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. Q. That is the wrong question, the wrong question. The correct question is the probability that one out of the twelve people randomly selected will remember? OBJECTION. Q. Do you agree that is the right question or not? A. Not totally. I agree that it is an issue that as long as one person remembers out of twelve that it could bring the issue to the floor during deliberation. I cannot say that all it takes is one to have the effect. I do not agree with that. So there is a lot of factors that would have to be taken into account to come to a reasonable assessment. Q. We might take a step back? I thought you agreed with me that if one juror is affected then that juror's perception, because of his knowledge, that is enough to prejudice his trial? OBJECTION. HIS HONOUR: Is Mr Berman wrong in thinking that? A. I recall he said if one person remembers that information, could that prejudice that individual and I said it could. BERMAN: Q. I just want to do this as a matter of probabilities. In coming to your conclusion surely you had to take into account that the chance of one person out of twelve randomly selected in remembering is higher than the chance of one person randomly selected remembering? A. I agree with that. Q. You had to take that into account? A. That is an important factor. I was looking at it as the chance that anyone would remember in general. Q. It is an important factor that you did not take into account? A. It would be if the numbers were high. If the numbers are near zero and you say times twelve, it is still going to be an extraordinarily small number. Q. You say multiplied by twelve? A. I am not sure which is the right way to say what it is like, to say any one in twelve would remember so, as I said earlier, I would have to think about the formula. 41 Dr Williams was unfamiliar with the formula which is used to convert the probability that any single person may remember to the probability that any person out of twelve randomly selected persons may remember. 42 Dr Williams relied on the results of a number of surveys to reach his opinion. As far as he knew, however, the participants in those surveys were asked only once whether they remembered the thing about which their memory is being tested. He agreed that the surveys made no attempt to replicate a criminal trial and were a poor substitute for a trial. 43 It seems to me that there are at least two fundamental differences between questions asked about a particular subject matter in a survey and the presentation of prompting information at a trial. First, at a trial, which may last several days, there is a continual and repeated process in which information is presented which may stir the memory. For example, jurors will see the accused's name printed in court lists, on notice boards and in the newspapers and probably in documents tendered at the trial. They will hear the accused's name repeated throughout the trial. They will hear other information, such as nicknames and other attributes of the accused which may become relevant. So a name or a face which provokes only a vestigial or uncertain memory at first may, when repeated or presented with other relevant information, revive the memory. On the other hand, the presentation of a question once only in a survey is much more likely to bring about a negative response. 44 Secondly, participants in surveys are questioned individually. Indeed, it appears that special care may be taken to prevent the memory of any participant influencing that of any other. Yet that is the process that is likely to go on during the deliberations of the members of a jury at a trial. So a dim memory of one juror may spark or be sparked by the memory of another juror. 45 For these reasons, I think that the survey results and opinions, upon which Dr Williams based his opinion derived from circumstances so different from those of a jury trial that I ought to be cautious about accepting any opinion based upon them. 46 Professor Vidmar was asked to give his opinion whether the publication was likely to be remembered by or to influence jurors at the trial of Mr Duong on 23 March 1998 and he concluded that as a matter of practical reality the likelihood was very small that the articles complained of had adverse effects on the belief or attitude toward Mr Duong of persons exposed to them. 47 Like Dr Williams, Professor Vidmar relied for his opinion on the results of surveys conducted and papers written by himself and others. As before, the circumstances contemplated by those surveys and papers were far removed from the circumstances of a jury trial. Professor Vidmar also assumed that there would be no persons of Vietnamese origin on Mr Duong's jury. For reasons I have already explained, therefore, his opinion also needs to be treated cautiously. 48 I thought that the evidence of Professor Vidmar suffered because of his unwillingness or inability to answer certain questions by reference to his own experience of life. If he could not find an answer in the literature on which he relied he preferred not to give an opinion. 