John Fairfax & Sons Pty Ltd v McRae

John Fairfax & Sons Pty Ltd v McRae - [1955] HCA 12 - HCA 1955 case summary — Zoe

[7]

The three charges laid against Rigby were (1) that he behaved in an offensive manner in a public place, (2) that he resisted a constable in the execution of his duty, and (3) that he assaulted a constable in the execution of his duty. The first of these charges was laid under s. 8A (a) of the Vagrancy Act 1902. The offences created by that section are offences punishable summarily in a court of petty sessions, and it would appear that a charge of such an offence could not under any circumstances come before the Supreme Court on indictment. If the charge under the Vagrancy Act had been the only charge pending, Owen J. certainly, and perhaps the other members of the Full Court, would have held that that court had no jurisdiction to deal summarily with the appellants as for contempt. But the position with regard to the other two charges against Rigby was somewhat different. The second charge was laid under s. 59 of the Police Offences Act 1901-1951. Again the charge actually laid is of an offence punishable summarily. But the same charge could have been laid as for an indictable offence, under s. 58 of the Crimes Act 1900. The third charge against Rigby was laid under s. 494 of the Crimes Act 1900. Here too the offence charged is an offence punishable summarily, but here again the same charge could have been laid, as for an indictable offence, under s. 58 of the Crimes Act 1900. Moreover the justices before whom this third charge came might, under s. 497 of the Act, instead of dealing with the case themselves, commit the defendant for trial on indictment in the Supreme Court or in quarter sessions. In these circumstances the Full Court held that it had power to entertain summary proceedings for contempt in relation to the second and third of the charges against Rigby. Owen J. expressly rejected the broader contention of the present respondent, but he said: "If the cause is one which may reach the superior court for trial, a contempt committed along the way is capable of being treated as a contempt of the superior court and therefore as being within its summary jurisdiction" [1] . Street C.J. (with whom Clancy J. agreed on this aspect of the case) declined to express a concluded opinion on the broader submission of the respondent, but rested the jurisdiction of the court in the particular case on the basis adopted by Owen J.

[13]

It appears to us clear that the question, which was discussed at some length but left unanswered in R. v. Parke [1] , received a definite affirmative answer in R. v. Davies [2] . Again the judgment of the court (Lord Alverstone C.J., and Wills and Darling JJ.) was delivered by Wills J. Again he begins by saying that the case could be decided in favour of jurisdiction on what is substantially the same ground as that of the decision in R. v. Parke [1] . But this time it is quite impossible to regard what is said on the "wider and more general question" as in the nature of obiter dictum. What is said is: "But, inasmuch as a further question of great and growing importance, namely the jurisdiction of this Court to treat attacks of this kind upon the independence and usefulness of inferior tribunals as offences to be dealt with brevi manu by this Court in its summary jurisdiction, has been argued, we think it desirable to deliver our judgment upon this point also, and to treat the case as if a committal had actually taken place to quarter sessions" [3] . The question is stated in clear terms, and the answer given to it is put as a ground of the judgment. Nor can the answer made be in doubt when one reads what follows. The headnote appears to state the effect of the decision correctly when it says: "The King's Bench Division has power to punish by attachment contempts of inferior courts" [2] . In R. v. McKinnon [4] , Denniston J. observes that before R. v. Parke [1] doubt existed as to whether, in the case of contempts of inferior courts, there was any remedy except the slow and cumbrous process of indictment, and he says (rightly, we think) that R. v. Davies [2] established "the broad doctrine that the King's Bench had power to punish such contempts by summary process" [5] . The same "broad doctrine" has been applied in R. v. Daily Mail; Ex parte Farnsworth [6] (contempt of a court material); Ex parte Bishop of Norwich [7] (contempt of an ecclesiastical court); Attorney-General v. Soundy [8] (contempt of a licensing court); R. v. Edwards [9] (contempt of a county court) and Ex parte Collins; Re Hlentzos [10] (contempt of a district court). The last-mentioned case is a decision of the Full Court of New South Wales: the jurisdiction in question is asserted in clear terms.

