Contempt and Public Interest as an incidental but not intended Robin Bowiey, in this paper which received by-product, cause some likelihood an honourable mention in the 2005 CAM LA of prejudice to a person who hap­ pens at the time to be a litigant ...It Assay Prize, advocates dearer rules regarding is well settled that a person cannot be prevented by process of contempt sub judice contempt. from continuing to discuss publicly a matter which may fairly be regarded Introduction "The conflict between freedom of as one of public interest, by reason speech and the proper administra­ of the fact that the matter in ques­ The law of sub judice contempt strivesto tion of justice is most likely to arise tion has become the subject of litiga­ balance the right to freedom of speech when a media organisation pub­ tion."8 ' . and discussion of matters of public inter­ lishes material which may interfere Walker explains that until the High Court's est with the right for persons facing legal with the course of particular legal decision in Hinch, there was considerable proceedings to have a fair trial, unpreju­ proceedings. Typically, those respon­ uncertainty regarding the practical appli­ diced by media comment. Striking a sible will not intend to prejudice the cation of the Breadmakers principle, with balance between these two interests is proceedings. They may have been some courts viewing the principle as an a difficult task, which in Australia, has motivated solely by a desire to bring inflexible rule.9 In Hinch it was held that been addressed by the common law over to the attention of the public mat­ courts must engage in a "balancing exer­ time. While a number of 'decisions have ters of public interest and concern. cise" between the two competing interests considered how the balance should be Nonetheless, [in doing so] they may to satisfy themselves beyond reasonable maintained, no authoritative guidance ' be guilty of a criminal offence under doubt that the public interest in freedom has yet been developed in Australia, with that branch of taw in Australia known of speech outweighs the public interest in considerable uncertainty still surrounding as sub judice contempt."5 the administration of justice.10 However, the questions of when a publication1 will Courts are left with little (if any) guidance offend the sub judice rule, and when the Examples of publications that might "public interest" defence will be available. offend the sub judice rule include asser­ on how this balancing exercise should be The present law. of sub judice contempt tions that a person facing legal proceed­ undertaken. The test formulated by the raises more questions than answers. ings was innocent of the charges: DPP v majority of the High Court in Hinch to Wran (1986) 7 NSWLR616, or that he/she determine if a publication is prejudicial is in order to provide better guidance to was guilty: Hinch vAttorney General (Vic­ that the publication must: the media and as a result, avoid costly toria) (1987) 164 CLR 15 (Hinch). How­ " ... have a "real and definite ten­ and time-consuming litigation, and at the ever as this paper will show, the question dency" as a "matter of practical real­ same time, allow the media to publish of what publications will offend the sub ity" to "preclude or prejudice the fair and broadcast with greater'confidence judice rule is far from certain. and without fear of being found to be in and effective administration of justice contempt of court, greater certainty must The "Public Interest" Defence in the relevant trial."11 be created. In essence, this article consid­ In light of the common laws recognition In the Hinch decision, Mason G differed ers that prevention is better than cure, and that freedom of speech is a highly val­ from the majority in his preference that: that such prevention can only be achieved ued principle, the public interest defence through making the rules, on sub judice "... there was a substantial risk that has developed.6 Walker explains that 'the contempt clear and readily understood the published material would come "public interest defence" allows Austra­ by the media, courts and the community to the attention of one or lian courts to make a finding that a media alike.' more members of the jury in the rel­ publication contains information that has evant proceedings, and through so a "real and substantial risk" of causing doing, would cause real or serious Sub Judice Contempt: prejudice to the proceedings, but does prejudice to the fair conduct of those not amount to a contempt because the An overview of its proceedings."'2 development information relates to a matter of great public importance and interest.'7 The "substantial risk" test is the preferable The Sub Judice Rule test to be applied to determine if there is The first authoritative statement