HER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v JOHN FAIRFAX AND SONS LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, SAMUELS and CLARKE JJA 24 June 1988, 24 June 1988 [1988] NSWCA 63 Contempt — penalty — publication concerning accused person during trial. ORDERS (1) Opponent to pay fine of $20,000 within 14 days; (2) Opponent to pay claimant's costs of proceedings. Hope, Samuels and Clarke JJA In these proceedings the opponent, John Fairfax & Sons Limited, was charged with contempt in relation to the publication on 16 March 1987 of an article in the Sun newspaper concerning the trial of a number of people, including Michael Patrick Murphy, for the murder of Anita Lorraine Cobby, and for other offences. The particular matter in the article which led to the charge of contempt was a description of Michael Patrick Murphy as a prison escapee. The opponent strongly defended the proceedings. On 21 April 1988 the Court found that it was guilty and made a declaration accordingly, and reserved the question of penalty for further consideration. That is the matter now before the Court. On behalf of the opponent affidavits have been filed by J. Benaud, the editor of the paper at the time, Maxwell John Fitzgibbon, who was the journalist who wrote the part of the article which included the contemptuous matter, and Adrian Milford Deamer, the solicitor who gave legal advice in respect of another part of the article. It appears from these affidavits that Mr Fitzgibbon was a journalist with a long experience in reporting crime and trials and he thought that the plea of guilty by one of the accused, John Raymond Travers, to the charges was a matter which should be given a considerable amount of publicity, being a matter of great public interest and newsworthiness, and he accordingly dictated an article over the telephone immediately in order to have it published that afternoon in the newspaper. Mr Benaud, as editor, had as one of his functions, in addition to overseeing the publication generally, the consideration of the front page articles, and he decided that this story should be run as a front page article. It was in fact so run, a photograph and part of the article being on page | and the rest of the article, including that part of it containing the description of Michael Patrick Murphy as a prison escapee, being on page 2. Having considered the article, Mr Benaud thought there may be some problem in relation to the law of contempt because of the publication of a photograph of the accused Travers, and he decided to consult the opponent's legal manager, Mr Deamer, in relation to the matter. He did so, but the only matters he referred to Mr Deamer were the publication of the photograph and that part of the article concerned with the plea of guilty by Travers. Mr Deamer gave advice that there was no contempt problem in relation to those matters, and he was not referred to 2 UNREPORTED JUDGMENTS and did not read or consider any other part of the article and, in particular, did not know of the description of Murphy as a prison escapee. Mr Benaud himself, although it was his responsibility to consider what should be used as a front page article, only read the first few paragraphs, saw the photograph and assumed that the rest of the article simply contained background material for the trial. This is a case where the article in question was published on the afternoon of the first day of the trial of the four accused persons. We will not repeat what has been said already in the reasons of the Court for finding that the opponent was guilty of contempt, but it is difficult to imagine a clearer case of contempt. At times, no doubt, difficult questions of law or fact can arise in deciding whether contempt has been committed. Where there is a criminal trial in progress, to publish in a newspaper having a wide circulation, including a circulation likely to reach members of the jury, that the accused person may have been convicted of a crime, as the description "prison escapee" suggests, and that he had committed the crime of escaping from prison, is clearly a matter having a tendency to interfere with the administration of justice and it is difficult to imagine that any experienced journalist would not be aware of that fact if he gave any thought to the matter. Neither Mr Benaud nor Mr Deamer gave any thought to the matter because they did not read the part of the article which contained the statement. We may say that the article is not a very long article and it would have taken only a very short time to have read the whole of it. Mr Fitzgibbon says in his affidavit that he dictated most of what appeared in the article over the telephone and that the rest of the article must have been written by some other reporter. It may have been subjected to some minor alteration by a sub-editor. However, he undoubtedly wrote that paragraph in the article which contained the description of Murphy as a prison escapee. He says that he had a long familiarity with the name, address and occupation or description of each of the accused and was also very familiar with media coverage of the hunt for Michael and Gary Murphy and their capture, in which a description had been given of Murphy in substantially similar terms. He then went on to say:- "I had become so familiar with the