REGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, MAHONEY and POWELL JJA 11 October 1994, 21 October 1994 [1994] NSWCA 262 JUDGMENT CONTEMPT OF COURT — reference by District Court judge — publication during trial of article referring to recent conviction of one of two accused persons — application of established test — defence on basis that publication could not have prejudiced proceedings because of matters that were disclosed in the course of the trial — publication resulted in aborting of trial of co-accused — information received in course of trial distinguished from that in the article — contempt found. CONTEMPT OF COURT During the hearing of a trial of an accused on a charge of conspiracy to rob an Armaguard van, the opponents published an article which revealed that he had recently been convicted of the armed robbery of another Armaguard van. This information was not in evidence at the trial, although the jury were aware that the accused had a criminal history. The issue was whether, having regard to the prejudicial material already before the jury,'the publication carried with it a real risk of serious prejudice to the fair trial of the accused — HELD — It did. What was involved was a contempt of court. ORDERS Proceedings stood over for evidence and argument on the question of penalty. Gleeson CJ The claimant seeks declarations that the two opponents are guilty of contempt of court, and the imposition of appropriate penalties. The matter comes before the court on a reference by Judge Gallen of the District Court, pursuant to s203 of the District Court Act 1973. Following such reference, the claimant was, by the provisions of SCR Pt55 R11(3), obliged to commence proceedings for punishment of the alleged contempt. In accordance with the usual practice, the court has heard evidence and argument on liability, and will hear further evidence and argument in due course on the matter of penalty if that issue arises. The first opponent is the publisher of the Sun Herald newspaper, a weekly newspaper which has extensive circulation throughout New South Wales. The second opponent writes a regular column in that newspaper. In the issue of the Sun Herald newspaper published on 21 November 1993, in the second opponent's column, there appeared the following, article: "T'm asking you. Nobody loves you when you're down and out. Ah, but that's the way it is for police who go to court with little more than a claim that an accused has confessed to them verbally. Long-term Long Bay dinner bandit Jimmy Murray has just stood trial over an armed robbery on an Armaguard van, and on a charge heard simultaneously that police found the hold-up gun under his bed. The police had an eyewitness for the hold-up charge. When it came to the gun, all they could do was allege in perfect harmony that silly Jimmy, living in hot digs, had stashed the shooter under his cot. No, no-one bashed him. He just up and confessed to the nice Armed Holdup Squad: 'All right, that's the gun I used'. 2 UNREPORTED JUDGMENTS That's what they reckoned. Hopping mad Mr Murray made his first public appearance in court shortly after his arrest. He raged that the gun was planted by the police, he had made no admissions and said he had been flogged. At his trial the other day he told the jury he was no angel but nor was he a canary. He denied confessing and said the gun was a police product. He said the demons had 'kicked and bashed and hit me on the head with a gun, my hands were cuffed behind me while I was on the ground and then I was kicked a lot more'. To support the injury claims his barrister, Glen Whitehead, produced police identification photos taken by station staff when he was charged. With an eyewitness to help, the jury downed Murray on the stick-up. However, they found him not guilty on the gun charge which required them to believe the police". At the time of this publication, the man referred to as Jimmy Murray, (James Francis Murray), was involved, as one of two co-accused, in a part-heard trial before Gallen DCJ and a jury on a charge of conspiring to commit an armed robbery of employees of Armaguard. On the day following the publication, Murray's co-accused, whom I shall call K, made a successful application for a discharge of the jury in the proceedings against him. Murray, who was representing himself, after obtaining legal advice, decided not to make an application for the discharge of the jury, and the trial against him proceeded. He was ultimately convicted. In due course K was tried separately. The first and second opponents have been jointly represented in this court, and it is not suggested that any different considerations apply to the respective cases against them. In deciding whether a contempt of court of the kind alleged in this case has been committed, the test is whether the clear tendency of the publication was, as a matter of practical reality, to interfere with the due course of justice in the prosecution in question. The relevant time for the application of the test is the time of publication. It is for the claimant to establish, beyond reasonable doubt, that the nature and circumstances of the publication were such that it could be plainly discerned that there was a real or definite possibility that it may prejudice the administration of justice (Hinch v Attorney General for the State of Victoria (1987) 164 CLR 15 at 27; Attorney General for New South Wales v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368; Attorney General for New South Wales v Time Inc Magazine Co Pty Ltd (Court of Appeal, New South Wales, reported 15 September 1994)). The reason why conduct of that kind constitutes a contempt of court has been explained ((1990) 20 NSWLR at 380) as follows: "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 ". What is significant is the tendency of the publication. The publication of material which has a tendency to diminish the court's capacity to administer justice is contemptuous of the judicial system. The case has been conducted upon the basis that it is common ground that, in the circumstances of a case such as the present, it is not necessary for the claimant to establish an intention to interfere with the due administration of justice, although the presence or absence of such an intention may be important on the question of penalty. (cf Hinch v Attorney General for the State of Victoria, above.) Accordingly, there has been no evidence put before the court on behalf UWEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Gleeso& CJ) of the opponents, except for some formal evidence tendered to complete the record of the proceedings before Gallen DCJ. The issue of liability falls to be determined without this court having before it any evidence as to how the publication in question came about, or as to what, if any, knowledge the opponents had, at the time of the publication, of the existence of the part-heard trial. Senior counsel for the opponents disclaimed any suggestion that the article can be justified on the basis that it was published in the pursuit of some superior interest which may prevail over the requirements of the due administration of justice in accordance with the principles enunciated by Jordan CJ in Ex parte Bread Manufacturers Ltd; re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242, and expounded by the High Court in Hinch. In Hinch, Mason CJ pointed out (164 CLR at 27, 28) that, in order to make out a contempt, it must be shown that the publication in question carried with it a real and substantial risk of serious prejudice to the fair trial of the proceedings in question. The opponents submit that, in the unusual circumstances of this case, the publication carried with it no real risk of serious prejudice to the fair trial of the proceedings against Murray or K. That is the ground upon which the matter has been defended. In criminal trials, considerable care is ordinarily taken to exclude from the knowledge of the jury information as to prior convictions of the accused person. Of course, circumstances may arise which will result in such information becoming known to the jury. However, except in those cases where such evidence becomes admissible, the courts take pains to ensure that juries do not become aware of such material. In Hinch Mason CJ, discussing some aspects of the law on this subject, said (164 CLR at 28). "The first is that the courts have always taken a serious view of any published disclosure of the prior conviction of a person accused of a criminal offence when proceedings for that offence are pending. This is because a prior conviction is not admissible evidence of a person's guilt of the offence with which he is charged... Yet knowledge of a prior conviction is likely to prejudice a jury against an accused person and induce a jury to conclude that he had a propensity to commit the offence charged. For this reason the acquisition by a jury of knowledge of a prior conviction of the accused is usually regarded as causing such prejudice that the trial is invalidated thereafter". In the same case, Toohey J said, (164 CLR at 71). "The principle that the prosecution may not adduce evidence tending to show that an accused has been guilty of criminal acts for the purpose of leading to the conclusion that he is a person likely from his criminal conduct or character to have committed the offence for which he is being tried was described by Viscount Sankey LC... as 'one of the most deeply rooted and jealously guarded Principles of our criminal law" For present purposes, contempt of court consists in conduct which diminishes the capacity of the court to regulate its procedures in order to avoid or minimise prejudice of the kind thus recognised. The publication, in a newspaper with a wide circulation, during the course of a criminal trial, of information as to the criminal history of an accused person, in circumstances where that information would not be able to be placed before the jury in the form of relevant and admissible evidence, is a serious matter. 4 UNREPORTED JUDGMENTS If, in the present case, there had been nothing more involved than the publication of the article during the course of the trial of Murray and K, then the publication would have provided a simple and obvious example of contempt. However, as has been pointed out on behalf of the opponents, there was a good deal more to it than that. It is necessary to examine in some detail the context in which the publication occurred. The trial that was going on before Gallen DCJ and a jury in November 1993 concerned an alleged conspiracy to carry out an armed robbery of an Armaguard vehicle at the Macquarie Shopping Centre in February 1991. The alleged conspiracy occurred over a period from 5 February 1991 to 11 February 1991. The Crown case was that a man named Stansfield had been approached and invited to participate, with Murray and K, in the proposed robbery, Stansfield's response to this invitation was to inform the police, who encouraged him to go along with the proposal for the purpose of obtaining evidence against Murray and K. Stansfield was furnished with listening devices. The activities of Stansfield, Murray and K, between 5 February 1991 and 11 February 1991 were carried out under surveillance. In the result, there was a body of highly incriminating evidence against Murray and K. On 11 February 1991, as they were preparing to commit the proposed robbery, they were intercepted, arrested and charged with conspiracy. Murray was granted bail. He took advantage of this to plan another Armaguard robbery, this time in the absence of K. In April 1991 he robbed an Armaguard vehicle at Baulkham Hills. He was arrested and charged with three offences, one of stealing a motor vehicle, one of robbery, and one of possessing a shotgun. He was tried before Ducker DCJ and a jury, and convicted of the first two offences. He was acquitted of the third. It was the outcome of the trial in relation to the April 1991 Baulkham Hills robbery that formed the subject of the article that was published in the Sun Herald on 21 November 1993. The problem was that, at the time of the publication of that article, Murray and K were in the middle of their trial before Gallen DCJ and a jury, relating to the alleged conspiracy to rob Armaguard, at Macquarie Shopping Centre, in February 1991. The sting in the article is obvious. It did not merely disclose that Murray had a criminal history. As will appear below, that was known to the jurors. It conveyed the information that Murray had very recently been tried and convicted in respect of an armed robbery of an Armaguard van. The jury did not have that information before them, and it is its prejudicial potential in relation to the part-heard trial for conspiracy to rob an Armaguard van that lies at the heart of the complaint that is made in the present proceedings. The argument relied upon by the opponents is that the course of events that had been taken at the trial before Gallen DCJ up to November 1993 was such that the material published in the Sun Herald of 21 November would not have seriously prejudiced the proceedings against either Murray or K. By the time of the publication, evidence in the part-heard trial had been given over some seven days. The principal Crown witness was Stansfield, but a large part of the evidence relied upon by the Crown consisted of the results of secret surveillance of the activities of Murray and K, including tape recorded conversations, photographs, and observations of their movements at the Macquarie Shopping Centre during the period when they were allegedly setting up the proposed armed robbery. UWEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Gleesoi CJ) The trial transcript does not make entirely clear the nature of the defence case. K was represented by counsel. He asked a number of questions in cross-examination of Stansfield from which it can be inferred that K's defence was going to be that, although he was in the company of Stansfield and Murray at the Macquarie Shopping Centre on certain occasions, he was not there for the purpose of engaging in any armed robbery, and he was the victim of a corrupt attempt by Stansfield to implicate him in the crime. The suggestion seems to have been that, whatever Stansfield and Murray were planning, K was not a party to it. Murray was unrepresented, and conducted his own defence. Exactly what that defence was is not readily apparent from his line of cross-examination, but he appears to have been aiming to establish that in some way he was "set up" by Stansfield. Murray conducted a long cross-examination of Stansfield, in the course of which he asked a number of questions which elicited from Stansfield information, of a general kind, about Murray's criminal past. There were, for example, pages of cross-examination about disputed conversations between Stansfield and Murray, in which it was common ground between the witness and the cross-examiner that they had been together in prison for lengthy periods. Murray took exception to assertions by Stansfield that Murray had been involved in drug dealing in prison. In the course of his questioning of Stansfield about Stansfield's criminal history, it would have become clear to the jury that Murray himself had a substantial record. For example, picking up a remark Stansfield made about armed robberies, Murray pursued the following line of questioning: "Q. What about the armed robberies, what armed robberies were they? A. I can't recall. Ones that you said you had done before. Q. What robberies? A. I don't know. You were talking about them. Q. Was I in prison for, armed robberies? A. I am not certain. Q. Do you know what I was in gaol for? A. Yes. Q. What? A. Either conspiracy to supply heroin or supply heroin. I can't recall which. Q. Who told you that? A. It was jus t common gaol knowledge". Murray put to Stansfield that Stansfield was lying about these conversations, but he did not trouble to challenge the assertion that he had spent time in prison together with Stansfield. In the course of the cross-examination Murray also obtained from Stansfield information which suggested that K had a criminal history. The following evidence was given: "Q. Do you know Mr (K)? A. Yes I do. Q. Where do you know Mr (K) from? A. From gaol". That evidence prompted an immediate application by K's counsel for a discharge of the jury. The application was unsuccessful. Because Gallen DCJ never came to instruct the jury in relation to the charge against K, we do not know what warning or instructions a jury might have been given in order to minimise or eliminate the prejudice resulting from this evidence. On the Monday following the publication of the Sun Herald of 21 November 1993, the first thing that occurred when the trial resumed was a consideration of the article, and its effect on the future of the trial. Although Murray was unrepresented, he consulted a solicitor. We do not know what advice he was given, but he decided, and informed the judge, that he wanted the trial against him to continue. On the other hand, counsel for K made it plain that his client 6 UNREPORTED JUDGMENTS wanted a discharge of the jury. Without giving any detailed reasons, Gallen DCJ decided that, because of the publication of the article, incurable prejudice had been suffered by K. Accordingly, he discharged the jury in respect of the proceedings against K, and ordered a separate trial. The trial continued, with the same jury, against Murray. Murray was ultimately convicted. Thus, the publication of the article on 21 November 1993 resulted in the aborting of the trial of K. The claimant submits that it would also, almost certainly, have caused the trial against Murray to abort, had it not been for his insistence upon continuing notwithstanding any prejudice that may have been caused by the article. The claimant relies upon the tendency of the article to prejudice both the proceedings against Murray and the proceedings against K. The prejudice against K, which was presumably in the mind of Gallen DCJ when he discharged the jury in the proceedings against him and ordered a separate trial, was, in effect, derivative. Insofar as K might have been able to persuade a jury that he was not a party to any plan that might have been conceived by Stansfield and Murray, or, at least, to raise a doubt in their minds on that subject, information to the discredit of Murray would not prejudice K. On the other hand, the indisputable evidence obtained in the course of the police surveillance showed that K was an associate of Murray. Furthermore, on a charge of conspiracy, information that tends to implicate a conspirator will often, on that account alone, operate to the prejudice of an alleged co-conspirator. The decision of Gallen DCJ to discharge the jury in respect of the proceedings against K, and order a separate trial, was a perfectly understandable discretionary decision, and it was the direct consequence of the article in question. Even more clearly, the article had a tendency to cause serious prejudice to the proceedings against Murray. It is true that, as a result of his apparently reckless cross-examination of Stansfield, Murray had already permitted the jury to become aware of a considerable amount of information to his discredit. The jury knew that he was a convicted criminal who had spent a good deal of time in prison. Although Stansfield's evidence on the point was challenged by Murray, the jury knew that Stansfield alleged that Murray had been involved in armed robberies which he had discussed with Murray. The jury also knew that Stansfield alleged that Murray was implicated in dealing in illegal drugs. As a result of the cross-examination, the jury would have been left with the clear impression that Murray was a person with a substantial criminal background. If the article published in the Sun Herald had said nothing more than that Murray was a "long-term Long Bay dinner bandit" (whatever exactly that means) or that he was "no angel" then it would have added nothing of significance to the information that was already available to the jury, and no contempt would have been involved. However, the article also contained the information, thus made available to the jury, that Murray had "just stood trial over an armed robbery on an Armaguard van" and that he had been convicted. If the jury had thought about it, they would have realised that this was not the armed robbery the subject of the conspiracy with which they were concerned because, on the facts before them, the participants in that conspiracy had been intercepted by the police before they had managed to carry out the robbery. However that may be, a juror who read the article (and it is reasonable to infer that at least some members of the jury would read the Sun Herald) would have become aware that the person before them on a charge of conspiring in February 1991 to rob an Armaguard van had very recently been convicted by another jury of the armed robbery of an Armaguard UWREGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Powell JA) van. That goes beyond mere general propensity to commit crime. That is specific information that the accused had recently been convicted of robbing an Armaguard van. The tendency of information of that kind to prejudice the trial of the accused on a charge of conspiring to rob an Armaguard van on another occasion is obvious. It would not have come as a surprise to the jury to learn that Murray was no angel, or that he had eaten many dinners at Long Bay Gaol. However, the news that he had recently been convicted of the armed robbery of an Armaguard van would have added significantly to their knowledge. They, or at least some of them, would be likely to have considered that to be material to the question whether he had conspired to rob an Armaguard van on another occasion. The information which, prior to the publication of the article of 21 November 1993, the jury had concerning the character and antecedents of Murray was prejudicial to Murray and, indirectly, to K. It is not possible to calculate the additional prejudice resulting from the information that was published by the Sun Herald. The minds of individual jurors might have been affected differently. However, what is at issue is not a matter of calculation. It is a matter of tendency and risk. The information about Murray which the jury already had was information they had received in the course of the regular conduct of the trial going on before them. The publication of the Sun Herald article produced the result that, from a source external to the trial, the jury had available to them additional, and seriously prejudicial, information. In my view, the publication carried with it a real risk of serious prejudice to the fair trial of the proceedings, against both Murray and K. It is not surprising that the trial of K aborted. The fact that Murray decided to press on regardless does not alter the case. The declarations sought in the Summons should be made in due course. The matter should be listed for evidence and argument on the question of penalty. The making of formal declarations and orders should await the outcome of that further hearing. Mahoney JA I agree with the judgment of the Chief Justice. Powell JA I agree with the judgment of the Chief Justice. Proceedings stood over for evidence and argument on the question of penalty. Counsel for the Claimant: RN Howie QC / MG Sexton Instructed by: HK Roberts Crown Counsel for the Opponent: I Barker QC / MG Lynch Instructed by: Freehill Hollingdale and Page