49 I will give some examples. He was asked whether a person of Vietnamese origin would pay more attention to the articles than a person of another origin, but could offer no opinion because it was not a subject he had examined. He agreed that people tend to remember things that are of particular interest to them, but was quite equivocal when asked whether a person whose brother had recently died of a heroin overdose might pay particular attention to the articles. He could not say whether a person who had a mistress called Kim or who barbecued pork for the restaurant trade might for those reasons be more interested in the articles and remember them better. 50 I thought that this reluctance on the part of Professor Vidmar suggested an approach that leaned away from the practical towards the theoretical. The question that I have to answer is a practical one. Professor Vidmar's experiment 51 Unlike Dr Williams, Professor Vidmar relied also on the results of a survey he had designed to test the ability of members of the public to remember the details of the publication complained of. The survey was carried out in Sydney according to his instructions in the following manner. A number of readers of the Sydney Morning Herald newspaper were asked to attend at the offices of a Sydney marketing research organisation. They were divided randomly into four groups. The members of group A were given a complete black and white photocopy edition of the Sydney Morning Herald newspaper of 27 October 1997. The members of group B were provided with copies of the editions of 27, 28 and 29 October 1997. The members of group C were given a copy of the edition of 3 November 1997 and those of group D were given copies of the editions of 3, 4 and 5 November 1997. 52 The publications of the Sydney Morning Herald newspaper other than that of 27 October 1997 may be summarised as follows. Immediately after the article about Mr Duong in that publication there appeared under the heading "TOMORROW" the words "The carve-up of Kings Cross". The edition of 28 October 1997 contained a headline on the first page and a leading article about nursing home fees. Unlike the previous day's edition, the front page of the newspaper was laid out according to the normal pattern. A regular feature called "Column 8" had been restored to its usual place. There were two other articles on the front page, unrelated to drugs. Also, under the heading "A HERALD INVESTIGATION" appeared the statements in large type "A new push is on to carve up the drug trade. The Herald's special investigation continues", and "Big guns target the Cross". Underneath appeared a large photograph of Mr Tom Domican. Underneath the photograph was a short article which named a number of well-known criminals. At the end of the article was a reference to page 8, which was fully devoted to the subjects of drugs and drug dealers. There were references to well-known criminals, and they were named, but Mr Duong was not mentioned. The article ended with the words "The kings of cannabis" under the heading "TOMORROW". 53 Page 4 of the edition of the 29th October 1997 contained the third article of the series. It was principally about money laundering. There was no mention of cannabis and the article foreshadowed on the previous day did not appear. 54 The edition of 3 November 1997 contained articles on the front page and on page 6 dealing with a proposal by the Federal Government to spend sums of money to reduce the supply of drugs into Australia, to rehabilitate drug users, to fund medical research and education about drugs. 55 The edition of 4 November carried articles on pages 4 and 5 criticising the attitude of the Prime Minister as set forth on the previous day, explaining how easy drugs were to obtain and dealing with police corruption in relation to drugs. 56 The edition of 5 November does not appear to have carried any material relevant to the present proceedings. 57 The participants were asked to read the newspaper or newspapers as they would ordinarily have read them. After having done so, each participant was asked to complete a written questionnaire. They were paid a sum of money and informed that the researchers might telephone them to ask additional questions after the analysis of data. 58 About fourteen days later, those from the marketing research organisation telephoned each participant and asked a series of questions designed to determine the extent to which each participant recalled the names Duong Van Ia and Uncle Six and any connection made between those names and other names which appeared in the articles they had been asked to read. 59 Not all participants were prepared to respond to the repeated request for information. Of those that did, 79 were in group A, 30 were in group B, 19 were in group C and 18 were in group D. 60 During the telephone interview, participants were asked a number of introductory questions about a number of topics which had been dealt with in the newspapers they had read. Then followed a series of questions the answers to which formed the basis of Professor Vidmar's conclusions and opinions. Participants were asked whether they could recall reading or hearing any news stories during the past two years that involved the illegal drug trade, such as heroin or cocaine in Australia. 97% of participants said that they could, and there were no significant differences between any of the four groups. Participants were then asked whether they could provide the names of persons associated with the stories and explain how they were so associated. 