BETWEEN : THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Contempt - Whether notice of motion specifies the alleged contempt - Whether "information" was specified with sufficient particularity - Failure to specify the words used in the broadcast said to give rise to the contempt - Failure to specify how the "information" broadcast interfered with administration of justice

1 This is the first hearing of the notice of originating motion for the contemnor to be fined for its contempt of court. At the hearing the contemnor by notice of motion moved that the proceedings be dismissed, on the basis the originating motion failed to specify certain matters.

2 I am thus called on to determine a matter on which there is a not inconsiderable body of authority, both from this jurisdiction and the United Kingdom. However, it is a body of authority that for the most part is not concerned with the type of contempt in this case, contempt by publication. This case raises questions of the content of sufficient originating process in a case of contempt by publication, questions that have some apparent practical importance. In any event they are questions on which the authorities do not, it seems to me, return altogether straightforward answers.

3 This determination must of course be made before any question of hearing the matter raised by the notice of originating motion can arise. If the determination is adverse to the mover of the notice of motion, the matter raised by the notice of originating motion will have to be dealt with at a separate hearing.

4 The proceedings arise out of the prosecution, pending at the time of the hearing of the originating motion, of Dante Wyndham Arthurs ("the accused") in relation to certain horrific and tragic events involving Sofia Rodrigues-Urrutia Shu ("Sofia").

5 On 26 June 2006, Sofia, a child under the age of 13 years, was the victim of a sexual assault involving her detention and ending in her death. The events occurred in a toilet facility at a shopping centre in Canning Vale.

6 On 27 June 2006, the accused was charged with four offences in relation to those events. One charge was that, contrary to Criminal Code, s 278, he wilfully murdered Sofia at Canning Vale. There were also two separate charges that, contrary to Code, s 320(2), he sexually penetrated Sofia there. The fourth charge was that, contrary to Code, s 333, he unlawfully detained Sofia there.

7 On 27 June 2006, in its 5 pm evening news broadcast, the contemnor included information relating to the investigation and laying of charges against the accused.

8 By notice of originating motion for contempt of court dated 30 June 2006 the applicant gave notice it would move the Court for three orders or sets of orders.

"The [Contemnor] be fined for its contempt of court for the publication of information in its television broadcast of a news report on Tuesday 27 June 2006 relating to the investigation and prosecution of [the accused] for serious offences against [Sofia] on the grounds that the broadcast thereof was likely or calculated or had a tendency to interfere with the due administration of justice."

10 Immediately following the description of the first order sought under the heading "Particulars" the following appeared:

"(a) On Monday 26 June 2006 the Western Australia Police commenced an investigation into the death of [Sofia] at Livingstone Marketplace shopping centre in Canningvale.

(b) In the early hours of the morning of 27 June 2006, the Police executed search warrants and arrested the Accused to answer charges for the offences of deprivation of liberty, sexual penetration without consent and the wilful murder of [Sofia];

(c) The course of justice was commenced by the laying of charges against the Accused by Prosecution Notice dated 27 June 2006 ("the Charges");

(d) The evening news report broadcast by the contemnor on Tuesday 27 June 2006 disclosed information that the accused had previously been questioned by the Police about an alleged sexual assault on another young girl;

(e) The material was broadcast to the jurisdictional region from which jurors for a criminal trial of the Accused in respect of the Charges would be drawn; and

(f) The material published in the broadcast was likely, or was calculated, or has a real tendency to seriously prejudice or interfere with the pending criminal proceedings against the Accused and therefore would place at risk the due administration of justice."

11 There is no other material in the notice of originating motion which it was contended before me is relevant to the present question.

12 With the notice of originating motion was filed an affidavit of Jennifer Gaye Negus in support of it. Ms Negus deposed she was a research assistant in the office of the applicant. To her affidavit was annexed, among other things, a compact disc, called in the affidavit "the Compact Disc", which she deposed:

"Contains a copy of an audiovisual recording of the news report broadcast by the contemnor at approximately 5.00pm on Tuesday 27 June 2006 relating to the investigation and laying of charges against the Accused [just referred to]."

13 Also annexed to the Negus affidavit was what she deposed was a true copy of a transcript she made of "the audio material stored on the Compact Disc".

14 By notice of motion dated 12 June 2007, the contemnor moved for the following principal order:

"The Notice of Originating Motion ('Motion') dated 30 June 2006 be struck out and the proceedings dismissed for failing to comply with Order 55 Rule 5(1) in that the Motion fails to specify the contempt of which it is alleged the Contemnor is guilty:

The Motion fails to specify:

(a) with sufficient particularity the precise words and / or images that constitute the "information" alleged to have been published by the Contemnor.

(b) how and why the 'information' published by the Contemnor was likely, or calculated, or had a tendency to interfere with the due administration of justice."

"The notice of motion or summons (as the case may be) must specify the contempt of which the contemnor is alleged to be guilty, and be entitled in the proceeding, if any, with reference to which the contempt is alleged to have been committed or if it is not alleged to have been committed with reference to a particular proceeding, shall be entitled The State of Western Australia against the contemnor (naming him) ex parte the applicant."

16 The words relevant to me are emphasised by italics.

17 These are conveniently set out and the principal authorities referred to in John Holland Pty Ltd v The Construction, Forestry, Mining and Energy Union [2006] WASC 106, Blaxell J. That was a case of alleged contempt by breaches of certain undertakings and of an interlocutory injunction. However, it was accepted before me that the principles apply equally to contempt of the sort alleged in this case, contempt by publication, as indeed one of the cases cited by Blaxell J, would indicate. That case is R v Pearce (1992) 7 WAR 395, Full Court (Malcolm CJ, Pidgeon and Rowland JJ), and in the judgment of Malcolm CJ, the other members of the Court agreeing, most of the authorities cited by Blaxell J are also cited. I will have occasion to return to Pearce in some detail.

18 In John Holland (supra), Blaxell J, at [14] - [18] said this:

"In Western Australia, 'the offence commonly known as 'contempt of court' is preserved by s 7 of the Criminal Code Act 1913 as this State's only common law offence (Re Lovelady [1982] WAR 65, 66). Accordingly, proceedings for contempt of court are not governed by the Criminal Procedure Act 2004, but by the common law and by O 55 of the Rules of the Supreme Court. For this reason the statutory provisions for amendment of indictments, and the rules for amendment of civil pleadings, have no bearing on an application to amend a notice of motion for contempt. The procedure in contempt proceedings is 'in the true sense peculiar' (Re Lovelady (ibid) at 66).

