Discussion
47 The summarised material demonstrates the circumstances surrounding Mr Bradley's appointment in 1998, especially the arrangement as to his remuneration, generated considerable media attention and comment. This included discussion about the compatibility of the arrangement with accepted principles of judicial independence and the doctrine of separation of powers. The comments included suggestions of a link between Mr Bradley's appointment and the Northern Territory government's support for mandatory sentencing.
48 Documents (i) to (viii) pre-date commencement of the principal proceeding. Naturally, therefore, they say nothing about that proceeding. They deal with the subjects set out in para 47, and also the question whether Mr Bradley should disqualify himself, or be disqualified, in relation to the case against the juvenile girl.
49 Document (ix) reported the filing of process to commence the principal proceeding. It made no comment about the motivation for, or merits of, that proceeding. The first such comment was made by Mr Burke himself in The 7.30 Report on 1 May 2000: see document (x). On 14 June 2000 Mr Renouf responded to a question about the relationship of the case to mandatory sentencing. He said the case was concerned with separation of powers and judicial independence: see document (xii). He did not otherwise comment on the motivation for, or merits of, the proceeding.
50 Documents (xiii) to (xviii) all relate to television or radio items within the period 14 June to 19 July. Despite Mr Renouf's statement of 14 June, Mr Burke continued to disparage the principal proceeding ("this hopeless case") and to criticise NAALAS for pursuing it. This criticism reached a climax on 19 July 2000 when, notwithstanding Mr Renouf's statement on The 7.30 Report of 14 June (document (xiii)) about the cost being insignificant because of "far reduced" legal fees, Mr Burke spoke about "a disgraceful waste of taxpayers' money" and advocated closing down Aboriginal Legal Aid Services. The suggestion was that, because of its conduct as litigant in the principal proceeding, NAALAS should not be allowed to continue in existence.
51 Throughout the period April to July 2000, only Mr Burke is revealed by the background documents as talking about the merits of the principal proceeding or the motivation of NAALAS in commencing it. The background documents suggest a campaign on these topics by Mr Burke, not a public debate by others to which he merely made a contribution.
52 As I have mentioned, counsel for the Northern Territory government and Mr Burke place emphasis on remarks Mr Jones made about Mr Bradley's position on 20 April, played on 8DD FM on 5 May: see document (xi). Mr Jones' comments were expressed in strong terms. They were critical of Mr Bradley's condition ("very, very damaged now") and of government actions that had led to that situation. I make no judgment about the validity or otherwise of those criticisms. Whatever their validity, Mr Jones' comments included no reference to the principal proceeding.
53 During a period of over nine months following 19 July 2000 there is no disclosed public debate. After the High Court refused special leave to appeal against the decision of the Court of Appeal, on 4 May 2001, Mr Burke is quoted as describing the action against Mr Bradley as "a vendetta and a waste of money"; but that is all until the 7 June press conference.
54 In para 32 above I set out the passage in Ex parte Bread Manufacturers Ltd relating to public discussion of an issue. Jordan CJ said "if in the course of ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed". The Chief Justice obviously had in mind a comment made in the course of a current public debate on a particular topic, the comment being only incidentally prejudicial to some individual. I do not think he was referring to a comment made in the course of a campaign, generated by the commentator, against a party to litigation and attacking that party's conduct as a litigant.
55 Consideration of the transcript has persuaded me that Mr Burke deliberately used the press conference of 7 June 2001 to revive his April-July 2000 campaign of disparagement of the principal proceeding and criticism of NAALAS for pursuing it. The first question put to Mr Burke on 7 June 2000 apparently arose out of a discussion in Parliament that morning about Mr Bradley's salary arrangement. The question, lettered [A], was whether he was aware that Chief Justice Martin had supported "the special two-year deal". Mr Burke did not answer that question. Instead, he referred to "the case", about which he had not been asked, and made a series of observations about it. These observations established the four themes for the press conference, the four messages he wished to convey to those who would see or hear excerpts from the press conference.
56 First, Mr Burke said, it was "disturbing" that "some sections of the legal community seem to be co-operating in a way which is disturbing": see highlighted words (1) in para 15. Co-operation in the legal community is not usually a matter of reproach; this comment was intended to imply something sinister. While Mr Burke did not elaborate, he was plainly saying it was disturbing that "some sections of the legal community" were providing information for use in the case. His comment may be linked to highlighted words (6) about Justice Angel having given the Chief Justice's letter of advice to the parties.
57 Secondly, Mr Burke described the case as "a waste of taxpayer's money": see highlighted words (2). During the remainder of the press conference, he repeated the substance of this observation on no less than four occasions: see highlighted words (5), (13), (15) and (16). Highlighted words (5) involved the additional criticism that, not only was NAALAS wasting taxpayers' money, it was doing so at the expense of its Aboriginal constituents.
58 Mr Burke's third theme, that the case was "a nonsense in its intent", was also repeated four times: see highlighted words (13), (15), (16) and (17). The comment was elaborated in highlighted comment (12), when Mr Burke referred to NAALAS having "no case" and referred to the decision of Olney J to that effect. Although he must have known about the decision of the Court of Appeal, he failed to mention that three appeal judges had reached the opposite conclusion and had held one issue, at least, raised important questions about the appointment of members of the judiciary in the Northern Territory.