[18]

The history of the jurisdiction to punish summarily for contempt is considered in two learned articles in the Law Quarterly Review by Sir John Fox ( (1908) 24 L.Q.R. 184, 266 and (1909) 25 L.Q.R. 238, at p. 354) and by Sir William Holdsworth in his History of English Law, 4th ed. (1935), vol. III, pp. 391-394. It is necessary, as Sir John Fox says, to begin by distinguishing between different kinds of contempt of court. A party disobedient to the order or process of a court is often said to be "in contempt". In these cases each court has its own appropriate means of enforcement, and such "contempts" are not criminal. Criminal contempt consists in contumelious behaviour to a court, and is divided into two broad classes - contempt in the face of the court and contempt out of court. All criminal contempts are indictable offences at common law. Contempts in the face of the court have, however, from time immemorial been punishable summarily (i.e. without conviction by a jury) by the court before which the contempt is committed. This, according to Selden, could be justified by the view that, the offence being committed in the face of the court, "the very view of the court was a conviction in law". But, with regard to contempts out of court, it would seem that all through the mediaeval period, and up to at least the middle of the 17th century, a person guilty of criminal contempt out of court could not, unless he chose to confess his guilt, be punished except upon conviction by a jury. To this extent Sir John Fox (whose view is accepted by Sir William Holdsworth) rejects the well-known passage in the judgment of Wilmot J. in R. v. Almon [1] , in the course of which he says that the power of the Courts in Westminster Hall to punish summarily for contempt out of court is "coeval with their first foundation and institution". The truth seems to be that that power was regarded from an early date as residing in the Council, which dealt summarily with contempts of any court, that it was later exercised freely by the Star Chamber, and that, after the abolition of the Star Chamber by the Act of 1641, it was assumed by the King's Bench. Sir John Fox finds what he regards as the earliest authentic reported example in the King's Bench as late as 1720. Holdsworth in his History of English Law, 4th ed. (1935), vol. III, pp. 393, 394, explains the position concisely in a passage, the whole of which is important, but the first part of which only need be quoted. That learned author says: - "The Council, and later the Star Chamber, had long possessed a jurisdiction over contempts committed against any court; and the common law courts had from an early period sometimes referred such cases to them. After the abolition of the Star Chamber and the jurisdiction of the Council in England in 1641 the King's Bench assumed this jurisdiction. It was then able the more easily to do so because it could be represented as a supplement to, and a corollary of, its powers to correct "misdemeanours extra-judicial" committed by or occurring in all inferior courts; and as a consequence of the fact that it had inherited from the Star Chamber the position of custos morum of all the subjects of the realm. And these are the bases on which this jurisdiction is now rested". And he cites R. v. Davies [1] . This passage shows that the jurisdiction in question, derived from the Council, was a jurisdiction to deal summarily with contempts committed against any court, and it brings out the reality of the connection between supervision by means of the prerogative writs and supervision by means of punishment for contempt: cf. R. v. Davies [2] .

[33]

We have expressed our opinion that the scope of the summary jurisdiction to punish for contempt is wide, and extends to the punishment of contempts of any court, and we have referred to its history. Its practical justification lies in the fact that in general "the undoubted possible recourse to indictment or criminal information is too dilatory and too inconvenient to afford any satisfactory remedy" (per Wills J. in R. v. Davies [1] , citing R. v. Almon [2] ). Because it is founded on the elementary necessities of justice, there must be no hesitation to exercise it, even to the point of great severity, whenever any act is done which is really calculated to embarrass the normal administration of justice. We are in complete agreement with Owen J. when he says, in effect, that it would be a disgraceful thing if "trial by newspaper" were allowed to supersede, or to influence, the ordinary process of the courts [3] . Perhaps there has been in the past too little vigilance on the part of the Crown for the vindication of this principle. On the other hand, because of its exceptional nature, this summary jurisdiction has always been regarded as one which is to be exercised with great caution, and, in this particular class of case, to be exercised 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 in a particular case. A penalty will not be imposed in its exercise "unless the thing done is of such a nature as to require the arbitrary and summary interference of the court in order to enable justice to be duly and properly administered without any interruption or interference" - per Cotton L.J. in Hunt v. Clarke [4] , quoted by Lord Russell C.J. in Reg. v. Payne [5] . Sometimes the court may think that, technically speaking, a contempt has been committed, but that, because the tendency to embarrass is slight, or because of special circumstances, it ought to refuse to exercise its summary jurisdiction. There may be occasions when it will be material to remember that there may be attempts to abuse the jurisdiction. There have been occasions where summary proceedings for contempt have been commenced, or threatened, not with the real object of ensuring the impartial administration of justice, but solely for the purpose of stopping public comment on, or even public inquiry into, a matter of public importance. A court possessing the summary jurisdiction will not allow itself to be made the instrument for effecting such a purpose.

