HER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v JOHN FAIRFAX & SONS LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, SAMUELS and CLARKE JJA 11 and 14 March 1988, 21 April 1988 [1988] NSWCA 62 CONTEMPT — Woman sexually assaulted and murdered — Public outrage ventilated in media — Five persons ultimately arrested and charged — One of persons arrested a prison escapee and this fact published before arrest and during but not after committal proceedings — On afternoon of first day of trial defendant published report of proceedings in Court in newspaper readily available to jurors — Report described the particular accused as prison escapee — In answer to charge of contempt defendant relied upon massive publicity about crime and contempt proceedings, the earlier description of the accused as a prison escapee, the public outrage, matters contained in the Crown Prosecutor's opening, and a warning by the trial Judge to the jury to disregard matters not in evidence including media reports — Whether real risk that published statement would interfere with the administration of justice in relation to trial — Held that contempt had been established beyond reasonable doubt — Warning against publication during trial of statement asserting or suggesting that accused person has been convicted of or has committed a crime. ORDERS 1. Declaration that opponent is guilty of contempt as charged. 2. Further hearing of proceedings adjourned to a date to be fixed by Registrar. Hope JA On the night of 2 February 1986 Mrs Anita Lorraine Cobby was sexually assaulted and brutally murdered. Her body was found a few days later and the appalling circumstances of the tragedy produced an understandable revulsion in the whole community. Much publicity was given to all the known circumstances, and the police sought the assistance of the community generally in trying to find the perpetrators of the crimes. The New South Wales Government offered a reward first of $50,000 and later of $100,000 for information leading to the arrest and conviction of the offenders, and the Premier and other leaders in the community expressed their horror at what had taken place. After a time the police detained three suspects from whom they obtained statements. They were charged, and on the various occasions when they appeared in a court in the district where Mrs Cobby lived large crowds of outraged citizens expressed in no uncertain terms their attitude towards the persons charged. It then appeared that there were two other persons allegedly involved in the incident, including Michael Patrick Murphy. At that time Murphy was an escapee from prison and this fact was given considerable publicity in February and early March 1986. Murphy had apparently been given a lower than maximum security rating and the Government set up an inquiry to investigate how this came about. Not long after the two remaining suspects were found, they made statements and were charged. The committal proceedings took place in the Glebe Coroner's Court to which they had been removed because of what were claimed to be the problems of a hearing in a court in the district where Mrs Cobby had lived. In due course all five accused were committed for trial on a number of charges including murder. The 2 UNREPORTED JUDGMENTS trial commenced at the Central Criminal Court before Maxwell J and a jury on 16 March 1987. After the Judge had addressed the jurors on some aspects of their duty, and the Crown Prosecutor, Mr Saunders, QC, had given his opening address and had adduced some short evidence, the trial was adjourned until the following day. At 4 pm that afternoon, some editions of "The Sun" newspaper, published by the opponent, were available for sale at places in Sydney, including news stands and newsagents in the vicinity of Taylor Square, Darlinghurst where the Central Criminal Court was sitting. These newspapers contained an article which was a brief description of the earlier part of what had taken place in the court on that day but also contained matter which did not form any part of the proceedings on that day and which is the subject of the present proceedings. The article was on the first and second pages of "The Sun", and will be set out in full later. The article reported that one of the accused, John Raymond Travers, had pleaded guilty but that the other four had pleaded not guilty. On page 2 the article named the other four, gave their ages, occupations and suburb of residence. In the case of Michael Patrick Murphy it stated:- "Michael Patrick Murphy, 34, unemployed, a prison escapee of no fixed address." In his amended summons the Attorney-General seeks a declaration that the opponent is guilty of contempt of court in that being the publisher of "The Sun" newspaper, it caused to be published in that newspaper on 16 March 1987 material which was likely or calculated or had a tendency to interfere with the proper administration of justice in connection with the trial of Michael Patrick Murphy upon charges of murder and other offences, and an order that the opponent be punished or otherwise dealt with for such contempt of court. The statement of charge sets out, among other things, the whole of the article, alleges that at no stage in the trial of Murphy on 16 March 1987 was reference made to Murphy being or having been a "prison escapee" and then makes allegations as to the various reasons why this statement in the article was likely or calculated or had a tendency to interfere with