ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2UE SYDNEY PTY LTD and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and POWELL JJA 3 October 1997, 16 October 1997 [1997] NSWCA 30 CONTEMPT — real and practical tendency to interfere with the administration of justice — words constituted clear contempt — broadcast — no argument that broadcaster not guilty of contempt. Ex parte Bread Manufacturers Ltd; re Truth and Sportsman Ltd ((1937) 37 SR 242); Attorney General for New South Wales v John Fairfax & Sons Ltd ((1986) 6 NSWLR 695)); Attorney General v MGN Ltd & Ors [1997] 1 AER 456). FACTS Claimant by way of Amended Summons seeks declaration that both opponents are guilty of contempt, the first opponent by broadcasting the words constituting contempt made by the second opponent, which were made on day three of a murder trial. HELD By Meagher JA, Priestley, Powell JJA agreeing: The remarks of the second opponent had a tendency and a real and practical tendency to interfere with the administration of justice. By Powell JA, Priestley JA agreeing: If the effect of publication of the matter complained of would be to expose a litigant to a real risk that potential jurors in a current or pending trial - whether civil or criminal, would be prejudiced against him then the publication complained of might properly be regarded as having had the appropriate tendency and, thus, as constituting a contempt of court. Priestley JA Meagher JA and Powell JA in their separate reasons say all that needs to be said in the present case on the question whether Radio 2UE Sydney Pty Ltd and Mr J Laws are guilty of the contempt with which they were charged. For the reasons they give both the station and the commentator were guilty of serious contempt of court. I agree with the orders proposed by Meagher JA. Meagher JA On 12 June 1994 a baby aged 18 months, one Ari Jason Brett, died as the result of blows inflicted on him by Michael Anthony Connolly. On the same day Mr Connolly was charged with murder of the child. On 20 February 1996 the trial came on for hearing before her Honour Justice Simpson and a jury at Sydney. An indictment for murder was presented and, before the jury panel, Mr Connolly pleaded not guilty to murder but guilty to manslaughter. The Crown Prosecutor declined to accept the plea as to manslaughter, and the murder case proceeded. The trial continued on the following two days 21 and 22 February. On the latter day, whilst the trial was proceeding, the first opponent broadcast on Radio station 2UE certain remarks made by the second opponent, Mr John Laws. From Monday to Friday Mr John Laws conducted a morning programme on that station on which he gave the public the benefit of his views on a wide 2 UNREPORTED JUDGMENTS variety of topics. The licence area of station 2UE included most areas of Sydney. Distressingly, it must be conceded, his programmes attracted a substantial audience, perhaps to be measured in hundreds of thousands. On this day, 22 February 1996, he was minded to turn his attention to the trial of Mr Connolly, when as I have said, the trial was under way. The intelligence which he communicated to his audience on the matter was couched in the following terms: "This fella's got to go in the bag. I don't want to talk too much about this fella. 'You may have heard about him, his name is Michael Anthony Connolly and he is scum, absolute scum, pig, Michael Anthony Connolly. He admitted killing a little baby boy 18 months old, admitted that. He pleaded guilty but he pleaded guilty to manslaughter not guilty to murder so what are they doing here? A bit of plea bargaining. Violent crime and they let this fella plea bargain. Anyway don't ask me how he thinks he didn't murder the little fella. The child was found severely bashed: cuts, bite marks on his face. His name was Ari Jason Butt: beaten so badly that he died. How is that not murder? Could somebody tell me how that is not murder? The story emerging in court will make your blood run cold. Michael Anthony Connolly he was the boyfriend. He is the itinerant strayer of the mother of the child. Her name is Lavinia Butt. Now you've got to worry about her a little bit. The story is this, in 1994 she went to a BBQ with Connolly and a couple of her kids an 11 year old boy and 18 months old Ari and she happened to be pregnant at the time. The court heard at the BBQ she told Connolly that he might not be the father of the child she was carrying. His brother was probably the father. He drank two bottles of Southern Comfort. Two bottles! What is it 86%, 84%, 76% proof and he drank two bottles of the stuff. I don't drink it I can't stand it it's too sweet for me. And he then took the kids home. She let him, after two bottles, she let him take the