61 18% of participants in group A said that they could do so, compared with 40, 32 and 28% respectively in groups B, C and D. None of the participants mentioned the name Duong Van Ia. Two mentioned the name Uncle Six and one mentioned Duncan Lam, the other alleged drug boss featured on the first page of the edition complained of. Persons whose names were mentioned included the well-known criminals referred to more than once in the articles. 62 Participants were then asked whether they could give the names of any persons identified as "drug bosses". Those who said they could comprised 22, 30, 11 and 6% respectively of the four groups. One participant said "Uncle something", another said "someone Lam" and several referred to "Asian names" that they could not remember. Participants were able to remember the names of well-known Sydney criminals, however, 63 Participants were then asked to listen to a list of twenty names which were read in random sequence. Some of the names were well known. Two, namely Lan Tran Cao and Philip Tran, were invented by Professor Vidmar in order to try to identify prejudice which might exist among the participants towards anyone with a Vietnamese name. 64 15% of participants in group A recognised the name Duong Van Ia. Of the other groups, 10, 5 and 6% respectively recognised the name. Not all participants identified the name by reason of any connection mentioned in the publication complained of. Some thought that he was concerned with murder. Most recognising the name seem to have connected it with the drug trade. 65 37% of respondents in group A recognised the name Uncle Six, compared with 20, 11 and 6% respectively in the other groups. Most identified that person as being involved in the heroin trade. 66 The participants who recognised the name Duncan Lam comprised 24, 10, 11 and 17% respectively of the four groups. Most said that he was a drug boss or involved in the illegal drug trade. 67 19% of the participants in group A, 20% of group B, 21% of group C and 6% of group D said that they recognised the name Lan Tran Cao. Most connected the name with drugs. 68 The other fictitious name, Philip Tran, was asked about and 33% of the members of group A, 20% of group B, 26% of group C and 17% of group D readers said that they were familiar with the name. 69 The rate of identification of names of persons about whom media coverage was intense or prolonged was much higher than for the names I have just dealt with. This demonstrates the correctness of Dr Vidmar's opinion that repeated rehearsal of a fact is likely to produce a longer or more reliable memory of it. 70 The participants were then asked whether during the past two years they had read or heard anything about a Vietnamese immigrant called Lan Tran Cao, a Vietnamese immigrant called Duong Van Ia or someone named Uncle Six. They were asked whether there was any connection between Lan Tran Cao or Duong Van Ia or Uncle Six and any other person. They were asked the real name of the man called Uncle Six. 71 There was no significant increase in the rate of recognition of those three names over the rate that resulted from the earlier question about recognition of those names. One person identified Duong Van Ia as Uncle Six. 72 On these results Professor Vidmar based his opinion that public recall and recognition of the name Duong Van Ia was very low at what he called an absolute level and by comparison with names which had a appeared more extensively in the news media. He said that the survey results were consistent with other research results which he had studied. 73 Professor Vidmar also expressed the opinion, based on the alleged recognition by participants of the names Lan Tran Cao and Philip Tran that there was a strong suggestion of substantial levels of generic beliefs about Asians, particularly Vietnamese persons, being associated with organised crime and the drug trade. He pointed to the fact that in groups A and B recognition of the names Lan Tran Cao and Philip Tran was greater than that of Duong Van Ia. He concluded that two weeks after the publication of the "drug bosses" and "Uncle Six" articles there were "relatively little" recognition and recall memories of Duong Van Ia as a drug boss that could be separated from general assumptions about the involvement in drugs and other crimes of people with Vietnamese names. That did not mean that there was no recognition of the name Duong Van Ia, but that it was just as likely that there was an alternative explanation for the participants' asserted recognition of the name. 74 Professor Vidmar's last opinion calls for close examination, because there is evidence that may throw doubt upon it. First, the context in which the questions about Lan Tran Cao and Philip Tran were asked needs to be understood. By the time the fictitious names Lan Tran Cao and Philip Tran were introduced, participants had already been asked what stories they remembered about the illegal drug trade and whether they remembered the names of persons associated with it, and whether they could name persons identified as "drug bosses" or "heroin distributors". Then there was read to them a list of twenty names, including Lan Tran Cao and Philip Tran. The next question was whether during the past two years they had heard of a Vietnamese immigrant called Lan Tran Cao. 75 It seems to me that the context must have led the minds of the participants to an expectation that they would be asked about a Vietnamese person who had some connection with the illegal drug trade. Furthermore, the question suggested something that would have been true of Mr Duong, namely that Lan Tran Cao was a Vietnamese immigrant. I think, therefore that the false identification of Lan Tran Cao as having been connected with the drug trade must be given little weight. I would not regard it in context as giving rise to a reliable inference that there was a substantial level of generic belief about Asian, particularly Vietnamese, persons as being associated with organised crime and the drug trade. 