the proper administration of justice in connection with Murphy's trial. It is the case for the Attorney-General that to publish during and in particular on the first day of the trial of an accused person that he is a prison escapee, no such allegation having been made at the trial, has a tendency and indeed a strong tendency to prejudice the due administration of justice in relation to the trial of that person. The making of such a statement would lead any reasonable member of the community to believe that the accused had probably committed a crime for which he had been sent to prison, and that in any event he had committed the crime of escaping from prison and that the crime of which he was accused was one which had been committed at the time when he was a prison escapee. The opponent does not deny that in appropriate circumstances such a publication might amount to contempt but submits that in the light of the circumstances of the present case, the matters which the tests laid down by the High Court and by this Court require to be made out before a charge of contempt is established are not made out, and certainly are not made out beyond a reasonable doubt. It will be convenient to set out some of the statements of principle in relation to contempt upon which the opponent relies. The first appear in the judgments in Hinch v Attorney-General (Victoria) (1987) 61 ALJR 556, a case which, although it involved the formulation of the correct principles to be applied in determining whether a publication could be a contempt of court, was essentially concerned with the problem that arises when it is claimed that the public interest in freedom WHER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v JOHN FAIRFAX & SONS LIMITED (Hope JA) of discussion has overridden the public interest in protecting the administration of justice. The grant of special leave to appeal in the case was "restricted to the effect of the observations of Chief Justice Jordan in (the Bread Manufacturers' case) and the views expressed by the members of this Court in (the BLF case)" 61 ALJR at 563. However of necessity statements were made by members of the Bench as to the matters which must be proved to establish contempt given no competition with some other matter of public interest. Mason CJ at 559 and 560 pointed out that in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 (the BLF case) Gibbs CJ said at 60:- "... the Court (must be) satisfied that there is a real risk that the material alleged to be a contempt will interfere with the administration of justice in pending proceedings before it can hold that a contempt has been committed or is threatened." Mason CJ said that he had concluded in the BLF case that the issue in that case was whether there was "a substantial risk of serious injustice". He later said that he would be prepared to accept the test of "real risk" of interference as stated by Gibbs CJ. At 561 he described the test as being "whether a particular publication presents a real risk of serious prejudice to a fair trial, that is, serious injustice...". Deane J said at 569:- "The publication of material in circumstances where the clear tendency of the publication is to preclude or prejudice the fair and effective administration of justice in particular pending legal proceedings constitutes contempt of court...". Later on the same page he said:- "What is required is that the nature and circumstances of the publication are such that it can be plainly discerned that there is a 'real and definite possibility' that it may 'prejudice the administration of justice'...". In Attorney-General (New South Wales) v John Fairfax & Sons Limited and Bacon (1985) 6 NSWLR 695 at 697 Glass JA stated that:- ".....the test of the opponents' liability is whether the publication had a tendency as a matter of practical reality to interfere with the projected trial upon indictment (of the accused person). It would have such a tendency if the minds of the putative jurors adjudicating upon the charge might have been influenced by what was published. This question falls for determination in the light of the nature of the material published and of the circumstances existing at the time of publication." This statement of principle was approved in the judgment of this Court in Director of Public Prosecutions v Wran (1986) 7 NSWLR 616 at 626. In Bacon at 698 Samuels JA said:- "What is required is the real and definite possibility that the publication... may prejudice the administration of justice." In John Fairfax & Sons Pty Limited v McRae (1954-55) 93 CLR 351 at 369, Dixon CJ, Fullagar, Kitto and Taylor JJ said in their joint judgment:- "The question which emerges thus seems to us to be whether any of the material published can properly be regarded as having such a relation to the charges pending against (the accused) that it tended to prejudice or interfere with the due and fair determination of his guilt of innocence." Later, at 370 their Honours said that the published material must have, "as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case". Picking out the varying words used in these statements as to the test, it has been submitted for the opponent that in the circumstances of the present case the Court could not be satisfied beyond a reasonable doubt that there was a real risk 4 UNREPORTED JUDGMENTS that the publication of the statement that Murphy was a prison escapee would interfere with the administration of justice in his trial, that the clear