R v Glennon

[67]

The grounds advanced by their Honours for quashing the convictions present starkly the problem which pre-trial publicity prejudicial to an accused raises for the administration of criminal justice. The problem is not new, but perhaps it has become more acute in recent times. One developing phenomenon is the holding of press conferences or the issuing of press releases by some law enforcement agencies after a person has been charged with a criminal offence, in apparent disregard of the risk that the fair trial of the person may be prejudiced unless the matter published is restricted to what this Court in Packer v. Peacock [29] described as the "bare facts" - by which the Court meant "(but not as an exclusive definition) extrinsic ascertained facts to which any eyewitness could bear testimony, such as the finding of a body and its condition, the place in which it is found, the persons by whom it was found, the arrest of a person accused, and so on". Sometimes the holding of a press conference or the issuing of a press release wears the appearance of corporate advertising of the work of the agency in solving a crime. Advertising of that kind is inconsistent with the impartial performance of the functions of a law enforcement agency in conducting or assisting to conduct a criminal prosecution. Another phenomenon which has contributed to the problem in recent years, especially in the media of television and radio, is the promotion of personalities who affect to convey the moral conscience of the community and to possess information, insights and expertise in exceptional measure. The image of some media personalities as informers of the public and moulders of public opinion is assiduously cultivated. When the belief is held that the public interest is served by publication of observations and opinions by media personalities on topics of contemporary relevance, publication may not always be restrained by the need to allow a fair trial for a person charged with the commission of crimes that have attracted public attention. That happened in the present case.

[69]

one, the need to protect the integrity of the administration of justice, and the other, the protection of freedom of expression, especially when that freedom of expression is exercised in relation to a topic which is, or should be, of concern to the public or a section of the public. In that case, the approach of Jordan C.J. in Ex parte Bread Manufacturers Ltd.; Re Truth and Sportsman Ltd. [31] was held applicable to the contempts committed by Hinch in respect of the present criminal proceedings [32] . Jordan C.J. said [33] : It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the 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 case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant. It follows that, in determining whether a punishable contempt has occurred, the court must balance the tendency of published matter or of the circumstances of its publication to prejudice the integrity of the administration of justice against the freedom to publish, especially on topics of public concern. In Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation, the balance lay in favour of publication of the proceedings of a Royal Commission; in Hinch v. Attorney-General (Vict.), the balance lay in favour of the integrity of the administration of justice. 1. (1987) 164 C.L.R., at p. 18. 2. (1937) 37 S.R. (N.S.W.) 242, at pp. 249-250, approved in Attorney-General v. Times Newspapers , [1974] A.C. 273, at pp. 296-297, and by Gibbs C.J. in Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982), 152 C.L.R. 25, at pp. 59-60. 3. (1987) 164 C.L.R., at pp. 18, 36, 46, 66, 82-83. 4. (1937) 37 S.R. (N.S.W.), at p. 249.

[72]

From these formulations it appears that some degree of risk, albeit not a substantial risk, to the integrity of the administration of criminal justice is accepted as the price which has to be paid to allow a degree of freedom of public expression when it is exercised in relation to a crime that is a topic of public interest. Clearly enough, though the fairness of a criminal trial may be at some risk in such a case, the trial proceeds. If a punishable contempt occurs, ex hypothesi there is a real risk of prejudice - perhaps, to adopt the formulation by Mason C.J., a substantial risk of serious interference with a fair trial. But it does not follow that, where a punishable contempt of court has been committed, the trial must be aborted. If that were the consequence of punishable contempt, the penalties imposed for contempt would be far harsher than those presently imposed, for the contempt would totally defeat the enforcement of the criminal law and penalties for contempt would have to reflect that fact. Administration of the criminal law cannot be made hostage to conduct amounting to contempt of court, even if the contempt be flagrant. If it were otherwise, the perpetrators of crimes which shock the public conscience, such as those charged in Murphy v. The Queen [39] , would oftentimes go untried and unpunished, for pre-trial publicity prejudicial to an accused is stimulated by the notoriety of the accused and the heinousness of the crime. Yet it would undermine the criminal law's protection of society and its members to refuse to allow the law to take its ordinary course in these cases. The administration of criminal justice by the courts, which proceeds inexorably to its conclusion in each case, would be adventitious if trials could be halted by a punishable contempt. In cases where a punishable contempt is committed - at least where the contempt is flagrant - public obloquy would be substituted for jury verdict and trial by media would supersede trial according to law. No community governed by law could acknowledge that persons outside the control of the State could possess such a capacity for disrupting the administration of criminal justice.