76 Secondly, and more importantly, the names chosen as a control both contained the name Tran, a very common Vietnamese family name. A number of persons were dealt with by that name for serious offences in New South Wales within the period of time about which the participants were asked. Not all of those prosecutions may have been given wide publicity, of course, but one of them was. During 1998 an extended Coroner's inquest was held into the death of a member of the New South Wales Parliament, Mr John Newman, and the names of the defendants were widely publicised. One of them was Mr Tuan Van Tran. 77 When Mr Tran was committed to this Court for trial he applied for bail. One of his applications was heard on 12 January 1999. In the edition of the Sydney Morning Herald newspaper of 13 January 1999 the defendant published a substantial account of the application. It summarised the arguments put on behalf of the applicant and the Crown and quoted some of the remarks of the judge who determined the application. 78 The telephone survey was carried out between 29 January and 3 February 1999. One of the topics raised before the subject of illegal drugs was the murder of Mr Newman. Participants were asked whether they knew the names of any persons associated with the murder. 79 Although those claiming to recognise the name Lan Tran Cao did so primarily because they connected the name with drug dealing, other reasons were advanced as well, for example - "For drugs and murder;" "I've heard of it but again I'm not sure where, perhaps with the drug trade I think;" "Connected to Cabramatta;" "He was one of the people charged with the murder of the politician;" "Maybe Cabramatta but I don't know;" "Vietnamese, he'd done something wrong." 80 In a similar way, those claiming to identify the name Philip Tran did so because he was a drug dealer or was involved with the murder of Mr Newman. 81 In the circumstances I do not accept that the survey results demonstrate the existence in the community of any general assumption that Vietnamese persons are involved in drug or other crimes. I therefore reject the conclusion of Professor Vidmar that the survey results show that the "drug bosses" and "Uncle Six" articles resulted in relatively little recognition and recall memories of Mr Duong as a drug boss that could be separated from general assumptions about persons with Vietnamese names being involved in drugs and other crimes. 82 Professor Vidmar began his evidence with a concession that the figure of one person out of 79 who recognised the name Duong was "unreliable" and probably an underestimate of what would happen at a trial. He then pointed to some features of the survey which, he said, made for more conservative and therefore more reliable results. First, he said, and I understood it not to be challenged, that only about one-third of the relevant population reads the Sydney Morning Herald newspaper. The likely rate of recognition or memory retention in the jury population generally, therefore, should be taken to be only about one-third of the rate demonstrated in the survey. I think that the point is well taken. 83 Secondly, the telephone survey was carried out only two weeks after the participants read the newspapers they were given, whereas the trial of Mr Duong was not due to take place until five months after the publication complained of. During the intervening time, Professor Vidmar said, interpolated memory and other activities would occur, causing the memory of individuals to fade more and more. 84 There may be substance in this argument also, though it is difficult to know how great it is in view of the evidence of both experts that memory of the detail of an event rapidly diminishes unless there exist any of the features which may combine to produce long term memory. There was no attempt by the experts to quantify and compare the likely loss of memory after two weeks with the loss after five months or by any other means to compare the degree of memory loss likely to have been experienced after each of those two periods of time. The impression that I received from the evidence generally is that unless an event is of such interest or importance or of such a striking nature as to produce long term memory, little if any of it will remain in the memory after two weeks. On the other hand, if an individual creates long term memory of an event, whilst it seems reasonable to suppose that that memory will fade over a long time, it is difficult to say whether there will be any significant loss of memory between a time two weeks after the event and a time five months after the event. 