tendency of the publication was to preclude or prejudice the fair and effective administration of justice in the trial, that it could be plainly discerned that there was a real and definite possibility that it might prejudice the administration of justice in the trial, that it had a tendency as a matter of practical reality to interfere with the trial or that there was a real and definite possibility that the publication might prejudice the administration of justice in the trial. It was submitted that the published material could not properly be regarded as having such a relation to the charges against Murphy that it tended to prejudice or interfere with the due and fair determination of his guilt or innocence. It was also submitted that the opponent's case is supported by decisions concerning the discharge of juries in criminal cases where the accused's criminal record has accidentally been revealed, and in particular that these decisions establish that it should not be assumed that jurors will not observe their oath to try the issues upon the evidence before them or that they will be swayed by material published in the media but not contained in the evidence. The circumstances relied upon by the opponent include the brutality of the crime, the horrified reaction of the general public to it and the attendant publicity emphasising these matters, the publicity surrounding the charging of the three offenders who were first arrested and the displays of public hostility to them and the publicity surrounding them and their involvement, the hunt for the remaining two including Michael Patrick Murphy and their ultimate capture, the large amount of publicity surrounding the chase, their arrest and appearance in court, the widespread publicity of public hostility to them, the offer of the reward and statements by the Premier and other leaders in the community, the establishment by the Premier of an inquiry into the security rating of Michael Patrick Murphy, the description of Michael Patrick Murphy as a prison escapee on a number of occasions from February to June 1986, although not after he had been committed for trial in July, the massive amount of publicity given to the proceedings in the Coroner's Court and the publicity given thereafter from time to time to the matter up to the time of the commencement of the trial. Reliance is also placed upon the warning given by Maxwell J to the members of the jury at the commencement of the trial, to the emotional content of the Crown Prosecutor's opening and his reading out of various passages from statements attributed to the accused, including Michael Patrick Murphy, and the nature and contents of the article in "The Sun" on 16 March 1987 including the highlighting of the plea of guilty by one of the accused, the making of the statement in question on the second page of the article and its being contained in the middle of an article otherwise correctly describing events that had taken place in court on that day. The terms of the article which appeared in "The Sun" on 16 March 1987 were as follows:- (p 1) "ANITA MURDER MAN GUILTY One of the five men charged with the murder of Sydney nursing sister Anita Cobby pleaded guilty today. John Raymond Travers, 20 of Wentworthville, pleaded guilty to all charges relating to the murder of the 26-year-old former beauty queen at Wentworthville, on February 2 last year. Four co-accused Michael James Murdoch and brothers Leslie, 22, Gary, 29, and Michael Murphy, 34, all pleaded not guilty to the murder before Justice Maxwell in Central Criminal Court. WHER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v JOHN FAIRFAX & SONS LIMITED (Hope JA) Travers and the others all appeared on the same charges before Mr. Justice Maxwell and a jury at the Darlinghurst Court. Travers was asked if he understood the plea he was making and (p 2) ANITA: GUILTY PLEA the maximum penalty a plea of guilty could attract especially in relation to a charge of murder. Travers replied: 'Yes, your Honour.' The judge on the application of senior Crown prosecutor, Alan Saunders, QC, then remanded Travers in custody until the completion of the trial of the four other men. After Travers was removed from the dock the jury, comprising eight men and four women was selected and Mr. Justice Maxwell spent 25 minutes briefing them on their role. He told the panel to keep in mind not to express their views on the case with anyone, including their family, except with fellow jurors in the jury room. Mr. Saunders, QC, was set to outline the Crown case against the four men late today. The naked mutilated body of Mrs. Cobby was found in a cow paddock off Reen Road, Prospect four days after she was last seen alive on February 2. Appearing on the same charges as Travers are Michael James Murdoch, 19, unemployed of Westmead; Leslie Joseph Murphy, 23, maintenance worker of Doonside; Gary Stephen Murphy, 29, unemployed also of Doonside; and Michael Patrick Murphy, 34, unemployed, a prison escapee of no fixed address. The youngest of the defendants, 19-year-old Michael Murdoch, appeared neatly dressed in a three piece blue suit and a tie. He wore glasses and has an old fashioned slicked back parted hair style. He sat quietly with his head bowed for most of the time he was in court. Tight security surrounded the court today. Anyone entering the court had to pass three security points including a metal detector and a hand search of bags and briefcases. The judge heard applications by 55 potential