Craig Burgess Thesis

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LLM THESIS

Identification of a suspect before being charged;legitimate freedom of speech or a threat to a fair trial?

Craig Neilson Burgess BASchool of LawAcademic qualification for which this thesis is submitted:

Master of LawsYear submitted: 2005


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Keywords

Contempt of court subjudice naming suspects before charge effect of

prejudicial pre- trial publicity influence on jurors memory freedom of speech

open justice public interest public safety - fair trial evidential problems -

remedies for prejudicial publicity preferred approach.

Abstract

Identification of a person suspected of a heinous crime before being charged risks

prejudicing a fair trial. Present laws place this type of publicity outside the reach of

sub judice contempt. This thesis argues there should be a change in the law of sub

judice contempt making it an offence for the media to publish the fact that a person is

under investigation until the person has been charged.


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TABLE OF CONTENTS

TABLE OF CASES 6

TABLE OF STATUTES .. 12

1. INTRODUCTION 16

2. FREEDOM OF SPEECH v A FAIR TRIAL . 21

2.1 FREEDOM OF SPEECH212.1.1 Public Interest2.1.2 Public Safety2.1.3 Open Justice2.1.4 Statutory exception to the principle of open justice2.1.5 Other non-publication provisions

2.2 A FAIR TRIAL54

3. ANALYSIS OF PRESENT SUB JUDICE CONTEMPT LAW 64

3.1 WHEN ARE PROCEEDINGS SUB JUDICE ? 68

3.2 PRESENT SUB JUDICE CONTEMPT LAWIN OTHER JURISDICTIONS733.2.1 England3.2.2 New Zealand3.2.3 Ireland3.2.4 Proposals for the reform of the timing provisions.

4. INJUSTICE OF SUSPECT IDENTIFIED

BUT NOT CHARGED. 98 4.1 THE ATTORNEYS'-GENERAL ROLE IN ISSUING

CONTEMPT PROCEEDINGS 111

4.2 POLICE/MEDIA CO-OPERATION:AN UNHOLY ALLIANCE..113

5. REMEDIES FOR OVERCOMING THE EFFECTS OFPREJUDICIAL PUBLICITY 120

5.1 DELAYING THE START OF A TRIAL120


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5.2 CHANGING THE VENUE. 123

5.3 JUDICIAL INSTRUCTIONS.. 125

5.4 DISCHARGING A JURY BEFOREVERDICT. 129

5.5 CHALLENGE FOR CAUSE.. 131

5.6 PERMANENT STAY OF PROCEEDINGS 138

5.7 TRIAL BY JUDGE ALONE 146

5.8 CONCLUSION 150

6. ANALYSIS OF DATA.. 152

6.1 INFLUENCE ON JURORS ...155

6.2 EVIDENTIAL PROBLEMS REGARDINGPREJUDICIAL PUBLICITY... 161

6.3 MEMORY 1706.3.1 Short-term memory6.3.2 Long-term memory

6.3.3 Retrieval of long-term memory

6.4 US PRE-TRIAL PUBLICITY RESEARCH173

6.5 MEDIA ETHICS. 179

7. PREFERRED APPROACH 184

BIBLIOGRAPHY. 195


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TABLE OF CASES

Advertiser Newspapers Ltd v Bunting & Ors (2000) SASC 458

Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555

Attorney-General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318

Attorney General (NSW) v X [2000] NSWCA 199

Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695

Attorney-General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405

Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368

Attorney-General v News Group Newspapers Plc [1989] QB 110

Attorney-General v Sport Newspapers Ltd [1992] 1 All ER 503

Attorney-General v News Group Newspapers [1987] QB 1

Attorney-General v Times Newspapers [1973] Al ER 54

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106

Ballina Shire Council v Ringland (1994) 33 NSWLR 680

Brown v Members of the Classification Review Board of the Office of Film andLiterature Classification (1998) 154 ALR 67

Brown v The Queen (1986) 160 CLR 269

Bush v The Queen (1993) 43 FCR 555

Callis v Gunn [1964] 1 QB 495

Channel Seven Adelaide Pty Ltd v Draper (2004) SASC 351

Chu Kheng Lim v The Minister for Immigration, Local Government and EthnicAffairs (1992) 176 CLR 1

Commercial Bank of Australia Ltd v Preson (1981) 2 NSWLR 554

Cunningham v The Scotsman Publications Ltd [1987] SLT 698

Davis v Baillie [1946] VLR 486

Daubney v Cooper [1829] 1 B & C 237


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Dietrich v R (1992) 177 CLR 292

DPP v Weis [2002] VSC 153

DPP v Williams & Ors [2004] VSC 209

Ex parte B (Unreported Central Criminal Court, Scott-Baker J, February 17, 1994)

Ex Parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd [1937] SR (NSW)242

Ex parte Jones [1806] 13 Ves 237 (33 ER 283)

Gallagher v Durack (1983) 152 CLR 238

Gilbert v The Queen (2000) HCA 15

Gilbert v Volkers (2004) QSC 436

Glennon v R (Unreported Court of Criminal Apeal Victoria, McGarvie and NathanJJ; Southwell J dissenting, 1990)

Hall v Associated Newspapers [1978] SLT 241

Harkianakis v Skalkos (1997) 42 NSWLR 22

Herald & Weekly Times Ltd v Braun [1994] 1 VR 705

Herald & Weekly Times Ltd v Magistrates Court of Victoria (1999) 2 VR 672

Herald & Weekly Times Ltd v Popovic (2003) VSCA 161

Hinch v Attorney-General (Vic) (1987) 164 CLR 15

Jago v the District Court of New South Wales (1989) 168 CLR

James v Robinson (1963) 109 CLR 593John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81

John Fairfax & Sons Ltd v Police Tribunal (1986) 5 NSWLR 465

John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) NSWCA 324

Imperial Group plc v Philip Morris Ltd (1984) RPC 293

Interlego AG v Croner Trading pty Ltd (1991) 102 ALR 379


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J v L & A Services Pty Ltd (no 2) [1995] 2 Qd R 10

Johansen & Chambers v R (1996) 87 A Crim R 126

Krulevitch v US (1949) 336 US 440

L v ABC & Ors (2004) NTSC 5

L v Paul Tudor-Stack (2005) NTSC 19

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

Lange v Atkinson [1998] 3 NZLR 424 at 477

Long v R (2002) QSC 054 (Unreported Dutney J, 18 February 2002)

Long v The Queen (2004) HCA Transcript 232 23 June 2004

London Artists Ltd v Littler [1969] 2 QB 375

M v DPP (Unreported June 3 1996, Dunford J)

Maxwell v The Director of Public Prosecutions [1935] 309 AC 317

McKinney v The Queen (1991) 171 CLR 468

Murphy, Murphy, Murphy and Murphy v The Queen (1987) 37 A Crim R 118

Murphy v R (1989) 167 CLR 94

Murphy v The Queen and, Murdoch v The Queen and Murphy v The Queen (1989)167 CLR 94

Nash v United States (1932) 54 F.2d 1006

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1

Nicholas v The Queen (1998) 193 CLR 173 Nine Network Australia Pty Ltd v McGregor & Ors (2004) NTSC 27

Noriega 917 F 2d 1543 (11 th Cir. 1990)

O'Neill v Australian Broadcasting Corporation, Roar Film Pty Ltd and Davie (2005)TASSC 26

OShane v John Fairfax Publications Pty Ltd (2004) NSWSC 140

Packer v Peacock (1912) 13 CLR 577


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Payton & Co Ltd v Snelling, Lampard Shoshana Pty Ltd v 10 th Cantanae Pty Ltd(1987) 79 ALR 279

Pearse v Pearse [1846] 1 De G & Sm 12; 63 ER 950

Pfenning v The Queen (1995) 182 CLR 461

Polyukhovich v The Commonwealth (1991) 172 CLR 501

R v Apostilides (1984) 53 ALR 445

R v Beaverbrook Newspapers Ltd [1962] NI 15

R v Chandler (No. 2) [1964] 2 QB 322

R v Channell (2000) NSWCCA 289

R v Clement [1821] 4 B & Ald 218; 106 ER 918

R v Cogley [2000] VSCA 231

R v Connell & ors (unreported Supreme Court of Western Australia, Seaman J, 26February 1993)

R v Cullen [1951] VR 335

R v Daily Mirror; Ex parte Smith [1927] 1 KB 851

R v Damic (1982) 2 NSWLR 750

R v D'Arcy (Unreported Supreme Court of Queensland, Douglas J, 17 October 2000)