Order 55 r 5(1) requires that a notice of motion seeking punishment for a contempt of court should 'specify' the contempt alleged. This means that the allegation of contempt must be made 'in sufficient detail and particularity in order to enable the person alleged to be in contempt to have before him or her enough information to enable him or her to meet the charge' (Carew-Reid & Ors v Carew Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 930254; 23 April 1993).

In Chiltern District Council v Keane [1985] 1 WLR 619 it was held that this requirement for particularity in the notice of motion must be strictly complied with and that it is not enough to state the grounds of the application in general terms. What is required is that the person alleged to be in contempt should know 'exactly' what he is said to have done or omitted to do which constitutes the contempt of court.

It is also clear that any deficiency in the particulars which goes to the substance of the charge of contempt, cannot be made good by reference to the affidavit evidence (Carew-Reid v Carew Corporation Pty Ltd (ibid)). This is so even if the nature of the case alleged can be readily ascertained from the supporting affidavits (Chanel Ltd v FGM Cosmetics (1981) FSR 471, 478). In Harmsworth v Harmsworth [1987] 3 All ER 816, 821, Nicholls LJ held that the following test should be applied when determining the sufficiency of particulars in a notice of motion:

' ... does the notice give the person alleged to be in contempt enough information to enable him to meet the charge? In satisfying this test it is clear that in a suitable case if lengthy particulars are needed, they may be included in a schedule or other addendum either at the foot of the notice or attached to the notice so as to form part of the notice rather than being set out in the body of the notice itself. But a reference in the notice to a wholly separate document for particulars that ought to be in the notice seems to me to be a quite different matter. I do not see how such a reference can cure what otherwise would be a deficiency in the notice. As I read the rules of court and as I understand the decision in the Chiltern case the rules require that the notice itself must contain certain basic information. That information is required to be available to the respondent to the application from within the four corners of the notice itself. From the notice itself the person alleged to be in contempt should know with sufficient particularity what are the breaches alleged. A fortiori, in my view, where the document referred to is an affidavit, which does not set out particulars in an itemised form, but which leaves the respondent to the committal application to extract and cull for himself from an historical narrative in the affidavit relevant dates and times and so forth, and to work out for himself the precise number of breaches being alleged and the occasions on which they took place.'

Because of the criminal nature of contempt proceedings, leave to amend a defective notice is granted sparingly and only in instances involving minor amendments. In R v Pearce (1991) 7 WAR 395, 405, amendments to the notice of motion were allowed only to the extent that there 'was nothing new of any significance'. Similarly, in Carew-Reid v Carew Corporation Pty Ltd (ibid) the Full Court refused leave to amend because the proposed amendment sought to rectify 'a substantial defect in the original pleading of the contempt going to matters which were the substance of the charge'. Again, in Castledine v Boronga Pty Ltd [2000] WASC 215 Anderson J (at [26]) held that:

'... leave to amend a charge of contempt will not be granted if the original charge is seriously defective and the amendments which are sought are substantial: Carew-Reid & Ors v Carew Corporation Pty Ltd (supra) at 15. Where the original pleading of contempt is completely devoid of particulars and is on that account substantially defective, it is not a proper exercise of discretion to allow the person bringing the charge to cure that basic deficiency by amendment.'"

19 There is a further matter, not addressed in John Holland (supra), to which I should refer and which assumed some significance in oral argument before me. It arose out of the fact no leave to amend the notice of originating motion was applied for before me. However, senior counsel for the applicant foreshadowed such an application, if I concluded such leave should have been applied for. The matter is the scope for the Court, faced with imperfections of a sort which do not render the original charge "seriously defective", to proceed either by waiving the imperfection, or granting the application, unless there is scope for amendment and leave to amend is successfully applied for.

20 Those matters are considered in Hammond v Aboudi [2005] WASCA 204, which also contains a most useful account of the nature of the specificity called for by the principles I have referred to where there is contempt by speaking or failing to speak.

21 Aboudi was a case of the alleged statutory contempt under The Corruption and Crime Commission Act 2003 (WA), s 160(1)(b), read with s 163, of a failure to answer questions relevant to an investigation that the Commission required the person to answer. There was a certificate annexed to the notice of motion for each of the two contemnors in that case which stated, among other things, that "[h]aving regard to" the contemnor's "answers to questions asked of him and uncooperative behaviour whilst testifying" the contemnor had:

"Contrary to section 160(1)(b) of the Act failed to answer questions directed to the events he witnessed (as set out above) in the tunnel at the Metro City Night Club, 146 Roe Street, Northbridge in the early hours of 23 January 2005."

22 As will appear below, the transcript of the examinations at which the alleged failures to answer occurred were held to be incorporated by reference into the notice of motion. I will return to those examinations below.

23 In Aboudi (supra), McLure JA, with whose judgment Wheeler JA and Le Miere AJA agreed, after (in [49]) referring to authority on statutory contempt that, in the absence of a clear legislative intent, the charge must "distinctly identify the particular offence charged", and after then referring to O 55 r 5(1), said this (at [50] - [56], and [62]):

"What is sufficient particularity is a question of fact. It will be sufficient if it informs the contemnor of what exactly he or she is said to have done or omitted to do which constitutes the contempt: [Pearce] (supra); R v Parry [unreported; FCt SCt of WA; Library No 970196; 1 May 1997]. The Full Court in R v Parry considered what is required when there has been a failure to answer a question. In that case, a journalist called to give evidence before a Royal Commission had refused to answer a question on the grounds he was guided by his professional code of ethics. Section 14(1) of the Royal Commissions Act 1968 (WA) provided that if a witness refused to answer any question relevant to the inquiry put to him by a Commissioner, he may be dealt with as if he were in contempt of the Supreme Court. The particulars in the notice of motion referred to the refusal to answer questions on specified subject matters and identified the relevant pages of the transcript of proceedings.

Counsel for Mr Parry submitted that where the contempt alleged was a refusal to answer a question, the notice of motion must specify the question as distinct from merely identifying the subject matter of the question which the alleged contemnor refused to answer. In Parry the questions were specifically identified in an outline of submissions relied on by the Crown. The Court considered two issues, namely, what was sufficient particularity where there was a refusal to answer a question and whether all relevant information had to be in the notice of motion.

The Full Court had earlier held in Pearce that the information to which the contemnor is entitled must be contained within the notice of motion itself: R v Pearce at 403, 406. Further, gaps in the substantive particulars required cannot be made good by referring to material contained in affidavits: Carew-Reid v Carew Corp Ltd, unreported; FCt of SCt WA; Library No 930254; 23 April 1993.

With that background, the Chief Justice (with whom Franklyn and Murray JJ agreed) said in Parry at page 19:

'In my opinion, the particulars of the alleged contempts in this case were defective because merely indicating the pages of the transcript on which the relevant questions could be found was not a sufficiently specific identification of them. The relevant portions of the transcript were not incorporated in the motion or in a schedule attached to it so that they fell within the four corners of the notice. Merely specifying the pages in the transcript left the contemnors and those advising them to work out for themselves by reading the transcript which were the relevant questions relied upon. This was of more significance in this case because of the particular language of s 14(1) which referred to a refusal to answer a question put by the Commissioner which was relevant to the inquiry.'

As the alleged contemnor had been put on notice of the specific questions, the Full Court in Parry granted the Crown leave to amend the notice of motion to incorporate by reference the questions identified in the Crown's submissions.

In this case, the Certificates are incorporated by reference in the notices of motion. The question is whether the information in the Certificates sufficiently particularises the charges. They demonstrably fail to meet the requirement identified in Parry that the particulars contain the questions that the witness failed to answer. However, if there is only a technical irregularity that does not in any way prejudice the contemnors, it would be open to the Court to waive the irregularity or permit an amendment at a late stage if that was sought: R v Parry at p 18 citing Re B (JA) (an infant) (1965) Ch 1112 at 1118 per Cross J. There is no application to amend in this case.

Mr Tannin contended that the description of the subject matters in the Certificates was adequate identification. In my view that is not so. ...

[Her Honour explained that it was not clear, from the transcripts of the examinations, for which questions it was alleged there had been a failure to answer.]

...

The irregularity is not merely technical; the contemnors are materially prejudiced by the failure to specify the questions they failed to answer. The failure to identify the questions means the relevance of the questions to the investigation cannot be adequately tested. Furthermore, there needs to be certainty as to the specific questions the subject of the charges so the defendants know precisely what is required in the event they were minded to purge any proven contempt (as to which, see Wood v Galea (1996) 84 A Crim R 274)."

24 The reference to R v Parry, unreported; FCt SCt of WA; Library No 970196; 1 May 1997, with respect to waiver of an irregularity or permission for an amendment at a late stage, appears to be to the following passage there, per Malcolm CJ, Franklyn and Murray JJ agreeing, at 18:

"In Re B (JA) (An Infant) [1965] Ch 1112at 1117-1118, Cross J made it clear that the notice of motion must set out the grounds upon which the alleged contemnor is said to be in contempt. His Lordship went on to say at 1118:

'It is clear that if safeguards such as these have not been observed in any particular case then the process is defective, even though in the particular case no harm may have been done.'

His Lordship also referred to Taylor v Rowe [(1893) 3 R 259] and went on:

'When, however, one passes away from safeguards which are laid down in the interests of the contemnor and comes to consider mere verbal deficiencies in the documents in question, cases where the documents do not comply strictly with the rules but it is impossible that on any conceivable case the contemnor could in any way be prejudiced by the defects, then it seems to me that there is no reason why the court should be any slower to waive such technical irregularities in a committal proceeding than they would in any other proceeding.'"

Was there a failure to specify the "information" with sufficient particularity?

25 It will be noted that the notice of originating motion refers to "information" twice - once in the statement of the conduct which should be punished as a contempt which appears before the "Particulars" ("the publication of information in its television broadcast"), and again in particular (d) ("[t]he evening news report broadcast by the contemnor on Tuesday 27 June 2006 disclosed information").

26 The notice of originating motion also uses "material" twice, in particular (e) ("[t]he material was broadcast") and particular (f) ("[t]he material published in the broadcast was likely, or was calculated, or has a real tendency to serious prejudice or interfere with the pending criminal proceedings against the Accused").

27 As I understood senior counsel for the contemnor, two objections were made to the description of the "information" in the notice of motion. One, arising out of the use of "information" and "material", was that the notice of motion was unclear as to what the substance of the charge of contempt was. The other was that the notice of motion should have contained the exact words used in the television broadcast that was the disclosure of "information" relied upon.

28 As to the first objection, it was put to me by senior counsel for the contemnor that the change from "information" to "material" raised a difficulty for it in determining whether or not something more than the "information" referred to in particular (d) was being referred to. That difficulty was the changes' tendency reasonably to leave the contemnor uncertain whether or not the entirety of the broadcast was relied upon as the contempt.

29 I took it that the conclusion I was asked to draw was that this was a lack of sufficient particularity that could not be cured by waiver or amendment. In any event, it was put to me, I should note from Aboudi (supra) that, in the absence of an application to amend, even a technical irregularity that does not in any way prejudice the contemnors would be sufficient for me to grant the motion to dismiss.

30 I will consider the last point, from Aboudi (supra) in the context of the second objection only. I do not consider I need to deal with it in the context of the first objection.

31 That is because I do not consider there is merit in the first objection. It seems to me "material", read in its context, is being used in the sense of the matter in the broadcast that disclosed the "information" referred to. The broadcast is of course the context in which and the medium by which the disclosure is alleged to have been made.

32 I have so concluded adopting the approach from Harmsworth v Harmsworth [1987] 1 WLR 1676, CA, per Nicholls LJ, Wolff LJ agreeing, at 1683, which follows the passage quoted from his judgment in John Holland (supra), and is:

"[i]n applying that test [that is, from the notice itself the person alleged to be in contempt should know with sufficient particularity what are the breaches alleged] the contents of the notice are to be read fairly and sensibly as they would be read by a reasonable person in the position of the alleged contemnor to whom the notice is addressed. Would such a person, having regard to the background against the committal proceeding is launched, be in any doubt as to the substance of the breaches alleged?"

34 The information disclosed by the material referred to is specified further only in particular (d), as "that the accused had previously been questioned by the Police about an alleged sexual assault on another young girl".

35 From the transcript of the broadcast annexed to the Negus affidavit there are two passages in the broadcast that might be taken to be so indicating. In making this reference, I am not of course relying on the affidavit to make up for any deficiencies in the notice: on the principles I have cited, that is impermissible. Rather, I am considering what further detail might have been supplied the absence of which might illuminate a lack of "sufficient particularity". See the approach to the transcript in Aboudi (supra), per McLure JA, at [56] and [58].

36 The first reference is by the "Presenter" whose words immediately precede the first words of the "Reporter". The "Presenter's" words in the transcript are as follows:

"But first tonight the sickening murder of a little Perth girl has shocked the State. A sexual predator pounced on 8 year old Sofia Rodriguez-Urrutia Shu in a shopping centre toilet, molested her, then killed her. A 21 year-old shop assistant has been charged with her rape and murder, amid revelations he has been questioned over child sex offences in the past."

37 The last passage in the transcript, from the "Reporter", contains the other reference. The transcript shows the "Report" saying this:

"It's now been revealed the man had been questioned by police about a sex attack on another young girl some time ago, but there was not enough evidence to take the case to court. Police have seized the man's car and other evidence from the home he shared with his parents. This afternoon, he was remanded in custody to appear in the Supreme Court next month. Rex Haw, Ten News."

38 There is of course accompanying vision, from the compact disc also annexed to the Negus affidavit, of the "Presenter" speaking in the first case, and of a house, and of a car being removed, in the second.

39 It will be noted there are differences between the references, and between both and the charge in the notice of motion. There is no reference to the gender of the victim or victims in the "Presenter's" reference to questioning over "child sex offences". There is only one incident referred to by the "Reporter", described as a "sex attack on another young girl". Neither refers to the incidents or incident in question as "alleged".

40 However, both references highlight the age of the victims or victim in terms tending to indicate they were children as the victim in this case was. Both indicate that the police "questioned" the accused. Both indicate the questioning was "about" or "over" sexual conduct towards the victims or victim.

41 Senior counsel for the contemnor drew my attention to the analysis in Aboudi (supra) of the irregularity in the notice of motion in that case that was not a "merely technical" one (per McLure JA, at [62]). However, I do not consider that the transcript of the broadcast in this case reveals an irregularity of equivalent significance. To indicate why I have so concluded, I need to consider in more detail why her Honour reached the conclusion she did.

42 As I have indicated, there were two contemnors in Aboudi (supra). They were Sorani and Aboudi. Her Honour's analysis of the transcript of the first of the two examinations of both revealed "similar difficulties" ([58]). She concluded from her analysis of the second examinations for both that "[t]he problems with identifying the relevant questions in the first examinations consequently taint the second examinations" (at [61]). For my purposes, I have concluded that I am able to focus simply on the analysis for Sorani.

43 Certificate for Sorani contained the following items prior to the one concerning his "answers to questions" and "uncooperative demeanour" previously quoted:

• On 9 March 2005 Mr Sorani testified he had no memory of the events [in the nightclub described] because he was intoxicated;
• Mr Sorani was summonsed in accordance with section 48 of the Act to reappear before the Commission on 12 April 2005. Mr Sorani again testified he had no memory of the events [above] because he was intoxicated.

44 The certificate for Aboudi was materially the same.

45 I have already referred to the conclusions of McLure JA in Aboudi (supra) that the descriptions of the subject matters in the certificates for Sorani and Aboudi were not adequate identification, and that each involved an "irregularity" that was "not merely technical". I have further indicated she arrived at this conclusion on a review of the transcripts of the first examinations (that of 9 March 2005, for Sorani). Following the analysis of the transcript for the first Sorani examination, her Honour said this, at [57]:

"On a number of occasions in the above exchange Mr Sorani did not merely claim that he had no memory of the events. For example, he said he did not see Mr Dabag being shot and he did not know whether Mr Kizon or Mr Mercanti had a firearm. The inference from the Sorani Certificate is that his answers to all questions on the specified events were that he had no memory of the events. That inference is not borne out by the transcript. Accordingly, it is unclear whether the Commissioner contends that Mr Sorani's answer that he did not see M Dabag being shot is a constructive refusal to answer. Further, it is also unclear whether Mr Sorani's answers that he had no idea whether Mr Kizon and Mr Mercanti had a firearm is alleged to be a constructive refusal to answer (they may be a positive statement of lack of knowledge or a failure of recollection)."

46 It seems to me there was no similar inadequacy of identification revealed by the transcript of the broadcast in this case as I have described it. It seems to me that there are two matters in it which, by reason of the similarities between them that I have described, represent the disclosure referred to. The differences, unlike the disjunctures between the material in the transcript of the first Sorani examination and the Certificate for him in Aboudi (supra), would not cause the "reasonable person in the position of the alleged contemnor to whom the notice is addressed" (Harmsworth (supra), at 1683) any difficulty in determining what it is that is said to constitute the substance of the conduct in contempt.

47 However, unlike in relation to the first objection, I consider there is a deficiency in the notice of originating motion to the extent it does not set out the words used in the broadcast that worked the disclosure referred to in particular (d). This is the result of my understanding of the answer to the equivalent question in Pearce (supra). However, I do not agree with the submission put to me by senior counsel for the contemnor that Aboudi requires me to conclude that I must dismiss the notice of originating motion without giving the opportunity to the Applicant to amend it to supply the missing words.

48 To explain my conclusion as to the deficiency referred to, I must consider Pearce (supra) in more detail, commencing with the form of the notice of motion there, and the proposed amendment of that notice leave for which was applied for in that case.

49 That notice of motion as quoted in Pearce (supra) at 398 was as follows:

"The first contemnor [Pearce, a state Minister] making statements likely to prejudice to be published, the second contemnor [the producer and editor and editor of the evening news for Channel 10, Perth] causing those statements to be published and the third contemnor [the owner of Channel 10, Perth] publishing those statement by way of television broadcast on 29 January 1992 on the grounds that the making of the statements and the publication thereof were -

(a) likely or calculated or had a tendency to prejudice the fair trial of an action then pending in the District Court; namely, R v Adele Farina;

(b) likely or calculated or had a tendency to prejudice, obstruct or interfere with the due administration of justice;

(c) likely or calculated or had a tendency to influence the jury in the trial to acquit by communicating to them as members of the public material which was extraneous and inadmissible; namely, the belief of the first contemnor in his capacity as a minister of the Crown and a witness who had given evidence in the trial in the innocence of Adele Farina."

