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 t<o criminal or civil litigation is alleged. Contempt is of course a criminal offence, although it is tried summarily, ite. by a court sitting without a jury, in which the judge decides both the ques­ PHOTO COURTESY SYDNEY MORNING HERALD Derryn Hinch tions o f law and those o f fact, including tlhe ultimate one o f guilt. In Hinch's case the conduct com­ Hinch made a broadcast on Radio Glennon had continued to run the plained o f was several broadcasts by Station 3AW, Melbourne, 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.