jurors to be excused. He allowed all but seven of the applications. Mrs. Cobby's parents, Garry and Grace Lynch, attended the court for the defendants pleas, accompanied by a family friend. Two women and a man charged with being accessories after the murder of Mrs. Cobby were also called briefly before Mr. Justice Maxwell today. They are Deborah McAskill and Mavis Saunders, who were living in a Housing Commission flat at Glenfield where the two older Murphy brothers were arrested, and Raymond John Patterson, of Doonside. Mr. Justice Maxwell remanded the three on continuing bail until the completion of the trial of the four men charged with the murder. The hearing continues." The heading "Anita Murder Man Guilty" appeared on the front page of "The Sun" in very large letters. The heading "Anita: Guilty Plea" was in large letters and appeared across the top of that part of the article which continued on page 2 of "The Sun". As will be seen from the terms of the article a reference to Michael Patrick Murphy being a prison escapee occurred in a paragraph which starts with the words "Appearing on the same charges as Travers are", followed by names, ages, occupations and addresses of each of the other four accused. Michael Patrick Murphy is described as "34, unemployed, a prison escapee of no fixed address". As regards the publicity given to the crime, the accused and the criminal charges, there were tendered in evidence 201 pages of press clippings ranging in date from 5 February 1986 to 17 March 1987, and also three video tapes of 6 UNREPORTED JUDGMENTS television coverage. Two of these video tapes were played to the Court and the third one was described as having a similar content to that of the other two. I will not attempt to describe in detail the terms of this massive publicity. Most of it was published or televised when the crime was discovered and the police were seeking to find the criminals, when the first three were captured and were before the court, when the chase for the remaining two was being conducted by the police and when they were captured and brought before the court, and later when the proceedings were being held in the Coroner's Court. There was some publicity between the committal of the accused in July 1986 and the commencement of the trial on 16 March 1987 but it is not to be compared with the earlier massive publicity. There seem to have been about 25 descriptions of Michael Patrick Murphy as a prison escapee in the press from February to June 1986 and a number of similar descriptions of him in the televised reports. There were none after the end of the committal proceedings. He was otherwise described as being "unemployed, of no fixed abode". All this publicity would have brought to the attention of members of the public including potential jurors the brutality of the crime, the tragedy of the unfortunate victim, the strong emotions and revulsion which the crime raised in members of the public and their public display of that revulsion and of a desire for retribution against the perpetrators A memory of the brutality of the crime and of the strong emotions which it raised would probably have been left with most people a year later when the trial of the accused commenced. Many people may have remembered that Michael Patrick Murphy had been described as a prison escapee; others may have forgotten. At the commencement of the trial, the jury having been empanelled, Maxwell J addressed the jury on its role in the trial and the duty which its members had. He emphasised in the strongest terms that they had to deal with the innocence or guilt of each of the accused upon the evidence adduced at the trial and not otherwise; that they were the judges of the facts and that they had to decide what were the facts. He told them that they must put to one side matters that they had read, seen or heard in or from the media and that they must not discuss any matter concerning the trial with any other person. The charges upon which the four accused were indicted were murdering Mrs Cobby, taking her away with intent to hold her for advantage, assaulting her and robbing her of certain property and immediately after using other corporal violence on her and so wounding her, maliciously inflicting actual bodily harm upon her with intent to have sexual intercourse with her, and stealing a motor vehicle. One of the accused was also charged with stealing another motor vehicle. In opening the Crown case, the Crown Prosecutor was alleged to have used very emotional and prejudicial terms which led to an application, in the absence of the jury, that the jury be discharged. This application was rejected but in the course of his rejection, Maxwell J said that he made "no comment on the florid approach by the Crown Prosecutor". In his opening the Crown Prosecutor read a large number of extracts from statements which he said had been obtained by the police from the accused. These statements described the crimes in all their awful detail and undoubtedly must have had an emotional effect upon the members of the jury. Many references were made in passages so read to the jury to the cutting of Mrs Cobby's throat by John Raymond Travers, who had pleaded guilty to the charges, and who had been remanded for sentence in the absence of the jury. It was that plea of guilty which was featured largely on page | of "The Sun" newspaper on 16 March 1987. WHER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v JOHN FAIRFAX & SONS LIMITED (Hope