kids home. The little boy Ari was later found dead in his cot. There's a picture of Lavinia Butt in the paper, she's pregnant again and fairly well pregnant by the look of it. I wonder who's the father of this one? Seems that with Lavinia it's like a lucky dip. What about Michael Anthony Connolly? He's pleaded guilty so all that remains is for him to be sentenced. But I'll certainly let you know the outcome of this but I would like to know why Michael Anthony Connolly was able to plead guilty of manslaughter and not of murder. Well I do know: plea bargaining, you see, the State saves money. That's what it is all about, but this fella deserves to be in the scumbag - open it up - in you go Michael Anthony Connolly you're scum." The Attorney-General claims that these remarks constitute a contempt of court. I quite agree. They had a tendency - and a real and practical tendency - to interfere with the administration of justice. If they came to the attention of a juror (which was a distinct possibility) they might have impaired his impartial consideration of the evidence at the trial. There was no evidence that they did come to the attention of any juror, but that is beside the point. There was no evidence that there was any intention to commit a contempt, but that again is irrelevant. The words constitute the clearest form of contempt of Court, the more so because they were couched in language as aggressive as it was uncouth. No argument was put to us that if Mr Laws was guilty of contempt the first opponent was not. WAJORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2U8 SYDNEY PTY LTD and ANOR (Powell JA) In my view, declaration one as sought in the Amended Summons should be made, but not until the parties have made submissions to the Court on the question of what penalties should be imposed. The further hearing of the Amended Summons should be stood over for that purpose to a date to be fixed. Powell JA The facts which gave rise to the present proceedings have been summarised in the Judgment which has been prepared by Meagher JA, which Judgment I have read in draft. As will be apparent from what his Honour has written, the ultimate question for determination at this stage in the proceedings is whether the broadcast by the First Opponent of the Second Opponent's comments was, in the circumstances in which, and at the time at which, that broadcast took place, constituted contempt of court. Despite the time which has passed since it was delivered, the Judgment of Jordan CJ in Ex parte Bread Manufacturers Ltd; re Truth and Sportsman Ltd ((1937) 37 SR 242) has frequently been referred to in later cases (see, for example, Attorney General v Times Newspapers Ltd [1974] AC 273, 296 per Lord Reid; Victoria v Australian Building Construction Employees and Builders Labourers Federation (1981-1982) 152 CLR 25, 59-60 per Gibbs CJ; Hinch v Attorney General (Vic) (1987) 164 CLR 15, 18-19) as being in the nature of a classic statement of the law in this regard. In the course of his Judgment, Jordan CJ said ((supra) at 248-250): - "Tt is convenient in the first instance to consider the general principles which are applicable in such a case as the present. It is a well established general rule that any publication which has a tendency to interfere with the administration of justice by preventing the fair trial of any proceeding in a Court of justice is a contempt of court, and that if it is shown beyond reasonable doubt that such interference was either intended or likely, this Court will exercise its jurisdiction to punish summarily the criminal offence which is constituted by the contempt: Bell v Stewart 28 CLR 419 at p430-p432; Austn Digest 277. When intention is established to interfere with the proper administration of justice by means of a publication which had a tendency to produce that result, a clear case of contempt is made out, calling for sharp punishment. Where the particular form of contempt complained of is the publication of matter which in fact has a tendency to prevent a fair trial by prejudicing the parties to litigation in a Court of justice in conducting that litigation, if intention to cause such prejudice is established a serious case of contempt is at once made out, whether the publication refers to the subject matter of the litigation, or takes the form of mere general denigration of the party in question: Higgins v Richards 28 TLR 202; Ex parte Myerson: Re Packer and Smith's Weekly Publishing Co 39 WN 260; 4 Austn Digest 280. But if no such intention is established, the rule that the publication of matter tending, or even likely, to prejudice a party in conducting litigation constitutes a contempt of Court is not invariable. It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a 4 UNREPORTED JUDGMENTS litigant may be required to yield to other and superior considerations. 