ATTORNEY GENERAL FOR NEW SOUTH WALES v NATIONWIDE NEWS PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, KIRBY P and PRIESTLEY JA 7 August 1990, 11 October 1990 [1990] NSWCA 12 CONTEMPT — criminal contempt — morning and afternoon newspapers owned by the opponent publish material concerning a person accused of three counts of murder and one of attempted murder — stories published on front page — morning story published before accused appears in court to face charges — morning newspaper contains statement that police alleged that the accused has confessed and description of his identification of alleged murder weapon — also asserts accused told police he "had an urge to kill but could not explain it" — afternoon newspaper contains headline "Accused quizzed on two more murders" — photographs of accused published — allegation that accused has been questioned by police about "two other unsolved murders" — assertion that accused told police he was having a good time" as he held his victim captive and other descriptions of the victim's ordeal — publisher admits contempt — consideration of proper penalty in the circumstances — held: (1) The publications amounted to clear contempts of court; (2) The publication in the morning newspaper followed the receipt of legal advice which was acknowledged to be erroneous but it was reasonable for the newspaper to act upon it; (3) The publication in the afternoon newspaper was made without further legal advice and in reckless pursuit of a good story and sales of the newspaper; (4) In the circumstances a fine of $200,000 should be imposed. Gleeson CJ, Kirby P and Priestley JA. The Claimant, the Attorney General for New South Wales, claims declarations that the Opponent ("Nationwide") is guilty of contempt of court 1. in that being the publisher of the Daily Telegraph newspaper it did cause to be published in that newspaper on 31 July 1989 matter which was likely or calculated or had a tendency to interfere with the administration of justice in connection with the trial of Paul Gerald Mason on three charges of murder and one charge of attempted murder, and 2. in that being the publisher of the Daily Mirror newspaper it caused to be published in that newspaper on 31 July 1989 matter which was likely or calculated or had a tendency to interfere with the administration of justice in connection with the trial of Paul Gerald Mason on three charges of murder and one charge of attempted murder. The Attorney General further claims an order that Nationwide be dealt with for such contempt. Nationwide has told the court that it consents to declarations in the terms sought. The court is therefore concerned only to decide what penalty should be imposed. Background and the admitted contempt The publications were made in the following circumstances. In May 1989 the body of Mrs Clark was found in her farmhouse home not far from Canberra. In July 1989 the body of Mrs Ferguson and her infant son Mark were found in the boot of her car outside her home in Pambula, a small town near Merimbula. The two women and the baby all appeared to have been violently murdered. There 2 UNREPORTED JUDGMENTS was widespread media publicity after the May murder. Almost immediately after the July murders a police search began for a man named Paul Mason and the media publicity became intense. On Saturday 29 July 1989, Paul Mason's father appeared on ABC television, asserted his son's innocence and also appealed to him to give himself up. Apparently as a result of that broadcast, the son by 10.30 that night was at the Queanbeyan Police Station, where he was interviewed for many hours. It is common ground that during that interview he confessed to the three murders and also to the attempted murder in May 1989 of the infant son of Mrs Clark. By 8.50 am on 30 July 1989 he had been charged with the three murders. Mr Mason was then taken, handcuffed, to the farmhouse near Canberra where Mrs Clark was murdered, identified the murder weapon and pointed out places to the police having a bearing on what he had done in connection with the murder. Some of this activity was recorded by the television cameras of various media organisations. At about 12.55 pm he was charged with the attempted murder of Samuel Clark. By this time lengthy records of interview had been signed by the accused in which the way in which he had committed the crimes was detailed. At about | pm, at a press conference arranged by the police, various officers supplied the waiting journalists with some details of what had been happening. One police officer said that the arrested man had confessed. After the press conference, the police flew the accused to Merimbula and took him from there to the home at Pambula where the July murders had taken place. In the evening of Sunday 30 July a number of television channels and radio stations broadcast news of what had been happening during the day. Some of the television channels broadcast the fact that Mr Mason had confessed