JA) I have already set out the paragraph of the article in which the matter complained of appeared. It appeared on page 2, is in the same sized print as the rest of the body of the article, was not emphasised in any way and was surrounded by generalised statements as to what had happened in court, including Travers' plea of guilty. It did however appear in a paragraph in the article which listed the names, ages, occupations and addresses of the accused, and if any reader wanted to know who they were, that paragraph would give the information. It does not appear how the statement that Michael Patrick Murphy was a prison escapee came to appear in the article, for the article described the proceedings in the court on that day and it is not in issue that no reference of any kind was made at the trial to Michael Patrick Murphy being or having been in prison or an escapee from prison. It is not suggested that the inclusion of this description was done with the intent to interfere with or prejudice the administration of justice in Murphy's trial, but since it could not have been part of a description of what took place in court, it must have been inserted, either by the original reporter or by someone else, from information available to him or her from outside what had been said or done in court. The publication of a statement during the course of a trial that the accused is a prison escapee is to be treated at least as prejudicial as the publication of a statement disclosing the prior criminal record of the accused person. It may even be more prejudicial. It has been submitted that the nature of the article and the place in it where the description of Michael Patrick Murphy as a prison escapee in it appeared deprived it of the tendency which it might otherwise have had to interfere with the due administration of justice in relation to Murphy's trial. It is put that what the article highlighted was the plea of guilty by Travers, and that the statement was hidden behind that highlighted material and amongst other material concerning the trial in such a way as to deprive its publication of having any real possibility of prejudicing the administration of justice. I do not agree. While it is true that the report might be said to be dominated by an account of Travers' plea of guilty, the article went on to describe what happened in respect of the other accused persons. Indeed, the paragraph containing the statement about Murphy being a prison escapee is tied to the Travers' material, for its opening words are "Appearing on the same charges as Travers are". In my opinion there was at least a real possibility, if not a probability, that persons beginning to read the article would read it to the end. It is trite law that without more the publication during the course of a criminal trial of matter concerning the criminal record of an accused person has a tendency to interfere with the due administration of justice in relation to the trial of that person. We are not here concerned with a publication at some considerable time interval before the trial; we are concerned with a publication made towards the end of the first day of the trial. It is sufficient to refer to statements on the matter contained in the judgments of two of the members of the bench in Hinch. Mason CJ said (61 ALJR at 561):- "However, I should mention some aspects which are relevant to the present appeals. The first is that the courts have always taken a serious view of any published disclosure of the prior conviction of a person accused of a criminal offence when proceedings for that offence are pending. This is because a prior conviction is not admissible evidence of a person's guilt of the offence with which he is charged: Maxwell v The Director of Public Prosecutions [1980] 2 NSWLR 143 at 149. Yet knowledge of a prior conviction is likely to prejudice a 8 UNREPORTED JUDGMENTS jury against an accused person and induce a jury to conclude that he had a propensity to commit the offence charged." Gaudron J said (61 ALJR at 587):- "There is a further and more important consideration. The disclosure of the previous conviction of a person facing a criminal trial is regarded as constituting a serious risk to the administration of criminal justice, for as Moffitt P said in Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at 150: 'The popular view of the correlation between persons guilty of committing present crimes and those who have committed earlier crimes, leads to the popular and deeply rooted belief that it is more likely that an accused person committed the crime charged, if he has a criminal record, and less likely if he has no record.' This risk has the potential to undermine the operation of the criminal justice system: as Viscount Sankey LC stated in Maxwell v Director of Public Prosecutions [1935] AC 309 at 317, the exclusion of evidence of prior conviction at a person's trial is one of the most 'deeply rooted' and jealously guarded principles of our criminal law." It has been submitted for the opponent that there should be a limitation upon the application of considerations such as those to be found in the statements I have quoted and in other like statements. This limitation, so it is submitted, is to be found in the passage from the joint judgment of Dixon CJ, Fullagar, Kitto and Taylor JJ in John Fairfax & Sons Pty Limited v McRae at 369 which I have earlier quoted, namely, that the material published must properly be regarded as having such a relation