AUSTRALIAN PRESS COUNCIL NEWS, MAY, 1989 5 Contempt of court and the media Peter Gillies writes about the suppression o f public comment in light o f the H indi case.

he decision o f the High Court in Hinch v A-G (Vic) and Macquarie T Broadcasting Holdings (Ltd) v A- G(Vic) (1987) 164 CLR 15 deals with the commission of contempt at com­ mon law in one of its several cate­ gories, viz. the publication of material in a situation where such publication tends to prejudice the fairness o f par­ ticular legal proceedings. It can be committed in relation to criminal and c ivil proceedings. As the High Court confirmed in this case, the matters which must be proven are the same whether prejudice tMelbourne, which was Foundation having regard to his Hinch and his employer, the second owned and operated by Macquarie responsibility to take children into his dlefendant, in which prejudice was Broadcasting Holdings Ltd, in which care, when he had a sexual ailleged to have been caused in relation he referred to the fact that Glennon criminal record involving juveniles. no the prospective trial of a person had been charged with offences Hinch made a second broadcast on charged with certain criminal offences. against teenage boys. He referred to the case the following day, repeating What the case confirms is that discus­ Glennon's position as director o f the the gist o f the previous day's comments sion by the media or for that matter Foundation, and among other things and observing that the Foundation's piublic comment by other persons, in noted that the offences charged had secretary had confirmed that Glennon terms potentially influential in relation allegedly been committed between would be remaining in his position. tio the outcome o f litigation involving 1975 and 1982 at the Foundation's "That is, despite a jail sentence for t;hem, needs to be conducted with camp at Lancefield. indecent assault, the man will stay in gp~eat caution. Hinch stated that Glennon had that position", Hinch said. He again been "forced to resign from practising queried this as being anomalous. TTHE FACTS within the Catholic Church after he On 17 February, 1986 the Victorian Broadly, the facts in the case were was charged with sexual assault and Attorney-General filed a motion alleg­ tlhat one Father Michael Glennon, who jailed in 1978". He also said that ing that Hinch and Macquarie hiad been ordained as a Catholic priest, Glennon had been charged with rape Broadcasting had committed con­ was charged on 12 November, 1985 in 1978 and that when he pleaded tempt. The motion was adjourned. with certain sexual offences against guity to indecent assault o f a 16 year Then on 7 March, Glennon was y/oung male persons. He was remanded old girl, the police had not proceeded charged with two counts o f indecent tco appear on bail at a later date. At the with the rape charge. Hinch observed assault o f a female and one o f rape and tiime, Glennon was in charge o f the that Glennon had been sentenced to was bailed to appear at a later date. Peaceful Hand Youth Foundation Pty two years imprisonment on the charge The offences were alleged to have Ltd, an organisation which conducted to which he pleaded guilty, and that he been com m itted in 1982. On 11 children's camps and other activities was later acquitted on two counts o f March, Hinch made a third broadcast fcor children. rape involving a 12 year old boy. in which he again referred to the mat­ The next day following the charging At the end o f his comments Hinch ters previously raised by him and to the o)f Glennon, the broadcaster Derryn raised the question of how it was that latest charges and repeated the ques­ 6 AUSTRALIAN PRESS COUNCIL NEWS, r, 1989 tion previously asked by him. tion o f justice with the public interest factors as the nature and extent o f tie The Attorney-General filed a second in free speech and in particular the dis­ publication, the mode of trial (whether motion against the defendants, alleg­ cussion of issues of public interest. by judge or jury), and the time which ing a contempt in the form o f this Where the first interest was the more will elapse between publication and broadcast. The motions were heard by weighty in the particular case and the trial (where the comment is prior to Murphy J in the Supreme Court of elements of contempt had otherwise and not during the trial). Judges are Victoria. He found the defendants been established, then the publisher properly viewed as having a relati/e guilty o f the contempts charged and (including the person responsible for immunity from being unduly influ­ imposed fines totalling $55,000 on the comment) would prima facie be enced by intrusive commentary bear­ Macquarie and $25,000 on Hinch. As guilty o f contempt. ing upon litigation, while lay jurors well, Hinch was sentenced to 42 days In the Hinch-Macquarie case, the trial may be more readily given to conse­ imprisonment. On appeal to the Full judge and the two appellate courts quential prejudice. Court, the verdicts were confirmed, were o f the view that the contempt had The accused need not have a literal but the sentence o f imprisonment was been proven, viz. that the elements of intention to interfere improperly in reduced to 28 days, and the fines were the administration of justice, although reduced in each case by $10,000. certainly the act complained o f (tke Each party then appealed to the “What was objectionable publication) must be intentionally High Court. The core issue in each in the broadcasts? committed. It follows that absence of appeal was the