85 Professor Vidmar also said that since participants in the survey must have anticipated that there would be questions about what they had read, they would be more likely than other readers to remember what they read, so the survey results would tend towards the conservative. He thought also that, since during the interview it must have become apparent that participants were being asked about drugs and drug bosses, they were likely to guess at answers providing responses consistent with what they anticipated might be the purpose of the study. That also would tend to increase the number of positive responses. 86 I agree that these factors would tend to make the survey results conservative. 87 There were other features of the survey which in my opinion tend to detract from the reliability of the results. I have already touched upon the question whether the number of participants was high enough to enable confident predictions to be made about the memory of members of the community from whom the jury was to be drawn. 88 The principal difficulty I have in giving effect to the survey results, however, lies in the difference between the conditions of the survey and the conditions that would prevail at a trial in New South Wales. There are several features of this difference. 89 First, the survey was carried out without any warning, other than an indication two weeks earlier that participants might be asked questions later on. So there was no possibility that the memories of participants might be stimulated by the repetition of relevant information between the two stages of the survey. 90 On the other hand, members of a jury know the name of the accused in advance. They are told at the beginning of the trial what the charges are and the facts the Crown proposes to prove. During the trial that follows they repeatedly hear, see and read things which may stimulate the memory. 91 Secondly, the questions in the survey formed the only possible means of memory stimulation for participants. At a trial the means of memory stimulation are many. 92 Next, the telephone survey was short and each question was asked only once. It was known at the time of publication that Mr Duong faced a substantial trial on two heroin charges that might reasonably be supposed to last for a number of days. (It is now known that Mr Duong's trial lasted nine days but I do not take that precise period into account because that fact was not then known.) At a trial which lasted for a number of days jurors would repeatedly see, hear and read material which might stimulate their memory of the articles. 93 Next, the photographs of Mr Duong were a striking and important feature of the publication. Not only were only reduced black and white versions of them seen by the participants. During the survey that followed they were shown no photographs at all. The jurors would see the accused, and perhaps even photographs of him, throughout the trial. I have not overlooked the observation of Dr Williams that identification or recognition of a live person from a photograph may be less reliable than from a face, but I am of the view that jurors having some memory of the article and the photographs would have a significantly greater chance of memory stimulation by seeing Mr Duong and remembering the photographs than would participants in the survey. 94 Next, the name of Duong Van Ia and the subject of drugs were never connected during the telephone survey. In the tenth question, participants were asked whether in the past two years they had read or heard anything about a Vietnamese immigrant named Duong Van Ia and about the context in which they had heard or read the name. It is true that in preceding questions participants had been asked about the illegal drug trade, about drug bosses and heroin distributors and had had read to them a list of twenty names, including Mr Duong's name. However, the two topics were never brought together in the way they would be at a trial. 95 This is not a criticism of the framer or the conductors of the survey. It is not difficult to understand why those designing surveys prefer to test unprompted memory. However, the distinction, which I think important, illustrates at once the impossibility of replicating trial conditions in a survey and the consequent difficulty about accepting survey results as a reliable indicator of what might happen at a trial. 96 Next, there is no way of assessing the degree of commitment of survey participants and whether they were prepared to make a genuine effort to answer fully and honestly. Those asking the questions had no control over such matters because they were out of the presence of those they interrogated. Since the participants were telephoned without warning, it must be supposed that they had other things on their minds and allowance must be made for the distraction caused by those and other things. Of 188 persons followed up, 42 could not be contacted or declined to take any further part, and this demonstrates that not every participant was wholeheartedly committed to the success of the survey. 97 There are well established methods of ensuring that the attention of jurors at a trial is not distracted. 98 Next, although it was conceded by Professor Vidmar that jurors might possibly recognise Mr Duong from biographical information written about him in the articles, there was no testing of recognition by such means. The articles mentioned Mr Duong's being a heavy gambler, being in the business of barbecuing pork for the restaurant trade and having a mistress called Kim. It is more than mere speculation to say that evidence of any of these matters might have become admissible at the trial, giving jurors a further means of recognising the accused as the man written about. 