to the charges pending against the accused that it tended to prejudice or interfere with the due and fair determination of his guilt or innocence. It is put that in the present case the statement that Murphy was a prison escapee had no such relation to the charges pending against him. No precise principle was formulated as to what relationship was required but whatever it was, it had to exist for contempt to be established, and it did not exist in the present case. The relationship between a criminal record and the issue of the guilt or innocence of the accused in pending proceedings does not depend upon some similarity between the content of the criminal record and the pending charge. The position was described by Moffitt P in Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at 150 in these terms:- "The popular view of the correlation between persons guilty of committing present crimes and those who have committed earlier crimes, leads to the popular and deeply rooted belief that it is more likely that an accused person committed the crime charged, if he has a criminal record, and less likely if he has no record. Under the general law, however, the existence of a prior record was regarded as irrelevant in Stewart v The King (1935) 52 CLR 739; but in Attwood v The Queen (1960) 102 CLR 353, the court (consisting of Dixon CJ, McTiernan, Fullagar, Taylor and Menzies JJ) considered the ground of exclusion not to be relevance, but 'policy deeply rooted in principle' and quoted with apparent approval the words of Willes J in R v Rowton (1865) Le & Ca 520; 169 ER 1497: 'The evidence is relevant to the issue, but is excluded for reasons of policy and humanity; because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety-nine.' In a practical sense the problem is accentuated because juries are told in appropriate cases: Crimes Act, s412, and see MacDonald v The King (1938) 52 CLR 739, that good character, and hence absence of prior convictions, should be considered on the question of guilt." WHER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v JOHN FAIRFAX & SONS LIMITED (Hope JA) There is thus the necessary relationship between the publication that Murphy was a prison escapee and the determination of his guilt or innocence. It should also be borne in mind in determining whether a publication has the necessary tendency it is not relevant to determine what the actual effect of the publication upon the proceedings has been or what it probably will be; it is sufficient if it has a real possibility of interfering with or prejudicing the proper administration of justice in relation to the trial: Attorney-General (NSW) v John Fairfax & Sons Limited [1980] 1 NSWLR 362 at 368; Director of Public Prosecutions v Wran supra at 626. As Mahoney JA said in Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at 161:- "To publicize an accused person's previous offences may not actually interfere with the course of justice at his trial, but it will have a strong tendency to do so." Strong reliance has been placed for the opponent upon decisions as to the exercise by presiding judges of their discretion to discharge a jury when prejudicial matter, including a statement as to the criminal record of an accused person, is published. To take but two examples, in Peter Vaitos (1981) 4 A Crim R 238 and Reg v George (CCA; unreported 27 May 1987), the Courts of Criminal Appeal of Victoria and New South Wales respectively refused to interfere with the exercise of his discretion by the presiding judge at a criminal trial not to discharge a jury although material prejudicial to the accused had been published. Reliance is also placed on the refusal of the New South Wales Court of Criminal Appeal in George to apply R v Knape [1965] VR 469, where the Victorian Full Court had said that the judge's discretion should be exercised in favour of the accused where there had been an irregular disclosure unless it could be said that the disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty. In my opinion, decisions in relation to the exercise by a presiding judge of this discretion are not relevant in relation to the question which arises for decision in this case. The matter was put quite shortly by Gobbo J in R v Day and Thomson [1985] VR 261 at 265:- "Tt is not to the point that had the trial Judge not discharged the jury but chosen to warn them to disregard the article, his action may very well have been sustained as a reasonable exercise of his discretion. The relevant question is not whether a mistrial occurred, but whether or not the article had a real tendency to interfere with the course of justice." It is apparent from the decisions in relation to the presiding judge's discretion that he has to consider whether justice requires that the trial be aborted, or whether the needs of justice can be satisfied by giving an appropriate warning or directions to the jury or otherwise. However the only reason why the judge has to exercise his discretion is because of the tendency of the published material to prejudice the due administration of justice. If it did not have that tendency the occasion for exercising the discretion in the particular circumstances now being discussed would not arise. Indeed, this position is pointed up in Vaitos where each of the members of the Court of Criminal Appeal, having concluded that they should not interfere with the decision of the trial judge not to discharge the jury, expressed themselves quite forcefully about