Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5

High Court of Australia Brennan, Dawson, Toohey, Gaudron and McHugh JJ. Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5

ORDER Appeal allowed. Application for extension of time to file notice of cross-appeal allowed. Application for special leave to cross-appeal refused. Set aside the orders of the Court of Criminal Appeal of New South Wales and in lieu thereof order that the appeal to that Court be dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

1990, Feb. 15 Brennan, Dawson and Gaudron JJ.

The grand final of the rugby league competition in New South Wales is played for the Winfield Cup. "Winfield" is the name of a brand of cigarettes and the manufacturer of that brand in one way or another sponsors the competition or, at all events, the grand final. On the day of the grand final in 1984, the match and the events preceding it were televised by the respondent, which held a licence under the Broadcasting and Television Act 1942 Cth (now called the Broadcasting Act). A segment of the television broadcast led to the conviction of the respondent of an offence under s. 100(5A) of that Act. That sub-section provided:

A licensee shall not broadcast or televise an advertisement for, or for the smoking of, cigarettes or cigarette tobacco. Sub-section (10) of the same section exempted from the prohibition imposed by sub-s. (5A) the televising of matter of an advertising character "as an accidental or incidental accompaniment of the broadcasting or televising of other matter in circumstances in which the licensee does not receive payment or other valuable consideration for broadcasting or televising the advertising matter".

The segment in question was introduced as "the Winfield Spectacular" and preceded the televising of the football match. An announcer stated: "Winfield presents the 1984 big game buildup." That was followed by a performance of eurhythmics by a group of dancers, some dressed in red and some dressed in white costumes. At one point there was a brief display of a banner carried by them on which the words "Winfield Cup 1984" were plainly visible to the viewer. The telecast also showed for a moment in the background an A-frame situated at the perimeter of the football ground which carried an advertisement for Winfield cigarettes. The segment ended with the release of a number of yellow and green balloons.