99 Next, the article was not current news and therefore lacked the interest which current news may have by the time it was read by participants in the survey. For that reason it was less likely to be memorable to them. 100 Next, because by January and February 1999 the subject of the article was no longer current, the possibility can be excluded of survey participants reading or hearing anything about the subject matter between the time they read the newspapers they were given and the time they were asked questions over the telephone. The position with jurors would be quite different. Jurors who read the article may well have owned the copy of the newspaper which contained it. It was more than a mere sensational piece of news reporting. It was a special report of an investigation, being the first in a promised series. It contained indications about the content of forthcoming publications. For that reason alone it might have been kept by some of those who read it. It might have been re-read between the date of publication and the date of trial, especially within the first few days after publication. 101 Furthermore, there were in the news media further references to the article which might have reinforced memory of it. The article was critically mentioned in the ABC television program "Media Watch" on 3 November 1997 and was reprinted in the Vietnamese language in the Vietnamese newspaper Dan Viet, the Vietnamese Tribune, on 30 October 1997. 102 Professor Vidmar conceded in cross-examination that the more distinctions there were between the survey and the real life situation the more the validity of the conclusions drawn from the survey were decreased. I have come to the view that the limitations on the survey were so great and the differences between the conditions of the survey and those which would apply at a trial were so marked that the survey results cannot form the basis for any reasonable conclusion that there was a small likelihood as a matter of practical reality that the material complained of had significant adverse effects at the trial of Mr Duong on the beliefs and attitudes of persons exposed to them. Insofar as Professor Vidmar relies on his survey results to justify that opinion, I reject his opinion. I am not satisfied that he has demonstrated any basis independent of his survey results as reasonably supporting that opinion. 103 Moreover, certain of the survey results show the opposite of the position contended for by the defendant. 11 members of group A recognised the name Duong Van Ia, seven of them in connection with drugs. 25 recognised the nickname Uncle Six, 22 of them in connection with drugs. I accept the analysis and submissions of counsel for the plaintiff that it follows from these results that 27 of the 79 members of group A identified either Duong Van Ia or Uncle Six as a person connected with drugs. That, it seems to me, is a high rate of recognition. Whether the publication had the tendency asserted by the plaintiff 104 My rejection of the opinions of Dr Williams and Professor Vidmar does not determine the matter, however. I must be satisfied beyond reasonable doubt that the material complained of did have the tendency contended for. 105 There could scarcely be more prejudicial statements than those contained in the articles about a man facing charges concerning the supply of heroin. He is described as a drug boss and a top heroin distributor, a "Mr Big". And is said to be targeted by police as the country's largest heroin distributor. He is said to have a network which has become the major outlet for heroin in western Sydney. All those statements appear on the front page of the newspaper. 106 On page 6 he is called a "drug czar". 107 On page 7 he is called one of "the Mr Bigs", is said to have become a major drug distributor at Cabramatta since the late 1980s, to be the top heroin distributor, to control the largest slice of Australia's drug market, to have headed a list of suspected criminals the Police Commissioner wants banned from the Sydney Harbour Casino, to have begun trading directly with heroin importers and to have begun partly financing his own importation of heroin with the help of an important Chinese Australian criminal. He is said to have a practice of buying heroin in amounts of ten to twenty kilograms at $200,000 per kilogram and selling it to upper level street dealers. 108 The statements I have summarised are highly prejudicial. If any juror at Mr Duong's trial remembered any of them he would not in my opinion receive a fair trial. 109 Dr Williams and Professor Vidmar drew attention to the preparedness of jurors faithfully to follow the directions of the trial judge, including directions to put out of their minds any material other than that presented to them in the court room. There might be cases where the prejudice of a possibly contemptuous article might be cured in such a manner, but this is not one of them. In my opinion no direction to a jury could cure the prejudice flowing from these articles. 