Attorney General for the State of NSW v John Fairfax Publications Pty Limited [1999] NSWSC 318

New South Wales Supreme Court CITATION : Attorney General for the State of NSW v John Fairfax Publications Pty Limited [1999] NSWSC 318

CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 11341/98 HEARING DATE(S) : 17/02/99, 18/02/99, 19/02/99, 24/02/99 JUDGMENT DATE : 9 April 1999

Attorney General for the State of New South Wales (Plaintiff)

PARTIES : v

John Fairfax Publications Pty Limited (Defendant) JUDGMENT OF : Barr J at 1

PG Berman (Plaintiff) COUNSEL : SD Rares SC/MA Wigney (Defendant) IV Knight Crown Solicitor SOLICITORS : (Plaintiff)

Freehill Hollingdale & Page Solicitors (Defendant) CATCHWORDS : Contempt of Court - newspaper report - whether tendency to interfere with administration of justice - assertion that a man to be tried on charges of supplying heroin was a leading heroin distributor - delay of five months between publication and trial. ; Held: publication tended to interfere with administration of justice.; Contempt of Court - publication tending to interfere with administration of justice at the forthcoming trial, whether defence of publication available.; Held: defence available. DECISION : Summons dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Friday, 9 April 1999

11341/98 - THE ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v JOHN FAIRFAX PUBLICATIONS PTY LIMITED

JUDGMENT 1 HIS HONOUR: By its summons filed on 28 May 1998 the plaintiff, the Attorney General for the State of New South Wales, claims against the defendant, John Fairfax Publications Pty Limited, orders including the following - 1. A declaration that the Defendant is guilty of contempt of court in that, being the publisher of :The Sydney Morning Herald" newspaper it published in that newspaper on 27 October 1997 matter which was likely or had a tendency to interfere with the administration of justice in connection with the trial in the District Court, Sydney of Duong Van Ia on charges of supplying 223 grams of heroin and with being knowingly concerned in the supply of 222 grams of heroin. 2. An order that the Defendant be punished or otherwise dealt with for such contempt of court. The charge 2 As part of the Statement of Charge the plaintiff sets forth the following particulars - 1. On 13 August 1993 Duong Van Ia was arrested and charged with supply of a prohibited drug, namely heroin; and being knowlingly concerned in the supply of a prohibited drug, namely heroin. He was committed for trial on 29 April 1994. As at 27 October 1997 the trial was listed to commence in the District Court at Sydney on 23 March 1998. 2. The Defendant was the publisher of "The Sydney Morning Herald" newspaper on 27 October 1997 ("the newspaper"). The newspaper had a substantial circulation in the Sydney jury district. 3. The Defendant published in the newspaper material in relation to Duong Van Ia. 4. On page one of the newspaper the following material was published: (i) Above a photograph of Duong Van Ia and another man Duncan Lam appeared the words: "These two men have carved out a giant portion of Australia's $3 billion heroin trade, building a network from southern China to Sydney. Police admit that they are failing to stop nine out of ten heroin shipments. A special Herald investigation begins today"; (ii) A large colour photograph of Duong Van Ia was published under the heading "The top heroin distributor"; (iii) Under the large colour photograph of Duong Van Ia was a heading "Banned from casino, the drug dealer who bet more than $20m" and then the words "Duong Van Ia The NSW Police Commissioner, Mr Peter Ryan, banned Duong Van Ia, 42, from the Sydney Harbour Casino recently for his suspected criminal activities. Duong has bet more than $20 million at the Casino since it opened two years ago. The Cabramatta businessman, also known as Uncle Six, is believed by police to be one of Australia's biggest heroin distributors. His network has overtaken the notorious 5T gang, to become the major outlet for heroin in Western Sydney". (iv) Under the heading of the article "Unmasked: our new drug bosses: in the fourth paragraph to that article appear the words: "A Vietnamese refugee, Duong Van Ia, or Uncle Six, is being targeted by police as the country's largest heroin distributor. 5. On page six of the newspaper there was published an article headed "How a big fish escaped the net" which stated in the fifth column that "Police intelligence suggests Lam himself became a major supplier to several Vietnamese heroin distribution syndicates in Cabramatta, including the current drug czar, Duong Van Ia (see opposite story)." 6. On page seven of the newspaper the following material was published: (i) Under the Heading "The Mr Bigs when they carved out their names" was a colour photograph of Duong Van Ia under which appeared the words "Duong Van Ia above right. Risen to become a major heroin distributor at Cabramatta since the late 1980's. Recently banned from casino after gambling $20 million there in past two years". (ii) Under the heading "Uncle Six: from refugee to high roller" was an article about Duong Van Ia accompanied by a photograph of him with a woman and child. Statements in the article included (a) "In Cabramatta they call him Uncle Six - the sixth of eight brothers who sailed from Vietnam to Australia in the mid-1970s with nothing. Duong Van Ia is now believed by police to control the largest slice of Australia's biggest drug market - the streets of Cabramatta. Duong, 42, who barbeques pork for the restaurant trade for a living, is certainly a wealthy man. Last month, he headed a list compiled by the NSW Police Commissioner, Mr Peter Ryan, of suspected criminals he wanted banned from the Sydney Harbour Casino. Duong had been one of the casino's best customers, gambling at least $20 million in the highroller room in the two years since the casino opened. 'Number six is your classic criminal,' a Federal Police officer told the Herald. 'He loves the high life and loves to be the centre of attention. When he went to the casino he would park his car right out the front. He would go nuts if he wasn't allowed to park where he wanted to. He gets whatever he wants.' Up until the late 1980s, Duong had just been one of the pack in Cabramatta - small-time dealers on the make. Members of his family now live in enormous new houses in Bonnyrigg Heights. In one of those new houses lives his wife, while his mistress, a Vietnamese nightclub singer and danger (sic) known as Miss Kim, is installed with their child in a separate high-security home in neighbouring Fairfield. Duong was also a regular visitor to Jupiters Casino on the gold Coast and Crown Casino in Melbourne, flying in for a night of gambling. Police intelligence suggests that since being banned from the Sydney casino, he has taken to the horses with gusto, betting hundreds of thousands of dollars." (b) "… in the late 1980s, according to police intelligence, Duong and other Vietnamese dealers began trading directly with the importers. Police believe Duong has recently gone one step further by partly financing his won importation of heroin with the hep of an important Chinese Australian criminal. Duong is believed to buy his heroin in bulk (10 to 20 kilos) from the importers for about $200,000 a kilo and then sell it to the upper-level street dealers, who distribute to runners." (c) "Duong has allegedly used some of his family to help with his distribution network. One brother, Duong Van Thoai, was charged in March with supplying heroin. Another brother, Duong Quoc Dung, was sentenced to five years' jail earlier this year after pleading guilty to possessing 3.7 kilograms of near pure heroin …" (d) "Duong Van Ia and his associates are believed to have sent millions of dollars into accounts in Hong Kong and Vietnam, and to have bought substantial amounts of real estates in Vietnam." 7. At the time of publication it was likely that the material relating to Duong Van Ia published in the newspaper would be read or otherwise come to the notice of one or more persons who would become jurors in the said trial. 8. Statements made in the material published in the newspaper and referred to at paragraphs 4 to 6 hereof were likely or had a tendency to interfere with the administration of justice in connection with the said trial of Duong Van Ia in that: (i) they were likely to influence jurors to believe that Duong Van Ia had previously committed offences involving the supply of heroin or being knowlingly concerned in the supply of heroin and that he continues to carry on business as a large scale heroin distributor; (ii) they were likely to influence jurors to believe that Duong Van Ia was a person of bad character; (iii) they were likely to influence jurors to determine the guilt of Duong Van Ia otherwise than solely on the basis of the evidence admitted at the trial. 9. Publication of photographs of Duong Van Ia in the newspaper made it more likely that jurors who had read the said statements would identify him at his trial as their subject. The test for contempt 3 The test for contempt has been expressed in a number of ways. It has been said that the publication complained of must have had a real and practical tendency to interfere with the administration of justice: Attorney General v 2UE & Anor Court of Appeal (NSW) 16 October 1997 unreported; that it must have had as a matter of practical reality a tendency to interfere with the course of justice in a particular case: John Fairfax & Sons v McRae (1955) 93 CLR 352; that the tendency to prejudice or embarrass pending proceedings must be clear, or real and definite, or that there should be a substantial risk of serious interference: Hinch v Attorney General (Victoria) (1987) 164 CLR 15. 4 The plaintiff must prove the tendency or risk beyond reasonable doubt. Witham v Holloway (1995) 183 CLR 525. 5 The Court has regard to a number of factors in order to determine whether a publication amounts to contempt. They include the nature and extent of the publication, the nature of the proceedings said to have been prejudiced including whether they are proceedings before a jury, and the time which elapses between publication and trial. 6 The defendant admitted publishing the newspaper and it was agreed between the parties that the Australian Bureau of Statistics 1996 Census of Population and Housing reported these statistics - · the number of persons over the age of 18 in the Sydney jury district was approximately 1.9 million; · the number of persons in the Sydney jury district over the age of 18 years who are Australian citizens was approximately 1.6 million; · the number of persons in the Sydney jury district over the age of 18 years who are Australian citizens and who had been born in Vietnam was 27,245; and · the number of persons in the Sydney jury district over the age of 18 years who are Australian citizens and who spoke Vietnamese at home was 19,042. 7 The defendant admitted that the estimated readership of the Sydney Morning Herald for weekdays in October 1997 for persons aged 18 years and over in the postcode areas comprising the Sydney jury district was 539,135. The publication complained of 8 The description in the Statement of Charge of the contents of pages numbers 1, 6 and 7 of the newspaper is accurate. The publication was quite striking. The material complained of began immediately under the masthead. Within a dark blue background in white capital letters appeared the words "A HERALD INVESTIGATION". The material on page 1 occupied the whole of the upper two-thirds of the page. About 25% of that space was devoted to a good quality colour photograph of a man the article named as Duong Van Ia. It measures 20 x 14 cm. Immediately over the top of the photograph appear the words "The Top Heroin Distributor". The letters are in white against a bright red background. 9 Underneath the photograph, following the words complained of in the statement of particulars, appears the statement - PROFILE PAGE 7 10 The material complained of on page 7 occupies about 60% of the page. The remainder of the page carries an advertisement. Several photographs of people appear on the page. Some of them, in black and white, are of six well-known criminals. Four are in colour. One is of Duncan Lam, the other person prominently featured on the first page. Next to it is a larger photograph of Mr Duong, about 7 x 5 cm. It is a smaller version of the photograph used on the first page. 11 Two other colour photographs appear directly under a repeated headline "The Top Heroin Distributor" in white lettering against a bright red background. The larger one is of Mr Duong, his fiancée, Miss Kim, and their child and shows a different view of Mr Duong's face. The other colour photograph is of Miss Kim standing at a partially opened gate. Miss Kim is said to be "outside her high security house". 12 Immediately at the end of the material on page 7 appears the following paragraph - In 1993, Duong Van Ia was charged with knowingly taking part in the supply of 223 grams of heroin and supplying 222 grams of heroin. He is yet to face trial for these matters. 13 The principal factual issue over the quality of the publication is whether it bore the tendency or risk asserted by the plaintiff notwithstanding that the trial was then five months away. Before examining that issue, however, I should deal with other submissions made by the defendant. 14 The defendant submitted that any conclusion that the publication had the tendency contended for would be conjectural and speculative. It was also submitted that there was no evidence about the nature of Mr Duong's trial and whether identification or good character might be in issue. Those submissions wrongly assume that it has to be known at the time of publication precisely how the trial will be conducted. What was known was that an accused person was going to be tried on charges of supplying heroin. The material complained of asserted that that was what he was in the business of doing. There is an obvious risk of prejudice where an accused person is charged with an offence and the jury are informed that he has committed just such an offence in the past. That is why such material is rigorously excluded from the jury. Hinch v Attorney General (Vic) (1987) 164 CLR 15. It is ordinarily appropriate to stop the case if such material comes to the jury's attention. 15 There is an equally obvious risk of prejudice to a trial if the accused's criminal record is revealed. Attorney General v Willessee [1980] 2 NSWLR 143. It is not necessary to enquire whether good character might be raised as a defence. The Crown is ordinarily precluded from raising material of the kind canvassed in the article complained of, and even if good character is raised, may put such material to an accused person only if the Court grants leave. Evidence Act 1995 s 110. 16 It was submitted for the defendant that there was no evidence that the publication was really about Mr Duong, that is to say, that the defendant may have been mistaken in identifying him as the top heroin distributor and as a man who was going to be tried for knowingly taking part in the supply of heroin and for supplying heroin. It was part of this submission that the photographs to which I have referred may have been of someone other than Mr Duong. The submission was made notwithstanding the evidence of Mr Alexander, who was the Editor in Chief of the Sydney Morning Herald at the time of the publication, about the care which had been taken to ensure a factual report. 17 It seems to me that since the publication asserted the facts to be true, evidence of it must likewise be taken as evidence of their truth. If my conclusion were wrong, the application of s 60 Evidence Act would produce the same result. 18 The defendant relied, as necessarily raising a reasonable doubt about the tendency contended for by the plaintiff, on a judgment by his Honour Judge Shillington QC in the District Court of New South Wales on 5 December 1997. Mr Duong applied to his Honour for a stay of proceedings on the indictment, relying on the publication now said to be contemptuous. In refusing the stay, his Honour remarked - I think it would be highly unlikely that any juror or prospective juror would link up this publicity with the person appearing in the dock on 23 March and during the trial. 19 I do not accept the defendant's submission. As I observed in my judgment refusing the defendant's application for a stay of proceedings, nothing was determined in favour of the defendant by Judge Shillington. His Honour's judgment was made in the exercise of his discretion and his Honour's opinion that it would be highly unlikely that any juror would link up the publicity with the accused was not essential to the decision. Nothing in his Honour's judgment binds this Court to entertain a reasonable doubt about the tendency contended for. 20 The defendant's principal submission was that there was a reasonable doubt whether any juror would remember the articles and connect them with Mr Duong in view of the facts that - 1. At the time of publication the trial was about five months away; 2. The articles did not canvass the subject matter of Mr Duong's trial or assert that he was guilty of those charges. The fact that he was facing the charges was referred to only in the final paragraph of one of the articles; 3. Mr Duong was not well known at the time of the publication. His name was phonetically and visually unfamiliar to a non-Vietnamese reader; 4. The publicity was not repeated; and 5. it was reasonable to suppose that the jurors would adhere to their oath and obey the directions of the trial judge to decide the case only on the evidence admitted at the trial. The evidence of Dr Williams and Professor Vidmar 21 The defendant relied on the expert opinions of two witnesses, Dr Kipling David Williams, Senior Lecturer in the School of Psychology, University of New South Wales and Professor Neil (Joseph) Vidmar, Russell M Robinson II Professor of Law at Duke University School of Law, North Carolina, United States of America. 22 Dr Williams is a psychologist who has held several academic posts, including visiting and acting professorships, and has written a large number of papers on various subjects dealing with the social behaviour of people. He has researched and written about the effects of judicial instructions on jury verdicts. 23 Professor Vidmar holds a doctorate in social psychology and has devoted much of his professional career to researching and writing about jury behaviour, including the study of the potential effects of pre-trial publicity. Relying on his own research and on the published work of others, he gave evidence about the ability of jurors to remember what they read in newspapers. 24 Dr Williams and Professor Vidmar were furnished with a copy of the publication and with particulars of Mr Duong's trial, the circulation and readership estimates of the Sydney Morning Herald newspaper within the Sydney jury district and the rules about the eligibility of persons to serve as jurors. They were informed of the charge brought by the plaintiff and what it must prove to succeed. They also assumed, as was agreed to be the fact, that on the day of publication Mr Duong was not well known. 25 Dr Williams and Professor Vidmar made a number of general observations about the ability of people to remember what they read. The following propositions seem not to have been contentious. Accurate memory for names, faces and text may diminish rapidly over time, sometimes within minutes, sometimes within days or months. An important factor is whether the information is rehearsed and processed in such a manner that it enters long term memory. People do not easily remember a face which has racial characteristics different from their own. The identification of a live face from a photograph is less reliable than identification from a previous sighting of the face itself. Names are less easily recognised than faces. People are less likely to remember a name which is not repeated or which is expressed in an unfamiliar language. When two or more names or faces are referred to it is harder to remember one of them. 26 Mr Williams was of the opinion that it was highly unlikely that the articles in question and the photographs within them would be remembered by jurors in the Sydney jury district approximately five months after their publication. He also thought it highly unlikely that, five months after publication, the articles complained of could have influenced jurors. 27 Dealing with the likelihood that any juror would be influenced in the relevant way by a single exposure to the publication five months before the trial, Dr Williams said this - Probabilistically speaking, the likelihood that any juror seated at Duong Van Ia's trial would accurately remember and be influenced by the material in the article requires a number of steps. These steps would include (but are not limited to) the probability that any reader: (a) was exposed to the 27 October 1997 issue of the Sydney Morning Herald; (b) attended to the articles and photographs in question; (c) processed the information and photographs at the deeper than superficial level; (d) rehearsed the information enough so that it entered what is commonly known as long-term memory; (e) formed a negative opinion of Duong Van Ia's character and inferred his guilt; and (f) remembered this information and/or was influenced by this opinion and inference five months later in the court of law. The end probability is determined by multiplying the probabilities (which can range between 0.0 and 1.0) of each step by each other. This means, that the end probability will always be substantially lower than any of the individual probabilities (as long as any of the probabilities are less than 1.0). It also means that as any individual probability approaches zero, the end probability will also be near zero. Based upon my knowledge and expertise, and of the literature on memory and forgetting, it is my opinion that the probability of the last stage (f) - the persistence of any memory or influence after five months), approaches zero. 28 Defence counsel relied on that passage of Dr Williams' report, pointing out that when assessing risk a small risk multiplied by a small risk results in an even smaller risk. I do not think, however, that Dr Williams' conclusion has the kind of methodical or mathematical integrity that the passage I have quoted would appear to give it, and I find his process of reasoning not altogether easy to understand. I will explain why. 29 First, it seems necessary when calculating the probability of the existence of an ultimate fact by reference to the probabilities of the existence of other facts that those probabilities be independent of each other. The steps set forth in the paragraph I have quoted are not. For example, all the persons who qualify for step (b), because they attended to the articles and photographs in question, must also qualify for step (a), because they must have been exposed to the publication. If one knows the probability for (b), it seems unnecessary to enquire into any of the components of (b). If, for example, the probability at step (b) were 0.3, it would be misleading to bring into the calculation the probability at step (a). If that were 0.4, Dr Williams' calculation would produce a probability for (b) of 0.12, yet the probability for (b) is clearly 0.3. 30 The same comment may be made about steps (d), (c), (b) and (a), because it seems reasonable to suppose that all who qualify for (d) may all qualify for (c), who may all qualify for (b), who may all qualify for (a). 31 I do not intend by confining my comment to the first four steps to imply any acceptance that the remaining steps are independent of each other. 32 Secondly, Dr Williams does not say what other steps are necessary for the calculation of the relevant probability. 33 Thirdly, he makes no calculation. 34 I accept the statement that when a number of probabilities have to be multiplied together in order to produce the ultimate probability, the closer any individual probability approaches zero, the higher the probability will be that the end result will approach zero as long as any other probability is less than 1.0. But Dr Williams' opinion, to the effect that the persistence of any memory or influence after five months approaches zero, appears based not upon any mathematical comparison of individual probabilities but, as he says in his report, upon his knowledge and expertise, and of the literature on memory and forgetting. 35 There are several reasons why I think that Dr Williams' knowledge and expertise may not be entirely reliable for present purposes and why the literature on memory and forgetting, upon which his opinion was largely based, may not be apposite. 36 In his report, Dr Williams puts forward the opinion, which I think should be accepted, that people of one race find the faces or persons of other races harder to remember than those of persons of their own race. However, Dr Williams appears to have assumed that all members of Mr Duong's jury were likely to be non-Asian. At any rate, no allowance is made in coming to his ultimate conclusion for the possibility of persons of Asian origin being members of the jury. 37 The report concentrates on faces and names and the difficulty people have in remembering them, but no mention is made of other reported characteristics or information which might make a reader more likely to remember what was read. Dr Williams conceded in cross-examination that biographical information which has a particular interest for a reader is likely to make the reader pay more attention and be more likely to remember for a period of time. The articles complained of contain a good deal of such biographical information which I think would be likely to increase the tendency of a reader who was particularly interested in any of them to remember what was read. They include that he is a refugee from Vietnam, that he lives in Cabramatta, that he is known as "Uncle Six", that he is the sixth of eight brothers, that he has a mistress called Kim and that they have a child and that two of his brothers have the names given in the article. 38 Examples of these details were put to Dr Williams in cross-examination and although he was not persuaded to change his ultimate opinion I think that his failure to take them into account in his report detracts from that opinion. 39 Dr Williams approached the problem as though the question were whether any one person randomly selected from the community would remember enough of the articles to connect them with Mr Duong at his trial. He understood that accused persons are tried in this State by a jury of twelve but seemed at first not to appreciate that the appropriate question was whether any one of a jury of twelve persons randomly selected had any relevant memory. He appeared to confuse the question whether any one juror was influenced because of a recollection of what had been read with the question whether that juror might influence the other members of the jury. 40 These questions and answers took place in cross-examination - Q. At paragraph 6 you were saying this probably approached zero? A. The probability that any one individual would remember anything that they saw once five months earlier is near zero. I am confident of that statement.