HER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2UE SYDNEY PTY LTD and ALAN JONES THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and HANDLEY JJA 24, 25, 26 August 1992, 28 August 1992 [1992] NSWCA 14 CONTEMPT OF COURT — interference with administration of justice — prejudicing of fair trial of criminal charge — two radio broadcasts refer to pending trial — summons 40225/91 against 2UE and Jones filed in respect of first broadcast — summons 40226/91 filed against 2UE, Jones and Kenny in respect of second broadcast — issues raised in both summonses as to (1) whether 2UE and Jones knew trial pending, (2) whether contempt may occur without intention to interfere with trial, and, if so, (3) whether the matter broadcast was contemptuous. Held; in summons 40225/91: (1) on evidence, Jones unaware of pendency, (2) contempt committed when publication creates real risk of interference with administration of justice, regardless of lack of intention, (3) on evidence, broadcast created real risk of interference with administration of justice and therefore contemptuous. Held; in summons 40226/91: (1) on evidence, Jones unaware of pendency, (2) contempt committed when publication creates real risk of interference with administration of justice, regardless of lack of intention, (3) on evidence, broadcast created real risk of interference with administration of justice and therefore contemptuous, (4) Kenny responsible only for words spoken by him in broadcast, unlike 2UE and Jones who were responsible for whole broadcast, (5) that part of the broadcast consisting of statements by Kenny did not create (Priestley JA dissenting) a real risk of interference with administration of justice and therefore not contemptuous. AG for NSW v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 cited. Ex parte Bread Manufacturers Ltd re Truth and Sportsman (1937) 37 SR (NSW) 242 cited. Hinch v The AG of Victoria (1987) 164 CLR 15 discussed and followed. Priestley JA The charges: By summons No 40225 of 1991 the Attorney General sought declarations against two opponents, Radio 2UE Sydney Pty Ltd ("2UE") and Alan Jones, that each was "guilty of contempt of court for broadcasting matter on 9 July 1990 which was likely or calculated or had a tendency to interfere with the administration of justice in connection with the trial... of John Francis Killen... ". By summons No 40226 of 1991 the Attorney General sought declarations against three opponents, 2UE, Jones and P. Kenny, that each was "guilty of contempt of court for broadcasting matter on 10 July 1990 which was likely or calculated or had a tendency to interfere with the administration of justice in connection with the trial..." of Killen. Background facts; the Kenny strand. What led to the two broadcasts was a series of events beginning in October 1986. Kenny was then a member of the Drug Enforcement Squad of the New South Wales Police stationed in Sydney. He was a Senior Constable leading a team who were watching the activities of L. Dias who was suspected of being a drug dealer in the Penrith area. Two officers in the team were McMillan and Maxwell. 2 UNREPORTED JUDGMENTS On 14 October 1986 Kenny and his team arrested Dias and charged him with various drug offences. Later on that date another member of the Drug Enforcement Squad, Killen, who was stationed at Penrith and not part of Kenny's team, spoke to Dias. Three days later Dias in the presence of his solicitor complained to other members of the Police Force that Messrs Kenny, Killen, McMillan and Maxwell had, before he was arrested, put heroin in his motor van, then charged him with possession of it and then offered him a way of defeating the charges against him if he would pay them $8,000. Shortly afterwards the Police Internal Security Unit arranged for Dias to speak further to Killen and to have their conversations recorded. Various conversations were then recorded in which Killen discussed with Dias how the money was to be paid and how Dias would in due course be told of how the charges against him could be defeated. In these conversations Killen spoke of Kenny and his team members as if the money he was asking for was to be shared amongst them all. He also brought up the name of Pett, who he said would act as a go-between between Dias and the police. Shortly afterwards the Internal Security Unit supplied Dias with money which he paid to Pett in accordance with the arrangements made between him and Killen. Mr Killen and Pett were then arrested and charged with conspiracy to pervert the course of justice. A few days later Messrs Kenny, McMillan and Maxwell were also charged. Soon after, at the direction of the Police Commissioner, the charges against Dias were withdrawn. Mr Kenny then issued summonses as a private prosecutor against Dias charging him with the same offences. Committal proceedings against Messrs Killen, Pett, Kenny, McMillan and Maxwell began in October 1987. Immediately before those proceedings began the Director of Public Prosecutions took over Kenny's private prosecutions of Dias, and discontinued them. The committal proceedings against Killen and the others were completed in December 1987. During the committal proceedings it became known that Dias had been given immunity from prosecution before he gave his evidence. When giving his evidence, Mr Dias was asked a number of times in cross-examination whether he was familiar with heroin and had taken part in drug dealing. He said he had never taken any part in any drug deals. At a later stage in his cross-examination, he said he wanted to change his evidence on that matter and eventually said that he had taken part in up to one thousand drug deals. In giving his decision, the magistrate was very critical of Dias's credibility, saying that he (the magistrate) had been deliberately lied to. He committed Killen and Pett for trial. The evidence against Killen was that of Dias and the tape recordings; the evidence against Mr Pett was that of Dias, some tape recordings, and evidence, available independently of Dias, of money passing from Dias to Mr Pett. The only evidence against Messrs Kenny, McMillan and Maxwell was that of Dias. The material on the tape recordings of conversations between Dias and Killen in which Kenny and his team were mentioned as if Killen was in league with them in the effort to extort money from Dias was not admissible against Kenny and the two others. WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2U8 SYDNEY PTY LTD and ALAN JONES (Priestley JA) On the basis of his views about Dias's credibility and the unlikelihood of a jury believing his uncorroborated evidence, the magistrate discharged Kenny and the other two team members. Mr Kenny complained about the treatment he and his team received at the hands of the Internal Security Unit, and the way they conducted their investigation. Kenny claimed that his work, his health and his reputation within the Police Force all suffered as a result of his having been charged. He sought an interview with Mr Avery, the Police Commissioner, who saw him in June 1988. Mr Kenny later said that during this interview he tried to make two main points. One concerned the bungling way in which the Internal Security Unit had handled his case and mistreated him; the other was that the way in which the Internal Security Unit was carrying out its duties was over zealous, badly carried out and likely to produce a major disaster by the wrongful accusation of a policeman. He asked Avery to take action to investigate both his own case and the way in which the Internal Security Unit was working. (There is a good deal more to Kenny's continuing story than this, but it is not relevant to the present case and is therefore not further narrated.) Background facts; the Blackburn strand. In 1989 a senior police officer, Blackburn, was arrested and charged with serious crimes. Publicity without parallel in local experience was given to this arrest. Later, matters emerged about the way in which the investigation preceding Blackburn's arrest had been conducted which led to the holding of a Royal Commission. The evidence given at this Commission also received great publicity. As the evidence unfolded, it began to look as if the charges against Blackburn not only could not be sustained, but also that police officers responsible for the charges being brought either did know or should have known that they were unsustainable before Blackburn was arrested. The Royal Commissioner's report was expected early in July 1990. There was considerable general public interest in what the Royal Commissioner would say. During the first part of 1990, the DPP had got the case against Killen ready for trial. Pett had died. Killen had been given a draft indictment for his trial listed to begin on Monday, 9 July 1990. He alone would be tried on the charge that he had conspired with Messrs Kenny, McMillan, Maxwell and Pett, to pervert the course of justice. From the committal proceedings it was clear that the Crown case against Killen would depend on Dias's evidence against him, together with the tape recordings. It was also clear that there was ample material available for Killen's counsel to make a very severe attack on Dias's credibility. Background facts; the Jones programme. Those concerned with the radio show run by Jones on 2UE knew little of Kenny and his problems or of the impending trial of Killen but were keenly interested in the Blackburn Commission and what the Royal Commissioner's findings would be. Mr Jones's programme was broadcast each weekday morning between 5.30 and 9. It consisted mainly of news commentary by Jones, telephone interviews with selected persons on matters of current interest, the taking of phone calls and the broadcasting of the conversations ('"talk-back radio"), regular news bulletins and editorial comment by Jones ranging over both serious and light matters. There were between five and eight telephone interviews in each programme. Transmission of interviews was delayed by seven seconds, so that if something was said which should not be broadcast, it could be cut off. 4 UNREPORTED JUDGMENTS The interviews were arranged by the programme's producer, Mr Sneddon. Miss N. Kenny (unrelated to the third opponent) was research assistant. She usually prepared what were called the "lead-ins" for the interviews. These were scripts, in note form, suggesting what Jones should say as he explained to listeners what the interview would be about. Jones was also supplied with a series of suggested questions to follow the lead-in, which he would work from in the interviews. Mr Jones had looked at an article ("the Sutton article") published in the Sun-Herald on 3 June 1990 which mentioned Mr Kenny and Mr Killen. The Sutton article had given an account of what had happened to Mr Kenny following the arrest of Mr Dias. It had described the committal proceedings in some detail. It raised questions similar to those which had attracted public attention during the Blackburn Inquiry. As interest mounted in the expected findings of the Royal Commission and calls came in from people saying they knew of cases similar to Blackburn's, Mr Jones recalled the article and asked Mr Sneddon to look into it to see whether there was a story in it. Mr Sneddon thought there was and was setting about getting in touch with Mr Kenny when Mr Kenny rang the station and was put on to him. This happened some time quite shortly before the publication of the Royal Commissioner's findings. It was decided to do a telephone interview with Mr Kenny. On 6 July 1990 Mr Jones interviewed Mr Blackburn on his programme. Later that day the report of the Royal Commission was published. The Royal Commissioner's findings showed that the Blackburn affair had been shamefully bungled from start to finish, by officers at nearly every level of the Police Force. The publicity surrounding the Royal Commissioner's Report was as intense as that about Mr Blackburn's arrest. Broadcast subject of first charge. Naturally enough, Mr Jones followed the Blackburn story on his programme. On Monday, 9 July at about 7.17 am he interviewed Mr O'Connell, an official of the Police Association. No copy of any lead-in or list of suggested questions is available. If any were prepared, it would have been by Miss Kenny. The programme was recorded. The part containing Mr Jones's introduction of Mr O'Connell and the discussion between them was later played to this court, and what was agreed to be a substantially accurate transcript was put in evidence. It reads as follows: "MR JONES: It's 17 and a half minutes after 7. Well, following my contretemps with the Premier on Friday, suggestions that the report, the Royal Commission Report into the Blackburn Affair may be released earlier than was otherwise thought but, the interesting by product of all this is that the affair has uncovered a whole host of other cases in which police officers allege they' ve suffered at the hands of false accusations. Now since I spoke to Blackburn on Friday we' ve taken at least six calls from police officers who say that they are at the wrong end of the truth. Most of the police who' ve contacted me and my staff say they've been victims of criminals with a grudge, compounded by shabby investigation by the Police Internal Affairs Unit. One officer, Paul Kenny, says he's now quit the force after an unfair investigation. In Kenny's case, and it's been a controversial case, and fairly widely publicised, he and other officers arrested a drug dealer, who then claimed it was police who'd planted the drugs on him. Kenny says his interrogations by the Police Internal Security Unit were grossly unfair, and he was even prevented from making telephone call to his lawyer. In his case there have also been claims of fabricated evidence and bribery. WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2UB SYDNEY PTY LTD and ALAN JONES (Priestley JA) The men who originally made the accusations against Kenny have now been found guilty of perjury. But the entire Blackburn Affair underscores the difficult task police and the Ombudsman face in trying to root out crooked cops. In Blackburn's case the authorities got it horribly wrong. Now the government's facing a $5 million legal suit. The issue has to go right back to the way in which police investigate one another and whether in their diligence to expose corruption, the police themselves are going after one another far too hard. At the moment there are at least 10 cases in which police have allegedly been falsely accused. Many of these men wait an awful long time, believing they are innocent, wanting to prove it, but having to face perhaps prejudiced investigating officers. In some cases there've been so far unproven accusations that investigating officers have fabricated evidence against colleagues to get a promotion. The police on the beat say the only way to clear the air is for a full enquiry or even a Royal Commission into the activities of the Police Internal Security Unit. The Vice President of the Police Association is Terry O'Connell. He supports such an enquiry and he's on the line. MR JONES: 'Terry, good morning.' MR O'CONNELL: 'Good morning Alan.' MR JONES: How many cases are there where police have been found to have been falsely accused? MR O'CONNELL: It probably goes beyond the ten you've indicated and I guess to put it all into some context, if I rely on what Chester Porter said during the Blackburn inquiry, he said one can get to the stage where one is so concerned about corruption, that it has become a preoccupation about integrity and no one can think about anything else. I guess that sums up the sort of environment in which we've been operating. MR JONES: But in relation to some of the people who've rung me since Friday, it would appear that Blackburn is lucky at least he's been false accused and that false accusation has been exposed. MR O'CONNELL: Well the difference between the sort of prosecutions we're talking about in the Blackburn matter is that they' ve all involved almost entirely evidence given by convicted criminals for the bulk of the information and of course the Blackburn case only involved mainly police only but there's one common thread in all the matters that they were all pursued with what I would call missionary zeal. MR JONES: Isn't it axiomatic that a criminal with a grudge is going to try and get square on an arresting police officer? MR O'CONNELL: Well it's in his best interest to because it's almost a growth industry because in some of these matters in exchange for information, immunity against prosecution was given so I guess you really can't blame them for that, can you? MR JONES: But there are police who rang me who' ve been suspended from duty and their case - 2, or 3, 4 years down the track hasn't even seen the light of day. MR O'CONNELL: And that's part of the problem. We've become so concerned about the activities of the Internal Police Security Unit that the Police Association called for the abolition of all police internal investigations and the role be given to an external body which is extraordinary in itself. MR JONES: Have people high up in the Police Force sought to bribe some of these people into not pursuing their innocence? 6 UNREPORTED JUDGMENTS MR O'CONNELL: Oh, I don't think there's any reported case of that, I guess we're talking about the atmosphere in which we operate. You know... MR JONES: Is it a poisonous atmosphere? MR O'CONNELL: Well it is, and the political process isn't blameless in all this process, it's been very convenient for them to rely on things like White Knights and Black Knights as some sort of explanation and justification for why, why there is some concern shown by organisations like ourselves against what's happening. MR JONES: Paul Kenny's is a celebrated case isn't it? MR O'CONNELL: It's a tragic case, Paul Kenny's and the matter hasn't been finalised, it's still with the Ombudsman at this stage. MR JONES: He's quit the Force. MR O'CONNELL: Tragically he, he and a number of other, you know, extremely competent good officers have left under this sort of cloud, which is tragic. MR JONES: But he had a meeting with Avery, the Commissioner, didn't he, what happened there? MR O'CONNELL: Well, I think, I think that is probably best explained by Paul Kenny and I think it's been clearly enunciated within the inquiry that there's in fact or is currently running I think the full details of that will be disclosed no doubt. MR JONES: But in terms of what you know what happened. MR O'CONNELL: Well I understand that Paul Kenny in fact raised the whole issue with the Commissioner who and I don't think he was overly happy with what the Commissioner had to say. I've got a difficulty in giving my view on what actually happened. I think it's a matter that's best left to Paul Kenny. MR JONES: What basically happened in the Kenny affair? MR O'CONNELL: I think basically what happened is that a complaint was given by a well-known heroin dealer about being arrested by Paul Kenny and others which resulted in an internal inquiry, the result was that the charge against the heroin dealer was in fact dropped, as understood, and prosecutions taken out against Kenny and three or four others. These were subsequently with the exception of one, the charges were dismissed. Kenny's matter was extraordinary in that he felt so strongly about the fact that the charges against the heroin dealer were dropped that he took out his own private prosecutions and that in itself was extraordinary. MR JONES: And a man was... MR O'CONNELL: And again but Alan the role the DPP, the Department of Public Prosecutions, mustn't be overlooked either they have been significant players in this particular matter and in calling for an inquiry into the role of the internal security, what the Police Association would like is their role to be examined very closely in all of this, particularly the Blackburn matter. We believe that they've been significant players and to a large extent their role has been ignored. MR JONES: But if you have an enquiry, who should do the enquiry, the police, government, a royal commission? MR O'CONNELL: Well obviously it'd have to be an independent body that would do it and we'd have no objection to what form it took but clearly it'd have to be outside of the police. WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2UE SYDNEY PTY LTD and ALAN JONES (Priestley JA) MR JONES: Isn't the Ombudsman supposed to be an independent tribunal? MR O'CONNELL: Well again we have some difficulty the Ombudsman see our relationship with the Ombudsman over the last 5 years has been a fairly unsatisfactory one. Things have changed I guess in that the Ombudsman has been changed in the last 12 or 18 months and things have improved there. MR JONES: Leave it there Terry. MR O'CONNELL: Thanks for your trouble. MR JONES: It really is an extraordinary story from the calls that we took and you might have heard that Frank Hakim rang me early this morning on the open line. He has been to gaol but he maintains that on another charge he is completely innocent and has been falsely found guilty and we had many calls from policemen in states of total frustration, the most celebrated, of course, is the case of this very distinguished former policeman and drug fighter Paul Kenny who now has left the Police Force and is fighting to clear his name when he believes that he has been implicated through extraordinary hearing and extraordinary series of investigations by the Police Internal Security Unit. Having trapped a heroin dealer, the heroin dealer goes scot free, Kenny gets implicated and involved and so the Blackburn inquiry has raised not just the concerns about the Blackburn affair but in how many other instances in the past has this similar circumstance come into play and what they are calling for, of course, is some kind of inquiry into the Police Internal Security Unit, perhaps the Police Force will not be completely cleaned out until... (unintelligible)... as Nick Greiner gives such an inquiry the go ahead." Between the two broadcasts. Later in the morning of 9 July, Killen was arraigned, and his trial began before District Court Judge Kinchington and a jury. The indictment was presented charging Killen with having conspired with Messrs Kenny, McMillan, Maxwell and Pett to pervert the course of justice. The Crown Prosecutor made his opening statement to the jury. He put the Crown case to the jury on the footing that Dias's account of his arrest was true and gave in detail Dias's story of what Kenny and his team, and Killen, had supposedly done. Reference was made to the incriminating tapes and also to the fact that Dias's credibility would be attacked. On this he said: "The first witness for the Crown will be Lawrence Dias. Dias is a man whom at least on one other occasion I am sure you will hear is a man who has admitted to being a drug dealer; a man who most people in this community would regard with absolute contempt. Drug dealers are the scourge of our society. In this case it is alleged you would not expect corrupt police to go up to a perfectly innocent stranger and frame them with a view to extorting money. Police wouldn't come to you, you might think, and try and do this. They went to a person whom they suspected or knew to be a drug dealer with the view of extorting money from him, not with a view to genuinely charging him with a proper offence but with a view to extorting money from him. So of course the main witness in this case is a man whom you might think, I don't know, you might think that he is in reality a drug dealer. Now, that of course is, it is not something that is unexpected. The Crown would of course love to have the most eminent and trustworthy members of society as its witnesses but that is not the kind of person the police in the position of the accused and his co-conspirators are going to approach to do this kind of thing. I would ask you to bear that in mind." Broadcast subject of second charge. 8 UNREPORTED JUDGMENTS In his programme the following morning, Jones did a phone interview with Kenny. Mr Sneddon had prepared the lead-in and the suggested questions. These were before Jones during the Kenny part of the programme. They read as follows: "Lies, false and fabricated evidence and police verballing. Normally the catch-cry of criminals and thugs who' ve been arrested. But when the police start accusing each other of just such things... something has got to be dreadfully wrong. And something is crook in the New South Wales police force, when honest hardworking officers are set-up, dragged through the courts and then cast aside like an old boot. Over the last few days, I've been talking about the Harry Blackburn affair. A glowing example of how the police got it wrong... terribly wrong. Since interviewing Blackburn last Friday, we've received a stack of calls from police who say they're in the same spot as Harry Blackburn. In fact many of them say the Blackburn affair is a blueprint for inept investigation and police bungling. These police who' ve contacted my office say they've been the victims of false accusations by both criminals and other police. Now, I don't know whether these claims are true or not. But right now there are ten cases of policemen in New South Wales, whose cases bear a remarkable resemblance to that of Harry Blackburn. One such case is that of former drug squad detective senior constable, PAUL KENNY. Kenny is a man with a distinguished career. He's been shot at, he investigated the Family Law Court bombings and was a key member of the Drug Law Enforcement Bureau. But in 1986 it all began to come unstuck for Paul Kenny. He and his partners arrested a well known drug dealer, Larry Dias, with an amount of heroin. This man, DIAS, subsequently accused the police of planting the drugs on him and demanding eight thousand dollars to drop the charges. In stepped, the Police Internal Security Unit... and this is when senior constable Paul Kenny began his slide down a road to depression and even thoughts of suicide. I have him on the line... Paul, you were eventually charged with a serious offence over this matter, what happened. How would you describe the actions of the Police Internal Security Unit. Did you get a fair hearing. What effect has this affair had on you. (he thought of suicide) How is your case similar to that of Blackburn. (he says you can just change his name for Blackburns). What effect is their on police morale when incidents like this happen. What can be done to make sure it doesn't happen again. Where does the blame lie. Do we need yet another royal commission." The actual interview is reproduced below, (with asterisks added for later reference), from a transcript again agreed to be substantially accurate. Jones followed the suggested lead-in very closely, but after opening the interview with the first of the draft questions made little use of the others. "MR JONES... of July, lies, false and fabricated evidence and police verballing. Normally the catchcry of criminals and thugs who've been arrested. But when the Police start accusing each other of just such things, something's got WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2UB SYDNEY PTY LTD and ALAN JONES (Priestley JA) to be dreadfully wrong. And something is crook in the New South Wales Police Force when honest hardworking officers are set up, dragged through the courts and then cast aside like an old boot. Over the last few days I've been talking about the Harry Blackburn affair. A glowing example of how police got it wrong, terribly wrong. Since interviewing Blackburn last Friday, as I said yesterday, we' ve received a stack of calls from Police who say they are in the same spot as Harry Blackburn. Many of them say the Blackburn Affair is a blue print for inept investigation and Police bungling. The Police who've contacted my office say they' ve been the victims of false accusations by both criminals and other police. Now how do you know whether these claims are true or not? But right now there are ten cases of policemen in New South Wales whose cases bear a remarkable resemblance to that of Harry Blackburn. Perhaps the most celebrated is that of former Drug Squad Detective Senior Constable Paul Kenny. Now Kenny is a man with a distinguished career. He's been shot at, he investigated the Family Law Court bombings, he was a key member of the Drug Law Enforcement Bureau. In 1986 it all began to come unstuck for Paul Kenny. He and his partners arrested a well known drug dealer, Larry Dias, with an amount of heroin. Now this man Dias, subsequently accused Kenny and his partners of planting the drugs on him, and demanding $8,000 to drop the charges. Before you could say Jack Robinson, the Police Internal Security Unit stepped in, Senior Constable Paul Kenny was arrested and his slide down the road began. Yet the circumstances of this matter are still unresolved, we're talking four years ago. Paul Kenny is on the line... Paul, Good morning. MR KENNY: Good morning, Alan. MR JONES: Well, you were charged with a serious offence over this matter, just tell us what happened. MR KENNY: Well, I was charged with two serious offences one being conspiracy to pervert the course of justice and the other charge was demanding money with menaces. MR JONES: And those charges went to court. MR KENNY: Yes we went to court. MR JONES: And what happened in court. MR KENNY: The charges were thrown out with no case established against us. *MR JONES: I believe that a record, a taped conversation was mistakenly played in court, in which Dias, the fellow who'd made the allegations against you was heard to say 'Kenny knows nothing he's straight down the line.' MR KENNY: Yes, in that tape recording that's said repeatedly, it says "Kenny knows nothing, Kenny knows nothing, he's straight down the line, Kenny knows nothing' a number of times. Now that tape recording is quite clear but in the Internal Security's typed transcript of what was supposedly on that tape, they record that as unintelligible conversation. MR JONES: What has prompted this outfit, the Police Internal Security Unit to go, do they just have a knee jerk reaction to any allegation against a policeman? MR KENNY: Well, I think it originally started with, what I could only describe as some sort of hysteria in relation to alleged police corruption and I'm quite sure that there has been many police, put before the court merely because of the need of these people to simply justify their existence. MR JONES: Is Avery at the centre of this? MR KENNY: Well no Commissioner Avery... MR JONES: This is hysteria? 10 UNREPORTED JUDGMENTS MR KENNY: Well I think that's where it originally started from. I think Commissioner Avery certainly had the right intentions in the first place but somewhere along the line I think his instructions have become somewhat mixed up. MR JONES: Just let's take this one thing at a time. So, you've arrested Dias but he's then complained to some cohorts of his, also policemen, what happened to them? MR KENNY: No, well Dias spoke to his solicitor and just after that he was interviewed by some Internal Affairs police... MR JONES: Yep. MR KENNY... and subsequently some meetings were tape recorded between Dias and another person, who wasn't involved in Dias' arrest. MR JONES: What happened to the Internal Affairs Police though? MR KENNY: Oh well, the Internal Affairs Police handed everything over the Internal Security Police, they're two separate bodies. MR JONES: Right but when this matter went to court, you were cleared? MR KENNY: Yeah completely. I've been... *MR JONES: Dias admitted to being a drug runner. MR KENNY: He had, he was presented to the court as an honest, law abiding citizen and a businessman and he subsequently admitted that he was in fact a huge heroin dealer. Now he's admitted selling heroin on up to 1,000 occasions and also to committing perjury during our court case. He was lying his head off and yet that man's still walking around scot free. Nothing has ever been done about him. MR JONES: Were you offered your job back? MR KENNY: Yes I was. MR JONES: Were you offered compensation? MR KENNY: Ah... no. MR JONES: How much personal damage did this kind of performance deal to you. MR KENNY: Well, it's destroyed me. It, and what it has done even worse is destroyed my family. That's the innocent victims in this sort of thing, the family. Like, perhaps we being in the Police, perhaps we have let ourselves be treated like this but you know this isn't anything to do with our families, and the families suffer far more greatly than we do. *MR JONES: But this Dias did have contacts at Penrith Police Station didn't he? MR KENNY: He knew someone at the Police Station. MR JONES: And they were the people to whom he spoke to about you. MR KENNY: Yes. MR JONES: And they obviously put the information that Dias gave them, they were policemen, onto this Internal Security Unit. MR KENNY: Ah no, no it didn't happen that way. MR JONES: Well what happened to those two policemen at Penrith Police Station. MR KENNY: Well, there's a number of policemen at Penrith Police Station who know him, ah, there's a matter before the courts at this very moment and I can't discuss it... MR JONES: Right. MR KENNY.... any further than that. MR JONES: Well now your matter is now with the Ombudsman, isn't it? WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2UE SYDNEY PTY LTD and ALAN JONES (Priestley JA) MR KENNY: Yes, it has been for about three and a half years. MR JONES: And why, what has been the delay in that report? MR KENNY: Well it's awaiting the outcome of this particular court proceeding that's proceeding at the moment. It has taken a hell of a long time to come up. *MR JONES: You went to see Commissioner Avery didn't you? MR KENNY: Yes I had a private audience with Commissioner Avery on the second of June, 1988. MR JONES: That was after you were acquitted. MR KENNY: After we were acquitted and after Mr Avery received the first part of the findings of the Ombudsman's investigation into the Internal Security Police. MR JONES: And what did you say to Commissioner Avery. MR KENNY: We had a conversation for approximately sixty five minutes, where I laid the cards on the table with Mr Avery and I told him in no uncertain terms what was going on in his Police Force. MR JONES: And he said. MR KENNY: Well um. MR JONES: It's got nothing to do with me. MR KENNY: Ah well, that was in relation to something else, he said it's got nothing to do with me, when I told him what had happened. *MR JONES: You asked him to come on television with you and publicly clear your name didn't you? MR KENNY: Yes I did. MR JONES: And what did he say to that. MR KENNY: He said he'll look into it in the future. MR JONES: And what has happened in the future. MR KENNY: Nothing. And Alan, I was going, I wanted to say this at the end of our interview but I would like to throw down a public challenge now on your show to Commissioner Avery and to the Police Minister Pickering to come onto any public forum that they care to nominate and debate me on police corruption or any subject they care to nominate in relation to the Police Force at present and I throw down that challenge now, Alan because these people have to answer some very serious questions, they're responsible for what's going on in this State and they have to answer. They can't keep their head buried in the sand any longer. MR JONES: So for Blackburn we could read Kenny. MR KENNY: Well, you, I can assure you Alan in relation to all the reports you' ve read about Blackburn, you can blot that name out and put my name and my two colleagues Peter Maxwell and Christopher McMillan and the story reads the same and we're not the only ones in this position, I believe you said the figure of ten, I know of at least fifteen who are in exactly the same position. MR JONES: And you were trying to eliminate drug runners and you' ve been accused of that very thing yourself. MR KENNY: Yes, well I couldn't believe it. We were just astonished, all we did was do our job and we have been treated like excrement and that' s the only word I can describe to tell you how I've been treated. MR JONES: What can be done to make sure there are no more Kennys? MR KENNY: Well, you know there's myself and there's many many more names, there must be a full public inquiry into what's been going on and I can assure you Alan that when there is that full public inquiry, and there will be a full public inquiry, the weight of evidence is now overwhelming about what's been going on. I can assure you that the foundations of Parliament in Macquarie Street 12 UNREPORTED JUDGMENTS will be rocked. Now politicians on both sides know exactly what's happened in this matter and Pickering's silence has been deafening in recent weeks about what's going on in the Police Force and it's time he came forward and explained just what's been going on because I'm certainly willing to go into any public forum and expose all. MR JONES: In Queensland the Government there was put through the hoop because policemen were taking some money under the table to cover up prostitution and so on. This would seem to be far more serious than that. MR KENNY: Well suppose, it's far more serious, like Queensland's second rate compared to New South Wales. And let me just say this Alan, when I was sitting on the lounge discussing this matter with Mr Avery, I told Mr Avery, I gave him a blueprint almost one year before the Harry Blackburn matter happened of something like that was going to happen and I told him that there was going to be a full public inquiry into what was going on in the Police Force and Mr Avery said to me that he did not want a Fitzgerald inquiry in this State and I told him that I did want a Fitzgerald inquiry in the State. But at least I'l] say that about Mr Avery at least he did see me and having met the man I do have great respect for him. You know he's tried to bring in very radical change and of course, you know, there's opposition to radical change, but the situation is I'm just really beginning to wonder if he does actually know what is going on in the Police. MR JONES: And what's the effect on police morale of people who are clean and straight and want to root out corruption. MR KENNY: Well I'll tell you this Alan, if you speak out and tell the truth in the Police Force, you will be crucified, like I have been. All I've ever wanted to do was go and see Pickering and tell him what was going on and the man will not even speak to me. Now that's the way to get to the root of the problem. MR JONES: Leave it with us. MR KENNY: Thank you. MR JONES: There we are, work that out. That's Paul Kenny, he's no longer a policeman, he's a security officer now. He studies law, he refused to accept reinstatement. He did apply for a private inquiry agent's licence. The Police Force took out a summons to withdraw the application for that licence, because Paul Kenny was quote, "not a fit and proper person". Consequence of second broadcast. When Killen's trial resumed on 10 July 1990, the Crown Prosecutor led evidence before Kinchington DCJ of the contents of that morning's broadcast. Mr Killen's counsel applied for the jury to be discharged on the ground the broadcast had created a real possibility of prejudice to the fair trial of Killen. The jury were discharged. Kinchington DCJ ordered that the trial begin again the following day with another jury. The trial started again the following day, went for a number of days and ended with Killen being found guilty and convicted. Contempt charges brought. The summonses seeking declarations of guilt of contempt of court were filed on 26 April 1991. The hearing of the summonses began on 24 February 1992. 2UE admitted that it was guilty of the contempts charged in the summonses and did not oppose the making of declarations saying so. Jones and Kenny each pleaded not guilty. The parties agreed to the hearings of the two summonses proceeding together, and that, with the exception of the evidence of Kenny, the evidence in each proceeding, where relevant, could be treated as evidence in the other. WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2U8 SYDNEY PTY LTD and ALAN JONES (Priestley JA) 2UE, Jones and Kenny admitted the contents of the broadcasts and their participation, and that Jones's programme had a substantial audience throughout the Sydney Metropolitan Area generally and the Sydney Jury District in particular. No objection was made to the method of proof of various formal matters. The principal witness in the Crown cases was Sneddon. After the Crown cases were closed, Jones and Kenny gave evidence. Some factual issues arose from their evidence. The principal one was whether, at the time of the first broadcast, Jones knew the Killen trial was scheduled to start later that day, or, at the time of the second broadcast, Jones knew the trial was in progress. A related question was the extent of Jones's knowledge of the Sutton article at the time of the broadcasts. Need to decide factual issues. These questions of the knowledge of 2UE, Jones and Kenny of the facts relevant to Killen's trial need to be answered before various arguments that were put to the court can be considered; they also need to be answered because of their relevance to the penalty to be imposed upon any of the opponents found guilty of contempt. The parties requested, and the court agreed, that the court should first decide whether Jones or Kenny was guilty of any contempt, and if so, postpone dealing with questions of penalty until after the party or parties had had a chance to consider the court's reasons for the finding or findings of guilt and make submissions accordingly. Factual issues. The easiest way of dealing with the issue of Jones's knowledge of the pendency of the Killen trial is to begin with Mr Kenny's evidence. Mr Kenny gave evidence in considerable detail of the events that had led him to wish to put his point of view on Jones's programme. I have earlier summarised enough of this material to show that he certainly had a legitimate interest in seeking both to publicise both his personal case in the hope of redress, and also the more general case of the problems he said were caused by the methods of the Internal Security Unit. His account of the events which directly brought him into the interview of 10 July was as follows. When he and Sneddon first spoke together, Kenny had known that Killen's trial was listed to begin on 9 July. He had mentioned the Sutton article in the Sun-Herald the previous month, so that Sneddon could establish his bona fides. Either on this occasion or the next when he spoke to Sneddon (always by telephone) he told Sneddon of the date of Killen's trial. His second conversation with Sneddon took place early on 10 July. During this conversation he said he was concerned that there be no question of contempt of court and asked that Jones be certain not to say anything which could hurt the Killen trial. About an hour later he was rung by Sneddon and then put through to Jones and the interview followed which has already been set out. He was alarmed by some of Mr Jones's questions which made him think that Mr Jones knew nothing about the Killen trial. He himself, in what he said, avoided using Killen's name and tried to keep away from anything which might cause problems. He said that at that time he had only a policeman's knowledge of contempt. He had since been studying law and now thought he had a better understanding of the subject. Not only had he had no intention of committing contempt, he had every wish to avoid it. Mr Sneddon's evidence was that Killen's trial had been mentioned by Mr Kenny as something that Mr Kenny and Mr Jones would have to be careful about but that Mr Kenny had not told him in their first conversation that it was due to 14 UNREPORTED JUDGMENTS start the following Monday, nor in their second conversation that it had started the day before. He denied in terms that Mr Kenny had told him the date of the trial, or that he knew of it before the 10 July broadcast. He said that in talking to Mr Jones following his conversations with Mr Kenny he had mentioned that Mr Killen had yet to be tried, and had cautioned him to keep away from the subject. Mr Jones said that he had no recollection of Mr Sneddon having mentioned anything about Mr Killen's trial. There are various matters which give some assistance to the court in resolving the differences between the evidence of Messrs Sneddon, Jones and Kenny. One is the demeanour of and the impression created by each witness. Others are particular aspects of the circumstances leading up to the two broadcasts. One of these is that all three men had read the Sutton article. Each was questioned about his understanding of it. To my mind it was quite clear when the evidence was complete that each man had read the article with a different degree of attention and interest, stemming from their differences in standpoint at the time of reading it. Kenny had a close knowledge of everything in the article, it was in his interest that it should be published and it is obvious that its publication was a happening of considerable importance to him. He said in his evidence that at the time of the publication of the article he knew that Killen was coming to trial in the near future, but he could not now recollect whether he then knew the precise date set for the trial. At some time which he could not establish, (but before his first conversation with Sneddon), he was served with a subpoena to attend the trial. From then he knew the date set for the trial. Mr Jones said that he had noticed the article at about the time it appeared. He had speed read it and later when the publication of the Royal Commissioner's report into the Blackburn affair was approaching, had remembered it and had asked Mr Sneddon to look into it to see whether it would make a story. Mr Sneddon then read the article, told Mr Jones he thought it would make a story, and began to consider how to get hold of Mr Kenny. Mr Jones made it clear in his evidence that his interest in Kenny's story was entirely related to the position then current concerning the Blackburn Royal Commission and the interest it had created in both what he had come to perceive as the bungling, tunnel-visioned approach of the Internal Security Unit and the other related but distinct matter that there might well be a number of cases of injustice already having occurred of police officers having been unjustly accused, or, whether or not the accusations were well-founded, having been treated unfairly in the process of investigation and prosecution. He was interested in Mr Kenny's story to the extent that it bore upon these two themes. There was no reason for him to have any particular interest in the trial of Mr Killen. There was no suggestion in the evidence that Mr Killen was complaining that he was another Blackburn. One reason for the somewhat detailed cross-examination of Mr Jones about the Sutton article was that it contained a reference to the result of the committal proceedings, saying: "Kenny, McMillan and Maxwell were acquitted. Killen and Pett were committed for trial." The cross-examination was designed to show that Mr Jones must have read the article in detail, therefore must have read this paragraph, and therefore should have realised there was a possibility that the trial of Mr Killen was still outstanding. One difficulty with this approach was that the article made it clear that the committal proceedings had taken place in the latter part of 1987, that is, WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2UB SYDNEY PTY LTD and ALAN JONES (Priestley JA) two and a half years before the date of the article. If Mr Jones had considered the significance of the paragraph relied on, there was no particular reason for him to assume that the trial was still outstanding. There is nevertheless something to be said for the prosecution's contention that Mr Jones's knowledge of the article at the time of the Kenny broadcast was greater than he recollected under cross-examination. The five questions marked with asterisks in the reproduction of the broadcast of that day above set out all appear to be based directly on the Sutton article. The first one, for example, uses some of the language of the following two paragraphs in the article: "The case crumbled further when a supposedly unintelligible part of the taped conversation between Dias and his police contact was mistakenly played in court. Dias could clearly be heard saying: 'Kenny knows nothing. He's straight down the line." The second question marked with an asterisk, it may reasonably be inferred, is based upon another paragraph in the article which said: "Dias admitted, under cross-examination... that he was a heroin dealer of some note." The other three asterisked questions also have relatively clear origins in the article. None of the asterisked questions was suggested in Mr Sneddon's draft questions. It therefore seems relatively obvious that when Mr Jones began to ask Mr Kenny questions he either had the Sutton article before him, or a summarised version of it, or notes of it or a clear memory of main points in it derived either from a reading of it or someone's account of it to him. Even taking these matters into account however in favour of the Crown's claim that Mr Jones must have had some degree of awareness of the pendency of the Killen trial at the time of the broadcast, I am not persuaded that in fact he did. Ido not think it would have necessarily occurred to a reasonably astute lay reader of the article that the reference to Messrs Killen and Pett having been committed for trial at the end of 1987 meant that their trial was still pending, still less that it might actually be in progress on 10 July 1990. Further, as I have already mentioned, Mr Jones was only interested in Mr Kenny and the Sutton article to the extent that they related to the two themes he had been pursuing on his programme. Turning to Mr Sneddon, in the nature of things it is likely that in his efforts to get Mr Kenny on the show he had the same two main themes in mind as Mr Jones. This is to an extent borne out in the lead-in and suggested questions that he prepared. It is similarly likely that he listened to what Mr Kenny was saying to him with Mr Jones's themes in mind. It would be natural for him to remember what Mr Kenny said, then, and increasingly later, in connection with those two themes. Although the same two themes were preoccupations of Mr Kenny, he had a much closer interest in and concern with the trial of Killen. Both he and Mr Sneddon remember that Mr Kenny spoke of the need to avoid contempt. Each of the three men conveyed a different impression of their character and habits both by what they said and their demeanour in saying it. Mr Kenny appeared to have become quite engrossed by what had happened to him and others flowing from the arrest of Mr Dias in 1986. He knew a great deal about all those matters in June and July 1990. He also conveyed the impression in the witness box of being almost painfully anxious that every factual detail relating to the Dias case and its aftermath be related in its correct place and accurately. Finally, he gave the impression of being truthful in his answers. 