DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH v UNITED TELECASTERS SYDNEY LTD (IN LIQUIDATION) [1992] NSWCA 57

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH v UNITED TELECASTERS SYDNEY LTD (IN LIQUIDATION)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, HANDLEY and SHELLER JJA 19 and 20 December 1991, 28 February 1992

[1992] NSWCA 57

CONTEMPT — television broadcast — licensee transmits broadcast on alleged racket of marriages of Asian men to Sydney prostitutes — current trial of accused person for conspiracy to defeat Migration Act 1958 (Cth) — use of bleeps and blobs — identity of accused disguised by omission of his name and electronic obscuring of his face — District Court judge orders removal of identifiers and receives undertaking from licensees solicitor — warning sent by prosecutor to licensee — on legal advice, programme broadcast, modified as above — held: (1) The test to be applied was whether the broadcast had a real tendency as a matter of practical reality to interfere in the trial of the accused, broadcast, as it was, during the very currency of his trial. Hinch vy Attorney General for the State of Victoria (1987) 164 CLR 15 applied; (2) The fact that the trial judge had discharged the jury was not determinative of that question. Attorney General for New South Wales v John Fairfax and Sons Ltd, unreported, Court of Appeal, 21

CONTEMPT — penalty — television broadcaster — broadcast of programme concerning accused person during currency of criminal trial — television licensee aware of current trial acts on legal advice — 'bleeps' out name and "blobs" identity of accused on screen — focus of broadcast not on charge against accused on screen — later steps taken to strengthen advice and procedures to prevent recurrence of contempt prosecutor concedes that case not flagrant — has (1) The case was less serious than Attorney General for New South Wales v United Telecasters, Court of Appeal, unreported, 11 October 1990; (1990) NSWJB 131, where the opponent was fined $75,000. See 20 NSWLR 368; (2) But the broadcast was more serious than the circumstances in Director of Public Prosecutions v John Fairfax and Sons Ltd (1987) 8 NSWLR 732 (CA) where a fine of 55,000 was imposed; (3) In the circumstances of an unintended but deliberate contempt in a serious case which occasioned the discharge of a jury in a criminal trial, a fine of $20,000 should be imposed.