the publication which made it necessary for the trial judge to exercise that discretion. Thus O'Bryan J said (4 A Crim R 278-279):- "T do not consider that any injustice was caused to the applicant's case by the film being shown but, I believe, it is appropriate for me to deprecate in strong terms the action of the media in showing a film, during the course of a trial, 10 UNREPORTED JUDGMENTS containing material which was not shown to the jury during the trial. There is very Considerable danger that a trial will miscarry as a consequence of the unauthorised publication of irrelevant film and the practice should be discontinued. The essence of a fair trial required that a jury decide the guilt or innocence of an accused person solely upon the evidence tendered in court. Any matter which is published during a trial which goes beyond a fair and accurate report of the evidence tendered in the presence of the jury may lead to a trial miscarrying. Serious contempt proceedings might be initiated against the person responsible for the illegal publication irrespective of the outcome of the trial. It is of the utmost importance that the jury should not be distracted from its task by exposure to irrelevant or prejudicial material outside the evidence tendered in the course of the trial. The media's responsibility is to report a trial in such a way that the jury will not be distracted from its task by extraneous matter which is not part of the evidential material placed before them. If it abrogated its responsibility by publishing matter prejudicial to an accused during a trial it must expect firm retribution by the courts." Lest the opening words of this passage in his Honour's judgment be misconstrued, any injustice to the accused Vaitos was avoided by what happened in the course of the trial, and in particular by the warnings given by the Presiding judge to the jury. It remains then to consider whether the other circumstances relied upon by the opponent, in conjunction with the circumstances already discussed, should leave the court not satisfied beyond reasonable doubt that the Publication had the relevant tendency. It should be remembered that the issue at the trial of Murphy was not whether there had been a brutal murder of Mrs Cobby; the question was whether he was guilty or not. I do not consider that the pre-arrest and pre-trial publication of material about the brutality of the murder and associated events, or the widespread public revulsion about these matters has, in the circumstances, had the result of diminishing what would otherwise be the tendency of the statement. Indeed in such a case it may well be more important that prejudicial statements about an accused person should not be published The brutality of a crime may lead members of a jury to have a feeling that that very brutality calls for retribution in the nature of a conviction. Hopefully jurors would resist such a temptation, but it would be of the greatest importance that any such inclination should not be strengthened by the publication of prejudicial material. There is then the previously published material describing Michael Patrick Murphy as a prison escapee. These publications fell into three classes; those which were made before Murphy was charged, and those (if any) which were made in the course of correctly reporting the committal proceedings, neither of which would constitute contempt, and those made in discussing (otherwise as part of such a report) the crime later than the time when he was charged. In Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 at 155 I said in relation to earlier publications of prejudicial material:- "The publications in 1978 were publications of proceedings in court about which no complaint could be made. Some members of the public might have a recollection of them, but that is a consequence which, within the law, cannot be avoided. The other publications concerning the character or record of the prisoner accused with killing Mr Mewburn would, no doubt, also have an effect upon members of the public who read or heard them, but the fact that improper statements, amounting to contempt, have already been made in newspapers or other branches of the media is no answer to the present charge. It cannot be a WHER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v JOHN FAIRFAX & SONS LIMITED (Hope JA) justification for publishing such material as is the subject of the present charge that other persons have done likewise. The consequences of the contrary conclusion are patent." This matter was taken up in the judgment of the Court in Wran at 629 in relation to other published material relied upon by the opponent in that case:- "Tn relation to that material, in so far as it was contumelious, we are of opinion that it should not be taken into account in determining the practical tendency of the relevant publication The fact that other people have been guilty of contempt cannot be used to justify a publication which would otherwise constitute contempt. If it were not so a failure to call a halt to publications prejudicing the due administration of justice in relation to a particular trial for some period of time would preclude that halt being called ever after." Accordingly such of the earlier statements as constituted a contempt should be disregarded. But as regards any earlier publication, as I have said earlier, some potential jurors may have remembered the statements about Murphy being a prison escapee and some may have