59 The final theme of the press conference was contained in highlighted words (4): the case was an "attempt to destroy the reputation of the Chief Magistrate" and, now, the Chief Justice. That theme also was revisited: see highlighted words (5) ("to try and rip the whole judicial system apart by allegations which are unfounded"), (7) ("an attempt to rip this system apart"), (8) ("a vengeful attempt … to overturn mandatory sentencing and … they don't care who they destroy"), (9), (10), (11), (15), (17) and (18).
60 In summary, Mr Burke told his interviewers:
(i) there had been "disturbing" co-operation between some sections of the legal community (to provide information);
(ii) in support of a case that represented a waste of taxpayers' money and was being undertaken by NAALAS in betrayal of its duty to its Aboriginal constituents;
(iii) which case was "a nonsense in its intent" and entirely without merit, as demonstrated by its having been thrown out by one judge;
(iv) but which was being prosecuted for extraneous and improper reasons: to destroy the reputations of the Chief Magistrate and the Chief Justice and "the whole of the judicial system".
61 The impression that Mr Burke deliberately set out to convey these messages is reinforced, not only by their repetition, but also by the fact that none of them was responsive to a question he was asked. I have already mentioned question [A]. Question [B] asked him whether he was aware of the Chief Justice's letter when he made an earlier comment about the judicial system being corrupt. His response commenced by referring to letters, without really addressing the question, but terminated in an attack on NAALAS for sacrificing the interests of its Aboriginal constituents in an attempt to "rip the whole judicial system apart".
62 Similarly in regard to question [E]. The opening words were responsive, but they were followed by an unresponsive repetition of themes (ii), (iii) and (iv): see highlighted words (7), (8), (9), (10) and (11).
63 Question [G] related to preservation of the Chief Magistrate's integrity. Mr Burke did not answer that question. First he commented on missing letters. Then he returned to themes (ii) and (iii): see highlighted words (12).
64 Again, question [H] related to the duration of the case. Mr Burke dealt with that, envisaging the case "could be resolved in the next few months". He then followed with an unresponsive reiteration of themes (ii) and (iii).
65 I need not labour further the point about unresponsiveness. Similar comments may be made about questions [J], [L] and [M]: see highlighted words (15), (16), (17) and (18).
66 No journalist asked a question concerning the motives or objectives of NAALAS, the attitude of the legal profession to the principal proceeding or its merits. Mr Burke used questions on other topics to force comments about these matters upon his interviewers. He did so knowing he was speaking to journalists who were filming the interview and recording his words. Particularly given the publicity previously accorded to this case, and the circumstances out of which it arose, he must have realised, and intended, that his words would be republished in the media and reach a large audience; the more inflammatory his words, the more likely this would be the case. It is pertinent to recall the comment of the New South Wales Court of Appeal in Wran, quoted in para 39 above. The fact that the subject statements were made to the media by a person who was Chief Minister and Attorney-General of the Northern Territory "added greatly to the possibility that they would be republished" in the media.
67 Mr Burke was entitled, of course, to have whatever opinion he wished about the motives and purposes of NAALAS, the attitude of the legal profession to the litigation and the merits of the principal proceeding. He was entitled to express those opinions; but only provided that, in doing so, he did not transgress the rules concerning contempt of court. I use the summary of those rules by Mason P in Harkianakis, quoted in para 29 of these reasons, for the purpose of considering whether Mr Burke did transgress.
68 Paragraph 1 of Mason P's principles merely states the standard of proof.
69 Paragraph 2 poses the applicable test: whether, "as a matter of practical reality", the comments had a tendency to interfere with the course of justice in the principal proceeding; whether there was a "clear tendency" or "real risk" of interference. Although different judges have stated the test in different words, all formulations require a real, rather than theoretical, tendency or risk.
70 Mr Collins and Mr Grant argued there was no real possibility that Mr Burke's words would deter NAALAS from pressing ahead with its case or affect its outcome. They suggested those who were responsible for the commencement of the proceeding were determined to pursue it to finality. The background documents provide some support for that suggestion, insofar as Mr Jones and Mr Renouf were concerned. However, Mr Jones was the solicitor for NAALAS. So far as I am aware, he was not a member of its board or a person charged with making decisions on its behalf. Mr Renouf was Director of NAALAS when the proceeding commenced but had apparently since retired. The evidence does not disclose whether he retained any continuing role in NAALAS.
71 The evidence does not indicate the attitude of other NAALAS board members. Document (xix) attributes a position to Mr Ryan, as at 2 November 2000, but the document does not provide proof that Mr Ryan was in fact then opposed to continuation of the case. In any event, I have no way of knowing why Mr Ryan took that position (if he did), whether any other board member shared his view or whether Mr Ryan remained of the same view in June 2001.