16 UNREPORTED JUDGMENTS In regard to the issue whether Mr Kenny told Mr Sneddon the date of Mr Killen's trial, looking first at the matter simply on the probabilities, it seems to me that he would have done so. He knew, when he spoke to Mr Sneddon on the morning of 10 July that the trial had started the day before and would be proceeding later in the day. He was aware of the possibility of contempt and he did not want to commit it; these facts alone make it more probable than not that he did at some stage make a point of telling Mr Sneddon the position. When I add to this probability the impression made on me by each man in the course of giving his evidence, I reach the stage of being satisfied beyond reasonable doubt that Mr Kenny did in fact tell Mr Sneddon what he says he told him. From the two men's demeanour in the witness box, for reasons not all of which Ican readily pinpoint, I was left with the clear feeling that Mr Kenny's evidence was the more accurate and the more reliable. One reason for thinking this is that although Mr Kenny took considerable care in answering a number of questions put to him, he appeared to me to be doing so because of his desire to make sure that he got the answers right and those listening to him fully understood what had happened. Mr Sneddon took considerable care with some of his answers also, but I sometimes got the impression from his doing this that he was inspecting the questions with a view to seeing what effect the answers he gave might have on his own position and that his answers might well have been coloured by his concern for his own position. My impression was not that Mr Sneddon was doing this in any wholesale deliberately untruthful way, simply that it struck me that there was some tendency, perhaps not wholly conscious, to be careful about the answers so they did least possible harm to himself. At all events, the impression left with me was that, in regard to discrepancies in their evidence, Mr Kenny was both truthful and generally reliable, and Mr Sneddon's memory was much less to be relied on. This impression was part of the process leading me earlier to say I am satisfied beyond reasonable doubt that Mr Kenny clearly made known to Mr Sneddon before the broadcast on 10 July 1990 that Mr Killen's trial was in progress. I would put Mr Sneddon's different recollection of what he was told by Mr Kenny down to the fact that his mind was focused on the two main things he was wanting Mr Kenny to be interviewed about and did not pay the same attention to the possibilities of contempt arising from reference to Mr Killen's trial as Mr Kenny. I can understand how this would have led to him either passing on to Mr Jones what Mr Kenny had said on his subject in a garbled or diluted form or perhaps overlooking it altogether. To me, it is difficult to make a finding about what Mr Sneddon said to Mr Jones on the topic, and, if he did say anything, what Mr Jones took in about it. I fully accept Mr Jones's statement that he does not now recollect Mr Sneddon saying anything to him about it at all. Mr Jones was careful however to make it clear that he was not in a position to be definite about what had been said, although he did say that had it been made known to him that Mr Killen's trial was in progress, he would not have run the interview at all. The particular context and manner of this piece of evidence led me not to reject it. All this leaves me not convinced beyond reasonable doubt that Mr Sneddon did make known to Mr Jones the fact that Mr Killen's trial was under way or that Mr Jones was conscious of the position when the broadcast of the interview was happening. The elements of contempt. WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2UEZ SYDNEY PTY LTD and ALAN JONES (Priestley JA) There is a convenient introduction to the relevant rules in the reasons of this court in AG for NSW v TCN Channel Nine Pty Ltd, (1990) 20 NSWLR 368: "There are some slight differences in the words that have been used in various authorities to formulate the test of whether a contempt of the kind alleged in this case has been committed. Nothing, however, turns upon those differences.... the general rule is 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 the particular case, constitutes the crime of contempt of court. The reference to 'practical reality' is made because the nature and circumstances of the publication must be such that it could be plainly discerned that there is a real or definite possibility that it may prejudice the administration of justice (Hinch v The AG of Victoria (1987) 164 CLR 15 per Mason CJ (at 27) and Deane J (at 46-47)). There is a qualification to that rule which requires to be considered in a case where it is argued that there is a competing public interest which outweighs the detriment of the possibility of prejudice to the administration of justice in the particular case in question: (cf Hinch; Ex parte Bread Manufacturers Ltd re Truth and Sportsman (1937) 37 SR (NSW) 242; 54 WN (NSW) 98,, Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650)... The reason underlying the general rule was explained in the case of R v Parke, a decision which has frequently been cited with approval by courts of the highest authority. Where the publication of material has the tendency to diminish the power of the court to administer justice according to law, and to extend to an accused person the procedural and other safeguards which are an essential attribute of what is sometimes called due process of law, then such publication is in its nature contemptuous of the judicial system and is liable to be punished as a crime. Persons who are accused of crime are dealt with in this community by being brought before courts of justice and tried according to law. Material regarding the alleged offences, or the proceedings concerning them, may be highly newsworthy, and its publication may have a capacity to advance the commercial or other interests of various persons and corporations, including those who carry on a business of publishing interesting or entertaining information. In the context of the administration of criminal justice, so long as proceedings are pending, however, and subject to the further qualification to be discussed below, these interests, which may in themselves be perfectly legitimate, must yield to the higher interest of the due administration of justice." (at 379-380) The reference to the further qualification in the last sentence of the above citation was a reference to the earlier mentioned public interest qualification, commonly called the Bread Manufacturers rule. The above passages from the TCN Channel Nine case refer to and rely on the High Court decision in Hinch v The AG of Victoria (1987) 164 CLR 15. In that case the High Court considered the Bread Manufacturers rule in detail. There is a passage in Jordan CJ's reasons in Bread Manufacturers which has constantly been cited: (1937) 37 SR (NSW) 242 at 249-250. That passage includes the following sentence: "The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant." 18 UNREPORTED JUDGMENTS The question examined by the High Court in Hinch was whether the above sentence states a principle of law that references to pending criminal proceedings when the references are part of a discussion of public affairs or denunciation of public abuses can not constitute contempt. Mason CJ said the question was "fundamental" and continued: "How does the law of contempt approach the discussion of a topic of public concern or interest when in the course of that discussion the speaker or the author makes explicit reference to proceedings in which an individual has been charged with a criminal offence and that reference bears on the guilt or innocence of the accused or is capable of prejudicing him in his trial for that offence?" (at 22) He said there were three possible answers: 1, that the law balanced the considerations relevant to the competing public interests; 2, that the law applied a test or formula, as suggested in the sentence from Jordan CJ set out above; or 3, a combination of | and 2. After a detailed discussion of the matter, Mason CJ concluded that the first of the three possible answers was the correct one. He also concluded that in balancing the competing public interests, the conflicting demands for a free press and for a fair trial would best be reconciled by applying the test that a 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 (see at 27). He also said that the formulas requiring that the matter published must as a matter of practical reality have a tendency to interfere with the due course of justice and a tendency to interfere substantially with a fair trial were virtually synonymous with substantial risk of serious interference with a fair trial (at 28). He then continued: "Tn assessing whether a particular publication presents a real risk of serious prejudice to a fair trial, ie, serious injustice, it is necessary to ascertain whether the references to the subject-matter of the litigation are central or merely incidental to the topic of public discussion. If the references to an issue in the litigation are central to the discussion the likelihood of prejudice or serious prejudice is all the stronger. If, however, the references to the litigation are merely incidental, in the majority of cases there is unlikely to be a real risk of prejudice to the litigation. Whether a particular publication amounts to a contempt in the sense just discussed depends upon a number of factors. They include the nature and the extent of the publication, the mode of trial (whether by judge or jury) and the time which will elapse between publication and trial." (at 28) In Hinch, which also concerned contempts alleged to have taken place by radio broadcast, Mason CJ made, in addition to his legal observations, some factual remarks relevant to the present case. He said that the lower courts had been entitled in that case to find the broadcasts had created a substantial risk of serious interference with the fairness of a criminal trial notwithstanding the arguments that radio broadcasts "may have a transient impact only", and that because a listener "is continuously bombarded with a never-ending kaleidoscope of sensational items of news" it is likely that the recollection of any particular item by a listener will be ephemeral (see at 31). Despite such considerations, Mason CJ said, he thought that the strong likelihood was that a juror at the trial who heard one of the broadcasts would be likely to remember its substance and be prejudiced against the accused. WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2UB SYDNEY PTY LTD and ALAN JONES (Priestley JA) He took this view notwithstanding that "the atmosphere and the discipline of the trial might tend to concentrate the juror's mind on the determination of the real issues", and notwithstanding that the trial might not take place until two years after the broadcasts, (at 31-32). He repeated his recognition that delay was an important factor in deciding the level of risk of the prejudice to the trial; he evidently considered the prejudicial nature of the broadcasts to be so strong that the court below had been entitled to act on the basis that even a lapse of two years between the broadcasts and the trial would not erode the memory of a listener to the extent that there would not be substantial risk of serious prejudice. Wilson J in his discussion of the much debated sentence in Jordan CJ's reasons expressed what seem to me to be much the same views as those of Mason CJ. I refer only to those passages in his reasons of particular relevance to the present case. As to the words of Jordan CJ in the sentence in question, namely, "as an incidental but not intended by-product", Wilson J said he favoured their being characterised as a factor to be taken into account in carrying out the balancing exercise rather than as a rigid criterion (at 42). He continued: "One cannot rule out the possibility that an incidental and not intended by-product of a discussion of a matter of general concern may nevertheless exhibit so strong a tendency to prejudice pending criminal proceedings as to warrant punishment for contempt." (at 42) A little later he said: "In my opinion, the decision whether to punish conduct alleged to constitute a contempt of court must depend, in the last resort, on the intention of the person charged and the nature and extent of the interference with the fair conduct of the legal proceeding. If the interference is intended and would otherwise justify condemnation by the court, there can be no question of any defence based on a submission that the publication in question was made in the course of a discussion of a matter of public importance. If the interference was unintended, and occurred in the course of discussion of a matter of public importance, then a balancing exercise will be appropriate. If the pending proceedings are central to the discussion then it is unlikely that the interference can be excused as incidental or that any matter of public interest may excuse it. Even if not central, the seriousness of the interference may outweigh any public interest in the freedom to discuss the matter." (at 42-43) Deane J expressed what appear to me to be substantially the same opinions (at 46-47). Like Wilson J he also emphasised that although the act of publication itself must be intentional it is not an essential ingredient of this type of contempt that the publisher had an intention or purpose of prejudicing the due administration of justice (at 46). Similarly, Toohey J's reasons appear to me to adopt the same approach: see especially at 68. Gaudron J's reasons may take the matter a little further in favour of defendants than the other judges went (see eg at 86) but she arrived at the same result. It seems to me that this court is bound to act on the statements of the law set out above from the reasons of Mason CJ and Wilson J, with which, as I have indicated, I think both Deane and Toohey JJ substantially agreed. Within those various statements there seems to me to be substantial agreement that the fact that a person charged with contempt had no intention of interfering with the fair trial of a current legal proceeding is not a defence if in fact the interference, to use Wilson J's words, "would otherwise justify condemnation by the court" (at 43). 20 UNREPORTED JUDGMENTS This view is based not only on what the High Court said in Hinch, but also on earlier authorities mentioned in that case. Counsel for Mr Jones put a detailed argument to this court, relying on other authorities prior to Hinch, which consisted of two steps. The first was a submission that the court would not find that Mr Jones at the time of the broadcasts was aware of the currency of the Killen trial. I have accepted this step in the submission. The second step was put in various ways which all seem to me to amount to saying that in the circumstances, because Jones had been unaware of the Killen trial and had no intention to interfere with it, he could not or should not be found guilty of contempt. In my opinion this court is precluded from accepting that submission because of the views expressed by the High Court in Hinch and the authorities upon which those views were based. I will therefore not set out this aspect of the argument for Mr Jones in any further detail. Was the 9 July broadcast in contempt? A juror who heard what was said on Mr Jones's programme shortly before 7.30 on the morning of 9 July 1990 would have been preparing to go to court, if not already on the way, and later in the day would have heard the Crown Prosecutor's opening in Mr Killen's case. The relevant part of the programme would have conveyed to the listener: that a police officer named Paul Kenny had with other officers arrested a drug dealer who then claimed it was police who planted the drugs on him; that the men who made the accusations against Mr Kenny had later been found guilty of perjury; that criminals regularly tried to get square on arresting police officers; that what basically happened in Mr Kenny's case was that he and others had arrested a well-known heroin dealer who then complained about the arrest; that Mr Kenny had trapped a heroin dealer who had gone scot free; and all this in the context that Mr Kenny's case was in the same category as that of Mr Blackburn, who had just been found to have been falsely accused but that Mr Kenny was not as lucky as Mr Blackburn because at least in Mr Blackburn's case the false accusation had been exposed. In short, the juror would have got to court with the thoughts distinctly in mind that there had been a police officer named Kenny who had properly arrested a guilty drug dealer who had then proceeded to make false accusations against him and had been found guilty of perjury. This same juror, later that morning, on listening to the Crown's opening in Mr Killen's trial would learn that Mr Killen was charged that he had conspired with a Mr Kenny and others to pervert the course of justice. From the Crown's opening the juror would further learn that this Mr Kenny had arrested a man for a drug offence who claimed Mr Kenny and other police had planted drugs on him and that the juror would hear Mr Dias was a drug dealer. An ordinarily alert juror would, in my opinion, make the connection between the case before the court and the one referred to in Mr Jones's programme. In my opinion the broadcast material created a real risk that a juror who heard it would realise when the Killen trial got under way that what had been said in the broadcast referred to that trial and would understand that Mr Jones, a well-known radio commentator, believed that Mr Dias had been in possession of heroin, had been rightfully arrested by Mr Kenny and his team and was falsely accusing Mr Kenny and others of having done things they had not done. The juror would also think that Mr Dias had been found guilty of perjury. (In fact Mr Dias had not been tried for perjury.) All these matters were directly relevant to principal issues in the trial. WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2\@& SYDNEY PTY LTD and ALAN JONES (Priestley JA) With the exception of the remark about perjury, what was said on the broadcast and the implications of what was said may all have been true. Whether all or any of them were true were matters to be considered by the jury on the evidence in the trial. A juror who heard the broadcast would have been subjected to an outside influence on issues, critical to the jury's verdict, to which a juror should not be subjected. If the allegations made by or implicit in the broadcast were true, they nevertheless prejudiced the fair hearing of the trial. They were statements made outside the trial which might influence a juror when deciding the issues in the trial. A juror remembering the broadcast, and then noticing evidence at the trial, which seemed to fit in with what had been said on the broadcast, could well reason along the lines: "The evidence seems to show such and such to be the case and as that is more or less the same as what I heard on the Jones programme I can be all the more confident that I am correctly understanding the evidence." Such a process of reasoning need not be particularly clearly articulated in a juror's mind for it to be both real and operative. If an allegation in the broadcast had no basis (such as that about a finding of guilt of perjury) the prejudice to the fair hearing of the trial is at least equally obvious. It is also obviously possible that a juror might react to Dias's evidence by saying "Notwithstanding that this man has been shown to be a dreadful liar, I might be inclined to believe him on the facts of this particular case; but, bearing in mind that Mr Jones, 2UE's commentator, obviously thinks he is a liar making false accusations, perhaps the right thing for me to do would be to go along with that view. " A number of realistic variations of this kind of danger seem to me to be open. They all lead me to the conclusion that there was a real risk that the broadcast material would interfere with the administration of justice in the trial of Mr Killen. This is so despite the fact that the general topics which Jones wished to pursue clearly fell within Jordan CJ's category "the discussion of public affairs and the denunciation of public abuses, actual or supposed". That real risk was there also even if it was an incidental but not intended by-product of the broadcast. In accordance with what Mason CJ said in Hinch at 28-29, once I reach the conclusion (as I do) that the broadcast created a real risk of interference with the trial or, in the alternative formulations approved by Mason CJ reach the conclusions (as I also do) that the broadcast as a matter of practical reality tended to interfere with the fair trial of Mr Killen and interfered substantially with his fair trial, the balancing exercise between the public interest in fair trials and the sometimes competing public interest in free discussion is thereby resolved in favour of the public interest in fair trials. My conclusion therefore is that both 2UE (as it admitted) and Jones (as he put in issue) were guilty of contempt of court for the matter broadcast on 9 July 1990. Was the broadcast of 10 July 1990 a contempt of court? A juror who heard what was said in the Kenny segment of Mr Jones's programme sometime before nine o'clock in the morning of 10 July 1990 would again have been preparing to go, or already on the way, to court, this time for the second day of Mr Killen's trial, and with the main likely issues at the trial well in mind. The relevant part of the programme would have conveyed to the listener either as fact or Mr Jones's confident opinion the following: that Mr Blackburn had not been guilty of what he had been charged with; that the most celebrated of cases having a remarkable resemblance to Mr Blackburn's was that of Mr Kenny; that 22 UNREPORTED JUDGMENTS Mr Dias had been arrested by Mr Kenny and his partners while Mr Dias was in possession of heroin; that Mr Dias had later wrongly accused Mr Kenny and his partners of planting the drug on him; that Mr Kenny had subsequently been completely cleared; that Mr Dias had admitted to committing perjury; and finally that there was a matter before the courts "at this very moment" involving these events. The remarks I made about the creation by the first broadcast of a real risk of interference with the trial, its tendency as a matter of practical reality to interfere with the fair trial, and its tendency to interfere substantially with fair trial, apply with at least equal force to the tendencies of the second broadcast. There is however a difference between the extent of the contemptuous matter then broadcast by 2UE and Mr Jones on the one hand and Mr Kenny on the other. 2UE and Mr Jones are responsible for everything that was broadcast; 2UE was the broadcaster and Mr Jones was the person with the immediate power to prevent anything said by Mr Kenny going over the air, by use of the seven second delay and cut-off procedure earlier mentioned. Mr Kenny was only responsible for what he himself said. Unfortunately for him, when what he said in the interview is looked at separated from Jones's contributions, I do not think there is any doubt that the words he used had the tendency to interfere with the trial which, in accordance with the rules concerning contempt I have earlier summarised, must result in a finding of contempt. I say unfortunately because I accept what Kenny said in par 7 of his affidavit of 21 February 1992, to the effect that: he told Mr Sneddon of the impending trial of Mr Killen; he was under the impression Mr Jones would ask him questions on the subject matter of the recommendations of the Royal Commissioner's Report into the Blackburn affair and his meeting with Avery; he believed that Mr Jones would be careful not to ask him about matters that might lead to charges of contempt of court; and before the broadcast he had had no discussion with Mr Jones about the questions that Mr Jones might ask him. These matters were elaborated in Mr Kenny's oral evidence, and again I accept what he says. In examination-in-chief he described his thought processes as he spoke to Mr Jones on the telephone: "Tt is very difficult in talk-back radio, you cannot become a lawyer when you are on the phone, it is a very difficult medium. As he was going on I thought that the first couple of questions must have been checked out and my body was like a bolt - the fear went through as Mr Jones became specific about two policemen from Penrith and I thought: my god, Alan Jones doesn't know about the Killen trial and you could sense that in my voice. Then I said I could not talk about it and he went on to another area and the feeling was getting worse then I just said "Proceedings are pending" but I was very uncomfortable about it." (My recollection is that in the part of this passage where the word "bolt" occurs, Mr Kenny actually said "my body was like a bolt of lightning went through... ".) Mr Kenny clearly conveyed the impression of a man who had been caught up in a telephone conversation which was being broadcast and which he felt he was not in a position to control, although he realised that things were going wrong. In a psychological sense it may have been very difficult for him to break off the conversation the instant he realised that Jones was inviting him to talk not only about an ongoing trial but about matters going to critical issues in that trial. His own mind was fixed on his opportunity to give wide circulation to his claim that he had been wrongly treated by the authorities and the need, as he saw it, for a WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2128 SYDNEY PTY LTD and ALAN JONES (Clarke JA) public inquiry into police corruption and the way Internal Affairs Police and Internal Security Police were carrying out their duties. His anxiety to air these matters, his perception that Jones was