element of criminal an intention improperly to deflect the contempt. The comments on this mat­ A primary complaint course o f justice will not in itself save ter in the leading case o f Ex part e the accused from conviction where the Bread Manufacturers Ltd; Re Truth & according to the courts other elements o f contempt are pre­ Sportsman Ltd (1937) 37 SR(NSW) 242 sent. per Jordan CJ were put directly in was that Hinch had The time for assessing whether a issue. contempt has been committed is the disclosed that Glennon time of publication, not some later SCOPE OF THE OFFENCE had a prior conviction of time, ie. a publication which is not con­ The five High Court Justices temptuous does not become a con­ involved in the appeal held that the a serious nature (for tempt merely because o f later develop­ comments by Jordan CJ in the New ments. South Wales case o f Re Truth and sexual assault) ” Sportsman Ltd in describing the ele­ contempt were established beyond rea­ ments o f the offence in the context o f APPLYING THE LAW TO sonable doubt (the criminal standard publication concerning a prospective THE FACTS IN HINCH o f proof must be satisfied, contempt or current civil trial, applied equally to In the Hinch case, as mentioned, the being a crime), and that in particular, the publication of comments concern­ trial judge and the two appellate courts this balancing process was ing a criminal trial. found against the defendants. What unfavourable to the appellants (the The central passage in Re Truth is at was decisive was the perceived out­ original defendants). pp249-50. In it, Chief Justice Jordan come o f the balancing process referred noted that it is o f extreme public inter­ What are the elements o f contempt to. What was objectionable in the est that no conduct should be permit­ in this context then, and why was the broadcasts? A primary complaint ted which is likely to prevent a litigant balancing process unfavourable to the according to the courts was that Hinch in a court from having his case tried defendants? had disclosed that Glennon had a free o f prejudice (such as could arise The published matter must, as prior conviction o f a serious nature from the publication o f certain com­ Mason CJ suggested in the High Court (for sexual assault). It is a basic rule of ment on the case). But, he noted, the be such as to create a "real risk" o f evidence that in a criminal (and due administration o f justice is not the interference with the due course of jus­ indeed a civil) trial, that evidence of only matter in which the public is vital­ tice in the particular case which the the past commission of crimes by a per­ ly interested; and if in the course o f comment relates to: the comment son accused at trial of another crime ventilation of a question o f public con­ must "as a matter of practical reality", (or a civil wrong), cannot be put cern, matter is published which may have "a tendency to interfere with the before the court. prejudice a party in the conduct o f a due course o f justice in a particular So, to illustrate, if a person is lawsuit, it does not follow that a con­ case". Not just any trifling interference, charged with committing a robbery in tempt has been committed. then, with no real potential for mis­ 1989, it is improper to prove that he It is well settled that a person cannot chief, will suffice for proving contempt committed robbery in 1987, 1985 or be prevented by a process o f contempt beyond reasonable doubt. 1983. Clearly, this evidence is relevant from continuing to discuss publicly a Further, the balancing process - if a person has a history, say, of com­ matter which may fairly be regarded as referred to must be decisively against mitting robbery, it is more likely that being of public interest merely because the accused person (remembering that he committed the robbery charged the matter in question has become the the onus o f proof is on the prosecu­ than it would be if he had no such his­ subject o f litigation or that a person tion, and it must prove all, not just tory. The evidence shows criminal whose conduct is being publicly criti­ some o f the elements o f the offence propensity, and of even more rele­ cised has become a party to litigation. beyond reasonable doubt). In deter­ vance, propensity to commit a crime of What Jordan CJ envisaged would have mining whether in a case like Hinch the very type charged. to be done in such a case where con­ the balancing process favoured the However, except in the most unusu­ tempt was alleged, was to balance the comments in question, or was hostile al cases, the law will not allow this type public interest in the due administra­ to them, regard is to be had to such o f evidence to be led. The reason is AUSTRALIAN PRESS COUNCIL NEWS, MAY, 1989 7

