media pre-trial and prejudgment.

[284]

8. Two questions arise in the present appeal. Does the principle enunciated in Bread Manufacturers apply to conduct which prejudices criminal proceedings? If so, how is the principle to be applied? The answers to both questions depend, in my view, upon the acceptance of the proposition that the dissemination of information relevant to the workings of an open, democratic society may, in both abstract evaluation and in relation to particular cases, take precedence over the public interest in protecting the administration of justice from the risk of interference. In Attorney-General for New South Wales v. John Fairfax & Sons Ltd and Bacon (1985) 6 NSWLR 695, McHugh J.A. noted (at p 714) that the public interest in open justice usually takes precedence over the public interest in "the fair and unprejudiced trial of criminal and civil issues." Thus it is not contempt to publish a fair and accurate report of bail proceedings, notwithstanding that the report may involve matters which could cause prejudice to the subsequent trial of the person making the bail application: see the B.L.F. Case, per Wilson J. (at p.132) and Minister for Justice v. West Australian Newspapers Ltd (1970) WAR 202, per Jackson C.J. (at p 207). McHugh J.A. also observed (at p 714) that "it can hardly be argued that a fair and accurate report of proceedings of Parliament, if made in good faith, constitutes an unlawful interference with the course of justice." He added that "(t)he public interest in the administration of justice must also give way on occasions to the public interest in the discussion of public affairs and the provision of information which is vital to the working of an open and democratic society ...". In those passages, McHugh J.A. pointed to matters of public interest which I would respectfully adopt as illustrative (if not necessarily exhaustive) of matters which take precedence over the public interest in protecting the administration of justice from risk of interference. I would identify such matters as the maintenance of our democratic processes, and the maintenance of a free and open society, the latter concept including the open administration of justice. These are matters of fundamental importance. Their nature is such, in my view, that in appropriate circumstances they may outweigh the public interest in protecting the administration of justice from risk of interference, even in relation to criminal trials. For this reason, I am of the view that the principle in Bread Manufacturers extends to conduct which constitutes a risk of interference to criminal trials.

[288]

11. I would identify the public interest that is raised by the appellants in this case as the public interest in obtaining information. This interest is maintained and realized by, inter alia, freedom of speech and freedom of discussion. But the public interest in obtaining information is not an interest of constant value. Its value varies according to the subject-matter of the information, and its relevance to other heads of public interest. Thus in Bread Manufacturers, Jordan C.J. said that the public interest in the administration of justice may have to yield to "other and superior considerations", of which he instanced "the ventilation of a question of public concern" and "(t)he discussion of public affairs and the denunciation of public abuses, actual or supposed". Conduct engaged in for the furtherance of these "other and superior considerations" does not constitute contempt, notwithstanding its consequential risk of interference to the administration of justice, if the risk is the "incidental but not intended by-product" of that conduct. The words "incidental but not intended by-product" are to be understood in the light of established principle that intention is never decisive of whether or not a contempt has been committed: John Fairfax & Sons Pty. Ltd v. McRae [1955] HCA 12; (1955) 93 CLR 351, at p 371; Lane v. Registrar of Supreme Court of N.S.W. [1981] HCA 35; (1981) 148 CLR 245, at p 258; the B.L.F. Case at pp 56 and 133. Conduct referable to "other and superior considerations", will not be contemptuous, if done with the intention of, and as an incident of, furthering those "other and superior considerations". But the protection afforded to conduct referable to "other and superior considerations", may be lost if the occasion is used for some different purpose, in the same way that improper purpose may defeat qualified privilege as a defence to the publication of defamatory material. Thus the first step in the application of the principle in Bread Manufacturers is to identify the public interest which is raised in competition with the public interest in protecting the administration of justice from risk of interference, and thereafter to evaluate the competing public interests, not as a matter of discretion, but as a question of law, to determine which public interest takes priority in the circumstances. If in that balancing process a public interest is identified which takes precedence over the public interest in protecting the administration of justice from risk of interference, or which, in the particular circumstances, takes precedence over the "likelihood of prejudice", only then is it relevant to consider whether the risk of interference is the "incidental but not intended by-product" of that conduct. Where proceedings are instituted for punishment of conduct which is referable to a superior public interest, the moving party bears an onus of establishing beyond reasonable doubt that the risk of interference was not the "incidental but not intended by-product" of that conduct as, for example, by showing that the conduct was engaged in for an ulterior purpose, or that information imparted was extraneous to the subject-matter of the public interest.

At a glance

Court

Decision date

Source

Judgment (298 paragraphs)

Hinch & Macquarie Broadcasting Holdings Ltd v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15 (2 December 1987)

Parties

Legislation Cited (2)

Cases Cited (19)