to the three murders and the attempted murder. The articles from the two papers admitted by Nationwide to be contemptuous were annexed to the Attorney General's amended summons. From the Daily Telegraph two articles were annexed, from two different editions on 31 July. There were slight differences between them. Each was the leading story on the front page of the edition of the paper in which it appeared, in each case under a large headline "Accused tells of 'urge to kill'"'. The headings to the Daily Mirror's article took up more than half the paper's front page: "Pickaxe killings - man in court. ACCUSED QUIZZED ON TWO MORE MURDERS". We do not set the articles out in full as we think they are sufficiently summarised in the particulars in the Attorney General's summons. The summary says the Daily Telegraph's articles: "\.. contained material about the accused, including photographs of the accused, the accused being handcuff ed to police officers and including statements that he had told police that he had an urge to kill; that police alleged that the accused had confessed to the murders of Ruth Margaret FERGUSON, Mark FERGUSON, Mary Alice CLARK; that the accused had led police to a pick axe in bushland about 700 metres from the Clark's farmhouse; that police alleged that the pick axe was similar to the instrument used to kill Mrs Ferguson; that a police officer had said that there was no apparent motive for the killings; that the accused had told police in a signed statement that he had an urge to kill but could not explain it; a statement by a police officer that it was tragic that Ruth FERGUSON and Mark FERGUSON had suffered the same fate as Mary CLARK; that the accused had spent more than 24 hours on the run; that the accused had directed police to a place on the farm property where police found what they later said was a mountaineer's pick axe; that inside the Ferguson's UWRATORNEY GENERAL FOR NEW SOUTH WALES v NATIONWIDE NEWS PTY LIMITEB (Gleeson Cu, Kirby P and Priestley JA) house the accused gave detectives and scientific police details of the slayings; that the accused had several links with the families of the two victims." The summary says the Daily Mirror's article: "\.. contained material about the accused, including photographs of the accused, the accused being handcuffed to police officers, and included statements that the accused had been questioned by police about two other unsolved murders in which an axe had been used; that police alleged that the accused had confessed to the murders of Mrs Clark, Mrs Ferguson and Mrs Ferguson's baby son; that police said that the deaths of Mrs Ferguson and Mark Ferguson had been a thrill killing; that the police alleged that the accused told them he was having a good time as he held Mrs Ferguson captive; that Mrs Ferguson did not say anything but just held her hands up to her eyes during the five hour ordeal." Mr Mason appeared in the Queanbeyan Local Court on 31 July 1989 and was remanded in custody. On 14 August 1989 before the same Court he was further remanded in custody. In the ordinary course the magistrate at the Queanbeyan Local Court would have heard committal proceedings in regard to the charges in December 1989 or January 1990. If those proceedings resulted in Mr Mason's being committed for trial, that trial would probably have taken place in about July 1990. However, Mr Mason committed suicide on 11 September 1989. In Hinch v Attorney General (Vic) (1987) 164 CLR 15, the legal rule is stated that the publication of material in circumstances where the clear tendency of the publication is, as a matter of practical reality, to interfere with the due course of justice in a particular case, there is a contempt of court. "Practical reality" requires that the nature and circumstances of the publication be such that it can be plainly discerned there is a real or definite possibility it may prejudice the administration of justice (per Mason CJ at 27 and Deane J at 46-7). We think it is clear that the widely published statement that an accused person has made a confession is likely to be prejudicial to a fair trial. This view has repeatedly been expressed by the courts: Attorney-General v John Fairfax and Sons Limited (1980)1 NSWLR 362, R v Pacini (1956) VLR 544, R v David Syme and Co Limited (1982) VR 173, R v Clarke ex parte Crippen (1910) 103 LT 636, Re Attorney-General for Manitoba and Radio Ob Ltd (1976) 70 DLR (3d) 311 and see the discussion in Borrie and Lowe, Law of Contempt, 2nd ed 1983 at 99. In the present case the publications at times used words indicating that what was being reported were allegations rather than facts, but we have no doubt that the sketchy attempts to convey this meaning were quite unsuccessful and the articles must have told any ordinary reader that the accused had confessed to the crimes with which he was charged, and had gone to the places where the crimes had happened and given the police full details on the spot confirming