that the prejudice which it would cre­ was rejected by the court (see in partic­ reasons mentioned earlier: that is, the ate in the minds o f a jury (or even a ular TooheyJ's comments at p.75). It is presumed superior ability o f an experi­ judge or magistrate trying the charge relevant then to look at the means enced judicial officer to put out of summarily) is so great that it would available to a person contemplating a mind prejudicial matter generated out make the trial o f the charge unfair. publication of potentially prejudicial o f court. • There would be a real risk that a jury matter: is there something short of the might convict the accused not because publication of what is prima facie con­ of the strength of the evidence relating temptuous material, which can be solely to the charge presently before done to serve the public interest they the court, but because o f the past are concerned to promote? INTERNATIONAL crimes of the accused. CONFERENCE The revelation by Hinch, therefore, CONCLUSION was potentially prejudicial - the broad­ An international conference on cast was to many thousands o f people The tenor o f the High Court's judg­ press councils and press regulatory in the city from which a jury would be ment in this case (or more strictly, the bodies is to be held in Kuala Lumpur drawn, assuming the charges against five unanimous judgments) is over- between 18-20 November, 1989. Glennon went to trial. The likelihood Organised by the World Federation o f UNESCO Clubs and Associations, is that one at least o f the jurors would “Hinch could have confined remember the broadcast and commu­ the con feren ce has as its them e nicate the fact of Glennon's past con­ his comments to observing 'Freedom of the Press and the Role of viction for sexual assault to the others. that Glennon was director of Press Councils'. Representatives o f the Australian media are invited to attend Another factor adverse to the defen­ the Foundation and that he the conference as observers, and the dants, was, as certain justices saw it, Federation will provide meals and con­ Hinch's insinuation that the priest was had recendy been charged ference materials to observers without indeed guilty o f the fresh (and yet to with sexual offences against charge during the conference. be tried) charges. TooheyJ saw this as juveniles” No conference fees are charged to the factor principally adverse to the observers. defendants. It is self-evidently a matter whelmingly favourable to what was prejudicial to a person facing the seen as the fundamental right o f the prospect o f trial, that observations as to citizen to a fair trial o f an allegation his guilt are being published to poten­ against him or her by the suppression tial jurors or for that matter, jurors cur­ o f public comment creating a real risk PRESS COUNCIL rently trying his case. of prejudice to this right. Where trials On the other side of the ledger, the o f serious criminal charges are con­ If you have a complaint against a factor favourable to the defendants in cerned, it is apparent that the compet­ newspaper or periodical, you balancing the competing public inter­ ing public interest in free speech and should first take it up with the edi­ ests referred to, was what the defen­ the free ventilation o f public-interest tor or other representative of the dants identified as the public interest issues will uncommonly justify publica­ publication. in disclosing the fact that the director tions which prima facie are contemptu­ If the complaint is not resolved to of a youth community organisation ous. Illustrations of publications which your satisfaction, you may refer it to had not only been recently charged would (or might) not amount to con­ the Australian Press Council. with sexual assaults against juveniles tempt through application o f this bal­ A complaint must be specific, in but that he had been convicted of a ancing process, given in Hinch, con­ writing, and accompanied by a cut­ sexual assault on a young girl. firm this conclusion. ting or clear photostat of the matter In the view o f the court, however, It is worth noting that the Hinch complained of, with supporting doc­ the public interest in preventing preju­ uments or evidence if any. case dealt with a publication bearing dice to the priest's prospects o f a fair Complaints must be lodged within trial on the outstanding charges, out­ upon a prospective criminal trial or tri­ als. The courts have always been excep­ three months o f publication. weighed the public interest in broad­ The Council will not hear a com­ casting the matters of his personal his- tionally meticulous in safeguarding the right o f the accused to a fair trial o f the plaint subject to legal action or, in tory identified by Hinch. It was the Council's view, possible legal undoubtedly a matter of influence with criminal charge against him or her; in comparison, the conduct o f civil pro­ action, unless the complainant is the several courts that dealt with the willing to sign a waiver of the right matter, that Hinch could have con­ ceedings is relatively more relaxed for the very good reason that the liberty of to such action. fined his comments to observing that Address complaints or inquiries to: G lennon was director o f the the citizen and his or her reputation Foundation and that he had recently are not at stake (or in so far as reputa­ The Secretary been charged with sexual offences tion is concerned, not as much at The Australian Press Council against juveniles — observations stake). Suite 302, 149 Castlereagh Street which could not have amounted to A further relevant factor (one apply­ Sydney NSW 2000 contempt. The appellants' contention ing particularly to civil proceedings, For information or advice tele­ that this might not have been enough where jury trial is less common than in phone: (02) 261 1930. to alert the public (in particular the criminal cases) is, as noted in Hinch, A booklet setting out the aims, prac­ parents o f children involved in the the form of the trial itself. Comment tices and procedures of the Council Foundation) to the inappropriateness relating to a matter which is to be tried is available free from the above of Glennon continuing in the position summarily will more readily "balance" address. while the charges were outstanding, in favour of the commentator for the