50 At the time when the notice of motion was listed for mention, before members of the Full Court as it was then constituted, those members "expressed the view that the notice was deficient in that certain particulars that one would expect to see in the notice were not included in it": Pearce (supra) at 398.

51 The proposed amendment in Pearce (supra) at 400 - 401 was as follows, to be incorporated after "(c)" above:

"PARTICULARS OF STATEMENTS MADE BY THE FIRST CONTEMNOR

'Obviously she's still my principal private secretary. I don't believe that she's done anything wrong.'

PARTICULARS OF STATEMENT PUBLISHED AND CAUSED TO BE PUBLISHED BY THE SECOND AND THIRD CONTEMONOR.

'A news item broadcast by the third contemnor during a regular news broadcast on 29 January 1992 about the trial of R v Farina, then proceeding in the district court, commencing with the words:

'In Bob Pearce's office Adele Farina was second only to the minister'

'The trial is continuing. Jill Colgan 10 Eyewitness News.'"

52 During the course of the hearing there was a further amendment proposed, that words be inserted in the second set of particulars above, at the beginning, "The statement set out above as allegedly made by the first contemnor as contained in".

53 The amendment setting out the words alleged to have been used was described as rectifying (Pearce (supra), at 401):

"One of the deficiencies previously identified in relation to the notice, namely, that so far as the first contemnor was concerned, the words actually alleged to have been used by him were not specified in the notice."

54 In Pearce the Court determined that "(a)" and "(b)" in the notice of motion should be struck out, but that leave should be given to amend the notice of motion as proposed. A short account of the reasoning of the Court in relation to both matters is at 404 - 405 in the judgment of Malcolm CJ, as follows:

"In my view, insofar as the particulars sought to be inserted by the amendment related to pas (a) and (b) of the notice of motion, leave to amend should be refused. The leave to amend should be limited to ground (c) of the notice of motion. Ground (c) of the notice of motion does specify the alleged contempt and gives particulars of the relevant tendency in terms of influencing the jury in the trial to acquit by communicating to them the first contemnor's belief in the innocence of Adele Farina. The particulars do nothing to enlarge upon the relevant tendency alleged in pars (a) and (b).

In the end, it may not matter a great deal as the gravamen of the alleged contempt is the impact of the words alleged to have been spoken by the first contemnor and published by the second and third contemnors upon the jury then sitting in Adele Farina's trial.

It is very relevant to the exercise of discretion that par (c) sets out the substance of the alleged contempt and that the words which were said to have been spoken were referred to in par 4 of Burnett's affidavit. As a consequence there is nothing new of any significance so far as the amendment is concerned by making it as against the first contemnor. So far as the second and third contemnors are concerned it was, in my view, quite clear that it was the words referred to in par 4 of Burnett's affidavit which were alleged to be the contemptuous words which they published or caused to be published. Likewise in their case, there could be no prejudice as a result of granting leave to amend.

So far as pars (a) and (b) are concerned it follows, in my view, from the refusal of the application for leave to amend in relation to those paragraphs that they should be struck out. The effect of striking them out is that some consequential amendment would be necessary to par (c) in order that the identification of the trial made in par (a) should be inserted into par (c)."

55 It seems to me Pearce clearly indicates that the present notice of originating motion was deficient in not setting out the words actually used in the broadcast by which it was alleged that the disclosure was made. It was not contended before me by either side that there was any other form of disclosure (such as by captions or other visual material) with respect to which the contemnor might have had difficulty determining whether or not it was part of the contempt alleged, and none is apparent to me from viewing the broadcast using the compact disc annexed to the Negus affidavit. However, I will consider below whether or not other material at another point in the broadcast might be seen to raise a difficulty for the contemnor in determining the case it had to meet.

56 On the same authority the deficiency is one that it seems to me might have been rectified by amendment for which leave could have been sought before me. The transcript of the broadcast is an attachment to the Negus affidavit. The referents of the notice of motion in that affidavit are, I have concluded, sufficiently clear, even if there is not the same precision as in Pearce, where the words were singled out in par 4 of the Burnett affidavit (see at 398 - 399).

57 However, as I have indicated, senior counsel for the contemnor submitted that, on the authority of Aboudi (supra), per McLure JA, Wheeler JA and Le Miere AJA agreeing, at [55], where (as here) leave is not applied for, but a deficiency is found, even one susceptible of cure by amendment, the notice of motion must be dismissed.

58 In Aboudi as I have indicated the Court concluded that the deficiency was "not merely technical". Further, I do not read the passage in the judgment of McLure JA to the effect contended for. My reasons for the latter conclusion are these.

59 It is indeed fundamental that the application of the requirements for the notice of originating motion reflect the criminal character of proceedings for contempt. It is for that reason that the "specific offence charged against [the contemnor] be distinctly stated": Aboudi (supra), per McLure JA, at [22]. It is for that reason that "the grounds on which the alleged contemnor is said to be in contempt" must be within the notice of motion: Pearce (supra), per Malcolm CJ, at 402, referring to Re B (JA) (An Infant) [1965] Ch 1112, per Cross J, at 1117 - 1118. If that safeguard has not been observed, then "the process is defective, even though in the particular case no harm may have been done thereby": Re B (JA), per Cross J, at 1118, quoted in Pearce at 402.

60 However, following that last quotation in Pearce (supra) from Re B (JA) (supra) there appears the further quotation from the latter case which is also set out in Parry and which I previously set out, concerning the position where "it is impossible on any conceivable case the contemnor could be in any way prejudiced by the defects". It will be recalled that that passage, as it appears in Parry, also appears to have been referred to, with approval, in Aboudi (supra), at [55].

61 I do not understand how the possibility of an amendment in such circumstances should depend on whether or not the applicant applied for it at the time it received the contemnor's motion to dismiss, or no later than the commencement of the hearing of that motion. If waiver in such circumstances might be possible, it is difficult for me to see why I might not order the dismissal of the notice of originating motion unless the applicant obtains leave to amend to cure the deficiency.

62 This conclusion also it seems to me disposes of the contention of senior counsel for the contemnor that the language of the notice of originating motion, before the "Particulars", and in particular (f), was sufficiently similar to the language so dealt with in Pearce (supra) that the result should follow that the notice of originating motion should be dismissed. However, it was not contended that the language of that notice could not be read taking account of the particulars as a whole. Unlike Pearce, that language, in the first case is to be treated as particularised by what follows, while in the second case the language is to be treated as the conclusion to be drawn from that particularisation.

63 This takes me to the other basis for objection to the notice of originating motion, going to its failure to specify "how and why the 'information' published by the Contemnor was likely, or calculated, or had a tendency to interfere with the due administration of justice".

Was there a failure to specify how and why the "information" was relevantly an interference?

64 On the principles I referred to in the section before last, it is not enough for the notice of motion for contempt to describe conduct which represented the contempt. The contemnor should be informed of the way in which the conduct is alleged to be a contempt.

65 The matter has been explored in some detail in relation to contempt of an undertaking or order, although not, on the authorities cited to me, contempt by publication. However, senior counsel for the contemnor put to me there was relevant material to be found in a number of the authorities on the latter form of contempt.

66 In John Holland (supra), there had been undertakings given to the court, the subject of a subsequent interlocutory injunction in exactly the same terms, that the defendants would not interfere with the performance of certain nominated contracts with certain exclusions. The notice of motion alleged certain directives or instructions to members or delegates of the CFMEU "to engage in unlawful industrial action". In respect of the four contempts of the undertakings, Blaxell J said this, at [10]:

"All four contempts are said to have been committed by way of instructions or directions to members of the first and second contemnors to engage in 'unlawful industrial action'. (I understand this to be an assertion as to the effect of the instructions or directions rather than particulars of the actual words that were used.) Although it is easy to guess why the alleged acts might have been contempts, the particulars do not specify the reasons why such instructions and directions amounted to breaches of the undertaking."

67 Leave to amend the notice of motion was sought and the amendments were described by Blaxell J at [12] as follows:

"The plaintiff's minute of proposed amendments to the notice of motion seeks to overcome these shortcomings. If the amendments are allowed, the additional particulars will clarify that the directives to engage in unlawful industrial action were attempts to interfere with the performance of contracts referred to in the undertaking and/or order. The particulars will also clarify that the directives were to employees of the plaintiff or of the plaintiff's subcontractors and were for them to breach their contracts of employment."

69 In relation to contempt by breach of an undertaking or similar, there will often be a number of ways in which breach might occur. The courts have required in such cases that the particular way or ways the applicant relies upon be sufficiently specified: see the authority, referred to in John Holland (supra), Blaxell J, at [16], of Chiltern District Council v Keane [1985] 1 WLR 619, CA, per Donaldson MR, Parker and Browne-Wilkinson LJJ agreeing, at 622.

70 In relation to contempt by publication, the relevant tendency might, most obviously, be in relation to parties, witnesses, a jury or the presiding judicial officer, or any combination of these. See Re Coroner's Court of Western Australia; ex parte Porteous [2002] WASCA 144, per Steytler J, at [19] (parties); [36] (witnesses); [34], [36] (empanelled or prospective jurors); and [32] (the Judge). There are other, less obvious, possibilities, such as undermining the authority of the Court or its ultimate decision: per Steytler J, at [46].

71 It seems to me that the logic of the authorities on contempt by breach of an undertaking or order applies to the present setting, of contempt by publication. There is some (inferential) support for this view I derive from Pearce (supra), at 405, on the characterisation of ground (c) there, and the dealing with grounds (a) and (b).

72 If so, then the particular form of the relevant interference with the administration of justice must be sufficiently specified. What should be that form in a case like this one?

73 At the least, it might be suggested, there should be specified the person or persons from actual or prospective influence with respect to whom there would be the relevant interference with the administration of justice. It seems to me that in this case that any such requirement is satisfied. I consider below whether or not there would be such a requirement in all cases.

74 For the purposes of any such requirement I note particular (e), above. That particular is in less detail as to the form of the influence on jurors than ground (c) in Pearce (supra). I will return to that matter below. However, particular (e) in my view adequately identifies prospective jurors.

75 True it is that the notice of originating motion does not expressly say, there or elsewhere (as in particular (f)), that the relevant influence is to be identified with and solely with the persons in particular (e). However, it seems to me that such identification is sufficiently evident from a reading of the (relatively) short notice of originating motion as a whole, and particularly in the sequence of particulars (d), (e) and (f), with the latter, the final particular, recapitulating the language preceding the heading "Particulars". I note again the approach from Harmsworth (supra) at 1683, of reading a notice of motion for contempt, "fairly and sensibly as they would be read by a reasonable person in the position of the alleged contemnor to whom the notice is addressed".

76 Senior counsel for the contemnor put to me that particular (e) could not be seen to serve any such purpose I have described because, as I understood his submission, it lacked the further specification of the form of the influence on the jurors such as that in ground (c) in Pearce (supra). Here, it was not specified whether or not it was alleged that the alleged disclosure relevantly interfered with the administration of justice because it would incline potential jurors adversely to the accused, or because it would incline them in his favour, as by exciting sympathy for him, or indeed both possibilities. However, I consider this submission goes rather to the matter of any additional requirement, such as how and why there would be any relevant interference with the administration of justice, which I now consider.

77 Senior counsel for the contemnor put to me that it was not sufficient simply to identify prospective jurors (or other actors) with respect to whom the relevant interference was alleged. It was also necessary, at least in a case like this one, to go further, as had been done in Pearce (supra), where ground (c) was amended so that, at the hearing of the notion of motion, the sole ground read as follows (per Malcolm CJ, Pidgeon and Rowland JJ agreeing, at 407):

"... the making of the statements and the publication thereof were likely or calculated or had a tendency to influence the jury in the trial of an action then pending in the District Court, namely the Queen against Adele Farina, to acquit by communicating to them as members of the public material which was extraneous and inadmissible, namely the belief of the first contemnor in his capacity as a Minister of the Crown and a witness who had given evidence in the trial, in the innocence of Adele Farina."

78 It will be noted that, with the deletion of grounds (a) and (b), there appears to have been no reference in the notice of motion in Pearce as ultimately to be heard to an interference with the administration of justice. In my view this was unnecessary on that form of the ground. It will further be noted that the sole ground was very similar to the original ground (c). In my view there was no material difference for my purposes.

79 Senior counsel for the contemnor also drew to my attention a passage in the judgment of McHugh JA (as he then was) in Attorney-General for New South Wales v John Fairfax & Sons Ltd and Bacon (1985) 6 NSWLR 695, CA, which senior counsel said supported his position.

80 That case concerned a charge for contempt of court for the publication in a newspaper, published by the first opponent, of certain matter about a New South Wales policeman, written in large part by the second opponent. The charge was described by McHugh JA in John Fairfax & Sons (supra) at 700 as follows:

"The summons alleges that the article 'was likely or calculated or had a tendency to interfere with the proper administration of justice in connection with the hearing' of a charge against Roger Caleb Rogerson, a Detective Sergeant of Police. Five particulars of the alleged contempt are given: (a) the article disclosed material which might be relevant to the hearing; (b) it disclosed material which may not be relevant to the hearing; (c) the introduction to the article emphasised the significance of material relevant to the hearing; (d) the article was likely or calculated or had a tendency to influence the mind of the magistrate presiding over the committal proceedings; and (e) the article was likely or calculated or had a tendency to influence persons who might serve as jurors at any trial."

81 I note that no objection appears to have been taken to the form of the summons in that case. However, I also note from Pearce (supra), at 404 that the fact that a form of charge has been used in the past without objection is no answer if "in the particular context" of the present case "it reveals a deficiency or want of particulars". I will return to this quotation in full below, as senior counsel puts heavy reliance upon it.

82 In John Fairfax & Sons (supra), McHugh JA said this, at 702, the passage on which senior counsel for the Contemnor put particular reliance:

"The claimant alleges that the article suggested that Detective Rogerson was a murderer, a basher, a rapist, and a suborner of witnesses, that he engaged in illegal drug activities, that he was involved in the shooting of Drury, that he had engineered an improper investigation by the CIB, that he was involved in soliciting bribes, and that he had attempted to murder Pouch. Beyond argument, the article was defamatory of Sergeant Rogerson. But I am unable to agree that it bore any of the meanings for which the claimant contends. Counsel for the claimant said that it was not necessary to assume that all jurors are reasonable. He said that it is a possibility that neurotic people, badly educated people, and excitable people might be selected on the jury and that regard must be had to the effect of the article on those sorts of persons. I do not accept this submission. In my opinion the test for determining the meaning of words alleged to constitute a contempt is the effect on an ordinary reasonable member of the community. This is the test for meaning in the law of defamation. I do not think that any more stringent test should be applied in the law of contempt, particularly as the proceedings are criminal in nature."

83 Senior counsel for the contemnor submitted I should conclude from this his Honour was supporting the requirement for a charge of contempt in a case such as this one to set out what effect on prospective jurors, as "ordinary reasonable members of the community", the words used would have.

84 I do not so read his Honour, although this is a matter I will need to return to. It seems to me he is simply stating the test for determining what meaning the article could have by reference to which the court should determine whether or not the article was likely or calculated to influence the jury. Nowhere could I find in his judgment that he indicates it is a conclusion to be drawn from his statement that charges for contempt should be drawn as was contended for. Rather, McHugh JA applies the test he describes to the words to exclude some meanings and to arrive at the conclusion that:

"The highest that the case for the claimant can be put, in my opinion, is that there are grounds for suspecting that Sergeant Rogerson is guilty of a number of serious breaches of the law and that they require further investigation: cf Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293."

85 However, as I will explain, the meaning it was alleged would be given to the words relied upon as the alleged contempt might be of importance to determining the sufficiency of the specification of the contempt alleged for the purposes of O55 r 5(1).

86 I also understood senior counsel for the contemnor to put to me that, whether or not McHugh JA in John Fairfax & Sons had meant to put the matter for the purpose of the drafting of charges, the importance of setting out the way the publication would be understood by the jury in a case like this one emerged from the relevant submissions of senior counsel for the applicant in this case. It was contended those submissions showed the need for the contemnor to know how the relevant interference through the relevant actor was alleged to operate.

87 Those submissions were, in the papers for the Judge, dated 15 June 2007, at pars 12 and 14.

"The entitlement of an accused under our law is to have a trial upon all the evidence which is legally admissible and only upon such evidence. Publishing matters which are, or may be, inadmissible at trial constitutes a contempt of court: R v Saxon, Hadfield and Western Mail Ltd [1984] WAR 283 at 292."

"The broadcast statements that the Accused has been questioned over child sex offences in the past and by police about a sex attack on a young girl some time ago suggest that he has a propensity for sexual offending against children and suggest that he had avoided prosecution in the past because of a lack of evidence. Evidence of the involvement of the Accused in other alleged sex offences may or may not be rules admissible in any trial in respect of the current proceedings. Publication of such evidence has the clear potential to compromise the fair and impartial trial of the Accused R v Saxon, Hadfield and Western Mail Ltd (supra) at 292 - 293."

90 Neither the possibility that the broadcast would be taken to refer to the proclivity of the accused (who was nowhere named in the broadcast), nor the possible inadmissibility of the statements so understood, was alleged in the notice. This meant the allegation of contempt was not "in sufficient detail and particularity in order to enable the person alleged to be in contempt to have before him or her enough information to enable him or her to meet the charge": John Holland (supra), at [15], quoting from Carew-Reid & Ors v Carew Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 930254; 23 April 1993.

91 I disagree that the conclusion contended for necessarily follows from the failure of the notice of originating motion to spell out the meaning contended for. It seems to me that, with the test described by McHugh JA in John Fairfax & Sons (supra), the law provides for the matter of how to determine the meaning of the words alleged to be the contempt. It does not seem to me that, at least on their face, on the particulars in this case (if amended as I have indicated) that the contemnor is necessarily not in a position to determine what possible meanings relevant for the purposes of the law of contempt it should prepare to meet.

92 In any event, the matter of whether or not on those meanings the matter the words conveyed would or would not be inadmissible does not it seems to me go to other than a contest over the relevance of admissibility to the contempt alleged.