that he was the guilty man. The publication of this material to what, on the evidence before the Court was likely to be a considerable readership, including numbers of potential jurors in Sydney, Wollongong and country areas, undoubtedly brings the publications within the test we have stated. We indicated above that we think it is an established and a correct view that widespread publication of the alleged making of a confession is likely to prejudice the fair trial of an accused person. That this is generally recognised by the media also is borne out by what has happened in the series of cases that arose from the different publications which, on the evening of 30 July and morning of 31 July 1989, featured Mr Mason's confession. All the publishers except one 4 UNREPORTED JUDGMENTS admitted that their publications were in contempt. The exception was held by this Court in reasons published on 31 August to have been in contempt. Penalty The reason why publications of this kind are punishable as contempts of court was explained clearly and simply by Wills J in R v Parke (1903) 2 KB 432 at 436 in the following passage, subsequently referred to with approval by courts of high authority: "The reason why the publication of articles like those with which we have to deal is treated as a contempt of Court is because their tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists - namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it. Their tendency is to reduce the Court which has to try the case to impotence, so far as the effectual elimination of pre judice and prepossession is concerned. It is difficult to conceive an apter description of such conduct than is conveyed by the expression 'contempt of Court'." A further consideration we think important is that the publication of such material, obviously prejudicial to ideas of fair trial long regarded by the community generally as basic and essential, will, unless emphatically punished, reduce community belief in the capacity of the courts to maintain standards of fairness in trials. The Daily Telegraph publication followed an embarrassing mistake by an experienced solicitor. On the night of 30 July 1989 the paper's Deputy Editor rang a partner in the firm to which the paper's journalists were instructed to go when they needed legal advice, and read to him the text of the articles published the following day. The partner formed the view that the articles stated no more than the bare facts and would not, if published, be a contempt of court. On the basis of this opinion the articles were published the next day. An affidavit from the partner was read in which he candidly acknowledged that he now realises his advice was wrong. Although we think the contempt was so plain that both solicitor and editor should have realised it, we accept the partner's evidence, and that the Deputy Editor acted on his advice. The position is different in regard to the Daily Mirror. The Editor of this paper made the decision to publish that paper's offending article on 31 July 1989. He was aware of the Daily Telegraph's coverage earlier in the day. He assumed that that paper's Editor would have obtained advice before publishing that coverage. He did not check, either with that Editor or with any lawyer, what the position was. This may possibly have been pardonable, if he had done no more than repeat the Daily Telegraph's morning stories. However, there was new material in the Daily Mirror's coverage, from Mr Mason's signed records of interview, which became available to the Daily Mirror after the Daily Telegraph was published. This added material was that summarised in the Attorney General's particulars in the terms "that police said that the deaths of Mrs Ferguson and Mark Ferguson had been a thrill killing; that the police alleged that the accused told them he was having a good time as he held Mrs Ferguson captive; that Mrs Ferguson did not say anything but just held her hands up to her eyes during the five hour ordeal." In the context of the full story, no reader could have been left in doubt that these details come from Mr Mason's confession. They aggravated the contempt that would have been committed if they had not been included, and there was no possible excuse for their publication. It was done simply in reckless pursuit of a good story, and sales. UWRTORNEY GENERAL FOR NEW SOUTH WALES v NATIONWIDE NEWS PTY LIMITEB (Gleeson Cu, Kirby P and Priestley JA) There were however matters of mitigation urged upon us by counsel for Nationwide. Reliance was placed on the fact that there was, in effect, a plea of guilty. It was urged also that the system corporation had provided for its journalists to use in order to avoid defamation and contempt was a good one. There is some substance in this, but the story printed by the Daily Mirror raises doubts whether the corporation sufficiently insisted upon its system being observed. It was also urged that there were a number of considerations present