on the sub judice contempt. This is one of the "public interest defence" in Australian sub Essentially, the law of sub judice contempt major uncertainties in the Australian law judice law was enunciated by Jordan G in aims to safeguard the public interest in the of sub judice contempt, and Felicity Rob­ proper administration of justice through Ex parte Bread Manufacturers Ltd (1937) inson explains that: ensuring a fair trial.2 The rule prohibits 37 SR(NSW) 242 (Breadmakers), who the publication of prejudicial information held that: "The question that arises from the about a case that is currently being heard [five separate] judgments in Hinch v " [djiscussion of public affairs and the or is pending hearing in Court.3 The prin­ Attorney General (Victoria) (1997) is detriment of public abuses actual cipal source of sub judice contempt law in what constitutes a substantial public or supposed, cannot be required to Australia remains the common law.4 Com­ interest. The problem with the bal­ be suspended merely, because the mentator Sally Walker explains the opera­ ancing approach is that what it gains discussion or the denunciation may, tion of the sub judice rule: in flexibility it loses in subjectivity. The Communications Law Bulletin, Vol 24 N° 4 2006 Page 15 High Court has only provided limited and] introduce' "trial by media" just advance whether they will be pros­ examples of what issues may tilt the reform of the law of contempt."2' ecuted. Furthermore, the more gen­ scales in favour of the public inter­ eral reliance placed on the exercise of est defence, namely a 'major consti­ It is to this question of reforming the law prosecutorial discretion, the greater of sub judice contempt that the paper will tutional crisis' or 'imminent threat the likelihood of complaints of selec­ of nuclear disasterV3 Consequently, now turn. tive prosecution."25 media organisations are left in a situ­ Better guidance is therefore needed. DP 43 ation of uncertainty because they are The Case for Law Reform attempts to remedy this void by providing unable to gauge when a court may There is need for greater certainty and bal­ deem a particular topic to be of suf­ some guidance on the practical meaning ance in the Australian law of sub judice of the term "substantial public interest". ficient public interest to escape a contempt. Since 1980, there have been charge of contempt."14 more than 20 cases where allegedly preju­ PROPOSAL 20 dicial material has been published which Nature of the media industry Legislation should provide for a has necessitated the discharge of the jury defence to a charge of sub judice The "uncertainty" that Robinson refers to after it has been empanelled.22 above is undesirable? for the media, the contempt on the basis that the pub­ courts and the community in general. It DP 43 and other publications both in Aus­ lication the subject of the charge was must be remembered that the media is a tralia and overseas, while recommending reasonably necessary or desirable to time sensitive organisation, which survives that the sub judice rule be retained23, have facilitate the arrest of a person, to on publicizing "newsworthy" occurrences, proposed a number of solutions, which protect the safety of a person or of and as most media organisations are run are examined below. The following discus­ the public, or to facilitate investiga­ to make a profit, there will frequently be sion focuses on three main issues, namely tions into an alleged criminal offence. considerable pressure on media staff to The burden of proving this should be • what constitutes a matter of "sub­ on the defendant in contempt pro­ find and publicise such occurrences.15 stantial public interest" Many staff within media organisations are ceedings, to prove on the balance of not legally trained16, and without the aid • what factors will determine when a probabilities. of expert legal advice may not be equipped publication is in breach of the sub It appears that this proposal would pro­ to understand the presently complicated judice rule, focusing on the recom­ vide far more effective guidance than the and haphazard Australian law of sub mendation to change the test from present common law does, and ought to judice contempt. a "tendency to prejudice" to depend be adopted. on a "substantial risk of prejudice" Litigation resulting from avoidable con­ How a publication will offend tempt situations can be costly and time­ • the necessity for there to be fault the sub judice rule: replacing the consuming, and is therefore best avoided liability, and defences that should be "tendency to prejudice" requirement through making sub judice law clearer, available to publishers charged with with "substantial risk of prejudice" more consistent and better understood by sub judice contempt lawyers and lay people alike.