93 I note for this purpose that in Pearce (supra) one of the matters for which senior counsel for the contemnor contended in relation to the particulars the subject of the proposed amendments to the notice of motion was that (per Malcolm CJ, at 406):

"The words complained of were not capable of contempt as a matter of law because, although it was put in various ways, the statement could not be interpreted as a statement that would convey to members of a jury, viewed as ordinary persons, the meaning that the first contemnor believed, that Ms Farina had done nothing wrong. The statement was put in terms of the negative and was merely concerned with the presumption of innocence.

This may well be a matter which will be agitated at the substantive hearing. At present all that I would say is that it is arguable that, in the context, it would convey a meaning to a jury that, in the belief of the first contemnor Ms Farina was not guilty of any offence and was indeed innocent."

94 However, senior counsel for the contemnor also relied on two other sources which he put to me made good his contention. In my view, those sources do indeed make good that contention in this case.

95 One was a passage in the judgment of Malcolm CJ in Pearce (supra), at 404, part of which I have previously quoted. The passage in full is as follows (italics in original):

"In my opinion, the mere fact that a formula which has in the past been used without objection has on this occasion been used is no answer if in fact in the particular context it reveals a deficiency or want of particulars. I note that in Atkins' Court Forms (2nd ed), vol 12, the statement which recommended to be used for the purposes of O 52, r 2(2) of the equivalent English rules is to the following effect:

'The grounds upon relief which relief is sought are that the defendant's conduct in publishing the said article was intended or calculated to impede, obstruct or prejudice the administration of justice in that the publication was (state grounds).'"

96 I took it this passage was to be read with the form of the ground in Pearce (supra) which was upheld, ground (c). Malcolm CJ commented (at 404) that the form of that ground appeared to have been drawn from a corresponding particular in Director of Public Prosecutions v Wran (1986) 7 NSWLR 616, which his judgment reproduces (at 403 - 404). He indicates with respect to that particular (at 404):

"Suffice it to say that in Wran's case, the allegation of a tendency to interfere with and / or prejudice the due course of justice in the new trial was to be read with particulars stating the alleged effect of the statements which he made and particulars regarding the circumstances under which the statement was made."

97 I consider that this material does establish that in a case of contempt by publication that the effect of the alleged contempt would need to be specified.

98 There is no doubt that the notice of originating motion relied upon (even after the amendment I would allow) does not go as far as the (original and amended) ground (c) in Pearce (supra) precisely in the respect identified, that of the failure to specify the effect of the alleged contempt.

99 I do not consider that for this purpose a distinction should be drawn, as apparently contended for by senior counsel for the applicant, between an empanelled jury (as in Pearce) and prospective jurors (as here). Senior counsel for the applicant put to me that the interference with the administration of justice might be seen in responses by the prosecution or the judge to the matter of the influence of the publication on prospective jurors. The response from the prosecution might be to seek a stay or adjournment of the prosecution. The response from the judge might be to give a direction the efficacy of which might be in some doubt. Both possibilities, it seems to me, raise the question, posed by senior counsel for the contemnor, of why the publication to the jurors would create such possibilities, and whether or not the reason or reasons must be set out in the notice of motion for contempt.

100 At the same time, I consider that the grounds might be in a form that describes the effect by reference simply to the language used in the alleged contempt, and the persons with a prospective involvement in the trial to whom the language was communicated. Indeed, authority relied upon by senior counsel for the contemnor to make his contention good, in my view, indicates this.

101 That authority is Re Saxon, Hadfield & Western Mail [1984] WAR 283. My attention was drawn by senior counsel for the contemnor to the passage from the judgment of Kennedy J, with whose observations Pidgeon agreed, at 292:

"One of the obvious and well-recognised ways in which a fair trial can be prejudiced is by disclosing the prior convictions of the person facing trial or by commenting unfavourably upon his character. Juries are regarded as vulnerable to such comments, because it is extremely tempting for one person to judge another's guilt from his character (or reputation). The publication of such material amounts to contempt because it potentially brings to the notice of prospective members of the jury facts, very damaging to the accused, which they are not normally entitled to know as jurors, and which have a tendency to create bias against the accused: see s 8(1)(e) of the Evidence Act 1906 and Borrie and Lowe, Law of Contempt (2nd ed), pp 95-8. the entitlement of an accused under our law is to trial upon all the evidence which is legally admissible and only upon such evidence: see R v Tibbits [1902] 1 KB 77 at 88-89 and R v Parke (1903) 2 KB 432 at 437. This principle goes back as far as 1742 - Roach v Garvan [1742] EngR 142; (1742) 2 Atk 469; 26 ER 683."

102 That passage in my view tends to indicate that publication of prior convictions, or indeed unfavourable comments on his character, of a person charged with an offence might require less detail that otherwise in the notice of motion for contempt by that publication, because of the "obvious and well recognised ways in which a fair trial can be prejudiced" by such disclosure.

103 However, in my view there is no obvious or well recognised way in which information of the sort that forms the alleged contempt here would have such an effect, in the sense that simply identifying the information as disclosure to potential jurors would provide "enough information to enable [the contemnor] to meet the charge" (Carew-Reid (supra), as quoted in John Holland (supra), at [15]). The contrast is with information as to prior convictions of an accused.

104 Information as to prior questioning by the police and its discontinuance might arguably bias the prospective juror against the person concerned, or in his favour. I appreciate that in this case the applicant is not contending for the latter effect. However, as senior counsel for the contemnor put to me, the contemnor might, without further specification take it that the information in the broadcast might be alleged to be so understood. In that last respect, my attention was called to a part of the broadcast where there is a reference by a senior police officer to the possibility the offender was "deranged". That forms part of the context of the information forming the alleged contempt, of course. I took from that reference that the nature of the information relied upon, in its context, whether in the original or (to be) amended form of the statement of that information, was not sufficient to overcome the lack of specification of the effect of the information that was alleged to be the relevant tendency to interfere with the due administration of justice in the particular proceedings.

105 I agree with senior counsel for the contemnor's contention. I note in particular that the fact the effect might appear to be "easy to guess" (see John Holland (supra), at [10]) is not sufficient: the contemnor must be able, from the notice of originating motion, to know "exactly" the nature of the contempt alleged (at [18]).

106 It follows from my analysis above that the deficiency in the respect I have identified in this section of my reasons is a substantial defect that cannot be cured by leave to amend.

107 It follows I would allow the contemnor's motion to dismiss the originating motion for contempt.

108 I will hear from the parties as to the orders to made following from this conclusion.