[36]

The actual intention or purpose lying behind a publication in cases of this kind is never a decisive consideration. The ultimate question is as to the inherent tendency of the matter published. But intention is always regarded by the court as a relevant consideration, its importance varying according to circumstances. In the present case we think that it is of more importance than usual. For here not only is it clear that nobody in the Herald office had the slightest intention of committing a contempt, or the slightest intention or desire of doing or saying anything which might affect in any way the conduct or outcome of any legal proceeding. It is also clear that to those responsible for what was published in the Herald the guilt or innocence of Rigby on any charge pending against him was a matter of complete indifference. From their point of view it did not matter one iota whether Rigby had committed, or been charged with, a grave offence or a petty offence or no offence at all. What concerned them, and all that concerned then, was that a statement had been made, subject to a sanction equivalent to that attaching to an oath, that a man had been grossly maltreated by police constables after being taken into custody. If the allegations made were true - and any opinion as to their truth was expressly disclaimed - their seriousness could not be affected by any question of the guilt or innocence of Rigby on any charge. Nor is it to be overlooked, in considering the purpose of the publication, that other complaints against the police had been made and had been published in the press, that the Premier had publicly invited the citation of specific instances, and that the Government had just appointed a Royal Commission to investigate specific allegations in another case. In the generality of cases of this class, where a penalty has been imposed, pending legal proceedings have provided either the actual subject matter or the immediate occasion of the publication. In Packer v. Peacock [1] , for example, the sole occasion of the publication was a pending charge of murder against Peacock, and the only interest of the matter published lay in its bearing on his guilt or innocence. In Davis v. Baillie [1] there was a direct suggestion of the guilt of Davis, who had absconded from bail, on charges of breaking and entering, and his prior convictions were stated. On the other hand in Ex parte Bread Manufacturers Ltd.; Re Truth & Sportsman Ltd. [2] where the article complained of formed part of a series of articles which began before the relevant litigation was commenced, and which dealt generally with a matter of public interest, the Full Court of New South Wales refused to punish as for contempt, Jordan C.J. saying that any tendency which the articles might have to influence the pending litigation was "purely fortuitous" [3] : cf. Phillips v. Hess [4] . In the present case, the police charges against Rigby did not provide the occasion of the publication, and had nothing to do with the purpose of the publication. If what was published did have any bearing on those charges, that bearing was, to use Sir Frederick Jordan's word, fortuitous.

[38]

These considerations are perhaps enough of themselves to support the conclusion that the case was not one for the exercise of the summary jurisdiction in respect of contempts. But indeed, even if the matter published is scanned from a purely objective point of view, we do not think that it is actually possible to find in it that real and definite tendency to prejudice or embarrass pending proceedings, which is of the essence of a contempt of the kind alleged. The matter in question must be read as a whole. It is extensive, and in each of the two issues of 11th and 12th March comprises several columns. Only what have seemed to us to be the directly relevant parts have been set out above. The matter must also be read in the light of the allegations which had been publicly made against certain members of the police force over a considerable period, and especially in January and February 1954, and of the circumstances existing at the time of publication. The text of the statutory declaration is preceded by an introductory statement, which is set out above. The proceedings against Rigby are expressly mentioned, not in such a manner as to contain the slightest suggestion of Rigby's guilt or innocence but as providing the reason why Rigby's statement had not been published earlier. The writer goes on to say that, now that the Premier has ordered a judicial inquiry into the similar allegations made by Studley-Ruxton, Rigby's solicitors have sent copies of his declaration to the Premier and the Commissioner of Police, and that in these circumstances the Herald "considers itself obliged" to publish the declaration. The Herald takes no responsibility for the truth of Rigby's allegations, but "believes them to be sufficiently grave to warrant investigation" along with those made by Studley-Ruxton. The text of the declaration, which follows, and especially par. 2, which we have set out above, may be said to suggest by implication that no offence of any kind had been committed by him, and the last paragraph, which also is set out above, contains the words, "I did not resist the police in any way". But there is no express reference to any charge laid against Rigby, and neither in the introductory matter nor in the declaration itself is anything said or suggested with regard to the nature of any charge which may have been laid. The truth is, we think, that, so far as anything in the issue of 11th March is concerned, there is nothing in it which can properly be regarded as having any real bearing on any pending legal proceeding. The publication does, of course, tend to evoke general distrust and suspicion of the police in relation to any criminal proceeding launched by them, but, as we have said, that is plainly not enough.

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties