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 7 December 1994, 23 February 1995 [1995] NSWCA 389 CONTEMPT OF COURT- penalty — publication of article revealing recent conviction of accused causing trial to be aborted — interference unintentional — resulting from failure of employee to pass on information and failure to instruct employee properly — fine unnecessary CONTEMPT OF COURT — liability — whether open to second opponent to disclaim liability at penalty hearing — no substantial public interest or urgency in publication of article — relationship between information in article and subject matter of trial more than incidental. Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650; Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242; Hinch v Attorney-General (Vic) (1987) 164 CLR 15, distinguished CONTEMPT OF COURT — PENALTY The opponents committed contempt of court as a result of the publication of an article which caused a part heard criminal trial to be aborted as to one of the accused. The evidence on penalty showed that the interference with the trial was unintentional, and the publication resulted from a breakdown in communication. The evidence revealed a defect in the first opponent's procedures, but it was not a major defect — HELD — the case did not require the imposition of a fine upon either opponent. RESULT: Declarations made but no penalty imposed Gleeson CJ, Mahoney and Powell JJA On 21 October 1994 the court, having heard evidence and argument on the question of liability, determined that the declarations sought in the summons should be made. It was held that the opponents had committed contempt of court as a result of the publication in the Sun Herald newspaper of 21 November 1993 of certain information relating to a person (M) who, on that date, was the subject of a part heard criminal trial. He was charged with conspiracy to rob an Armaguard van. The newspaper article stated, amongst other things, that he had recently been convicted of robbery of an Armaguard van. The nature of the evidence then before the court appears from the judgment, and the present reasons should be read together with, and in the light of, the reasons for judgment on the issue of liability. In accordance with its usual practice the court stood the matter over for further evidence and argument on the question of penalty, and deferred the making of formal declarations and orders for the time being. In the reasons for judgment on the issue of liability, it was noted that no evidence had been put before the court on behalf of the opponents. The reasons for judgment stated: 2 UNREPORTED JUDGMENTS "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 ". The reasons also recorded that the case had been conducted upon the common ground that, on the issue of liability, it was 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. It was also recorded that senior counsel for the opponents disclaimed any suggestion that the article could be justified on the basis that it was published in the pursuit of some superior interest which, in the circumstances, could prevail over the requirements of the due administration of justice. In short, the case on liability was conducted by the opponents on the basis that their intention in preparing and publishing the relevant material, and their state of knowledge concerning any part heard trial of M, was immaterial. When the matter was relisted for evidence and argument on the issue of penalty, the opponents put before the court a considerable volume of information on the subjects just mentioned. This, it was argued, went to the question whether the court should impose any penalty and, if so, what penalty would be appropriate. After the evidence on penalty was complete, and the court reserved its decision on that issue, the second opponent, who was by then separately represented, in written submissions filed pursuant to leave to supplement what had been put in oral argument, made, for the first time, a submission to the effect that no contempt of court had been committed for reasons of the kind considered in Registrar of Court of Appeal v Willesee (1985) 3 NSWLR 650. (See also Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242; Hinch v Attorney-General (Vic) (1987) 164 CLR 15.) As was noted in the earlier judgment, such a submission was expressly disclaimed at the hearing on liability. That disclaimer had the important tactical consequence that the opponents were able to put the arguments on liability which they desired to advance, which did not include the argument just mentioned, without having to call any significant evidence. The second opponent, for example, (unlike Mr Willesee in the case just mentioned) was able to argue that there should be no finding of contempt without giving evidence as to the circumstances in which he wrote the article in question. The main argument advanced on the issue of liability was that the matter published was not likely to cause serious prejudice to the part heard trial. However, when they came to give evidence on the question of penalty, both opponents said they would have clearly-recognised the likelihood of prejudice if they had known about the part heard trial, and would never have published the article, at least until the trial had ended. There is a real question as to whether we should entertain the new argument at this stage. However, for reasons that will appear below, we do not consider in any event that the argument, if put at the right time, would have prevailed. In order to understand the point it is necessary to explain the evidence that emerged on the question of penalty. We shall, therefore, proceed to deal with the evidence and arguments on penalty, and return to the other matter towards the conclusion of our reasons for judgment. On penalty, the case for the opponents was as follows. UFEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Gleeso& CJ, Mahoney and Powell JJA) Both opponents say that the contempt of court committed by them was accidental. They did not know, on 21 November 1993, that there was a part heard criminal trial in which M was one of the accused. If they had known that, they would not even have contemplated publishing the article in question. If they had known of the current proceedings against M they would immediately have recognised the potential for the article to interfere with the due administration of justice. They had no intention to do anything that would interfere with M's trial. Further, they say, the accident which resulted in the publication of the article occurred without fault on their part. It was the result of a breakdown in communication. The first opponent, the publisher of the article, did not know, and had no information before it, which gave it cause to believe, or even suspect, that there was a current trial proceeding against M. The second opponent, the author of the article, had obtained the information in it, which related to an earlier trial of M, from the barrister who represented M at that trial, and the article was written with the encouragement of the barrister. The barrister never mentioned to the second opponent that there was another trial proceeding against M, in which M was representing himself. The second opponent had no reason to believe, or even suspect, that there was such a trial proceeding. In fact, the encouragement he was receiving from M's barrister to write the article indicated the contrary. The barrister, although he accepts that he never told the second opponent anything about the current trial involving M, appears, from some contemporaneous notes, to have informed the second opponent's research assistant, when discussing the subject of the proposed article, of the fact that M was currently on trial. The research assistant, however, attached no significance to that information, and did not pass it on to the second opponent. It seems reasonable to infer that the barrister intended the information to be passed on to the second opponent, perhaps as a warning against publishing the article until the second trial had concluded. However, the information never went any further than the research assistant and, as a result, the second opponent wrote the article, and the first opponent published it, unaware of the current trial. The claimant does not challenge that account of the events leading up to the writing and publishing of the article. The area of dispute, relevant to the question of penalty, is whether, in the circumstances outlined above, it is correct to say that there was no substantial fault for which the opponents can respectively be held responsible. Before coming to some of the detail of the evidence, it is convenient to refer in summary form to the history of the matter. Although M has a long (and evidently continuing) association with the criminal justice system, for present purposes it is necessary to refer only to two trials in which he has been involved. The first trial commenced before Ducker DCJ and a jury on 12 October 1993. The charges were of armed robbery and of unauthorised possession of a shortened firearm. On 27 October 1993 M was convicted of robbery and acquitted in respect of the firearms charge. He was sentenced by Ducker DCJ on 29 October 1993. A few days later, on 3 November 1993, M, and a co-accused, K, came before Gallen DCJ and a jury for trial on a number of other charges. That trial was still running on 21 November 1993. Mr Murphy, the second opponent, writes a regular column, which is published by the first opponent, every Sunday, dealing with a variety of subjects which mostly concern the administration of criminal justice. He frequently writes about, and comments upon, court cases. 4 UNREPORTED JUDGMENTS In early November 1993 the second opponent had a casual meeting, in a restaurant, with Mr Whitehead, the barrister who had appeared for M at the trial before Ducker DCJ. The second opponent often writes in his column about the subject of police "verbals", and Mr Whitehead expressed the view that he might be interested to write something about what had occurred at the trial of M. The police case against M relating to the firearms charge had depended entirely on an alleged verbal admission, and the jury dismissed that charge. The allegation by M that he had been "verballed", and the jury's rejection of the police case on that issue, was to become the central feature of the article written by the second opponent and published on 21 November 1993. The second opponent said in the evidence that he regarded the matter as of no great urgency or importance. He thought that he might use it on some future occasion as a "filler" for his column. On 9 November 1993, the second opponent again ran into Mr Whitehead at some barrister's chambers and they had a further discussion about the matter. Some days later, the second opponent sent his research assistant, Mr Tuziak, (about whom more will appear below), to see Mr Whitehead, and to obtain some further material from him, including some parts of the transcript of the trial. On 18 November 1993, the second opponent wrote the article in question. On 19 November 1993 the article was vetted by the first opponent's in-house lawyer and was found to be legally unobjectionable. The article was then published on 21 November 1993. The evidence called on behalf of the first opponent showed that, at all material times, it had in operation a comprehensive and apparently effective set of procedures designed to prevent the publication of material that could prejudice part heard or impending criminal trials. It is clear that the first opponent is well aware that, having regard to its regular subject matter, the column written by the second opponent has the potential to give rise to problems concerning, amongst other things, contempt of court. As a result, everything written by the second opponent is scrutinised by the first opponent's lawyers. The evidence shows that employees of the first opponent are provided with detailed written material, and instruction, concerning the law of contempt of court. For example, a publication entitled "Courting the Law", described as a practical course in media law for journalists, and provided to the first opponent's journalists, contains the following information: "Because an accused person is innocent until proven guilty each trial must start from scratch with a blank slate. The past is irrelevant - only the facts of the crime under question need to be examined. But the law recognises that humans find it difficult to separate guilt from past history. It is more likely, we think to ourselves, that someone who has committed a crime before will do so again. This tendency to judge people in the light of their past is responsible for many of the restrictions on publications relating to crime. If the jury, going into the courtroom, know that the accused has a criminal record of any kind... the chances of a fair trial happening are strongly reduced. Newspapers have a responsibility to make sure that they do not put the right of a fair trial in jeopardy. There have been cases where newspaper reports which included information about the defendant have caused trials to be aborted at considerable trouble and expense. Newspapers are held up to ridicule and contempt when this happens (and often fined heavily)". UFEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (GleesoB CJ, Mahoney and Powell JJA) As appears from the earlier judgment in this matter, what happened in the present case was that the article published on 21 November 1993 referred to the fact that M had previously been convicted of an armed robbery of an Armaguard van. The trial that was current as at 21 November involved charges of conspiring to rob Armaguard. Anyone who had read the above publication, and was aware of the current trial, would have appreciated the risk involved in publishing the article written by the second opponent, at least until the conclusion of the second trial. The second opponent says that he would never have written the article for publication on 21 November 1993 if he had been aware that there were "back-to-back" trials against M. This evidence has not been challenged, and there is no reason why it should not be accepted. There is no suggestion that the second opponent had any reason to want to harm M, or interfere with his trial. There was no challenge to the evidence that the subject matter of the article was not one which the second opponent regarded as of special importance or as requiring urgent publication. The theme of the article was in line with what he had written before on the subject of police "verbals", but there was no particular reason why the article had to appear on 21 November 1993, or why it could not have awaited the completion of the second trial if it had been known that there was such a trial. There were tendered in evidence some handwritten notes made by Mr Tuziak of his interview with Mr Whitehead in November 1993. Those notes occupy 4 pages, and they record an account given by Mr Whitehead to Mr Tuziak of some of the details of the issues and evidence at the trial before Ducker DCJ. It may be inferred from the nature of the information which Mr Whitehead provided to Mr Tuziak that he would have expected Mr Tuziak to pass it on to Mr Murphy. Towards the conclusion of the notes, Mr Tuziak has written: "(M) is... currently on trial". The way in which the notes were written makes it appear that the words "currently on trial" were written first, and that subsequently Mr Tuziak wrote the words "(M) is". Both Mr Whitehead and Mr Tuziak gave evidence. Neither has any recollection of the detail of what was said about this matter. It may be that the explanation of the form of the note is that Mr Whitehead told Mr Tuziak that there was a current trial and then went on to make it clear that it was M who was standing trial. In his affidavit, Mr Tuziak said: "Having re-read (the notes) I note that I have written in those notes the words '(M) is currently on trial'. When I was taking the notes, I wrote down as many of Whitehead's words as I could as he was speaking. Accordingly the words to which we have referred must have been spoken by Whitehead during the course of our conversation. He must have told me that (M) was at the date of my consultation with Whitehead facing another trial". Mr Tuziak went on to say that, after he had completed his interview with Mr Whitehead, he passed on to Mr Murphy documents which he had obtained from Mr Whitehead. He also said that, although he has no specific recollection about the matter, it is likely that, in accordance with his normal practice, he would have summarised orally for Mr Murphy the substance of his conversation with Mr Whitehead. He did not give Mr Murphy his handwritten notes or a copy of them. He said: "I have no recollection of ever informing Murphy of the fact that (M) was currently on trial and I believe it is unlikely that I would have done so because: a) I perceived that Murphy was interested in writing a story about the first trial and I believe I did not consider the information about the second trial 6 UNREPORTED JUDGMENTS to be relevant to this story. I believe, therefore that I only gave Murphy information directly relevant to the first trial, not to the information I had obtained regarding the second trial. b) I did not appreciate that the knowledge that (M) was currently standing trial had any significance or relevance to whether the proposed story could be published". We accept that Mr Tuziak did not pass on to Mr Murphy the information he had been given by Mr Whitehead about the current trial. We accept that the second opponent would readily have appreciated the danger of publishing the article of 21 November 1993 if he had been aware of the current trial, and we infer that he would understand perfectly well the likely consequences if he had gone ahead with the article in those circumstances. It is possible that Mr Whitehead said what he did to Mr Tuziak with the intention of conveying a warning to the second opponent. Perhaps he was intending to warn him that the article should not be published until the second trial is over. It is impossible to make any finding on this matter, because Mr Whitehead does not even remember saying anything about the current trial, let alone why he said it. We accept, however, that whatever he said, and for whatever purpose, it was not communicated to Mr Murphy. Mr Tuziak is employed by the first opponent, on a part-time basis, as a research assistant to Mr Murphy. In his affidavit, he describes his work as providing general research and administrative assistance to Mr Murphy. He is a graduate of the University of Sydney with an Honours degree in Arts and a Diploma of Education. He has no legal knowledge, apart from that which he has picked up in the course of his work as a research assistant. Mr Tuziak is Mr Murphy's nephew, and the selection of him as the person who was to be Mr Murphy's research assistant was obviously prompted by Mr Murphy. On the other hand, the evidence is that he is paid by the first opponent, and it seems clear that he is an employee of the first opponent. It was Mr Tuziak's failure to appreciate the significance of what he had been told about the second trial, and to pass it on to Mr Murphy, that produced the consequence that neither opponent was aware of the risk involved in the publication of the article of 21 November 1993. The opponents were both criticised for not making their own enquiries as to whether M was the subject of any current trial. In response to that criticism the second opponent pointed out that, not only did he have no reason for believing or suspecting that M might have been subject to a second trial but that, on the contrary, he had every reason for thinking that such was not the case. The suggestion for the article was originally made to him by the barrister who appeared for M at the first trial. It was inherently unlikely that M's barrister would have been urging him to write an article that might have jeopardised a second trial in which M was currently involved. It was submitted on behalf of the claimant that, as a matter of routine procedure, before publishing matter of the kind here in question, the first opponent should make enquiries of the prosecuting authorities, or the courts, to see whether there is a current trial which might be prejudiced by the publication. This, we think, is a counsel of perfection. What, it may be asked, would be the limits of the first opponent's obligation in this regard? The Sun Herald no doubt contains a good deal of information which could prejudice people mentioned in the paper if they happened to be the subject of a current, or impending, criminal trial. There was no evidence that there are facilities made available by the UFEGISTRAR OF THE COURT OF APPEAL v JOHN FAIRFAX GROUP PTY LTD (Gleesoai CJ, Mahoney and Powell JJA) government which would enable a newspaper publisher readily to make a check of the kind contemplated by this submission. Indeed, in relation to this very case, events that occurred during and immediately following the previous hearing suggest that the Crown authorities themselves do not have any system of the kind they criticise the first opponent for lacking. A more valid criticism of the first opponent is that the elaborate procedures it has developed for the provision of information and instruction of its employees in relation to the risks of contempt of court did not reach its employee, Mr Tuziak. If, for example, Mr Tuziak had been provided with the publication "Courting the Law", and had read it, he would have understood the significance of what he was being told by Mr Whitehead about the second trial. To that extent, there was revealed a shortcoming in the procedures adopted by the first opponent, but it is not one which we would categorise as serious. Before going on to consider what, if any, penalty is called for, it is convenient for us at this stage to return to the argument about liability that was raised by the second opponent in written submissions filed after the completion of evidence