in control of the interview and his feeling at the commencement of the interview that Mr Jones would know what he was doing so far as the legality of the broadcast was concerned all explain why he did not break off the interview as soon as Mr Jones broached the subjects bearing directly on Killen's trial. However, although what he did is understandable, and although he is only responsible for what he said in the broadcast, unlike 2UE and Mr Jones, who are responsible for the whole of it, what he did say fell into the area of contempt of court for the same reasons, although within a somewhat more limited area, as those I have given in respect of Mr Jones. My conclusion therefore is that each of 2UE (as it admitted), Mr Jones and Mr Kenny (as they put in issue) was guilty of contempt of court for the matter broadcast on 10 July 1990. Further proceedings. In my opinion, the two summonses should therefore be re-listed for publication of the court's reasons and the hearing, at an appropriate time, of that part of the proceedings dealing with the penalties to be imposed. Clarke JA I have read the draft reasons for judgment of Priestley JA. I agree with both his Honour's analysis of the relevant legal principles and his conclusions on the issues relating to the knowledge of Mr Sneddon and Mr Jones. For reasons which will, I think, appear clear I prefer to state my own conclusions on the ultimate issue, that is, whether Messrs Jones and/or Kenny should be found guilty of contempt. I approach this question upon the basis that a finding of guilt is dependent upon the conclusion that each publication created a "substantial risk of serious interference" with Killen's trial. Although this expression is, as the Chief Justice explained in Hinch v Attorney General (Victoria) (1987) 164 CLR 15 at 28, synonymous or virtually synonymous with other expressions of the relevant test, I favour it, broadly, for the reasons given by the Chief Justice. Most of the factual material which I need to consider is admirably described by Priestley JA in his judgment. I wish only to supplement his Honour's description of the facts by referring in more detail to the judgment of the learned Magistrate in the committal proceedings and the opening by the Crown Prosecutor in Killen's trial. The committal proceedings involved two charges against Messrs Killen, Kenny, McMillan, Maxwell and Pett. They were each charged with conspiring to pervert the course of justice and demanding money with menaces. Central to both charges was the claim that the first four-named accused persons, who were all police officers, had arranged falsely to accuse a Mr Dias of possession of heroin not for the purpose of having him convicted for that offence but to enable them to extort money from him. The case against Messrs Kenny, McMillan and Maxwell depended almost entirely on the evidence of Dias. This was not so in respect of the charges against Killen and Pett. In Killen's case the prosecution relied heavily on tape recordings of conversations between Dias and Killen as well as Killen's ambivalent answers to damning questions in his record of interview. In Pett's case there was also reliance upon taped recordings of conversations. Once, the learned Magistrate came to the conclusion that no reliance could be placed on the uncorroborated evidence of Dias he discharged Maxwell, McMillan and Kenny. In the light of the corroboration of Dias' evidence insofar 24 UNREPORTED JUDGMENTS as it affected the other two accused persons he committed them for trial. In the course of his judgment the learned Magistrate observed that when Dias began his evidence he asserted (consistently with the opening of the Crown Prosecutor) that he was an innocent member of the public who had had nothing to do with heroin. In cross-examination he admitted that this evidence was untrue and conceded that he was a dealer who had been involved in some hundreds of drug deals. In view of this very significant concession he was also forced to admit that he had lied under oath when giving his earlier evidence. One other matter of some significance, which also emerged from the committal, is that Dias had had a lengthy association with Killen prior to the events which led to the charge. Indeed the learned Magistrate concluded that Dias was Killen's informant, although he noted that that was not admitted. What is important for present purposes is that prior to the trial Dias had admitted both that he was an experienced drug dealer and that he had lied on his oath. At some time after the conclusion of the committal Pett died and in due course Killen was put on trial on his own. The charge was that he conspired with the four other persons I have mentioned to pervert the course of justice. The trial started on 9 July 1990 and the opening address of the Crown Prosecutor also took place on that day. In that opening the learned Crown Prosecutor described the essence of the charge in the following passage: "Now ladies and gentlemen, in this case it is alleged that the accused and his co-conspirators entered into a conspiracy, the object of which was to obtain money from a man called Lawrence Dias. He was charged with a drug offence and it is alleged that the object of the conspiracy was to obtain money from Dias in return for improperly assisting him to get off the drug charges. It is alleged by the Crown that Mr Dias was charged with heroin offences not with a view to him being eventually dealt with in the normal way by the courts of this State but rather with a view to using those charges to bring pressure to bear on Dias in order that he would pay money to police involved in his arrest." Later he returned to the same theme saying the "Crown case is that Det. Kenny, who was in charge of the operation, was determined to charge Mr Dias that day whether or not any heroin was found on him, the purpose being to, in effect, put pressure on Dias to extort money from him". He then went on to say that although Dias' car and home were searched no heroin was found. This was, of course, in accordance with the evidence which Dias was about to give but insofar as there was no corroboration of that evidence it clearly was regarded by the Crown Prosecutor as a contentious matter. In the opening various portions of the transcript of the recordings which had been taken were read to the members of the jury and these passages provided powerful evidence against Killen quite independent of the oral evidence to be given by Dias. In addition they confirmed or corroborated what Dias had to say in many respects. What made the case even more difficult from Killen's point of view was that when he was asked whether he had said some of the things which appear in the recordings he neither admitted nor denied making the statements. His constant rejoinders were "I don't recall" and "I may have". At no stage, prior to the trial, had he admitted and sought to explain making the statements and, as I see it, the combination of Dias' evidence, the tape recordings and Killen's record of interview provided a very powerful Crown case. When the Crown Prosecutor came to deal with the witnesses which he proposed to call he referred first to Dias saying: WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2126 SYDNEY PTY LTD and ALAN JONES (Clarke JA) "The first witness for the Crown will be Mr Lawrence Dias. Mr Dias is a made (sic) whom at least on one other occasion I am sure you will hear is a man who has admitted to being a drug dealer; a man who most people in this community would regard with absolute contempt. Drug dealers are the scourge of our society. In this case it is alleged you would not expect corrupt police to go up to a perfectly innocent stranger and frame them with a view to extorting money. Police wouldn't come to you, you might think, and try to do this. They went to a person whom they suspected or knew to be a drug dealer with the view of extorting money from him, not with a view to genuinely charging him with a proper offence but with a view to extorting money from him. So of course the main witness in this case is a man whom you might think, I don't know, you might think that he is in reality a drug dealer. Now, that of course is, it is not something that is unexpected. The Crown would of course love to have the most eminent and trustworthy members of society as its witnesses but that is not the kind of person the police in the position of the accused and his co-conspirators are going to approach to do this kind of thing. I would ask you to bear that in mind. The other thing that I would ask you to bear in mind is this. The conspiracy that is alleged is a conspiracy in effect to rip off Mr Dias, to use a colloquialism, to rip him off, to obtain money from him that the police were not entitled to. The Crown evidence will be that there was no heroin found in the car, Mr Dias' car. What I want to say to you is this, it is of the utmost importance. It is not necessary for you to come to the conclusion whether or not there was heroin in the car and at the end of the case you may be unsure whether there was heroin in the car." It will be seen that in this passage the learned Crown Prosecutor made two important statements. The first was that Dias was an admitted drug dealer and the second was that it did not matter for the purposes of the case whether or not the police had discovered heroin in Dias' car. What the Prosecutor did not say was that Dias had lied on oath in the committal proceedings and had admitted that he had lied on oath at that time. That is not surprising but there can be no doubt that those facts would have emerged when Dias was subjected to cross-examination. In the light of these facts I turn to consider in the first instance whether anything which Kenny said, or should be held responsible for, on 10 July has been shown to have created a substantial risk of serious interference with a fair trial for Killen. In considering this question it should be observed that Kenny was not responsible for everything that was said during the interview. He is responsible, of course, for everything he said and for those statements made by Jones which he adopted as his own and, perhaps, for those statements he appeared to adopt as his own. Two observations should be made at the outset. The first is that Kenny is not a public figure or a person whose statements on any subject would be likely to influence public opinion. He is a retired policeman who believed that he had been the victim of, at least, grossly unfair conduct by those in the police force charged with the duty of investigating allegations against police officers. He had a grievance and he wished to air it publicly. In normal circumstances his protestations of innocence would probably have excited nothing more than public curiosity. But the context in which he made his statement, immediately following the publication of the decision in the Blackburn inquiry in which grave findings were made against the police officers who had been involved in the charging of 26 UNREPORTED JUDGMENTS Mr Blackburn, rendered it likely that what he said would be given more weight by the public than it might have at other times. Nonetheless what he said was nothing more than a complaint by a person who claimed to have been unfairly treated and a claim of innocence of the charge for which he had faced a committal hearing. The second is that he made his statement after the jury had heard the opening by the Crown Prosecutor in the Killen trial with the consequence that its members would have been aware of the fact that Dias was a drug dealer and would have realised that the strength of the prosecution case lay in the recorded conversations between Dias and the accused. Bearing those matters in mind I find it difficult to see how anything Kenny said could have influenced the jury at all. He was a person who, the prosecution asserted, was guilty of a conspiracy and accordingly one who would be expected to protest his innocence, particularly as he had been discharged at the end of the committal. In this particular respect I do not accept that the public way in which he protested his innocence would have added significantly to the weight given to the protestation. It is true that he also publicly disparaged the prosecutors who had charged both Killen and himself but again, in its context, I have difficulty in believing that the disparagement would have influenced the members of the jury. I recognise the possibility that it might have but regard that possibility as a slight one and not sufficient to lead me to believe there was created a real risk of interference in the trial. Although in considering the issue one must have regard to all that Kenny said, and was responsible for, the statement upon which the Crown placed most emphasis was as follows: "He had, he was presented to the court as an honest, law abiding citizen and a