in regard to the Mason story which caused an overlap between two aspects of public policy, the need to ensure fair and unprejudiced trials and the need to ventilate matters of genuine public interest. The factors said to have caused this overlap were 1. there had been murders of a horrendous nature at first exhibiting no obvious links 2. there had been intensive police investigation which was aided by media publicity which both helped the investigation and helped maintain public confidence 3. much information released by the police concerning the accused's apprehension and charging 4. the overwhelming impression of guilt flowing from police information which could be properly regarded as authoritative 5. the need to inform the public that a man alleged and believed to be a highly dangerous killer had been arrested 6. the absence of any real doubt concerning the identity of the killer 7. the real and continuing public interest in the identification, pursuit and eventual location and arrest of the suspect. Much of the factual matter in the foregoing recital is correct. We do not propose to deal with each item. However, it seems to us quite artificial for Nationwide to be professing reliance upon the police statement that a confession had been made; in our opinion any competent journalist would know that the police had overstepped well recognised boundaries in what happened at the press conference. The most important point is that although it is true that there was a real public interest in finding and arresting the killer whose being at large must have caused real public alarm, the public interest in that aspect of the crimes could readily have been fully catered for without the gross infringement upon the other aspect of equally great public interest, the need to conduct trials in an atmosphere not poisoned by preliminary trial in the media and also to maintain public confidence in a fair system of trial. We repeat that we can see no excuse for the Daily Mirror's publication and can see no other reason for the story having been published in the form in which it was than journalistic determination to print a good story and attract sales, without regard to the requirements of the law concerning contempt. We do not think anyone questions the general statement that trial by media is against the law. The lawful place for the trial of accused persons is in court. Preliminary trial by media is likely to interfere with lawful trials. The evidence in the present case shows that Nationwide accepts these propositions. It cannot do otherwise. The matters relied upon in mitigation apply with some force to the publications by the Daily Telegraph. Giving them as much weight as we can in regard to the Daily Mirror, we do not think they should cause us to deal leniently with the story published by that paper. JOBNAME: No Job Name PAGE: 6 SESS: 1 OUTPUT: Fri Oct 19 10:17:08 2007 /reports/caseml]/case/urj/9001885 UNREPORTED JUDGMENTS In considering an appropriate penalty in the circumstances of the present case, it seems to us that the primary objective must be that of general deterrence. We recognise that commercial and deadline pressure is always likely to exist and to tempt editors from time to time to take risks. We think we must do what we can 5 to ensure that risk taking leading to trial by media does not happen. In the present case, the appropriate way to do this is to impose a penalty upon Nationwide for the contempts by its two newspapers sufficiently large to bring about the result that it will not be worth a publishers while to conduct a system in which its editors may be tempted to yield to those pressures. 10 Our decision is that the appropriate penalty in the circumstances is $200,000. The Court makes the following declarations and orders: 1. DECLARE that the Opponent is guilty of contempt of court in that being the publisher of the Daily Telegraph newspaper it did cause to be published in that newspaper on 31 July 1989 matter which was likely or calculated or had a tendency to interfere with the administration of justice in connection with the trial of Paul Gerald Mason on three charges of murder and one charge of attempted murder. . DECLARE that the Opponent is guilty of contempt of court in that being the publisher of the Daily Mirror newspaper it caused to be published in that newspaper on 31 July 1989 matter which was likely or calculated or had a tendency to interfere with the administration of justice in connection with the trial of Paul Gerald Mason on three charges of murder and one charge of attempted murder. . ORDER that the Opponent be fined $200,000 for such contempt of court. . ORDER that the Opponent pay the Attorney General's costs of and incidental to the proceedings. 30 Counsel for the Claimant: Mr B James QC, P Lakatos Counsel for the Opponent: Mr A Shand QC, Mr BR McClintock Solicitors for the Claimant: Mr HK Roberts, State Crown Solicitor 35 Solicitors for the Opponent: Blake, Dawson and Waldron