R v D'Arcy (2001) QCA 325

R v D'Arcy (2003) QCA 124

R v Davidson (2000) 300 QCA 14

R v David Syme and Co Ltd [1982] VR 173

R v Davies [1906] 1 KB 32

R v George (1987) 29 A Crim R 380

R v Giddings [1916] VLR 359

R v Gilbert (2000) 74 ALJR 13

R v Glennon (1992) 173 CLR 592


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R v Grenning [1957] NZLR 906

R v K [2003] NSWCCA 406

R v Lee (1950) ALR 517

R v Lewis (1994) 1 Qd R 613

R v Long (2002) QSC 054

R v Long; ex parte A-G (Qld) [2003] QCA 77

R v Manson [1974] Qd R 191

R v Marshall (1986) 22 A Crim R 432

R v Maxwell (unreported Central Criminal Court, May 25, 1995)

R v McLachlan [2000] VSC 215

R v Parke [1903] 2 KB 432

R v Pomeroy [2002] VSC 178

R v Rawcliffe (1977) NSWLR 219

R v Savundranayagan and Walker [1968] 3 All ER 339

R v Sharpe and Stringer [1938] 1 All ER 48

R v Sherrin (1978) 20 SASR 164

R v Stuart and Finch [1974] Qd R 297

R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281

R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256

R v WA Newspapers Ltd; Ex parte Director of Public Prosecutions (WA) (1996) 16WAR 518

R v Yanner [1998] 2 Qd R

Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47

Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650

Re JRL; Ex Parte CJL (1986) 161 CLR 342

Re the Evening News (1880) 1 NSWLR 211


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Reynolds v Times Newspapers [1998] 3 All ER 961

Ritz Hotel v Charles of the Ritz Ltd (1988) 15 NSWLR 158

Russell v Russell (1976) 134 CLR 495

Scott v Scott [1913] AC 417

SGIC v GIO (1991) 101 ALR 259

Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211

Sterling v Associated Newspapers [1960] SLT 5

Stollery v Greyhound Racing Control Board (1973) 128 CLR 509

Television New Zealand v Solicitor-General [1989] 1 NZLR 1

The King v MacFarlane; ex parte OFlanaghan and OKelly [1923] 32 CLR 518

The Prothonotary v Collins (1985) 2 NSWLR 549

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104

The People v Lehman (No. 2) [1947] Ir. R 137

The Queen v Glennon (1992) 173 CLR 592

The Queen v Hough (2002) WASCA 42

Tuckiar v R (1934) 52 CLR 335

U.S. v McVeigh, 918 F. Supp.1467 (1996)

U.S. v McVeigh (1997) 955 F. Supp. 1281

United States v Delli Paoli (1956) F.2d 319

Victoria v Australian Building Construction Employees and Builders LabourersFederation (1982) 152 CLR 25 at 56.

Walton v Gardiner (1993) 177 CLR 378

Webb and Hay v The Queen (1994) 181 CLR 41

Westpac Banking Corp v John Fairfax Group Pty Ltd (1991) 19 IPR 513

Woolmington V DPP [1935] AC 462

Zoneff v The Queen (2000) HCA 28


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TABLE OF STATUTES

CommonwealthEvidence Act 1995 (Cth)

s 57Federal Court of Australia Act 1986 (Cth)

s 17 (4)

Australian Capital TerritoryEvidence Act 1971

s 82s 83s 84

Juries Act 1967s 36A

Supreme Court Act 1933Pt VII

New South WalesCrimes Act 1900

s 578 (4)Criminal Procedure Act 1986

s 32s 33

Juries Act 1977

s 46s 68C

Northern TerritoryEvidence Act 1939

s 57s 59

Juries Acts 42

Queensland

Criminal Code 1899s 557s 577 (1)s 557 (9)

Criminal Law Amendment Act 2002Criminal Law (Sexual Offences) Act 1978

s 6s 7s 10 (3) b

Criminal Offence Victims Act 1995Jury Act 1995

s 47s 69A


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Justices Act 1886s 71

Juvenile Justice Act 1992Police Service Administration Act 1990Supreme Court Act 1995

s 223

South AustraliaEvidence Act 1929

s 68s 69A (5)s 69B (9)s 71B

Juries Act 1927s 7s 68

TasmaniaJury Act 1899

s 52Justices Act 1959

s 37

VictoriaCounty Court Act 1958

s 80Juries Act 2000

s 34Magistrates Court 1989

s 126Supreme Court Act 1986

s 18s 19 (b)

Western AustraliaCriminal Code Ch LXIVAEvidence Act 1906

s 11s 11A

CanadaCriminal Code

s 11 (f)s 469s 473

United KingdomContempt of Court Act 1981

Schedule 1 para. 1Schedule 1 para. 4


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s 2 (3)

United States of AmericaConstitution

First Amendment

Sixth AmendmentFourteenth Amendment

InternationalInternational Covenant on Civil and Political rights

Art 14Art 17Art 19

Europe ConventionArt 6


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The work contained in this thesis has not been previously submitted for a degree or

diploma at any other higher education institution. To the best of my knowledge and

belief, the thesis contains no material previously published or written by another

person except where due reference is made.

Signature:_______________________________________

Date:___________________________________________


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1. INTRODUCTION 1

This thesis addresses the long history of conflict between the media and the judiciary

over pre-trial publicity. In particular it will concentrate on the grey area concerning

the identification in the media of a suspect before the judicial process begins. It will

attempt to demonstrate that identification of a suspect before being charged risks

prejudicing a fair trial and there should be a change in the law of sub judice contempt

making it an offence for a media outlet to publish the fact that a person is under

investigation until that person is charged and has appeared in court. A phrase from

Willis Js judgment in R v Parke sums up the position succinctly:

It is possible very effectually to poison the fountain of justice before it begins to

flow. It is not possible to do so when the stream has ceased. 2

The genesis for this thesis arises from a number of recent criminal cases involving

high profile people, and others, accused of heinous crimes. These included former

Queensland Member of Parliament, Bill DArcy, who was eventually found guilty of

multiple counts of sexual abuse, popular national womens swimming coach Scott

Volkers, accused of sexually abusing former swimming pupils and the man

suspected of the horrific Childers backpackers hostel fire in which 15 people

perished. In all cases the accused were named and vilified by the media before they

had been charged with any crime. This excited some debate between civil libertarians

1 Although this thesis draws from a wide range of jurisdictions the reader will note a Queensland bias.This is because the basis of the thesis, that the media be restrained from publishing prejudicialmaterial before the judicial process begins, was most recently suggested by a Queensland lawyer. The

suggestion came after a number of sensational cases in that state involving prejudicial pre-trial publicity.2 R v Parke [1903] 2 KB 432.


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and the media concerning the ethics involved in publicly naming suspects. 3 The

debate could only be confined to ethics because the law of contempt as it stands does

not prohibit the naming of suspects, although the media do risk defamation

proceedings should the suspect be acquitted or if charges are not preferred for one

reason or other. The absurdity in allowing the media to disseminate highly

prejudicial information, such as revelations concerning prior criminal records or

confessions, at the pre-charge stage but not at the time charges are laid or when any

subsequent trial is held, would seem to demonstrate an anomaly in the sub judice

contempt law that is in urgent need of reform.

On the one hand, the media emphasises the right to freedom of speech, a

fundamental common law right. The High Court recognised two decades ago in a

contempt case that freedom of expression is of 'cardinal importance' and that 'speech

should be free, so that everyone has the right to comment in good faith on matters of

public importance, including the administration of justice, even if the comment is

outspoken, mistaken or wrong-headed'. 4 It is as a result of the exercise of this right

that the public's 'right to know' is satisfied.

On the other hand, all accused persons have a right to a fair trial. That right is

embedded in the common law. One element of a fair trial is that jurors exercise an

impartial mind and only consider the admissible evidence when deliberating on guilt

or innocence. In other words, jurors should not be influenced by extrinsic material

when exercising their function in the jury room. That proposition remains topical

because of the plethora of extrinsic material to which a contemporary juror may be

3 Terry O'Gorman,The issue of naming rights, The Courier-Mail, 5 September 1998, 27.4 Gallagher v Durack (1983) 152 CLR 238, 243 (Gibbs CJ, Wilson, Mason, Brennan JJ).


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exposed, including in more recent years from the Internet. Also US social

psychology experts are of the opinion that attitudes created by media publicity will

be remembered long after the details upon which they are based have begun to fade

and will affect the manner in which jurors will process the material put before them

at trial. 5

Superimposed on this tension between two cardinal stipulations, is the judiciary's

obligation to deliver justice according to law, and be seen to do that. One aspect of

this obligation is meeting society's expectation that a person accused of a serious

criminal offence will be brought to trial. 6 This entails that, save for truly exceptional

cases, Judges usually exercise their discretion to refuse a permanent stay of

proceedings, even where there has been substantial adverse publicity to an accused.