businessman and he subsequently admitted that he was in fact a huge heroin dealer. Now he has admitted selling heroin on up to one thousand occasions and also to committing perjury during our court case. He was lying his head off and yet that man is still walking around scot free. Nothing has been ever done about him." Every word in that passage was true as reference to the judgment delivered by the learned Magistrate when discharging Kenny makes clear. What is more important is that each assertion would have been proved to the hilt during the cross-examination of Dias in the trial. The case against Kenny was put five ways. First, it was said that he had made statements that Dias was guilty of the drug offence of which he was charged and that he undeservedly went without punishment. It must be understood that what Kenny said has to be understood in the context that the learned Crown Prosecutor had said in his opening that Dias had been granted an immunity from prosecution. I would agree with the contention that the statement "He was lying his head off' conveyed that Dias had been guilty of the possession of heroin as charged but in the context of a trial in which the Crown Prosecutor had asserted that it was unimportant whether Dias had heroin in his car or not I do not think that either the statement made by Kenny or the implication drawn from it was capable of creating the necessary substantial risk. Secondly, it was submitted that what Kenny had said blackened Dias' credit. The submission recognised that Dias already had a vulnerable credit and suggested that the statement made by Kenny, which I have already set out, which WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2la@@ SYDNEY PTY LTD and ALAN JONES (Clarke JA) came before the cross-examination of Dias, would have coloured the trial to such an extent that the relevant risk was created. I do not think that the submission should be accepted. The Crown had conceded that Dias was a man of little, if any, credit in opening the case to the jury and whatever credit he had left at the end of his evidence-in-chief would, I am quite certain, have been substantially, if not totally, destroyed during the cross-examination. This possibility had also, I think, been recognised by the Crown Prosecutor who had emphasised the fact that the strength of the prosecution case lay in the taped conversations and the record of interview. The third way in which the Crown put the case was that what Kenny had said asserted the innocence of himself and the other officers alleged to have been in the conspiracy with which Killen was charged. I have no doubt that Kenny was asserting his innocence, and also that of Maxwell and McMillan, but in the context of a case in which the Crown sought only to prove that Killen was involved in a conspiracy this assertion of innocence could not have created a substantial risk of interference in the trial. Early in the opening of the learned Crown Prosecutor he pointed out to the jury that it was not necessary for the Crown to prove that the accused had conspired with all of the four persons named in the charge in order to obtain a conviction. It was, as the learned Prosecutor said, sufficient to constitute a conspiracy if in fact there were only two people involved. The tapes which were to be played during the course of the hearing clearly implicated Killen and Pett and in addition there was evidence that Pett had been apprehended with $2,000 in his possession which had been handed to him by Dias. Although the Crown asserted that Kenny was the ring leader its failure to sustain that allegation would not, in the context of this trial, as a matter of practical reality have borne on the outcome of the trial. In this context I do not see the assertion by Kenny of his innocence as bearing in any significant way on the trial. In addition, as I have earlier said, I doubt that Kenny's protestations of innocence would have had any effect upon the jury. The same comments apply in relation to the fourth way in which the case was put, that is, that it canvassed a specific issue which was relevant to the case, that is that Kenny was a co-conspirator. The fifth and final way the case was put was that Kenny's statements directly inferred Killen's non involvement in the arrest and charging of Dias. The statement made by Kenny upon which this allegation is based was " subsequently some meetings were tape recorded between Dias and another person, who wasn't involved in Dias' arrest". This statement was true whether it related to Killen or Pett. Neither had been involved in the original arrest and neither were said to have been involved in that arrest. For myself I doubt that any one, whether a juror involved in the trial or not, hearing this statement would have thought it of any significance in relation to the trial then taking place. Furthermore, there was nothing which was to be led in the case which was in any way inconsistent with this statement and I fail to see how it could be said that it had any impact upon the trial then taking place. It follows that the claimant has failed to make good its contention that all, or any, of the specific claims made by the Crown should be upheld. That does not necessarily mean that the Crown has failed to establish its case because, as I earlier observed, at the end of the day it is necessary to decide whether anything said by Kenny, or for which he was responsible, created the relevant risk. To this end the Crown alleged, more generally, that Kenny's 28 UNREPORTED JUDGMENTS statements asserted the impropriety of the prosecution and the clear innocence of the accused. I cannot find in anything said by Kenny any statement which could have been understood by a reasonable listener as conveying that the Killen prosecution was improper or that Killen was innocent. Indeed it would seem to me that Kenny was careful to exclude Killen from the group of people whom he asserted were innocent. Even if I disregard the particulars relied upon by the claimant and consider whether Kenny's statements, considered as a whole, in the context of the interview, tended to prejudice the trial in the relevant way, I would reach the conclusion that no case had been made out. Much of what he said had been opened to the jury by the learned Crown Prosecutor and a substantial part of the material which was not opened, would have been put before them during the cross-examination of Dias. In this context I think it would be a mistake to underestimate the capacity of jurors to assess critically what they see and hear, to attend to the directions of the trial judge and to decide the case upon the evidence which has been led before them (see, for instance, Hinch, per Toohey J at 74). I do not overlook the contemporaneity of the broadcast and trial, which is, of course, a significant feature of the case. Nonetheless, the law is that the jurisdiction to punish for contempt is one to be exercised with great caution (John Fairfax and Sons Pty Ltd v McRae (1954-5) 93 CLR 351 at 370; The State of Victoria v Australian Building Construction Employees and Builders Labourers' Federation and Ors (1982) 152 CLR 25 at 60; Hinch at 27-8, 34). In the end my conclusion could be summarised as follows - I am not satisfied that anything said by Kenny, or for which he was responsible, created any real risk that the trial of Killen then taking place would not be a fair one or indeed I doubt whether Kenny's statement would have been likely to have any impact on the trial. The matters I have mentioned also bear on the case against Jones. But there are differences between the two cases. Jones is a well known radio broadcaster and is a person of public influence. Although I do not think protestations of innocence by Kenny would have had the slightest influence on Killen's trial similar statements by Jones may well have been regarded by members of the jury as factors to be weighed in the balance. Having regard to that factor I agree with Priestley JA that what Jones said on 9 and 10 July 1990 did constitute a contempt, generally, for the reasons given by his Honour. I would add that initially I had reservations concerning the radio segment on 10 July. However, Jones' introductory remarks - "lies, false and fabricated evidence and police verballing... when honest hard working officers are set up, dragged through the courts and then cast aside like an old boot" considered in the context of the later interview and the trial taking place were clearly capable of having influenced jury members in favour of the view that Killen was an innocent victim of inept, or possibly dishonest, police investigations. Accordingly, while I agree with the orders proposed by Priestley JA in relation to Jones I would dismiss the summons against Kenny and, in all the circumstances, order that the claimant pay his costs. Handley JA In these matters I have had the benefit of reading in draft form the reasons for judgment of Priestley JA and Clarke JA. I agree that 2UE and Mr Jones were guilty of contempts of court on 9 and 10 July 1990 for broadcasting the material which was the subject of these charges. I have found the question of the guilt or otherwise of Mr Kenny as charged in relation to the broadcast of 10 WHER MAJESTY'S ATTORNEY GENERAL FOR NEW SOUTH WALES v RADIO 2128 SYDNEY PTY LTD and ALAN JONES (Handley JA) July a matter of some difficulty. However after full consideration I have been persuaded by the reasons of Clarke JA and I agree with him that Mr Kenny should be acquitted on this charge. The question as Priestley JA demonstrates is whether the remarks of Mr Kenny presented "a real risk of serious prejudice to a fair trial" or had "as a matter of practical reality a tendency to interfere with the due course of justice" or created "a substantial risk of serious interference with a fair trial". The central issue in Killen's trial was whether he was guilty of conspiring with one or more of the named co-conspirators to pervert the course of justice. During the interview Mr Kenny asserted his own innocence and the innocence of Peter Maxwell and Christopher McMillan who were also named as co-conspirators in the indictment. However the pending trial did not involve charges against either Mr Kenny or the other two officers whose innocence he asserted. Their guilt or innocence was not an issue in the trial. In some cases such a statement might not reflect the reality of the situation, even though it was formally correct. However in the present case the statement was correct both in form and in substance. On the Crown case the deceased Pett was clearly the probable co-conspirator with Killen. The Crown had available credible evidence that was admissible against both Killen and Pett. By way of contrast the only admissible evidence the Crown had which in any way implicated Mr Kenny and the other two named officers was that of the self-confessed drug dealer and perjurer, Dias. Accordingly the Crown case against Killen depended in substance on proof of a conspiracy with Pett. In these circumstances in my opinion assertion by Mr Kenny of his own innocence and that of the two named police officers did not as a matter of practical reality have a tendency to interfere substantially with a fair trial or create a substantial risk of serious interference with a fair trial. During the broadcast Mr Kenny also said that Mr Dias had been lying his head off in the committal proceedings, that he admitted that he was a drug runner and a perjurer and yet nothing had ever been done about him. These statements were not only true but could hardly be in dispute at the trial. The guilt or innocence of the accused Killen was not going to depend upon the jury's findings on those matters. The Crown case, as opened by the prosecutor to the jury, and as it would inevitably be presented, was not dependent on the jury's acceptance of Dias as a witness of truth. Moreover Dias had been granted an indemnity against prosecution for any drug offences committed at or about the time of his arrest by Mr Kenny. In these circumstances I have again concluded that the broadcasting of these statements by Kenny did not, as a matter of practical reality, have a tendency to interfere substantially with a fair trial. I agree with the orders proposed by Clarke JA. 1. Summons 40225/91 to stand over for re-listing for hearing on penalties. 2. Summons 40226/91: (a) as against 2UE and Jones; to stand over for re-listing for hearing on penalties, (b) as against Kenny; dismissed with costs. Counsel: Claimant: K. MASON QC (SOLICITOR GENERAL) / P. LAKATOS 1st Opponent: B. MCCLINTOCK 2nd Opponent: B. WALKER / R. HORSLEY 30 UNREPORTED JUDGMENTS 3rd Opponent (in 40226/91): P. R. BOULTEN Solicitors: Claimant: H.K. ROBERTS - STATE CROWN SOLICITOR 1st Opponent: ALLEN ALLEN and HEMSLEY 2nd Opponent: FREEHILL HOLLINGDALE and PAGE 49 3rd Opponent (in 40226/91): CHRISTOPHER MURPHY