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. It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter: In re Labouchere; Kensit v Evening News Ltd 18 TLR 208; Phillips v Hess 18 TLR 400; R v Daily Mail; Ex parte Factor 44 TLR 303; Gaskell & Chambers Ltd v Hudson, Dodsworth & Co [1936] 2 KB 595 at p602. If, however, under colour of discussing, or continuing to discuss, a matter of public interest statements are published the real purpose of which is to prejudice a party to litigation, the contempt is none the less serious that an attempt has been made to cloak it: cf In re Cornish; Staff v Gill 9 TLR 196; Higgins v Richards 28 TLR 202. Save only that later authorities have introduced such phrases as that there should be a "substantial risk of interference", or a "real risk" of interference or that the matter complained of should "as a matter of practical reality" have the requisite tendency, the substance of his Honour's Judgment remains unchallenged as a correct statement of the law. As the Claimant has not sought to have the Court find that the Second Opponent's comments were made with the intention of interfering with the due administration of Justice (see Transcript p31-p33) the question which the Court must now determine is whether the broadcast of the Opponent's comments, in the circumstances in which, and at the time at which, that broadcast took place in fact had a tendency to interfere with the due administration of justice. For present purposes, it is sufficient to record that, if the effect of publication of the matter complained of would be to expose a litigant to a real risk that potential jurors in a current, or pending, trial - whether or civil or criminal - would be prejudiced against him, (Attorney General for New South Wales v John Fairfax & Sons Ltd ((1986) 6 NSWLR 695) then the publication complained of might properly be regarded as having had the appropriate tendency and, thus, as constituting a contempt of court. In determining whether, in any particular case, a publication, as a matter of practical reality, has the relevant tendency, regard must be had to the material published and the probabilities as at the date of publication (Attorney General for New South Wales v John Fairfax & Sons Ltd (supra); Attorney General v MGN Ltd & Ors [1997] 1 AER 456). The Opponents have sought (see Transcript p21-p22) to lay stress upon the facts, first, that, at the time of the broadcast of the Second Opponent's comments, the jury which had been sworn to try the accused was, in fact, in the court room, and, second, that the jury was not released for the day until after 2.00 pm. However, while these are undoubtedly matters to be brought to account when determining whether or not the broadcast of the Second Opponent's comments had the relevant tendency those matters fall far short of concluding that question. The admitted, or established, facts include the following: - WAJORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2UB SYDNEY PTY LTD and ANOR (Powell JA) 1. the first Opponent's broadcasts are received throughout the greater metropolitan, and the lower Blue Mountains, area; 2. the morning programme conducted by the Second Opponent had a substantial listening audience within that area; 3. the Second Opponent was a widely known host of a radio "talk back" show, and was an influential commentator on public affairs and community attitudes; 4. the broadcast took place on the third day of the trial, which trial had been estimated as likely to occupy six hearing days; 5. the jury who had been sworn to try the accused was not sequestered, but was released each day of the trial. In these circumstances, there was, as it seems to me, a very real - not a fanciful - possibility that the Second Opponent's comments might have come to the attention of one, or more, of the jury who had been sworn to try the accused, and that, if they did so, that juror, or those jurors, might be prejudiced against the accused. This being so, I conclude, as Meagher JA has concluded, that the broadcast of the Second Opponent's comments constituted a contempt of court, and that, at the appropriate stage, the Declaration sought in the Amended Summons ought to be made. 1. Declaration one as sought in the Amended Summons but not until the parties have made submissions to the Court on the question of what penalties should be imposed. 2. The further hearing of the Amended Summons should be stood over for that purpose to a date to be fixed. Counsel for the Claimant: J Spigelman QC/P Lakatos Solicitors for the Claimant: Crown Counsel for the Opponent: H Nicholas QC/J Gleeson Solicitors for the Opponent: Bush Burke & Co