and oral argument. In the case of Willesee referred to above, a television journalist, in the course of a current affairs programme on the subject of police corruption, published information that reflected adversely upon the credit of a certain man whose name came up in the discussion. Unknown to the journalist, the man was the accused in a current criminal trial. The trial was aborted. The court accepted that it could not be said that the journalist should have known of the trial. The court regarded it as proper to treat the interference with the trial, in the circumstances of the case, as merely an incidental and unintended by-product of the publication of matter in which there was a substantial public interest. Balancing the competing interests in the ventilation of matters of public concern and in the fair administration of justice, the court held, in the circumstances of that particular case, that no contempt had been committed. A balancing exercise of that kind was justified in accordance with the principles enunciated by Jordan CJ in Ex parte Bread Manufacturers (above) and later endorsed by the High Court in Hinch v Attorney-General (Vic) (above). It is unnecessary for present purposes to attempt a comprehensive formulation of the principles according to which an absence of intention to interfere with the course of justice may, on a charge of contempt of court, be relevant to liability as well as penalty. It suffices for present purposes to say that the second opponent argues that this case ought to be seen in the same light as the case of Willesee. There are, however, a number of difficulties about taking that approach in the present case (quite apart from the problem as to the circumstances in which the issue was first raised). First, in explaining how the subject article came to be written, and the timing of its publication, Mr Murphy was at pains to minimise both its urgency and its importance. It was, he said, intended to be used as a "filler", and he had no particular reason to want it published immediately. He said that if he had known of the current trial of M, he would not even have contemplated writing the article, at least until M's second trial was over. Second, whilst we would be prepared to accept that the subject of police "verbals" is a matter of public interest in the relevant sense, the subject article contained no attempt at any discussion or analysis of that issue, and merely presented what some readers might have regarded as a brief and amusing account of what was allegedly an attempted "verbal" coming unstuck. 8 UNREPORTED JUDGMENTS Third, there was such a close and direct connection between the information about M that was contained in the offending article and the subject matter of M's second trial that the relationship between the two could not fairly be described as incidental (cf Hinch 164 CLR at 27 and 43). Considerations such as the above probably explain why senior counsel who represented the second opponent at the hearing on liability expressly disclaimed any reliance upon principles of the kind applied in Willesee, and, in our view, those principles would not justify a conclusion that there had been no contempt of court. On the other hand, as we have indicated, the absence of intention or personal fault is most material to the matter of penalty. In the case of both of the opponents, the offence was a result of inadvertence. Even though the case has exposed a shortcoming in the first opponent's procedures, we accept that such procedures represent a genuine effort to avoid problems of the kind that here occurred. We do not consider that punishment in the nature of a fine is necessary to deter either opponent from further contempts. We regard both opponents as conscious of their obligations in relation to the matter of contempt. Although a trial was, in relation to one of two accused, aborted, and in that respect damage was done, we do not consider that vindication of the principle of fair trial requires, in the circumstances of the present case, the imposition of a fine. In the case of the first opponent, the element of fault on its part will be adequately reflected in an order that it pay the claimant's costs. The orders that we propose are as follows: (1) Declare that the first opponent is guilty of contempt of court in that, being the publisher of the Sun Herald newspaper, it published in that newspaper, on 21 November 1993, matter which was likely or calculated or had a tendency to interfere with the administration of justice in connection with the trial in the District Court of two persons on a charge of conspiracy to commit armed robbery. (2) A declaration that the second opponent is guilty of contempt of court in that between 27 February 1993 and 21 November 1993, being the author of an article appearing in the Sun Herald newspaper on 21 November 1993, he provided the contents of the said article to the first opponent in circumstances where it was likely that the said contents would be published on or before 21 November 1993, which matter was likely or calculated or had the tendency to interfere with the administration of justice in connection with the said trial. (3) Order that the first opponent pay the claimant's costs of and incidental to the proceedings. 1. Declarations of contempt as asked in the Summons. 2. First opponent to pay claimant's costs. Counsel: APPELLANT: R N Howie QC/M G Sexton RESPONDENT: W H Nicholas QC Solicitors: APPELLANT: I V Knight, Crown Solicitor RESPONDENT: Freehill Hollingdale and Page