forgotten them or not have read them. Of those who remembered them, some may have remembered simply that one of the accused persons was a prison escapee, or that one of the Murphys was a prison escapee, or that Michael Patrick Murphy was a prison escapee. However I am satisfied beyond a reasonable doubt that notwithstanding the publication of these earlier statements the tendency of the subject statement was to prejudice the due administration of justice in relation to Murphy's trial. Even in relation to those persons who knew or remembered that Murphy had been described as a prison escapee, the reminder given by the publication of that fact involved a tendency to interfere, in the sense of a real possibility, with the due administration of justice In relation to those persons who had no such knowledge or recollection, the position is of course the same. There remains what took place at the trial itself. This material includes the exhortation by Maxwell J to the jury to have regard only to the evidence before them and to disregard matters that they had read, seen or heard in or from the media, a like exhortation from the Crown Prosecutor and the contents of the Crown Prosecutor's opening, including his reading of many passages from statements by the accused which were to be led in evidence. I do not accept the opponent's submissions as to the effect of this material. The exhortations by judge and prosecutor were given to Persuade the jury to disregard material, not in evidence, which might affect their decision. The Proposition that the media are free to publish Prejudicial statements about an accused person once the presiding judge has warned the jury to disregard such material has only to be stated to be rejected The only occasion to give such a warning is because of the tendency of such material to prejudice the proper administration of justice in relation to the trial. Whatever effect such a warning has in fact, it will still leave a real Possibility that the Publication of the material will prejudice the fair trial of the accused. The appalling details which the Prosecutor's address revealed and the evidence of guilt which they contained made it all the more important that no Prejudicial statements should be Published. None of the events which took place during the first day of hearing took away from the publication the tendency to prejudice the due administration of justice in respect of the trial of Murphy which in my opinion it undoubtedly had. It appears in the material before the Court that on the day following the publication, 17 March 1987, and upon the application of Murphy and indeed of the other accused, Maxwell J discharged the jury and recommenced the trial, over 12 UNREPORTED JUDGMENTS objection on behalf of the accused, on 23 March 1987. In my opinion neither of these facts is relevant to the determination of the question whether the publication had the necessary tendency to prejudice the administration of justice. This question must be determined as at the time of publication, not at some later time. The decisions of Maxwell J to discharge the jury and to recommence a new trial on 23 March 1987 stand in the same position as that of another court on similar facts. Thus if two newspapers had published a statement that Murphy was a prison escapee, the decision in a charge of contempt against one of those newspapers that the statement had the necessary tendency would not be evidence in the other case on the question. The fact that the publication of the statement led to the discharge of the jury may be a relevant circumstance in relation to the question of penalty, but not upon the question presently being decided. There is one further observation I think I should also make. The media have a most important role to play in our society and the public interest in the performance of that role is substantial. At times its performance cuts across another matter of public interest, the proper administration of justice. Decisions have often to be made quickly in publishing newspapers or in producing other forms of media material and the simpler the rules the better for all concerned. The principles relating to the publication of material such as that involved in the present case during the course of a criminal trial are in my opinion simple and do not require value judgments to be made upon conflicting interests or otherwise. This was the view which was expressed by Moffitt P in Attorney-General (NSW) v Willesee at 152, and I agree with that view now as I agreed with it then. Hence, 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. In my opinion the claimant has established beyond reasonable doubt that the publication by the opponent in "The Sun" newspaper on 16 March 1987 of the statement that Michael Patrick Murphy was a prison escapee had a tendency to interfere with the proper administration of justice in connection with his trial and constituted a contempt, and a declaration should be made accordingly. The further hearing of the proceedings should be stood over to a date to be fixed by the Registrar. Samuels JA I agree with Hope JA. Clarke JA I agree with Hope JA. 1. Declaration that opponent is guilty of contempt as charged. 2. Further hearing of proceedings adjourned to a date to be fixed by Registrar. Counsel for the Claimant: WF GRAY QC, PA JOHNSON Counsel for the Opponent: W NICHOLAS QC, JS WHEELHOUSE Solicitors for the Claimant: HK ROBERTS Solicitors for the Opponent: MALLESONS STEPHEN JAQUES