This necessarily casts a heavy obligation onto the media to avoid publicity which

will affect the fairness of the trial. For a conviction following an unfair trial is a

conviction obtained at too high a price. In fairness, most judges in Australia maintain

their experience of trials has shown that directions to juries to ignore prejudicial

material are an effective remedy. Faith is also placed in the fade factor in which it

is said jurors will be more likely to forget prejudicial material with the passage of

time.

The existing law does provide some other remedies for those named as suspects

before charges are laid but these are often unevenly applied. For example,

defamation is available but while a successful action may provide some monetary

compensation it cannot be guaranteed to restore reputation. Suppression orders are

5 Hugh Selby, 'The Pre Trial Use of Survey Evidence by Trial Judges' paper presented at the 28 th Australian Legal Convention, Hobart, September 1993 at 14.


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available but as noted in Chapter 2 some jurisdictions are more inclined to use them

others. Privacy is another issue with some recent cases in Australia and the United

Kingdom opening the door to a tort of invasion of privacy. All these issues are

worthy of investigation but are beyond the scope of this thesis which is confined to

simply arguing the case for legislative changes to the law of sub judice contempt.

Therefore, through an extensive review of relevant case law and studies this thesis

has developed the argument that freedom of speech pre-charge should be postponed

for as long as it takes for an accused person to receive a fair trial. That is, there is no

denial of free speech just a postponement of prejudicial publicity during the crucial

stage before an accused is charged and appears in court. The prohibition should

extend to the naming of any alleged suspect because by linking the person with the

prejudicial material, such as alleged confessions or prior convictions, the damage to

the accused is magnified. This prohibition is not only in the best interests of the

defendant who has a right to a fair trial but also the prosecution and the public who

have a right to secure a verdict from judges or jurors that is free from prejudice.

This thesis will develop this argument by defining the difficulties in balancing the

opposing principles of Freedom of Speech versus a Fair Trial. It will also analyse

present sub judice contempt law in Australia and other common law countries and

outline why the contempt law should be changed in the interests of a fair trial. The

injustice in suspects being identified but not charged will be detailed as well as the

strengths and weaknesses of the various remedies that are currently available to

overcome the effects of prejudicial publicity. The psychological effect prejudicial pre

6 R v Glennon (1992) 173 CLR 592; Murphy v R (1989) 167 CLR 94; R v Lewis (1994) 1 Qd R 613.


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trial publicity has on jurors is analysed as well as the results of research in this area.

The thesis draws on all areas to justify a preferred approach whereby the laws of sub

judice should extend to the pre-charge time frame to prevent persons considered to

be under suspicion by law enforcement authorities from being publicly named in the

media in the interests of a fair trial.


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2. FREEDOM OF SPEECH v A FAIR TRIAL

2.1 FREEDOM OF SPEECH

The media often define freedom of speech as the right to know. This thesis

acknowledges that right. But it also recognizes there are occasions when the publics

right to know has to be curtailed in the wider public interest such as the proper

administration of justice. For example, as this thesis argues, prohibiting the naming

of a suspect and any other prejudicial material before charges are laid. Most people

recognise the desirability of freedom of speech. Some mistakenly believe it to be a

constitutional right in Australia. But how does one define free speech? Perhaps the

shortest definition would be the expression of thought through the spoken word. The

Australian Law Reform Commission has said there is no doubt that freedom of

expression is one of the hallmarks of a democratic society, and has been recognised

as such for centuries. 7 Butler has succinctly described free speech as 'speech that is

not subjected to regulation by the State'. 8 According to the celebrated English jurist

Lord Denning it means that everyone should be free to think his own thoughts and to

have his own opinions and to give voice to them so long as he does not speak ill of

his neighbour or incite anyone to violence. 9

A common example given for the reasons for restrictions on free speech is the

scenario where a person shouts, without justification, 'fire' in a crowded theatre

thereby causing panic and potential injury. In those circumstances most people

7 Australian Law Reform Commission, Contempt (Report 35, 1987) at para 242. See also Hinch v Attorney General (1987) 164 CLR at 57 (Deane J): "Freedom of public discussion of matters oflegitimate public concern is, in itself, an ideal of our society".8 Butler D and Rodrick S, Australian Media Law, 2nd ed, Lawbook Co , Sydney 2004 at 3.


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would agree that the law should prohibit an action such as that. Australia, under its

Constitution, does recognise the right to trial by jury. 10 But it does not have a written

Bill of Rights guaranteeing freedom of speech. Until the 1992 decisions of the High

Court of Australia in Nationwide News Pty Ltd v Wills 11 and Australian Capital

Television Pty Ltd v Commonwealth 12 no constitutional protection of freedom of

speech had been recognised. There was however, what was known as a 'residual

liberty' that is the freedom existed to the extent that legislation and the common law

did not restrict it. The 1994 Theophanous 13 case created a constitutional defence for

publications concerning political and government matter. The defence could apply

where defendants were unaware that publications were false, had not published

recklessly without caring about truth or falsity, and publication was reasonable in the

circumstances. Theophanous also expanded common law qualified privilege to cover

media publications about political or government matters. 14 For such matters,

defendants need not have met the constitutional defences reasonableness

requirement. But the defence did not survive. The 1997 Lange 15 decision confirmed

the constitutional protection for political communication, but it has since been

narrowed by a limitation of government or political matters 16 to those of the

electoral and parliamentary sense, such as discussion about political candidates. It

does not extend generally to matters of public interest. 17 Lange therefore, impacts on

my thesis that a statute should be invoked preventing the media from naming people

suspected of a crime. This is because if a politician is named in the media of being

9 Sir Alfred Denning, Freedom under The Law, Hamlyn, London, 1949 at 35.10 Australian Constitution s80.11 (1992) 177 CLR 1.12 (1992) 177 CLR 106.13 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104.14 Ibid.15

Lange v ABC (1997) 189 CLR 520.16 See Andrew T Kenyon, Lange and Reynolds Qualified privilege: Australian and English Defamation Law and Practice, (2004) 28 Melbourne University Law Review, 406, 416.


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suspected of committing a crime then an argument could ensue over whether the

matter touches on discussion about political candidates or is merely of public

interest. Also as Chesterman 18 points out Australian statute law contains further

examples of free speech protection arising within the law without being clearly

labelled as such. For example, under the Commonwealth law dealing with racial

vilification, racist speech occurring 'otherwise than in private' is unlawful, but no

liability arises if the relevant speech is uttered 'reasonably and in good faith' in the

course of 'any statement, publication, discussion or debate made or held for any

genuine academic, artistic or scientific purpose or any other genuine purpose in the

public interest'.

Article 19 of the International Covenant on Civil and Political Rights (ICCPR)

adopted by the United Nations in 1966 and ratified by Australia in 1991 declares:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall

include freedom to seek, receive and impart information and ideas of all

kinds, regardless of frontiers, either orally, in writing or in print, in the form

of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries

with it special duties and responsibilities. It may therefore be subject to

certain restrictions, but these shall only be such as are provided by law and

are necessary:

(a) For respect of the rights or reputation of others;

17 See eg, Amalgamated television Services Ltd v Marsden (2002) NSWCA 419 (unreported).18 Chesterman M, 'Freedom of Speech in Australian Law: A delicate plant , Ashgate, Dartmouth, 2000

at 9.


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(b) For the protection of national security or of public order, or of public

health or morals.

However, Article 19 is qualified by other rights such as the right to reputation Article

(17) and Article (14) the right to a fair hearing before the courts which conflicts with

the right to freedom of speech. Therefore by exercising one's right to freedom of

speech one can conceivably threaten another person's right to be presumed innocent

until proved guilty according to law which goes to the heart of my thesis. However,

as Chesterman points out the ICCPR created no enforceable right in Australian

domestic law. At most it provided encouragement to judges to develop the common

law in conformity with Article 19. 19 This was a point notably taken by Kirby P to

support his decision in Civil Aviation Authority v Australian Broadcasting

Corporation. 20

Eric Barendt has described free speech, when it publicises or examines the workings

of the legal process, as one of those complicated areas of law where the values of

free speech compete with other rights and interests. 21 This theme is underscored by

Walker who writes that 'on the one hand there is public interest in a fair and impartial

judicial proceedings and the maintenance of the dignity and authority of courts and,

on the other, the public interest in the freedom of the media to report and comment

on matters of interest to the public and to subject the administration of justice to

critical analysis'. 22 This was a situation recognised by the celebrated Bread

Manufacturers' case where Jordan CJ said that where there is no intention to

19 Chesterman M, Freedom of Speech in Australian Law: a delicate plant, Ashgate, Dartmouth, 2000at 3.20 (1995) 126 FLR 26 at 42-45.21 Barendt, E., Freedom of Speech Clarendon Press, New York, 1985 at 214.


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prejudice a fair trial, the rule that publication of material tending to prejudice a party

in court constitutes contempt is not inviolate:

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

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. 23

In many respects the Bread Manufacturers' case is the foundation of the law of

contempt as it relates to publications which have an impact on cases coming before

the courts. The judgment has had a profound effect on the law of contempt, not only

in Australia but elsewhere, especially in the United Kingdom. The issue was whether

the respondents, in publishing articles concerning the bread trade which were

incidentally critical of the applicant's activities in that trade, had committed a

contempt in relation to civil proceedings for libel and conspiracy in which the

applicant was a defendant. Some articles had been published after these proceedings

had been commenced. His Honour sought to balance the competing public interests:

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. Until the High Court decision in Hinch v Attorney-

General(Vic) 24 there were two views as to how the principle should be applied, a

normative view and a balancing view.

22 Walker, S Media Law:Commentary and Materials Lawbook Co, Sydney 2000 at 526.


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Although the Bread Manufacturers' case concerns an alleged contempt in civil

proceedings, Hinch 25 found the judgment applies to publications prejudicial to

criminal proceedings as well. The Hinch case underscores my thesis as it relates to

the damage pre trial publicity in a high profile case can do the concept of a fair trial,

especially when a suspect is named and vilified. Hinch involved a criminal trial and

the contempt conviction was affirmed. In that case, Hinch, an infamous Melbourne

radio talkback host, commented adversely about a Catholic priest, a Father Glennon,

who had been charged with serious sexual offences involving young people and had

been bailed to appear before Melbourne Magistrate's Court. In a series of broadcasts

Hinch highlighted the inappropriateness of Father Glennon to continue to occupy the

position of governing director of a Foundation that organised children's camps. To

emphasise this point Hinch referred to Father Glennon's prior conviction and

sentences of two years imprisonment for indecent assault on a young girl and to a

charge on two counts of rape involving a 12-year-old boy on which Glennon had

been acquitted. Perhaps if Hinch had confined his remarks to the inappropriateness of

Father Glennon continuing to hold the position that he did, Hinch would have

avoided a contempt conviction but the High Court made it plain he had 'crossed the

line' by mentioning the prior convictions of the accused. This statement by Deane J

summed up the Court's thinking:

In a case where the publication is in the mass media and is directed solely to the

merits of the very issue to be determined in the pending proceedings (e.g. the guilt or

innocence of an accused), there would be no countervailing public interest

23 Ex Parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd [1937] 37 SR (NSW) 242 at 249

per Jordan CJ.24 (1987) 164 CLR 15.25 (1987) 164 CLR 15.


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consideration which might effectively outweigh the detriment of a clear tendency to

prejudice the due administration of justice. 26

This passage tends to show the High Court judges were vitally concerned to

demonstrate the limits of the Bread Manufacturers' principle .They established that

the principle cannot be invoked to excuse a publication that canvasses matters

directly relating to an accused's guilt or innocence. A more common occurrence of

possible prejudice to an accused is the reporting of committal proceedings or bail

applications which may prejudice the minds of potential jurors at any subsequent

trial. In this case it is a situation where the law says, on balance, the wider interests

of the administration of justice are better served by allowing publicity. The judges in

Hinch confirmed that a balancing test must be applied by weighing the public interest

in the administration of justice and the public interest in freedom of speech. The

extent of the balancing exercise was explained by Wilson J that:

It is important to emphasise that in undertaking a balancing exercise the court does

not start with the scale evenly balanced. The law has already tilted the scales. In the

interest of the due administration of justice it will curb freedom of speech, but only

to the extent that is necessary to prevent a real and substantial prejudice to the

administration of justice. 27

Be that as it may, the High Court in Hinch did not give much assistance in

determining when a publication referring to criminal proceedings is likely to be

found in the public interest.

26 Ibid at 52.


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In R v Sun Newspapers Pty Ltd 28 a publication about a criminal trial was found to be

potentially prejudicial to another criminal trial. The publication did not amount to

contempt however, on the basis of the public interest principle, since it did not refer

to the second trial, and its prejudicial effect was therefore an incidental by-product of

a discussion of a matter of public importance.

But in another case a publication that reported allegations of race fixing in the horse

racing industry included material obtained from a lawful telephone tap. The New

South Wales Court of Appeal 29 took the view that this was a matter of public interest

but because Commonwealth legislation prevented the disclosure of material gained

from telephone interceptions, the legislature had already given priority to the public

in keeping such communications confidential, and it was not for the courts to permit

a different public interest to prevail. This point was determined more recently by the

New South Wales Supreme Court where a newspaper that canvassed issues

concerning the Sydney illegal drug trade was held not to have been in contempt of

court even though an accused who was awaiting trial was named in the articles. 30

Barr J said although the article discussed the accuseds current activities, including

an assertion he was a major heroin distributor, and details of his personal life, there

was no discussion of the facts or circumstances of the charges pending against him.

His guilt or innocence of these charges was not mentioned. 31 Therefore, according to

Barr J although a publication may have a tendency to prejudice criminal proceedings

it did not mean the defence of public interest would be lost. The judgment was

27 (1987) 164 CLR at 41-2.28 (1992) 58 A Crim R 28 281.29

John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81.30 Attorney General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318.31 Ibid at para 128.


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upheld on appeal. 32 All three judges of the Court of Appeal in Attorney-General

(NSW) v X (2000) agreed that the newspaper articles gave rise to an implication of

guilt and therefore had a tendency to interfere with the administration of justice. 33

However, Spigelman CJ and Priestley J decided that the Bread Manufacturers'

principle was applicable, while Mason J dissented.

Nevertheless both the majority and minority judgments confirmed that the Bread

Manufacturers principle is concerned with the process of reconciling two conflicting

public interests. That is, the public interest in the administration of justice and the

interest of the public in being informed about vital matters. 34 The majority in

Attorney General (NSW) v X held that the authorities do not support the promulgation

of a rule that wholly precludes the conduct of a balancing exercise where the

offending publication implies guilt, or suggests guilt, or canvasses matters directly

related to the issue of guilt. According to Spigelman CJ there is no pre-determined

balance in favour of the administration of justice for cases involving publications that

fall under one or more of those categories. 35

In reaching that conclusion his Honour relied heavily on the High Court formulation

of an implied freedom of political communication as another ground to reject a pre-

determined balance rule. 36 Having decided that a balancing test is to be exercised, the

Chief Justice held that the finding of Justice Barr was reasonably open as a matter of

32 Attorney General(NSW) v X [2000] NSWCA 199.33 Attorney General (NSW) v X [2000] at para. 70 (Spigelman CJ), at para 155, 221 (Mason P.).34 Attorney General (NSW) v X [2000] 199 at para. 9 (Spigelman CJ), at para 175 (Mason P.).35 Attorney General (NSW) v X [2000] at para. 111 (Spigelman CJ).36

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd vCommonwealth(No 2) (1992) 175 CLR 106; Lange v Australian Broadcasting Corporation (1997)189 CLR 520.


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law. In dissent Justice Mason emphasized the importance of the right to a fair trial. 37

It was his view that the protection of the right to a fair trial is the touchstone of the

free and democratic society that the Bread Manufacturers' principle is designed to

advance. He also held that Hinch and subsequent cases that considered the public

interest principle establish that the defence cannot be used to excuse a publication

that has the tendency to interfere with the administration of justice, where the

interference consists of an implication of guilt or the canvassing of matters directly

related to the central issue of guilt. 38

It would seem then that the majority judgment in Attorney General (NSW) v X differs

from some of the views expressed in Hinch, that in the balancing of the conflicting

interests, the courts should tilt the scales in favour of protecting the due

administration of justice and where the material is directed at the guilt or innocence

of an accused person, it would be difficult to outweigh the public interest in a fair

trial. This is evident in the judgment of Spigelman CJ who wrote that since Hinch

and subsequent cases that applied the Bread Manufacturers' principle, the High

Court has recognized immunity in the Commonwealth Constitution with respect to

the freedom of communication. Consequently the law of contempt must adapt to this

constitutional immunity. 39 Therefore it would seem to be that the Chief Justices

view is that courts must now attribute greater weight to the freedom of public

discussion when conducting a balancing test. But in the final analysis Attorney

General (NSW) v X has not provided guidance on how the Bread Manufacturers

principle might apply to publications that deal specifically with the facts of a pending

37 Attorney General (NSW) v X [2000] at para. 178-185 (Mason P).38 Attorney General (NSW) v X [2000] at para. 195 (Mason P.).

39 Attorney General (NSW) v X [2000] at para. 112 (Spigelman CJ).


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trial. This was because in this case there was no discussion of the facts and

circumstances of the charges pending against the accused.

The process of a fair trial has often been described as the balancing of conflicting

interests. 40 That is the right of a fair trial must be balanced against the interests of the

community in securing a conviction. This involves a value judgment which does not

always provide for consistency in judicial views. The difficulty is that the conflicting

values are incommensurable and cannot be assessed on the same scale. An example

can be found in the tests of when the probative value of evidence can be said to

outweigh its prejudicial effect. McHugh J said of this test, in the context of the

admission of propensity evidence:

Admitting the evidence will serve the interests of justice only if the judge concludes

that the probative force of the evidence compared to the degree of risk of an unfair

trial is such that fair-minded people would think that the public interest in adducing

all relevant evidence of guilt must have priority over the risk of an unfair trial. 41

However, there has been some questioning of the appropriateness of a balancing

approach in the contest of criminal justice. For example Professor Andrew

Ashworths criticism that 'balance' leads to 'sloppy reasoning'.42

Professor Ashworth

is also critical of the jurisprudence of the European Court of Justice and the House of

40 The Queen v Glennon (1992) 173 CLR 592; Jago v The District Court of New South Wales (1989)

168 CLR 23; Hinch v Attorney-General (Vic) (1987) 164 CLR 15.41 Pfennig v The Queen (1995) 182 CLR 461 at 529.42 Ashworth A., Crime, Community and Creeping Consequentialism (1996) Crim LR 220 at 229.


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Lords with respect to Article 6 of the European Convention on the basis that it tends

to weaken the strength of the protection of the right to a fair trial. 43

To accept these rights are not absolute is not to concede that they may be balanced

away by being compared with a general public interest and put in second place. 44

The problem when rights are granted in absolute terms, the legal process of

determining how and in what circumstances they are to apply is carried out in a

vacuum. When the 'whole' of a right is granted by a Bill of Rights, the text gives no

guidance about the priorities that are to be reconciled or that govern, when one right

conflicts with another. For example, the battle between the First Amendment 45 and

the Sixth Amendment 46 of the US Bill of Rights has been waged in the courts and

seemingly won by the First Amendment. According to at least one legal

commentator that victory has enabled the media to exert a corrupting influence over

trials and has had a pervasive and detrimental effect on the rights of accused

persons. 47

One need not look far to see several examples of the veracity of this assertion in the

trials of people like O.J. Simpson, Michael Jackson, William Kennedy Smith and the

Menendez brothers which were all attended with massive and manifestly prejudicial

43 Ashworth A., Criminal Proceedings after the Human Rights Act: The First Year (2001) Crim LR855 at 864-867.44 Ibid 866.45 The First Amendment relevantly provides: "Congress shall make no law abridging the freedom ofspeech or of the press".46 The right to a fair trial arises under the Sixth and Fourteenth Amendments. The Sixth Amendmentrelevantly provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall have beencommitted". The Sixth Amendment is applicable to the States by virtue of the Fourteenth

Amendment.47 O'Callaghan David J., 'The United States Experience of Unfettered Speech and Unfair Trials: ACase Against an Australian Bill of Rights', (1998) 72 Australian Law Journal at 958.


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pre-trial publicity. Such cases lead to the conclusion that from a justice point of view,

prevention is better than a cure. In summary, what all commentators acknowledge is

that there is a broad range of legitimate opinion about which interest should prevail

in the various factual circumstances that arise for decision. However, the weight of

judicial authority is that measures that are clearly necessary for due process of law

should take precedence over freedom of speech. This is particularly true in relation to

criminal trials where an individual's liberty is at stake and where the public have an

interest in securing the conviction of persons guilty of serious crime. The Law

Commission of New Zealand in supporting this position made the following

comment:

When a conflict arises between a fair trial and freedom of the speech, the former has

prevailed because the compromise of a fair trial for a particular accused may cause

them permanent harm (for example, because a conviction has been entered wrongly),

whereas the inhibition of media freedom ends with the conclusion of legal

proceedings. 48

This comment reinforces the argument of this thesis that publishing a suspects name

before a charge is brought threatens a fair trial and therefore the freedom of speech

principle should yield to the proper administration of justice.

2.1.1 Public Interest

At common law, a publication may have a tendency to cause prejudice to

proceedings, but may be found not to amount to contempt, on the basis that it:

48 New Zealand Law Commission, Juries in Criminal Trials: Part Two (Preliminary Paper 37, 1999)("NZLC PP 37") vol 1 at para 289.


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relates to a matter of public interest, or promotes the public interest in some

other way; or

Is a fair and accurate report of proceedings held in open court, or, possibly a

fair and accurate report of parliamentary proceedings. 49

This thesis shall only examine the first ground of exoneration, that is, the 'public

interest principle' as the fair and accurate report of proceedings held in open court

does not relate to my thesis. In relation to the public interest principle it is pertinent

to address the question: what is meant by the term 'public interest'? For many

commentators the term is commonly used but is generally undefined. Lord Denning

MR in London Artists Ltd v Littler 50 said that there is 'no definition in the books as to

what is a matter of public interest'. Nevertheless he went on to describe it as

'whenever, a matter is such to affect the people at large, so that they may be

legitimately interested in, or concerned at, what is going on; or what may happen to

them or others; then it is a matter of public interest on which everyone is entitled to

make a fair comment'. 51

But as Mo 52 has pointed out that while there is public interest in the discussion of a

matter of public concern, there is also a public interest in confidentiality 53 and there

is also public interest in restricting the media for the purposes of protecting the

administration of justice. There is also some ambiguity over the tests or rules to be

49 See Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 714; Hinch v Attorney General (1987) (Vic) 164 CLR 15 at 26 and 83.50 [1969] 2 QB 375.51

ibid 391.52 Mo, John S., 'Freedom of Speech v Administration of Justice' (1992) 9 Australian Bar Review 216.53 Westpac Banking Corp v John Fairfax Group Pty Ltd (1991) 19 IPR 513.


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employed when deciding on balancing these interests in contempt of court cases. 54

But in a sense the law on contempt has always imposed a restriction on freedom of

speech. As McHugh JA stated in The Prothonotary v Collins 55 that when 'the

expression of an opinion or the communication of information is likely to interfere

with the fair trial of a criminal charge, the common law has very much preferred the

right to a fair trial upon legally admissible evidence'. Journalists often believe that

they have a duty to tell their readers about a matter of public interest, and that their

readers have an interest in receiving this information.

In England that duty had never been recognized by the courts until the Reynolds

case.56 The then Lord Chief Justice, Lord Bingham, said in the Court of Appeal that

as it was the task of the news media to inform the public and engage in public

discussion of matters of public interest, it was to be recognized as its duty. However,

public interest means more than a prurient desire to know the identity of an accused.

The desire to gossip about the motive of an accused does not justify the undermining

of the presumption of innocence. Premature publication of an accused's identity is

inconsistent with the presumption of innocence and should only occur if justified by

some right more deserving of protection. For example, publications dealing with

paedophilia in the context of a community debate may be found to have a tendency

to interfere with particular criminal proceedings against a person accused of child

molestation.

54 For example, in Attorney-General (NSW) v X [2000] NSWCA 199 the court was split 2-1 whetherthe balancing of conflicting interests was a question of law while Priestley JA in Registrar of theCourt of Appeal v Willesee (1985) 3 NSWLR 650 at 681-3 identified two 'normative' and ' balancing '

approaches to the reconciliation of competing public interests. 55 (1985) 2 NSWLR 549 at 562.56 Reynolds v Times Newspapers [1998] 3 All ER 961.


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However, the court may decide that the publication does not amount to contempt on

the grounds that it relates to a matter of public interest which outweighs the

detriment it may cause to the criminal proceedings in question. This was the situation

that arose in NSW in 1997 when the then Police Minister Paul Whelan gave a news

conference on the subject of paedophilia. As a result of the comments made by Mr

Whelan two sexual offences trials were aborted. The Attorney General did not

prosecute Mr Whelan for contempt, presumably taking the view that Mr Whelan's

comments were made as part of an ongoing debate of public interest and that they

were not directed at particular legal proceedings. 57 This ground of exoneration is

commonly referred to as the 'public interest principle' or the Bread Manufacturers'

principle referring to the first Australian case where it was authoritatively

formulated. This principle, as previously discussed, recognises that there is

sometimes a greater interest that justifies a publication despite the fact that

publication would otherwise attract sub judice liability because of its tendency to

prejudice proceedings. 58

Since then the High Court has considered the public interest principle only once in

Hinch v Attorney General (Vic). 59 It clarified that the public interest principle may

apply to publications relating to criminal proceedings. However, it took a different

approach to that taken by the Bread Manufacturers' case and broadened the scope of

the principle. It recognised that the principle could apply to proceedings that dealt

specifically with the facts of the particular proceedings in question. It was not

confined to publications relating to a general discussion, and it was not essential to

the application of the principle that the potential prejudice to proceedings was

57 Piers Akerman, 'Free to speak up for justice', Daily Telegraph , 1st ed, 18 September 1997, 11.58 Ex Parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242.


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incidental. The court emphasised instead that each case requires a balancing exercise

between the competing public interests in the administration of justice and the

freedom of discussion of public affairs, in order to determine whether or not

contempt has been committed. However, some of the Justices of the High Court in

their judgments qualified the balancing approach to the public interest principle.

Firstly, where the contempt is intentional the public interest principle cannot be used

to avoid liability for contempt. 60 However, the court did not base its decision on this

proposition because on the facts in Hinch it would be possible to argue that at least

the third of his broadcasts was done with the knowledge that it may have a tendency

to prejudice the accused's trial given that the Attorney General had already instituted

proceedings for contempt against Hinch for his first two broadcasts on the matter.

However, the court did not discuss the intention of Hinch in considering the public

interest principle, despite general suggestions that an intention to prejudice

proceedings may exclude the application of the public interest principle. As the

NSWLRC discussion paper says it remains unclear whether material which is

published with an intention to prejudice, or with the knowledge that it may prejudice

particular proceedings, could ever be found not to constitute a contempt on the basis

of the public interest principle. 61

Secondly, where the material is directed at the guilt or innocence of an accused, the

High Court held that the public interest required to outweigh the public interest in a

59 (1987) 164 CLR 15.60

Ibid, (Deane J), at 52-53 (Toohey, J), at 69-70 (Wilson, J) at 43 and (Gaudron, J) at 86.61 New South Wales Law Reform Commission, Discussion Paper 43, Contempt by Publication (2000)at 270.


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fair trial would have to be very substantial. 62 Justice Deane stated that where the

publication implies or suggests the guilt of the accused, or canvasses matters directly

related to the issue of guilt, the public interest defence would not be available. 63 This

definition would seem to accord with Long's 64 case in that material which seemed to

suggest his guilt by virtue of publication of his prior convictions and his alleged prior

offences before he had been charged. Justice Deane, without deciding the issue,

noted that reference to the accused's previous convictions on its own would have

been sufficient to place the broadcast beyond justification on public interest

grounds. 65 Certainly it was not necessary for Hinch to mention the accused's

convictions as he could simply have referred to the current charges being faced by

the accused to alert the public to the danger of child abuse and the fact that the

accused continued to hold a senior position in a children's organisation. Statements to

that effect would probably have not amounted to contempt since they were simply

the bare facts of the case. Since the Hinch case courts have reiterated the High

Court's formula of the public interest principle as requiring a balancing exercise

between the public interests in freedom of discussion and in the fair administration of

justice. 66 However, publications that have been found to be in the public interest have

not referred specifically to the facts of relevant criminal proceedings so the courts

have not had to provide much more guidance about this issue. The NSWLRC has

provided some guidance in its recommendation 20 67 of its report Contempt by

62 Hinch v Attorney General (Vic) (1987) 164 CLR 26-27 (Mason CJ).63 Hinch v Attorney General (Vic) (1987) 164 CLR 58-59.64 R v Long (2002) QSC 05465 Hinch v Attorney General (Vic) (1987) 164 CLR 58.66 See R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281; John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81; R v WA Newspapers Ltd; Ex parte Director of Public Prosecutions(WA) (1996) 16 WAR 518.67 New South Wales Law Reform Commission Report 100 Contempt by Publication (2003)

Recommendation 20: Legislation should provide that a person charged with sub judice contempt onaccount of responsibility for the publication of material should not be found guilty if:(a) the material relates to a matter of public interest;


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Publication where it proposes that a balancing approach may be the best way to deal

with situations that involve competing public interests.

This statutory approach recommendation contains the main elements of the

principles developed by the High Court in Hinch. However, according to the

NSWLRC 68 it defines more precisely than does the case law what matters need to be

weighed against each other. The case law refers to the protection of the public

interest in the integrity of the criminal justice system or public interest in a fair trial

as the main interest against which others must be weighed. The recommendation

defines how this public interest might be harmed; for instance, the creation of a risk

of influence on those involved in pending legal proceedings. Of interest to my thesis

is that the NSWLRC recommends that in cases where the media invoke the public

interest in the free discussion of the subject matter of the published material, it

should also be relevant for courts to consider whether such discussion would suffer

significantly if the publication were delayed until the risk of prejudice has ceased. If

the publication could have been postponed for a few days, for example, and if so

delayed could still have made a contribution to the public discussion, it is arguable

that the balance should be weighed in favour of the harm rather than the benefit. 69

This strongly supports the view that by not reporting that an accused is under

investigation freedom of speech is not denied it is merely postponed for as long as it

takes for an accused person to receive a fair trial and that any balancing exercise

and(b) the public benefit from the publication of the material, in the circumstances in which it was

published, and from the maintenance of freedom to publish such material, outweighs the harm causedto the administration of justice by virtue of the risk of influence on one or more jurors, potential

jurors, potential jurors, witnesses, potential witnesses and/or litigants created by the publication.68 Ibid, 203.69 Ibid.


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should be weighted in favour of the accused's presumption of innocence not the other

way around. `

2.1.2 Public Safety

Some in the media have suggested the publication of prejudicial information about

alleged dangerous criminals is not only in the public interest but a matter of public

safety. For example, if a person accused of a particularly violent crime is at large

then it would demonstrably be in the public interest to publicise the fact that the

person has a history of violence and should not be approached. There has also, been a

case in Victoria where the media were allowed to warn the public of housebreakings

by the accused in the course of his flight. 70 On the other side of the coin there has

been at least one occasion where this privilege has been abused.

In Attorney General (NSW) v Macquarie Publications Pty Ltd, 71 an accused was

charged with sexual offence against a young person. When released on bail, he

assaulted a woman and was re-arrested but escaped from custody. He also had

several previous convictions. The local newspaper published a photograph of the

accused and an article about him, which mentioned his criminal history. In his

affidavit to the court the editor sought to justify the publication by stating that he

wanted to inform the citizens of the town that the accused was dangerous and that he

had hoped that someone would provide information to the police concerning his

whereabouts. However, the person who completed the article after the editor had left

for the day received information from the police shortly before the publication

70 Davis v Baillie [1946] VLR 486 at 495.71 (1988) 40 A Crim R 405.


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deadline, that the accused had been apprehended. The NSW Appeal Court upheld the

contempt conviction and the newspaper was fined $10,000 and ordered to pay costs.

The Australian Law Reform Commission has considered whether it is necessary to

provide in legislation for a 'public safety' defence as a ground of exoneration from

liability for contempt. 72 The Phillimore Committee in the United Kingdom did not

consider it desirable to introduce a 'public safety' defence. It took the view that the

sorts of situations attracting a 'public safety' defence would rarely arise and it would

simply lead to greater uncertainty to introduce into legislation a defence to meet this

situation. The Committee considered it more appropriate to leave considerations of

public safety as a factor mitigating penalty on conviction for contempt. On the other

hand, the ALRC recommended that legislation expressly provide for a 'public safety'

defence rather than leaving it to the discretion of the prosecuting authority. It said the

terms of the defence should be limited to protecting publications which are

reasonable or desirable to facilitate the arrest of a person, to protect the safety of a

person or of the public generally, or to facilitate investigation into an alleged

criminal offence. 73

More recently The New South Wales Law Reform Commission has recommended

'public safety' as a ground of exoneration for the media. 74 After considering

submissions from media organisations and other interested parties the Commission

recommended:

72 See United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt ofCourt (HMSO, London, Cmnd 5794, 1974) at para 143-145; Australian Law Reform Commission,Contempt (Report 35, 1987) at paras 302, 330.73 See Australian Law Reform Commission, Contempt (Report 35, 1987) Appendix A ( Administrationof Justice (Protection) Bill 1987 (Cth) cl 31).


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Legislation should provide that a person charged with sub judice contempt on

account of responsibility for the publication of material should not be found guilty if

the publication the subject of the charge was reasonably necessary or desirable to

facilitate the arrest of a person, to protect the safety of a person or of the public, or to

facilitate investigations into an alleged criminal offence. 75

Unlike the ALRC the NSWLRC recommended the burden of proving the elements of

the proposed defence should not be on the defendant. It should be framed as a matter

to be negatived by the prosecution. This recommendation could be seen as necessary

in the interests of clarity for the media to know in advance whether they might be

prosecuted rather than relying on prosecutorial discretion. However, there is a strong

argument this recommendation be tightened up especially where it relates to

publication of prior convictions. While there is a public interest in notifying the

public that a person is dangerous and at large there is no justification in mentioning

the accused's criminal history, especially when no charges have been laid. This

danger was recognised by the Victorian Bar Council in its submissions to the

NSWLRC Discussion Paper 43 where it warned of the defence being used to conduct

trial by media of a person being pursued by the authorities. 76 This danger to the

public scenario is one of the few exceptions to the thesiss argument that suspects be

publicly identified before being charged.

2.1.3 Open Justice

74 New South Wales Law Reform Commission, Contempt by Publication (Report 100, 2003)Recommendation 21.75

Ibid.76 Victorian Bar Council, submission to New South Wales Law Reform Commission, Contempt byPublication, (Discussion Paper 43, 200) at para. 24.


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The right to freedom of speech embraces the public right to criticise and scrutinise

court proceedings. It has been argued that the principle of open justice is just as

fundamental to a democratic society as freedom of speech. 77 Nevertheless there is no

common law right to open justice. As Patrick Keyzer has pointed out, there is a

common law right to justice, and there is a common law principle that the pursuit of

justice is ordinarily done in open court. 78 But the principle of open justice was

always qualified. 79 Probably the legal aphorism most well known by non-lawyers is

that of Lord Hewart from Rex v Sussex Justice; Ex parte McCarthy : 'it is not merely

of some importance but is of fundamental importance, that justice should not only be

done, but should manifestly and undoubtedly be seen to be done'. 80 Certainly it is an

accepted doctrine within the Australian justice system with the High Court expressly

applying the aphorism a number of times 81 since the landmark case of Scott v Scott 82

nearly 100 years ago. The case followed a divorce on the grounds of impotence of

the husband. The case had been heard in camera. It was uncontested and a decree

was pronounced. The petitioner then sent copies of the proceedings to the husband's

father and sister and to a third person. For this act, she was held to be in contempt of

the order which directed the proceedings to be held in camera. Earl Loreburn made it

clear that the trial judge's discretion to hear matters in private was controlled by

limitations when he said that 'the inveterate rule is that justice shall be administered

in open court and only where the subject-matter of the action would be destroyed by

77 Walker, C, 'Fundamental Rights, Fair Trials and the New Audio-Visual Sector' (1996) 59 Modern Law Review 517 at 517: "Because courts are a State responsibility, there is a legitimate demand fordemocratic accountability and discussion".78 Keyzer, P.,' Media Access to Transcripts and Pleadings and Open Justice: A Case Study' (2002)Vol. 2 No.3 The Drawing Board: An Australian Review of Public Affairs p.210.79 Daubney v Cooper [1829] 1 B & C 237 at 240; Scott v Scott [1913] AC 417 at 478; John Fairfax &Sons v Police Tribunal (1986) 5 NSWLR 465 and Cunningham v The Scotsman Publications Ltd [1987] SLT 698 at 705-706.80 R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259.81 See eg Stollery v Greyhound Racing Control Board (1973) 128 CLR 509 at 518-519; Re JRL; ExParte CJL (1986) 161 CLR 342 at 351-352; Webb v Hay v R (1994) 181 CLR 41 at 47.


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the hearing in open court or where there was a well settled exception to the general

rule, might the doors be closed'. 83

In Russell v Russell 84 the Australian High Court held that a provision in the Family

Law Act 1975 (Cth) providing that state courts exercising federal jurisdiction under

the Act should conduct family law proceedings in closed court, was invalid. In the

more recent case of Raybos Australia Pty Ltd v Jones 85 an application for a

suppression order was denied on the principle of open justice. Therefore it may be

generally supposed that the conflict between the open justice principle and the sub

judice principle is generally resolved in favour of open justice. Certainly journalists

believe they have a duty to tell their readers about matters of public interest and that

their readers have an interest in receiving this information. But, as noted earlier, the

public interest in protecting fair trials can conflict with the public interest in freedom

of speech. The matter of a suspected person being named before being charged is not

necessarily covered by the open justice principle since, by definition, the matter has

yet to reach the court. But at that point it can be argued that the presumption of

innocence interests of the person charged are paramount and their name should not

be published. Also, publishing the name of a person charged with a crime before they

appear in court pre-empts their right to apply to the court for a suppression order.

However, as noted above, to publish a persons name in these circumstances is not in

contempt of court. Nor does it appear to breach any code of practice.

82 [1913] AC 417.83

ibid 445.84 (1976) 134 CLR 495.85 (1985) 2 NSWLR 47.


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In years gone by, the convention by the media was that particulars of a person

arrested for, or charged with a crime, were not published before the offender

appeared in court. This was partly because of the police policy of not releasing the

persons name until this time and partly a matter of prudential practice in avoiding

exposure to a defamation suit should the charges be dropped before a court

appearance. In criminal proceedings it has long been recognised that non-publication

orders could be made in order to maintain the purity of the administration of justice.

For example in the 19 th century case of R v Clement 86 it was held that a Court of

General Gaol Delivery had the power to make an order prohibiting the publication of

the proceedings pending a trial likely to continue for several successive days and to

punish the disobedience of such order by a fine. In that case a number of defendants

were jointly charged with high treason. Applications were successfully made for

separate trials of each of the accused. A close reading of R v Clement suggests that a

court's power was not just limited to preventing the contamination of witnesses but

could be used whenever it was necessary to do so to ensure that the accused had a

fair trial. In Scott v Scott that decision was not overruled. Indeed Lord Atkinson

referred to it as a 'weighty authority'. 87

Subsequent authority in Queensland in J v L & A Services Pty Ltd (No 2) 88 has

recognised a limited power of exclusion at common law including limited and

temporary restrictions on publicity during the course of jury proceedings in order that

jurors may not become contaminated. These cases therefore can be said to recognise

that courts have an overriding duty to ensure that accused persons have fair trials and

that they do have the power at common law to suppress names or evidence where

86 [1821] 4 B & Ald 218; 106 ER 918.87 [1913] AC 417 at 453-454.


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applicable. It also gives important judicial support to my thesis that the names of

suspects be suppressed until they appear in court.

2.1.4 Statutory exceptions to the principle of open justice

While there is common law authority for the suppression of identifying details in an

otherwise open court there are also statutory exceptions to the principle of open

justice. This indicates legislators, and therefore the community, recognise there are

occasions where the administration of justice takes precedence over the principle of

open justice. For that reason it is relevant to examine those statutory exceptions and

the reason for their application. In most Australian jurisdictions courts are invested

with the power, exercisable in specified circumstances, to prohibit or restrict the

publication of reports of proceedings. 89 These powers are not uniform as they vary in

terminology and in the material which they aim to prevent coming before the public.

They supplement rather than replace, the common law exceptions mentioned above

and because they represent a departure from the principle of open justice and restrict

freedom of speech, these statutes are interpreted narrowly. 90

However, although construed strictly, the statutory exceptions are usually wider in

scope than their common law counterparts and therefore intrude more widely upon

the principle of open justice. They usually either require a court to be closed to the

public or forbid the publication of certain information about a case, or they vest the

court with a discretion to make such orders, in which case the circumstances in

88 [1995] 2 Qd R 10 at 45.89 Federal Court of Australia Act 1986 (Cth), s 17 (4); Evidence Act 1971 (ACT), ss 82,83, 84;Crimes Act 1900 (NSW), s 578 (4) ; Evidence Act 1939 (NT), ss 57,59; Justices Act 1886 (Qld), s71; Evidence Act 1929 (SA), s 68; Justices Act 1959 (Tas), s37; Magistrate's Court 1989 (Vic.), s 126;County Court Act 1958 (Vic), s 80; Supreme Court Act 1986 (Vic), s 18; Evidence Act 1906 (WA), ss11, 11A.


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which such orders can be made are outlined in the legislation. Finally, it is unclear

whether statutory suppression orders bind all members of the public whether or not

they are present at the proceedings when the order is made. This situation has led to

considerable media disquiet. 91 A media organisation however, may seek to be heard

when an application is made for a suppression order or to appeal against the making

of a suppression order. There are numerous decisions recognising the standing of the

media to challenge an order after it has been made, 92 although it is less clear whether

this means they have an absolute right to be heard in the absence of legislation such

as that which operates in South Australia which does give the media standing to

make submissions when an application is made for a suppression order. 93

Nevertheless, the situation in most Australian courts in recent years has generally

been to allow the media to be heard when principles of open justice are in issue. 94 In

New South Wales the issuing of non-publication orders appears to favour the

principle of open justice over all else. The principal authority on this subject in that

state is John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales 95 where

McHugh JA said that the only occasion the court could depart from the fundamental

rule that justice must take place in an open court was when its observance would

frustrate the administration of justice. Furthermore, he said, 'in order of a court

prohibiting the publication of evidence is only valid if it is really necessary to secure

90 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55; Herald & Weekly Times Ltd v Magistrates' Court of Victoria (1999) 2 VR 672; R v Pomeroy [2002] VSC 178.91 Steven Scott, 'Hit or miss system for notifying suppression orders' (2005), Gazette of Law &

Journalism, http://www.lawpress.com.au/genews/ge162_supression_ orders_210105.html ( 21January 2005)92 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465; The Herald& Weekly Times Ltd v Braun [1994] 1 VR 705; Nine Network Australia Pty Ltd v McGregor & Ors(2004) NTSC 27.93 Evidence Act 1929 (SA) s 69a (5) and (9).94 L v ABC & Ors (2004) NTSC 5; John Fairfax Publications Pty Ltd & Anor v District Court of NSW& Ors (2004) NSW CA 324; Channel Seven Adelaide Pty Ltd v Draper (2004) SASC 351.


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the proper administration of justice in proceedings before it'. 96 The test of 'necessity'

was most recently followed in John Fairfax Publications Pty Ltd & Anor v District

Court of NSW & Ors 97 where Spigelman CJ noted that the test must be applied with

'strictness' and only where 'the objective of ensuring the fairness of a subsequent trial

cannot be achieved in any other way'.

The view of experienced trial judges is that juries approach their task in accordance

with their oath, listen to the directions given to them to determine guilt only on the

evidence and implement them. 98 A similar situation exists in Victoria. 99 In

Queensland, suppression orders in criminal matters, other than situations where

children are involved, are virtually unheard of. However, in the Northern Territory

their legislation more closely resembles South Australia. Recently, the Full bench of

the Supreme Court in Nine Network Australia Pty Ltd v McGregor 100 approved the

test stated by Martin J in Advertiser Newspapers Ltd v Bunting & Ors 101 that 'once

the court is satisfied that there is a realistic possibility of creating the relevant risk

(emphasis mine) of prejudice to the administration of justice a court should not

hesitate to use the power of suppression'. This decision was followed most recently

in L v Paul Tudor-Stack 102 which concerned an unsuccessful challenge to a

suppression order made in the case of a prominent politician charged with child

pornography and sexual abuse. In his judgment Mildren J said the test of 'necessity'

was not the test to be applied in considering whether or not to make a suppression

95 (1986) 5 NSWLR 465.96 Ibid 476-477.97 John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) NSWCA 324 at

para. 5198 Ibid paras 102-105.99 Supreme Court Act 1986 s 19(b); see also Director of Public Prosecutions v Carl Williams & Ors

(2004) VSC 209 per Cummins J.100 (2004) NTSC 27 at para 51.101 (2000) SASC 458 at para 19.


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order under the Commonwealth Evidence Act. 103 The facts were that the politician

had appeared in the Magistrate's Court where he had been charged with possession of

child pornography. Orders were made in the Magistrate's Court to suppress his name

because at the time of the order it was anticipated the accused would also be charged

some time later with a number of sexual offences against children dating back

several years and the publication of his name would prejudice any subsequent trial.

The accused was subsequently charged with the sexual offences and a suppression

order was made. The complainant then made application before the Supreme Court

to have the suppression order relating to the child pornography charges lifted in the

interests of open justice. In rejecting the application, Mildren J said he had to

consider the 'relevant risk' (to the administration of justice) in relation to the period

of time likely to elapse between then and the date of trial as well as the fact that the

accused was well known in the community and was accused of a crime that attracted

considerable repugnance. 104

In those circumstances his Honour was satisfied that there was a realistic possibility

of prejudice to the accused's ability to receive a fair trial. This decision would seem

to accord with commonsense in that none of the usual remedies, that is, giving

directions to the jury to ignore everything but the evidence or perhaps delaying the

start of the trial would realistically overcome the prejudice to the accused,

particularly in a relatively small community like Darwin.

Of course, suppression orders can only be applied for once an accused appears in

court. While the courts have in some cases granted suppression of name this is not

102 L v Paul Tudor-Stack (2005) NTSC 19103 Evidence Act (Clth) s 57.


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the case when an accused is merely under suspicion. Therefore, by naming an

accused before they appear in court and before the sub judice takes effect the media

destroys an accused's right to apply for a suppression order because there would be

little use in applying for suppression once the person's name has already been

published. It can hardly be a desirable situation whereby the media has the power to

reduce a person's legal rights for no good reason.

2.1.5 Other non-publication provisions

There are also numerous other statutory provisions which recognise that justice

requires that the general rule of openness be modified in particular cases. For

example, the public reporting of proceedings in the Children's Court is prohibited

under the Queensland Child Protection Act 1999 as it is not open to the public,

unless approved by the court. The Queensland Juvenile Justice Act 1992 prohibits

the publication of an identifying matter in relation to a juvenile's criminal

proceeding. 105 And under the Queensland Justices Act 1886, justices can, in the

interests of public morality, require some or all persons to be excluded. 106 Therefore,

the idea of open justice is not absolute.

It is also pertinent to note that contempt restrictions apply on identification once an

accused appears in court. Indeed, police often go to great lengths (i.e. covering up an

accused's face by various means) while the accused walks to and from court but there

are no restrictions on the media from identifying suspects before they have been

formally charged. However, from time to time cases arise where a person charged or

suspected of an offence have allowed his or her identity to be published before they

104 L v Paul Tudor-Stack (2005) 19 at para. 21.105 s 62.


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appeared in court, usually through comments made to the media. A recent case in

point being Scott Volkers who was photographed arriving at the police station to be

formally charged, and who later conducted an impromptu media conference outside

his home. 107 Therefore, because there is no formal recognition of what is normal

practice it is my argument it should be clarified in legislation along the lines of the

NZLRC recommendation that publication of identifying details of a person charged

with an offence before they appear in court should be prohibited unless the person

consents. On this approach, the principle that the courts administer justice openly and

in public is not viewed as absolute. For even Bentham recognized that openness was

not absolute. 108

The better approach is to acknowledge that the open court principle may conflict

with other values, and seek to resolve the tension by contextual balancing because in

the final analysis, the open court principle is not an end in itself but a means to

promote the rule of law and the administration of justice. Openness that defeats

justice by prejudicing the accuseds right to a fair trial operates to corrupt rather than

promote the rule of law. A lesson can be learned from the American experience

where open justice has come to mean the media has unfettered power to comment on

all aspects of court proceedings. According to Professor David Anderson of the

University of Texas Law School, American courts long ago foreswore the use of the

contempt power to control media coverage in court proceedings. 109

106 s 71.107 Paula Doneman and Wayne Smith,Top swim coach on charges, The Courier-Mail, 27 March2002, 1.108

Bentham, J., Rationale of Judicial Evidence Specially Applied to English Practice, vol 1 (1827)541-542.109 Prof. David Anderson, 'Lessons from an Impeachment', (1999) 1 UTS Law Review 63.


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In Nebraska Press Association v Stuart 110 it was held that a judge may restrain

publication only if he or she can show that there is no other means of assuring a fair

trial, that the restraint will be effective to prevent prejudice and that the order

prohibits no more than necessary. Since then few judges have attempted to impose

restrictions on publication and even fewer have been upheld. 111 According to

Anderson this has led to the media being given free rein to interview parties,

witnesses, lawyers, judges and jurors and to disclose inadmissible evidence. 112

Anderson is of no doubt that much of the information that appears in the media is

there for the very purpose of influencing the outcome. He writes

Craig Burgess Thesis

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