[97]

None of the publications 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 groundwork 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 sixteen-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 twelve-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". Clearly, the three broadcasts on a popular Melbourne station, in a context where specific reference was made to the pending criminal proceedings against Glennon in a Melbourne court, constituted one of the most serious cases of contempt of court, involving the public prejudgment of the guilt of a person awaiting trial, to have come before the courts of this country. All members of this Court expressed, albeit in differing words, the conclusions that the judges in the courts below had been "fully entitled to reach the clear conviction that the broadcasts constituted a substantial risk of serious interference with the fairness of the trial" of Glennon and that "the strong likelihood [was] that any juror at Fr. Glennon's trial who [had] heard one of the broadcasts would be likely to have a recollection of the substance of it and have a prejudice against him" [55] . 1. (1987) 164 C.L.R. 15. 2. ibid., pp. 53-54 and see, for a complete text of the three broadcasts, ibid., at pp. 77-80. 3. (1987) 164 C.L.R., at p. 31, per Mason C.J.; and see, also, p. 45, per Wilson J.; pp. 55-56, per Deane J.; p. 74, per Toohey J. and pp. 88-89, per Gaudron J.

[112]

Mr. Bongiorno Q.C. who appeared for the Crown did not dispute the proposition that extreme circumstances could arise - a "bizarre case" such as Tuckiar v. The King [61] - in which pre-trial publicity precludes the accused being accorded a fair trial even after a lapse of time. To the contrary, he expressly informed the Court that the Crown's submission was "that only in the most extreme case could there ever be justification for a permanent stay of criminal proceedings brought about by adverse publicity" but that the "Crown refrains from putting the higher proposition that there could never be justification for a permanent stay". Even if that "higher" proposition were in issue, it is obvious that it would not involve a question of great practical significance since, as has been seen, the judgments of McGarvie and Nathan JJ. in the Court of Criminal Appeal make plain the stringency of the proposition which they accepted, namely, that only "extreme" or "singular" circumstances might justify a permanent stay. Putting to one side that theoretical legal issue, which we would in any event resolve in favour of an accused if it arose, the substantial question which would be involved in an appeal in the present case is one of fact, namely, whether the Court of Criminal Appeal was mistaken in its assessment of either the abiding effect of the pre-trial publicity or the inability of a trial judge, by thorough and appropriate directions, to dispel that effect. Plainly, a desire to have this Court review the Court of Criminal Appeal's decision on that question of fact, which is one peculiarly appropriate for determination by a State Court of Criminal Appeal, does not suffice to justify the grant to the Crown of special leave to appeal from a verdict of acquittal entered by a Court of Criminal Appeal. A fortiori, it does not justify such a grant of special leave in the circumstances of the present case where the criminal proceedings against Glennon have already stretched over a period of more than six years, where Glennon has been released from imprisonment by reason of the decision of the Court of Criminal Appeal and where the effect of a successful appeal to this Court would be that the matter would be remitted to the Court of Criminal Appeal for consideration of a number of outstanding grounds of appeal which it was previously unnecessary to resolve.

R v Glennon - [1992] HCA 16 - HCA 1992 case summary — Zoe

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Before

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Judgment (112 paragraphs)

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Cases Cited (1)