110 Counsel for the defendant put forward another of Professor Vidmar's survey results as demonstrating the shortness of the public memory for names. During 1998 the condition of water supplies to the Sydney metropolitan area became the subject of public comment. Citizens were advised alternately that water was fit to drink and not fit to drink. Those responsible for the water undertaking came under intense criticism. Mr David Hill, the Chairman, was well known as being active in political circles. He was a former managing director of the Australian Broadcasting Corporation and had for a time been chief executive of the State Rail Authority. He continued for other reasons to be prominent in news reporting after the end of the water crisis. The managing director of the water undertaking, Mr Chris Pollett, was not well known. One result of the affair was that he resigned from his position and thereafter fell from the public gaze. 111 The survey results showed that Mr Hill was remembered by a high proportion of participants but that Mr Pollett's recognition level was low. 112 Whilst these results demonstrate that the names of well known persons are likely to be remembered better and longer than those of other persons, I do not think that they assist the defendant. One of the principal purposes of the publication complained of was to call attention to the change in control of the illicit drug industry. The names and descriptions of the actors were central to that purpose. During the water crisis, on the other hand, public reporting and comment were concerned more with the appropriateness of the activities of the undertaking and whether the undertaking was accurately reporting the facts to the public. The names of persons occupying executive positions in the undertaking may not have been unimportant, but they were of only incidental interest. 113 The striking and unusual way in which the articles were presented made them more memorable than ordinary leading newspaper articles. Mr Duong's photograph on the front page was unusually large, in colour and of good quality. It was repeated on page 7 and on the same page appeared a different good quality colour photograph of Mr Duong, taken from a different angle. Both photographs were of the face only. They were likely to assist in recognition. 114 The articles contain other information about Mr Duong which, seen from the date of the publication, might have been introduced into evidence at the trial. They were that he was a Vietnamese refugee, that he came from Cabramatta, that he was a businessman barbecuing pork for the restaurant trade, that he lived at Bonnyrigg Heights, that he was known as "Uncle Six" and that he had a mistress called Miss Kim. 115 The articles were intended to be noticed and remembered. They were intended to be read as a series, of which this was the first. So they contained indications of what was to follow. One of the indications, appearing at the end of the article on page 7, was that Mr Duong was going to be tried on the heroin charges. 116 Professor Vidmar pointed out that many newspaper readers tend only to scan articles and to pay more attention to the earlier than the later parts of articles. I accept that that may be so, but these articles were different in that they formed part of a series. At the end of the front page article about Mr Lam there was a reference to page 6. There was a reference to something the Australian Federal Police Commissioner was going to say on page 6. Under the photograph and statements about Mr Duong there was a reference to page 7. At the end of the article on page 7 about Mr Duong, immediately under the trial reference, was the heading "TOMORROW", followed by the words "The carve-up of Kings Cross". So readers' eyes were drawn to the end of the article as part of the scheme of the series. 117 As I have already observed, Dr Williams and Professor Vidmar appear to have approached the matter as though the question were whether any one juror would be prejudiced after reading the articles, though there is some doubt whether Dr Williams was even prepared to go so far. I am satisfied, however, that the proper question is whether any one out of twelve people randomly selected from the population would be prejudiced. There seems now to be agreement that the probability of any one person out of twelve randomly selected being prejudiced is eleven times greater than that any one person randomly selected would be so prejudiced. 118 The articles were permanent in that they were printed and could be kept, read and re-read. They were in a form designed to attract a re-reading because they formed part of a series. 119 They were referred to again in the "Media Watch" television program and in the Vietnamese newspaper. Such further references were likely to increase the probability of memory. 120 As I have observed, a high proportion of survey participants identified either Duong Van Ia or Uncle Six as a person connected with drugs. 121 In view of these matters I am satisfied beyond reasonable doubt that as a matter of practical reality the articles had the tendency to interfere with the due course of justice at Mr Duong's trial, not withstanding that it was not due to take place for a further five months. The public interest defence 122 The defendant by its counsel submits that it did no more than it was entitled to do in discussing a matter of great public concern. This was "the discussion of public affairs and the denunciation of public abuses, actual or supposed" referred to by Jordan CJ in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Limited (1937) 37 SR (NSW) 242 at 249. 123 Freedom of speech, public discussion and information should not be qualified except in the face of public interest of equal or greater importance. Victoria v Australian Building Construction Employees and Builders Labourer Federation (1982) 152 CLR 25 per Mason J at 98. 124 The right of freedom of speech is not absolute, however, and the law curbs freedom of speech where it is necessary to do so to prevent a real and substantial prejudice to the administration of justice. Hinch v Attorney General (Vic) per Wilson J at 41. 125 The public interest in ensuring that criminal proceedings are conducted free of prejudice will attract great weight and make it less likely that public interest in the freedom of discussion of matters will outweigh it. Hinch v Attorney General (Vic) per Wilson J at 37. 126 That does not mean, however, that the defence cannot succeed if criminal proceedings are affected. The whole of the circumstances of the publication and its relationship if any to the relevant trial must be considered. The ultimate practical question is whether it is reasonably open to say that the detriment to the trial is outweighed by the public interest in freedom of communication. The plaintiff must prove that it is not. Hinch v Attorney General (Vic) per Deane J at 51. 127 The content of the articles may be summarised as follows. The persons controlling crime, particularly drug crime, were changing. The old controllers had passed on for various reasons. The new ones included Mr Duong and Duncan Lam. A cultural and financial revolution had taken place, resulting in that change. The Federal Police Commissioner estimated that between two and three thousand kilograms of heroin were imported annually, worth up to $3 billion, and that only 220 kilograms had been ceased in the last year. The Federal Police could investigate only one in six or seven major heroin trafficking syndicates, the result of the size and worldwide nature of the drug trafficking industry and the inadequacy of law enforcement resources in Australia. The Government had pegged or reduced the amount of money available for law enforcement. Chinatown was the seat of major heroin dealing and Cabramatta was the place where it was distributed by Vietnamese persons. Mr Duong rose to prominence after the gaoling of Salvatore Lapa in 1993. 128 It seems to me that the articles and the editorial dealt with matters of substantial public interest. Although the article about Mr Duong discussed his current activities and details of his personal life, there was no discussion of the facts or circumstances of the charges pending against him. His guilt or innocence of those charges was not mentioned. 129 Nevertheless, it was submitted on behalf of the plaintiff that the statements about Mr Duong's being a major heroin distributor and having been involved in large scale drug operations implied that he was guilty of the charges. 130 If the articles had been about the commission by Mr Duong or others of particular, named offences, there might have been substance in that submission. But I think that the articles were really about personalities and control. Although a statement, in the context of the trial of an accused for a particular offence, that that accused has committed similar offences may prejudice the accused at his trial, that is a less serious thing to say than that the accused is guilty of the very offences for which he is to be tried. No such thing is implied in the material complained of. 131 I do not accept the plaintiff's submission that the public interest in the discussion of such matters as these was of little relevance and weight or that there was no public interest in the naming of a man who was not well known. The discussion was about the emergence of new leaders of the illicit drug industry. In my opinion, the naming of the successors was an integral part of the discussion and as pertinent as the naming of those succeeded. 132 It was not submitted that the defendant had any intent to interfere with Mr Duong's trial. I am satisfied that there was no such intent. 133 The mention of the charges, however, is a matter of concern, because one of the effects was to potentiate interference with the administration of justice at the trial insofar as it was likely to provide a link within the memories of persons forming the jury between the subject in the article and the identity of Mr Duong at the trial. It played no part in the discussion of matters which were in the public domain. It was extremely careless and ought not to have happened. However, that does not change my view that the prejudicial effect of the articles was incidental and unintended. 134 The articles were part of a substantial series of articles dealing with subject matter of substantial broad public interest. The trial was likely to raise narrower issues which were only incidental to those canvassed in the articles. In view of these matters and the other matters I have dealt with I think that it is reasonably open to say that the detriment to the trial was outweighed by the public interest in the freedom of communication. 135 I am not satisfied that the plaintiff has negated the defence of public interest. 136 The summons is dismissed. The plaintiff must pay the defendants' costs. I grant liberty to the parties to apply for an assessment of costs. ********** Last Modified: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.