name, age and occupation or description of each of the accused that I did not address my mind to the significance of the words I used to describe Michael Patrick Murphy on the occasion that I dictated those words to the copytaker. It was simply my intention to include in the story some general background information in relation to the trial, and it did not occur to me that there was any possibility that the words I used could have any bearing on the fair trial of the accused Michael Patrick Murphy. Neither those words, nor any of the other paragraphs I dictated to the copytaker, were read back to me, and the story was not referred to me again nor was I consulted about it in any way after I had dictated it." Mr Fitzgibbon went on to say that he had been conscious at all times during his career as a journalist of his responsibilities not to publish anything which in any way might have any bearing on the fair trial of an accused person and he was always aware that the publication of the prior record of such a person was not permitted but that nevertheless the significance of the publication did not occur to him. It is difficult to take other than a serious view of the contempt. In the course of his reasons in these proceedings Hope JA said:- WHER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v JOHN FAIRFAX AND SONS LIMITED (Hope, Samuels and Clarke JJA) ..to publish in the media during the course of a criminal trial a statement asserting or suggesting that an accused has previously been convicted of a crime or has previously committed a crime will constitute contempt, save in circumstances so exceptional that I cannot imagine what they might be. We should add that the circumstances are so exceptional that we do not know of any reported decision, or unreported decision for that matter, in which any such circumstances have been established or suggested. We would have thought that it would be well-known to everybody associated with the media that whatever might otherwise be arguable, it is not arguable that you could publish such a description of an accused person during the course of a trial. No general evidence as to any system by the opponent to prevent such a publication occurring has been put before the Court but various matters have been put from which the presence or absence of some part of a system can be inferred or discovered. It is clear that this is not a case, and it has never been suggested that it was a case, of an intentional contempt. It was a case of carelessness and, it might be said, of gross carelessness. There appears to be no system and there is certainly no evidence of any system to ensure that all journalists are aware and are continually reminded that matter such as that complained of in the present case cannot be published during the course of a trial. Indeed there does not seem to be a system to protect the newspaper against the consequences of carelessness. When we say "protect the newspaper" we should also say protect the interests of accused persons and of other persons involved in trials, and the public interest in the due administration of justice in relation to criminal trials. Nobody in a responsible position read the whole of the article. It must have been read by someone in the employ of the newspaper, such as a sub-editor, but no one having responsibility to ensure that matters of contempt were not published read it. As it seems to us, any system which allows the type of publication that took place in the present case has grave deficiencies and indeed it may be said there is no system to prevent it from occurring at all. This is a case where, to use the language of Kirby P in Director of Public Prosecutions v John Fairfax & Sons Limited (1987) 8 NSWLR 732 at 747, it is not necessary to vindicate the authority of the Court, but it is necessary emphatically to uphold the due observance of the law of contempt, with the important public interests which that law secures. It is also necessary to deter the opponent and others in a like position from a repetition of the carelessness which lead to publications such as that the subject of the present charge. The opponent has not had a bad record and that must be taken into account. However, the proceedings to which we have just referred were pending at the time of the publication on 16 March 1987. Further in proceedings against it in 1980, Attorney-General v John Fairfax & Sons Limited [1980] 1 NSWLR 362 there appears at 373 a warning that was given by the Court to the opponent in these words:- "It (the opponent) also should be warned that any further infringements may be visited with severe penalties. Indeed a warning should be given that in such an event proceedings may be brought against other persons in addition to the publisher." In that case the opponent was fined $10,000. In all the circumstances of the case, we consider that it is a proper case in which to impose a penalty, and that the penalty should be in the sum of $20,000. Accordingly, the opponent is fined the sum of $20,000, to be paid within 14 days. The opponent must pay the costs of the claimant of the proceedings. UNREPORTED JUDGMENTS COUNSEL: Claimant: W F GRAY (with him P A JOHNSON) Opponent: W NICHOLAS QC (with him J S WHEELHOUSE) SOLICITORS: Claimant: H K ROBERTS Opponent: MALLESONS STEPHEN JAQUES