72 However, I believe it is not fanciful, or merely theoretical, to regard the comments made by Mr Burke on 7 June 2001 as having had a clear tendency to put pressure on NAALAS to discontinue the case. In June 2000, Mr Burke had criticised NAALAS for pursuing "this hopeless case at great cost, when at the same time they're crying poor and after more money from the taxpayer to supposedly defend their clients"; in other words, NAALAS was spending money on this case when they claimed not to have enough money to undertake their primary duty of defending clients. This comment was followed in July 2000 by an expression of opinion that "a lot of these Aboriginal legal aid organisations" should be closed down, so that "an organisation set up to defend Aboriginal clients is not frittering away money on a witch hunt".
73 These were intimidatory comments. They were of such a nature as to put considerable pressure on an organisation such as NAALAS. NAALAS is a voluntary association formed under, and subject to, Northern Territory law. It would be within the power of the Northern Territory Parliament to terminate its existence. Moreover, NAALAS is apparently dependent on public funding, and the support of its Aboriginal constituency, for its continuation in existence and effective operation. Comments calculated to cause concern amongst members of the general community, dissent within NAALAS itself, or loss of confidence in its leaders, had a clear tendency to cause those leaders to abandon the proceeding, not because they thought it lacked merit or utility, but in order to save the organisation from destruction, disintegration or being rendered ineffective by lack of funds or loss of Aboriginal support.
74 In July 2000 NAALAS was publicly told its pursuit of the principal proceeding justified its being closed down. A comment to that effect by a private citizen might not matter. But Mr Burke was a powerful man. He was leader of the Northern Territory government. His political party controlled the Northern Territory Parliament. As Attorney-General, he presumably had significant contact with legal aid agencies, including Aboriginal legal aid agencies. Even if NAALAS did not receive funds directly from the Northern Territory government, members of NAALAS might reasonably have seen Mr Burke as an influential figure in relation to Commonwealth government decisions concerning Northern Territory institutions.
75 In his comments of 7 June 2001, Mr Burke did not go so far as to repeat his observation about closing down Aboriginal legal aid organisations. But his repeated statements about NAALAS wasting taxpayers' funds, and particularly his comment about NAALAS using money on the case "that should be directed towards Aboriginal constituents", must have triggered recollection of his July 2000 comments; especially amongst the officers and members of NAALAS. It is difficult to see any reason, other than a desire to put pressure on those people, for Mr Burke's comments about waste of funds.
76 The second way in which there was a tendency to interfere with the course of justice is pressure on witnesses. This pressure was more subtle. Mr Burke only complained of co-operation in the legal community, but I think he meant to convey disapproval of lawyers providing information in support of the case. Especially as he was Attorney-General, it seems to me not fanciful, or merely theoretical, to think this statement had a tendency to deter persons from supplying information to NAALAS or from willingly giving evidence on its behalf. I am not prepared to say it had a tendency to influence the content of the evidence of any witness who was called.
77 In para 3 of his summary, Mason P pointed out it is not necessary to prove that the alleged contemnor intended to interfere with the due administration of justice. In the present case, I think such an intention should be inferred. However, if I am wrong about that, the clear tendency is enough.
78 In considering the tendency of Mr Burke's comments I have looked at the position of NAALAS itself, rather than taken the hypothetical litigant of "ordinary" fortitude: see the two alternatives mentioned by Mason P in para 9 of his summary. However, I do not think it makes any difference if the other alternative is adopted. The hypothetical litigant must surely be one that shares the major characteristics of the actual litigant. I have not relied on evidence as to any actual reaction within NAALAS to Mr Burke's comments.
79 Having regard to the nature of the pressure generated by Mr Burke's remarks, the time relationship between those remarks and the likely hearing of the principal proceeding may not be particularly significant. This case is unlike Wran, Hinch, and other cases cited by Mason P in para 6 of his summary, in that it is not concerned with the possibility of prejudicing a jury trial. However, to the extent that the time relationship is relevant, this tells against Mr Burke. Mr Burke was aware the principal proceeding had been transferred to this Court with a view to an early hearing. As he himself said, in this Court's hands "it could be brought on quite quickly, it could be resolved in the next few months".
80 The evidence does not suggest Mr Burke's comments have had the effect of interfering with the conduct of the case. NAALAS continues to prosecute the case and there is no evidence of any effect on the attitude of any potential witness. However, as Mason P pointed out, in para 7 of his summary, effect is immaterial.
81 As I have noted, NAALAS must establish its charge of contempt beyond reasonable doubt. In the present case, there is no dispute regarding primary facts. The evidence is entirely documentary; the question is what inference ought to be drawn from those documents. Having given the matter careful consideration, I am satisfied beyond reasonable doubt that the comments made by Mr Burke, at his press conference on 7 June 2001, had a clear tendency to interfere with the administration of justice by putting improper pressure on NAALAS and potential witnesses. Mr Burke must be adjudged guilty of contempt of court.
82 I wish to emphasise that I do not hold a person commits a contempt of court merely by commenting upon a pending court case or by impugning the motives of a litigant. More than this is required. One example of the "something more" is when the comment is of such a nature, and is made in such circumstances, that it has a clear tendency to deter a litigant from continuing to prosecute or defend the case, or to dissuade potential witnesses from giving evidence. In my opinion, the comments of Mr Burke went that far; that is why I find the charge proved.